Introduction

Question 1

What is ICL?

Answer 1

International crimes (genocide, crimes against humanity, war crimes + aggression) and the principles/procedures governing the Int prosecution of these crimes.

Question 2

What is the most fundamental distinction between ICL and other forms of law?

Answer 2

It imposes criminal liability on individuals for international crimes.

Question 3

How does the preamble of the Rome Statute contextualise international crimes?

Answer 3

As the ‘most serious crimes of concern to the Int community as a whole’ and recognises that such crimes ‘threaten the peace, security and wellbeing of the world’

Question 4

Is international crime created by domestic or international law?

Answer 4

It is created by international law however often ratified through domestic law.

Question 5

According to Art 21 of the Rome Statute, what are the sources of ICL?

Answer 5

Treaties, customary international law, general principles of law and precedent/other decisions

Question 6

What is the hierarchy of the sources of law?

Answer 6

The ICC statute itself, other applicable treaties + customary international law, general principles of law and other decisions (including scholarly opinion)

Question 7

How is ICL similar to IHRL?

Answer 7

ICL adopts many tenants of IHRL in its procedures - e.g. provisions to guarantee a fair and equal trial.

Question 8

How does ICL differ from IHRL ?

Answer 8

IHRL usually refers to the obligations of a state as opposed to individuals.

Question 9

Can a criminal act hold both the state and the individual responsible?

Answer 9

Yes - Bosnian Genocide case. ICTY + ICJ

Question 10

Wtf is the translation of nullem crimen sine lege, nulla poena sine lege?

Answer 10

No crime without law, no punishment without law.

Question 11

A layman’s understanding of nullum crimen?

Answer 11

A person can only be guilty of an offence if it was an offence at the time.

Question 12

What are the four elements of the nullum crimen principle?

Answer 12

Specificity, non-retroactivity, non-extension by analogy, and favour rei.

Question 13

What is the specificity element of nullum crimen?

Answer 13

The provisions must be sufficiently precise to enable individuals to know what is criminalised.

Question 14

What is the favour rei element of nullum crimen?

Answer 14

If there are conflicting interpretations, the interpretation that favours the accused must prevail.

Question 15

What is ne bis in idem?

Answer 15

Not twice of the same or prohibition against double jeopardy.

Question 16

What must be taken into consideration when applying ne bis in idem?

Answer 16

Whether the individual is actually being charged with the appropriate offence and with appropriate adjudicative procedures. E.g. man kills thousand ppl but only gets charged for common assault.

Question 17

Is the ICC bound by stare decisis?

Answer 17

Nah however can be influential.

Question 18

How can customary law enshrine the nullum crimen principle?

Answer 18

Customary law can establish whether the alleged conduct was a particular practice at the time of the commission of the conduct.

Question 19

Which case demonstrates the applicability of customary law to the nullum crimen principle?

Answer 19

In the Norman case, the majority held that enlisting child soldiers was an offence under customary law which individuals were criminally liable for.

Question 20

What was the dissenting judgement in Norman?

Answer 20

That individual liability for enlisting child soldiers was embedded within ICL, rather was a principle was that states are prohibited from enlisting child soldiers. Otherwise, what would the entire point of the Rome Statute and the movement preceding it, be?

Question 21

How do we determine state practice?

Answer 21

By looking to the official practice of states - state notifications, announcements, state notifications and domestic decisions.

Question 22

Does state practice require a number of states to engage in a particular conduct before it becomes state practice?

Answer 22

Nope, rather it is about the proportionality of states that engage in a particular conduct in contrast to those that don’t.

Question 23

Did the majority verdict of Norman determine that it was contrary to state practice if a state or two continue to enlist child soldiers?

Answer 23

It was identified that state practice = acknowledgment of the duty to not enlist child soldiers.

Question 24

What is a scenario, in the context of civilian casualties, that demonstrates how state practice is identified?

Answer 24

Congolese PM making a commitment that the Congolese Air Force ‘will limit its action to military objectives.’

Question 25

In making public announcements and other official statements, are states affirming customs or accepting offers?

Answer 25

The former - affirming and respecting the custom.

Question 26

What is the distinction between customary international law and a general principle of law?

Answer 26

Customary international law can refer to particular customs like the prohibition of child soldiers whereas general principles = ‘elementary considerations of humanity and common sense’

Question 27

Objectives of ICL can come in two forms…

Answer 27

Teleological (forward-thinking) and deontological (those that focus on the crime itself)

Question 28

Identify the objectives of ICL.

Answer 28

Retribution, rehabilitation, incapacitation, denunciation, deterrence, justice for victims, recording history, post-conflict reconstruction, distinguishing between individual and group responsibility.

Question 29

Is revenge a valid objective of ICL?

Answer 29

No.

Question 30

What is retribution?

Answer 30

As established in Aleksovski, retribution is expressing the ‘outrage of the international community at these crimes’

Question 31

How is the objective of retribution considered?

Answer 31

Objective analysis: must be proportionate to the wrongdoing.

Question 32

Is ICL able to differentiate between crimes with individual responsibility and crimes with group responsibility?

Answer 32

It imposes liability mostly on individual crimes which is why it is highly important.

Question 33

Outline the general critiques of ICL.

Answer 33

Expensive, can prevent more decisive action, difficulties in case selection, the location of the Hague can be seen to look more to the int community, and can be delegitimised by denials.

Question 34

What is jurisdiction?

Answer 34

Exercising jurisdiction can be seen as asserting a form of sovereignty.