LECTURE 17 - int crim law

Question 1

am I subject to IL?

Answer 1

The answer depends on where you live

International law generally enacted within a country
by being explicitly made part of national law

• Adoption of treaty texts as national legislation
• Deliberate ceding of a measure of sovereignty to an
  international/transnational body, as seen with many EU laws

Responsibility for holding individuals accountable to
law, be it national or international, thus rests with
national frameworks

Question 1

theoretical basic of IL:

Answer 1

• Tension between a dualist and monist theories of
  international law
• Dualists see international law and national law as
  being independent
• Both systems are mutually exclusive and thus
  aren’t able to come into conflict
• Monists see international law as part of and
  superior to domestic law
• Principle is domestic law stems from
  international laws
• In political practice, concept of sovereignty
  pushes us towards dualist
• Those frustrated with domestic situation
  often push for monist

Question 2

WHERE does Int crim law fit?

Answer 2

Specifics of what is considered a crime can be
culturally determined (ie. premarital intercourse is illegal in saudi but legal in canada)

This makes it difficult to create generalized
international criminal law

Question 3

WHAT is covered by ICL?

Answer 3

• Built around those areas where there
  are specific individual responsibilities
• Central area is human rights
• Individuals have identified,
  specific rights under international
  law
• In international criminal law the idea
  is that individuals are the bearer of
  specific obligations and thus should
  be exposed to criminal sanctions for
  transgressions
• Sovereignty still in play:
  assumption is this will first be
  dealt with in-country

Question 4

4 functions of ICL

Answer 4

1. Provide retribution and
   accountability for violations
2. Deter individuals and groups
   generally from violating laws
3. Encourage and support the
   development of international
   criminal law
4. Work to prevent threats to
   international peace and security

Question 5

sources of ICL (general/theoretical)

Answer 5

• International criminal law is a relatively new
  body of law, and aspects of it are neither
  uniform nor universal.
• International criminal law is a subset of
  public international law.
• While international law typically concerns
  inter-state relations, international criminal
  law concerns individuals.
• In particular, international criminal law
  places responsibility on individual persons—
  not states or organisations—and proscribes
  and punishes acts that are defined as crimes
  by international law.

Question 6

4 MAIN SOURCES OF ICL

Answer 6

• It is a subset of public international law, meaning the same sources as for international law are in operation
  1) treaty law;
  2) customary international law (custom, customary law);
  3) general principles of law;
  4) judicial decisions (subsidiary source); and
• Treaty law, or laws and terms agreed by nations, remains
  key (i.e. Rome Statute)
• This means that there is major space of insertion of
  political considerations

Question 7

Key Foundational Precedent of ICL: Nuremberg Trials
and Resultant principles (1950)

Answer 7

Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government
official does not relieve him from responsibility under international law.
The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law,
provided a moral choice was in fact possible to him.

Question 8

IC definition (from nuremburg principle #6)

Answer 8

The crimes hereinafter set out are
punishable as crimes under
international law:
a) Crimes against peace
b) War crimes
c) Crimes against humanity

Question 9

1948 Genocide Convention Codified Violations

Answer 9

Art. II
In the present Convention, genocide
means any of the following acts
committed with intent to
destroy, in whole or in part, a
national, ethnical, racial or
religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the
group conditions of life calculated
to bring about its physical
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.

Question 10

1948 Genocide Convention and Accountability

Answer 10

Art. VI
Persons charged with genocide or any
of the other acts enumerated in
Article 3 shall be tried by a
competent tribunal of the State
in the or by such international
penal tribunal as may have
jurisdiction with respect to those
Contracting Parties which shall
have accepted its jurisdiction
territory of which the act was
committed.
* Implication is even if you won’t be held to
account within your country, you can be
prosecuted internationally
* This is the bulk of the work taken up by
the ICC

Question 11

Ad Hoc (particular) Approach to International
Crimes

Answer 11

• Post WWII: Nuremberg Tribunal and Tokyo Military Tribunal
• Set the precedent that there could be international proceedings of this kind
• 1993 – International Criminal Tribunal for the Former Yugoslavia (ICTY)
• 1995 – International Criminal Tribunal for Rwanda (ICTR)
• 1997 – Extraordinary Chambers in the Courts of Cambodia
• 2000 – Serious Crimes Panels of the Dili District Court (East Timor)
• 2002 – Special Court for Sierra Leone
• 2003 – Iraqi Special Tribunal for Crimes Against Humanity

Question 12

Path to the International Criminal
Court

Answer 12

• 1994 General Assembly appointed ad hoc committee
• 1995 ad hoc committee submitted a report in which, for the first time, the
  provisions on the creation and jurisdiction of the international criminal court
  and the substantive law were merged
• Preparatory committee was created by General Assembly to draft texts for a
  planned diplomatic conference
• Rome Conference from 16 June to 17 July 1998
• On 17 July 1998, the Rome Statute of the International Criminal Court was
  adopted
• Statute went into effect on 1 July 2002

Question 13

ICC founding

Answer 13

• Inaugurated in 2002 in the Hague, Netherlands
• Intention was to consolidate and regularize ad
  hoc processes to advance international criminal
  law compliance and enforcement
• Can try individuals for crimes of genocide, crimes
  against humanity and war crimes
• Those subject to trial must be nationals of one of the
  States parties to the Rome Statute or the crime was
  committed on the territory of a State Party, or the
  State involved submits a declaration authorizing the
  ICC’s jurisdiction with respect to the alleged crime.
• As of June 2020 there were 123 Signators to the Rome
  Statute
• Notable absences: United States, Russia, China,
  Israel, Qatar, Iraq, and Libya

Question 14

is sov a prob in ICC?

Answer 14

• Why sovereignty is no problem, UN Charter Article 95
• “Nothing in the present [UN] Charter shall prevent
  Members of the United Nations from entrusting the
  solution of their differences to other tribunals by virtue
  of agreements already in existence or which may be
  concluded in the future.”
• Article 2 of the ICC Charter
• “The Court shall be brought into relationship with the
  United Nations through an agreement to be approved
  by the Assembly of States Parties to this Statute and
  thereafter concluded by the President of the Court on
  its behalf.”
• This means if you haven’t signed the charter you aren’t
  subject to it

Question 15

the Focus
of
Internation
al Criminal
Law?

Answer 15

• These crimes comprise Genocide, Crimes
  Against Humanity, War Crimes and the
  Crime Of Aggression.
• Generally taken up when local
  authorities/system can’t or wont
  address charges
• They do not include piracy, terrorism,
  slavery, drug trafficking, or other
  international crimes.
• These are still considered to be
  primarily domestic issues

Question 16

Criminal
Jurisdiction
of the ICC
(Article 5)

Answer 16

(a) “The crime of genocide;
(b) “Crimes against humanity;
(c) “War crimes;
(d) “The crime of aggression”

Question 17

genocide

Answer 17

(a) “Killing members of the group;
(b) “Causing serious bodily or mental harm to
members of the group;
(c) “Deliberately inflicting on the group
conditions of life calculated to bring about its
physical 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.

Question 18

crimes against humanity

Answer 18

Murder;
(b) “Extermination;
(c) “Enslavement;
(d) “Deportation or forcible transfer of population;
(e) “Imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law;“
(f) “Torture;
(g) “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) “Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph
3, or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court;”
“Enforced disappearance of persons;
(j) “The crime of apartheid;
(k)” Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.”

Question 19

war crimes

Answer 19

(a) Grave breaches of the Geneva Conventions of 12 August 1949,
namely, any of the following acts against persons or property protected
under the provisions of the relevant Geneva Convention:
(i) Willful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or
health;
(iv) Extensive destruction and appropriation of property, not
justified by military necessity and carried out unlawfully and
wantonly;
(v) Compelling a prisoner of war or other protected person to serve
in the forces of a hostile Power;
(vi) Willfully depriving a prisoner of war or other protected person
of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) (viii) “The transfer, directly or indirectly, by the Occupying Power of
parts of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside this territory.”
2(c) “In the case of an armed conflict not of an international character,
serious violations of Article 3 common to the four Geneva Conventions of
12 August 1949, …”

Question 20

ICC procedure, WHO can initiate a case?

Answer 20

• Any Member State can refer a case to the
  Court
• Request is made to the Office of the
  Prosecutor to investigate a matter
• United Nations Security Council can refer a
  matter to the Court
• Office of the Prosecutor can initiate an
  investigation independently
• Involves acting on information presented
  by third party to Prosecutor
• Still subject to restrictions on what is
  covered by Rome Statute

Question 21

ICC procedure: WHAT is the process?

Answer 21

• Prosecutor makes a determination if the Court has
  jurisdiction
• Does the case qualify as one or more of genocide,
  crime against humanity of war crime
• Alleged crime must have taken place after July 1,
  2002
• Are national authorities conducting a genuine
  investigation?
• Prosecutor conducts an investigation
• If prosecuted, focus is on those with greatest
  responsibility
• Means that not every abuser will be
  encompassed
• Other courts can also conduct concomitant
  processes
• Judges issue arrest warrants, but have no police to
  enforce
• Trial held in open court of the ICC in the Hague