International Criminal Law Flashcards
What was the ‘London Agreement’?
In 1945, the Allied powers (Britain, Soviet Union, France and the US) concluded this agreement and established the ‘International Military Tribunal’/ Nuremberg Tribunal.
This provided for the prosecution of war crimes, crimes against humanity and crimes against peace.
What did the UN adopt in 1948?
- the UN Human Rights Declaration
- Genocide Convention (which contemplated an ‘international penal tribunal’)
What was included in the draft statute for the international criminal court?
This Court would not only have jurisdiction over genocide, war crimes, crimes against humanity and aggression, but also over certain “treaty crimes” such as terrorism and drug offences found in the UN Conventions.
What is an ‘international crime’?
It is a breach of international rules that could be found either in CIL, international conventions or treaties.
These crimes firstly include ‘core crimes’, such as genocide and crimes against humanity.
They can also include ‘treaty crimes’/ crimes of international concern. These are often transnational crimes and include drug trafficking and money laundering. These may only fall under the ICC’s jurisdiction if they fall within the category of crimes against humanity.
Where does our law incorporate the ICL prosecution of core crimes?
Sections 54A - 54I of the Criminal Code
What is the difference between Transnational Organised Crimes (TOC) and Core Crimes
TOCs are fought by the state, the state must always be the victim of these crimes and thus cannot be the perpetrator. The perpetrator in a TOC, such as terrorism, is a criminal organisation, whose ultimate objective is not political.
Core crimes are perpetrated against a group or by a group, but TOCs are perpetrated by an organised group which does not have state-like features.
Article 1 of the Genocide Convention
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to PREVENT and PUNISH.
What is the actus reus of genocide?
Article 2 of Genocide Convention:
a) killing members of the group
b) causing serious bodily harm or mental harm to members of the group
c) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part
d) imposing measures intended to prevent births within the group
e) Forcibly transferring children of the group to another group.
What is the mens rea of genocide?
- the crime was committed with INTENT to destroy, in whole or in part, a national, ethnical, racial or religious group. This is the dolus specialis.
How can the mens rea of genocide be proven?
By the ‘presumptions of fact’, such as in the Akayesu case. These can be inferred from the actions of a group, usually:
- Scale of the atrocities
- Nature of the atrocities
- Geographical context
- Selective targeting
What are ‘crimes against humanity’?
According to Article 7 of the Rome Statute, crimes against humanity means any of the following acts,WHEN committed as part of a WIDESPREAD or SYSTEMATIC attack on a civilian population, with knowledge of the attack:
a) murder
b) extermination
c) enslavement
d) deportation or forcible transfer of population
torture, rape, sexual slavery, enforced prostitution, the crime of apertheid etc.
k) and other inhumane acts of a similar character
What are ‘war crimes’?
War crimes depend upon the existence of an armed conflict, and are regulated by the Geneva Conventions of 1949, which regulate the conduct of armed conflict .
Article 2 of the ICTY lists ‘grave breaches of the Geneva Conventions’ as:
a) wilful killing
b) torture or inhuman treatment, including biological experiments
c) wilfully causing great suffering or serious injury
d) unjustified and extensive destruction and appropriation of property
e) compelling a prisoner of war or a civilian to serve in the forces as a hostile power
f) wilfully depriving a prisoner of war or civilian of a right to a fair trial.
g) unlawful deportation/transfer/unlawful confinement of a civilian
h) taking civilians as hostages.
Article 8 of the Rome Statute lists war such war crimes and states that “The Court shall have jurisdiction in respect to war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
What is a ‘crime of aggression’?
A definition to the crime of aggression was first discussed at the Review Conference in Uganda in June 2010. This is now included in the statute and requires that such an act to constitute a ‘manifest violation’ of the UN Charter by its character (Article 8 of Rome Statute)
Paragraph 2 notes that an ‘act of aggression’ means the used of armed force by a State agains the sovereignty, territorial integrity or political independence of another State, OR in any other manner inconsistent with the Charter of the UN.
What is the three-fold system of the jurisdiction of the ICC?
- Subject-Matter Jurisdiction (Ratione Materiae) - This entails that the ICC has only the authority to hear cases which deal with core crimes.
- Temporal Jurisdiction (Ratione Temporis) - The ICC may not exercise jurisdiction over crimes committed before the entry of the force of the Statute (1st July 2002).
- Territorial Jurisdiction (Ratione Loci) - the Court has jurisdiction over crimes committed on the State Parties’ territory, irrespective of the perpetrator’s nationality.
The Security Council may also refer a situation to the ICC, where the ICC can assume jurisdiction even on non-state territory.
