Section 12 - International Criminal Law

Question 1

What are the three international criminal tribunals that have existed? (ad hoc)

Answer 1

Nuremberg and Tokyo IMTs
ICTY (1993)
ICTR (1994)

Question 2

What are 3 ways the ICC can have jurisdiction?

Answer 2

1. alleged crime was committed by national or state party to the stature
2. alleged crime was committed on the terrirotiry fo a state party, no matter who the perpetrator was
3. when neither by nat nor on territory, court could have jurisdiction if referred by UNSC.

AND must have happened after 2002.

Question 3

What is the complementary principle?

Answer 3

case has been dealt with domestically AND victim should demonstrate that they tried that system and it failed to provide effective remedy. THEN you have access to ICC

Question 4

Define genocide

Answer 4

Acts intended to destroy in whole or in part, a national, ethnical, racial, religious group: killing, serious harm, birth prevention, child conversion (can also include forced transfer)

Question 5

What is the key difference between genocide and ethnic cleansing?

Answer 5

intent is the key difference between the two here,
the serious harm/killing is done with intent of destroying 1 protected gorup in whole or in part
ethnic cleansing can be constituted by similar acts, but is diff bc intent is to push group away from a particular territory.

Question 6

explain the connection between rape and genocide

Answer 6

through jurisprudence, ICTR ruled that widespread rape can be constitutive of genocide, with intent or part of act as genocidal mission then it can also be it.

Question 7

what can you look at to try to prove genocidal intent?

Answer 7

speeches, docs, situation where only possible reason behind is genocide (but that is hard)

Question 8

What happens if queer people are systematically persecuted in terms of genocide?

Answer 8

for persecution of queer people, the intent can be found, but can be question of scale. politics, norms and scale

Question 9

Define crime against humanity

Answer 9

Certain acts committed as part of a widespread, systematic attack against a civilian population

Murder
Extermination
Enslavement
Deportation / transfer
Persecution
Torture
Rape/other forms of sexual violence
Forced pregnancy / sterilization
Disappearance of persons
Apartheid

Question 10

What is the difference between acts and crimes?

Answer 10

Acts constitutes crimes, it is the actual crime

what they’re doing vs legal frame giving to a behaviour, what constitutes them.

IE< murder is the act which constitutes the crime of genocide/CAH/WC

Question 11

Define war crime

Answer 11

violations of international humanitarian law
- hague, geneva convention
- two core principles: distinction + proportionality
- article 3 protections: many war crimes happens towards those who have been captures and not necessarily on the battlefield
- there is no war crime if there is no conflict. they must be linked to be effectively constitutive

Question 12

Define crime of aggression

Answer 12

The planning, preparation, initiation or execution of an act of aggression by a person in control or direction of the political or military action of a State

Question 13

Define act of aggression

Answer 13

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the UN Charter, such as:
- Attack, invasion, military occupation, or annexation
- Attack against a State’s military forces
- Blockade of ports or coasts
- Allowing a State to use one’s territory to commit an act of aggression against a 3rd State

Question 14

What is a jurisdictional limitation of the crime of aggression? what is the exception?

Answer 14

Activation of jurisdiction effective as of 17 July 2018 through Kampala Amendment. it created special limitations in the jurisdiction of the court. Alleged crime must have been committed by a nat of state party which have accepted Kampala amendment. Both conditions must be met.

Jurisdiction limited to crimes of aggression committed:
1. by a national of a State that has accepted the amendment; AND
2. on the territory of a(nother) State that has accepted the amendment.

EXCEPTION: when referred to by UNSC

Question 15

True or false: the jurisdiction of the Kampala amendment of the Rome statute of the ICC cannot be applied retroactively

Answer 15

True

Question 16

What happens when there are treaty conflicts w the ICC?

Answer 16

article 98; if complying with arrest order would force you to not respect another obligation, then you dont have to arrest the individual.

article 86: general obligation to cooperate

article 98 cancels out 86 if applicable

Question 17

What is personal immunity

Answer 17

PERSONAL IMMUNITY:
- Status-based immunity → Protects high-ranking officials by virtue of their office
- Extends to both private and official acts
- Applies only during office tenure
- Belongs to the State; applies to HSs, HGs & MFAs

Question 17

What is functional immunity?

Answer 17

• Conduct-based immunity → Protects official acts carried out on behalf of the State
• Attaches to conduct attributable to the State even after an individual’s office terminates
• Applies to serious international crimes? → Inconsistency

Question 18

explain the connection between CIL and the ICC

Answer 18

Personal and functional immunity fall under customary intenrational law, so you dont have to follow ICC if it leads you to not respect the obligation there is through CIL

Question 19

Explain the treaty conflict of: Case 2, ICC has arrest warrant for Trudeau who’s visiting germany

Answer 19

why is there no customary obligation stopping them from arresting him?
Canada is part of ROme statute, which includes art 27 about irrelevance of official capacity. it gives up any immunities they have under ICL when it comes to teh ICC. it gave up all rights of immunity. no one owes them those obligations.
BUT if they Gemrany didnt arrest trudeau, they’d be violating the Rome Statute. , thus there is obligation to cooperate with the court.

Question 20

Under what authority was the ICTY established, and in which resolutions?

Answer 20

The ICTY was established under Chapter VII of the UN Charter through Security Council Resolutions 808 (1993) and 827 (1993).

Question 21

What types of crimes fall under the ICTY’s jurisdiction?

Answer 21

The ICTY has jurisdiction over grave breaches of the Geneva Conventions 1949, war crimes, genocide, and crimes against humanity committed in the former Yugoslavia since January 1, 1991.

Question 22

How has the ICTY addressed sovereign immunity and superior orders?

Answer 22

overeign immunity does not relieve individuals of criminal responsibility.
Superior orders are not a defense but may be considered in sentencing.

Question 23

Under what authority and resolution was the ICTR established? What crimes fall under the jursidction?

Answer 23

The ICTR was established under Chapter VII of the UN Charter through Security Council Resolution 955 (1994).
The ICTR has jurisdiction over genocide, crimes against humanity, and serious violations of common Article 3 of the Geneva Conventions and Additional Protocol II.

Question 24

What is the role of Article 7 of the ICTR’s Statute regarding individual responsibility?

Answer 24

Individuals who planned, instigated, ordered, or aided crimes are responsible.
Sovereign immunity does not apply to former or current officials.
Superior orders do not absolve responsibility.

Question 25

The exercise of jurisdiction by the ICC, including the power of the Prosecutor to invoke the ICC’s jurisdiction, is further restricted by the important so-called complementarity rule in Article 17, under which the ICC must not exercise jurisdiction if it determines that…?

Answer 25

(a) the case is being investigated or prosecuted by a state that has jurisdiction over the crime, unless ‘the state is unwilling or unable genuinely to carry out the investigation or prosecution’;

(b) the case has been investigated by a state that has jurisdiction over the crime and it has decided not to prosecute, unless this was because of the ‘unwillingness or inability of the state genuinely to prosecute’;

(c) the accused has already been properly tried; or

(d) the case is not of ‘sufficient gravity’ to justify action by the ICC.

Question 26

What are some limits on ICC jurisdiction?

Answer 26

• In respect of any party, the crime must have been committed after the entry into force of the Statute for that party (Article 11).
• No person can be tried by the ICC and a national court for the same crime (ne bis in idem) (Article 20).
• No person can be tried for an offence committed before the entry into force of the Statute (Article 24).
• The accused must have been eighteen or over when the alleged crime was committed (article 26)

Question 27

In the assigned reading on Omar al Bashir, what is determined regarding personal immunity and the compliance w arrest orders?

Answer 27

the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan

while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.