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Various Branches of International Law > International Criminal Law > Flashcards

International Criminal Law Flashcards

1
Q

Definition ICL

A

Branch of public international law that deals with direct criminal responsibility of individuals

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2
Q

Definition of international crimes

A

acts which are criminalized through international law establishing individual personal crime liability
In reeality, crimes criminalized in statutes of criminal courts

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3
Q

Purposes of International criminal law

A
  • truth finding
  • Preventing impunity
  • Discouragement
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4
Q

Differences with transnational CL and domestic CL

A
  • Transnational CL -> State must make those actions crimes and can be tackled through states cooperation
  • Domestic CL -> crimes within states
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5
Q

International crimes and jus cogens norms

A

That an international norm is a jus cogens norm does not mean that it is an international crime

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6
Q

International Crimes

A
  1. Genocide
  2. Crimes against humanity
  3. War crimes
  4. Aggression
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7
Q

Jurisdiction: types

A
  • Legislative: Power that a state has to make the law
  • Enforcement: to enforce respect of the law
  • Adjucative: to pass judgments
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8
Q

Grounds for jurisdiction

A
  • 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
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9
Q

How to get jurisdiction

A
  • Domestic law
  • treaties
  • Bilateral Agreements -> can be also with IGOs
  • Decisions of Security Council
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10
Q

Why is jurisdiction problematic in international law?

A

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

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11
Q

Elements of crimes

A

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…

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12
Q

Genocide

A

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)

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13
Q

Crimes against humanity

A

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

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14
Q

War crimes

A

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)

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15
Q

Aggression

A

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 +

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16
Q

Definition perpetrator

A

Commits a crime as an inidividual jointly with others or through another person (Lubangaa case)

17
Q

Principles of liability (for someone who did not commit directly the crime)

A
  • 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
    • mens rea =
      1. knowing that plan includes a crime
      2. realizing his/her effective contribution
      -Command / Superior responsibility (art 28 ICC)
    • actus reus = crime perpetrated by subordinates + effective control on subordinates
    • mens rea = knew/had reason to know
18
Q

Principles of defences

A
  • // 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
19
Q

Non prosecutional responses to international crimes

A
  • Amnesty = non criminal action in the state where it is passed
  • Truth and reconciliation commissions
  • lustration
  • civil claims
20
Q

Nurember International Militar Tribunal

A
  • 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
21
Q

Tokyo International Militar Tribunal

A

-Lessons
- Superior order defence no longer absolute
- Command responsibility

22
Q

ICTY

A
  • 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
23
Q

ICTR

A

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

24
Q

After ICTY and ICTR

A

Residual Mechanism MITC

25
Q

Check if ICC has jurisdiction

A
  • 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!!!!
26
Q

Types of Joint Criminal Enterprise

A

Basic: common plan, share intent, one committs
Systematic: organized criminal ssytem -> knwledge + continuue
Extented: no real plan but foreseeable risk

27
Q

Place and time with crime

A

Genocide - 94 Rwanda
Crimes against humanity - 21 Myanmar
War crimes - 93 Virez (Bosnia)
Aggression - 03 Iraq

28
Q

ICC features

A

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

Various Branches of International Law (8 decks)

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