National Prosecutions

Question 1

What is necessary for national prosecutions of international criminal acts?

Answer 1

Applicable domestic criminal law and jurisdiction.

Question 2

Which treaties require state parties to conventions to enact necessary legislation?

Answer 2

1) Genocide Convention (Art V)

2) 1949 Geneva Conventions

Question 3

How can states implement international criminal law?

Answer 3

1) Implement legislation

2) Direct application of international law in the domestic system.

Question 4

What is issue with some states relying on ordinary offences?

Answer 4

1) May fall short of the required standard of criminalisation under international law.

Therefore, may be found IN BREACH OF ITS DUTY to enact the legislation necessary.

2) Ordinary crimes may fail to encapsulate the severity of the international crimes.

Question 5

What is meant by ‘art dedere art judiciare’?

Answer 5

Obligation on a state to extradite or prosecute.

Question 6

What three treaties set out a duty aut dedere aut judicare?

Answer 6

1) Geneva Conventions and AP I
2) Convention Against Torture 1984
3) 1948 Genocide Convention

Question 7

What obligation does the geneva conventions and AP I impose on nation states?

Answer 7

For GRAVE BREACHES:

An obligation to prosecute or extradite those who have committed grave breaches.

Question 8

What obligation does CAT impose on its parties?

Answer 8

Belgium v Senegal (2012):

Parties are obligated to criminalise torture and prosecute the crime including on basis of UJ.

Question 9

What obligation does 1948 Genocide Convention impose on nation states?

Answer 9

Obligation to prevent and punish genocide.

HOWEVER:

Jurisdictional scope is limited to courts in the state where the act was committed (Bosnian Genocide).

Question 10

Does a customary international law duty to prosecute or extradite exist?

Answer 10

Argument:

State practice falls short of demonstrating states have a general duty to prosecute.

Question 11

What would CIL duty look like?

Answer 11

Binds states to prosecute or extradite irrespective of whether they are parties to relevant treaties

Question 12

What three pieces of evidence support of CIL duty to prosecute or extradite?

Answer 12

1) 1996 ILC Draft Code on Crimes Against Peace and Security of Mankind
2) ICTY AC in Blaskic
3) Preamble to ICC Statute

Question 13

What does 1996 ILC Draft Code on Crimes impose?

Answer 13

(i) Duty to prosecute or extradite individuals accused of genocide, CAH or war crimes and
(ii) to prohibit such crimes
(iii) irrespective of where or against whom they were committed.

Question 14

What did Blaskic set out?

Answer 14

There was a customary obligation to prosecute or extradite those who have allegedly committed grave breaches of IHL.

Didn’t develop argument further.

Question 15

What did preamble of ICC statute set out?

Answer 15

Duty of every state to exercise its criminal jurisdiction over those responsible for int crimes.

Question 16

Where is there evidence of opinio juris?

Answer 16

Certain GA resolutions

BUT:

Scrutiny of wording and voting records gives rise to doubts about GA resolutions’ authority.

Question 17

What are the four main practical obstacles to national prosecutions?

Answer 17

1) Problems with apprehension of the accused
2) Documentary and physical evidence is difficult to obtain so witness evidence is crucial
3) National prosecutions typically take place long after the event
4) Difficulty of obtaining evidence may also affect fair trial rights

Question 18

Is national prosecution a direct or indirect form of international criminal jurisdiction?

Answer 18

Indirect

Art 6, 7, 8bis

Question 19

What are reasons for few national prosecutions before Rome Statute?

Answer 19

1) Reluctance to prosecute own nationals
2) Prosecutorial selectivity may send misleading message that other acts were irreproachable
3) Complex and sensitive cases: takes political willingness and resources.
4) National prosecutions of own nationals may implicate the government’s involvement.
5) Limited expertise of national judges in ICL.