International Criminal Law Flashcards
Definition ICL
Branch of public international law that deals with direct criminal responsibility of individuals
Definition of international crimes
acts which are criminalized through international law establishing individual personal crime liability
In reeality, crimes criminalized in statutes of criminal courts
Purposes of International criminal law
- truth finding
- Preventing impunity
- Discouragement
Differences with transnational CL and domestic CL
- Transnational CL -> State must make those actions crimes and can be tackled through states cooperation
- Domestic CL -> crimes within states
International crimes and jus cogens norms
That an international norm is a jus cogens norm does not mean that it is an international crime
International Crimes
- Genocide
- Crimes against humanity
- War crimes
- Aggression
Jurisdiction: types
- Legislative: Power that a state has to make the law
- Enforcement: to enforce respect of the law
- Adjucative: to pass judgments
Grounds for jurisdiction
- territorial
- subjective: crime committed into the territory
- objective: effects of the crime in the territory
- extraterritorial
- active nationality (perpetrator’s)
- passive nationality (victim’s)
- Security principle
- Special agreements
- Universal jurisdiction -> domestic courts process some crimes on universal basis
How to get jurisdiction
- Domestic law
- treaties
- Bilateral Agreements -> can be also with IGOs
- Decisions of Security Council
Why is jurisdiction problematic in international law?
jurisdiction in based on State’s sovereignty. in order for international criminal courts to work State’s sovereigny must be extended to let these systems take over
Elements of crimes
To convinct an individual, evidence is needed for every element
- Actus reus = guilty act
- Mens rea = Guilty mind (art 30 ICC), intent + knowledge
- Contextual element = victims/threshold/context…
Genocide
From art 6 ICC statute (= art II 1948 Genocide Convention) and Akayesu case
- actus reus = list of acts
- mens rea = kwoledge + intent to destroy a group as such
A: (dolus specialis, the aim of the action must be specific). The group must have positive characteristics to be a group
- - ethnical
- - racial
- - religous
- - national
- contextual element
- - victim is a group
- - pattern of similar conduct against the group (A)
Crimes against humanity
Art 7 ICC
- Actus reus = list
- Mens rea = Knowledge of systematic/widespread attack + intent
- Contextual elements = widespread (large scale) OR systematic (organized) attack against civilian population
War crimes
Art 8 ICC
- Actus reus: long list
- Mens rea: intent + knowledge there is an armed conflict
- Contextual element:
- - actus reus has a strong nexus with armed conflict, it would not have happened without armed conflict taking place
- - Armed conflict in place (Tadic definition)
Aggression
Art 8 bis ICC
- Actus reus = planning, perpetration, inviation, execution by a person in power of act of aggression with certain gravity and scale to be breach of UN Charter
- Mens rea = intent
- Contextual element = victims are state +
Definition perpetrator
Commits a crime as an inidividual jointly with others or through another person (Lubangaa case)
Principles of liability (for someone who did not commit directly the crime)
- Joint criminal enterprise (not in ICC, from ICTY)
- Co perpetration (art 25 ICC + Lubanga case)
- actus reus =
1. plurality of ppl
2. common agreement/plan
3. essential contribution to it
- actus reus =
- mens rea =
1. knowing that plan includes a crime
2. realizing his/her effective contribution
-Command / Superior responsibility (art 28 ICC)
- mens rea =
- actus reus = crime perpetrated by subordinates + effective control on subordinates
- mens rea = knew/had reason to know
Principles of defences
- // domestic systems (self defence, insanity, necessity…)
- obedience to superior orders IF (art 33) -> never for genocide/ crimes against humanity
- legal duty to obey
- not know it was unlawful
- not manifestly unlawful
Non prosecutional responses to international crimes
- Amnesty = non criminal action in the state where it is passed
- Truth and reconciliation commissions
- lustration
- civil claims
Nurember International Militar Tribunal
- Based on London Agreement -> but made ex post facto (against principle of legality)
- Charges
- War crimes
- Crimes against peace
- Crimes against humanity
- For the crimes used “conspiracy” if individual “did not pull the trigger”
- Lessons
- nullun crimen sine lege -> but on what basis of international law where these acts criminalized?
- Charter is based on some treaty provisions, but not all international rules are crimes
- -Individuals, not states
- The Hague Convention 1907 recognized as custom
Tokyo International Militar Tribunal
-Lessons
- Superior order defence no longer absolute
- Command responsibility
ICTY
- Legal basis: Security Council resolution
- Jurisdiction
- Concurrent to State’s (= ICTY goes first)
- Territorial : former Yugoslavia
- Temporal: 1991 - 1999
- Personal: All individuals suspsected of crimes in that territory
- material:
- Genocide (1st time)
- Grave breaches of gen Conv
- Violations laws/customs of war
- Crimes against humanity
- Problems
- Statute created “on the ground” -> against principle of legality
- Based on chapter VII UN Charter -> but does SC have the power to create courts/tribunals
ICTR
Jurisdiction
- Concurrent to states
- Territorial: Rwanda + neighbouring states
- Temporal: 1994
- Personal: all individuals with rwandan nationality
- Material:
- - genocide
- - crimes against humanity
- - Breaches Art 3 Gen Conv + APII
After ICTY and ICTR
Residual Mechanism MITC
Check if ICC has jurisdiction
- Complementary jurisdiction: Admissibility of the case: case is inadmissable if it is being investigated by a state which has jurisdiction over it
- Ratione materiae: Is the crime committed genocide/ crime ag humanity/war crime/aggression?
- Ratione temporis: Check if state was party to Rome Statute before 2002
- if yes ok
- if not then the iCC has jurisdiction from the moment of ratification
- Ratione loci: Crime cimmitted in territory of a MS
- Ratione personae:
- Natural person
- Over 18
- (Not necessary if Rat loci) Suspect has nationality of a MS
+ Co perpetration!!!!
- (Not necessary if Rat loci) Suspect has nationality of a MS
Types of Joint Criminal Enterprise
Basic: common plan, share intent, one committs
Systematic: organized criminal ssytem -> knwledge + continuue
Extented: no real plan but foreseeable risk
Place and time with crime
Genocide - 94 Rwanda
Crimes against humanity - 21 Myanmar
War crimes - 93 Virez (Bosnia)
Aggression - 03 Iraq
ICC features
Situation vs cases
Situation can be referred to the court for investigation by
- Prosecutor
- States
- Security Council
States must cooperate with ICC unless this violates obligations with a 3rd state
