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International Criminal Law > Sources of Int Criminal Law > Flashcards

Sources of Int Criminal Law Flashcards

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1
Q

Where can sources of PIL be found?

A

Art 38 of ICJ Statute

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2
Q

What is ICL a combination of?

A

1) International law;

2) Criminal Law

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3
Q

What are the main criminal law principles? (Degan)

A

1) Nullum crimen sine lege scripta
2) Nullum crimen sine lege certa
3) Nullum crimen sine lege previa
4) Nulla poena sine lege

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4
Q

Can criminal law principles transfer to customary law principles?

A
  • Difference in opinions

- General view is yes, CL norms and principles can be sources of IL.

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5
Q

What is general order to approach sources of ICL? (Degan)

A

1) General principles of ICL
2) Treaties
3) Custom
4) Judicial practice and doctrine

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6
Q

Nullum crimen sine lege scripta:

A

Basis of criminal charge should be in written form

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7
Q

Nullum crimen sine lege certa

A

Elements of crimes must be precisely defined by a rule. - No resort to analogy.

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8
Q

Nullum poena sine lege

A

Penalties for specific crimes should be provided for by a rule in advance

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9
Q

Nullum crimen sine lege

A

Penalties should be provided by rule in advance.

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10
Q

How did ICTY approach general principles in Kupreskic?

A

ICTY can derive general principles under ICL from:

1) General principles of criminal law common to major legal systems of the world or
2) General principles of law consonant with the basis requirements of international justice.

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11
Q

How does ICC differ from approach of ICTY in Kupreskic?

A

Can’t derive general principles by comparative analysis.

Restricted to Rome State, the Elements of Crimes and the Rules of Procedure and Evidence.

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12
Q

What did ICTY find with regard to general principles in Erdemovic?

A

No general principle permitting duress as defence.

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13
Q

How did ICTY’s approach in Erdemovic differ from ICC?

A

ICC would have exonerated him through defence of duress (Art 25(3)(a) and Art 31(1)(d) Rome State.

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14
Q

How does ICC differ from ICTY in terms of co-perpetration?

A

ICTY: Can indict group of persons for JCE. Bases prosecution on presumed act of co-perpetration in a crime (no requirement to prove acts refs and mens really of each individual).

ICC: Art 25(3)(d) Rome State actually requires contribution for criminal liability.

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15
Q

Can individual be held liable for omission under Rome Statute?

A

No responsibility for omission.

Exception: Art 28

Rationale: Member states of UNSC and commanders of peace keeping troops didn’t want to risk being held accountable for failing to prevent the commission of international crimes.

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16
Q

What is Art 3 of ICTY Statute?

A

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war.

17
Q

How did ICTY extend liability for war crimes beyond its scope? (Degan)

A

Tadic: Art 3 covers all IHL violations, including violations of agreements binding upon the parties to the conflict which have not turned into CIL.

Degan: This breaches principle of ‘universal measures of repression’.

  • The criminal liability of an individual soldier cannot depend on the treaties his state has consented to (unless he potentially had a role in the consent).
  • Individuals must know of the crimes for which they can be prosecuted.
18
Q

What was issue with judge made law in ICTY?

CIL

A

1) Judges have no authority to make CIL absent state practice and opinions juris
2) Judges have no competence to make law simply based on their personal opinio juris (rather than that of states.
3) Made law based on ‘elementary considerations of humanity’ - IHL rules must be based on compromise between military necessity and humanity, not simply humanity.

19
Q

Does CIL have role in ICL?

A

Because of nullum crimen principle, cannot be the direct and sole basis of incrimination.

However, can serve as a model when drafting future statutes of international criminal tribunals.

20
Q

What are the criteria for CIL forming ICL?

A

1) Must form CIL (adhered to by important group of states, one or several members of P5)
2) Must be jus cogens (art 53 VCLT)
3) Be essential for the protection of fundamental interest of the international community.
4) The international community as a whole must judge the obligation to be essential and that its breach is of a criminal nature; and
5) The crime must be included in the competence of a particular criminal tribunal.

21
Q

What is role of judicial practice in ICL?

A

No binding precedent (for ICC or ICTY).

22
Q

Did ICTY and ICTR apply judicial practice in right way? (Degan)

A

No - referred to previous practice of post WW2 military tribunals as CL.

Degan says this is incorrect since CIL is only state practice and opinio juris, not past judicial decisions.

23
Q

Where can sources of the ICC be found?

A

Art 21 ICC

24
Q

What does Art 9 of ICC set out?

A

Element of crimes shall assist Court in interpretation and application of Art 6, 7 and 8.

  • Offers higher standard of precision (serves nullum crimen principle).
25
Q

What does Art 51 of Rome Statute set out?

A

Rules of procedure and evidence shall enter into force upon the adoption by a two thirds majority of the members of the Assembly of States Parties.

26
Q

What source is in Art 21(1)(b)?

A

Applicable treaties

27
Q

What treaties are explicitly mentioned in ICC Statute?

A

Geneva Conventions of 1949 (Art 8(2)(a))

28
Q

What other treaties could be relevant?

A
  • 1966 International Covenant on Civil and Political Rights
  • 1907 Hague Conventions: means and methods of warfare
  • 1948 Genocide Convention - war crimes

1984 Torture Convention - definition of torture.

29
Q

Where can CIL be identified in Rome Statute?

A

Art 21(1)(b) - principles and rules of IL, including the established principles of the IL of armed conflict.

30
Q

What is criticism of using CIL in ICL?

Rebuttal?

A

too vague to found criminal liability.

President of ICTY: CIL comes up in almost every int court or tribunal now. ICTY has used it innovatively in areas where its application was unclear or uncertain.

31
Q

What is set out in Art 21(1)(c) ?

A

General principles of law derived by the court from national laws.

32
Q

What is method for establishing general principles of law from national legal systems?

A

1) Comparison between national systems
2) Search for common principles
3) Transposition to the international sphere.

33
Q

Examples of general principles:

A

1) Individual criminal responsibility

2) Nullum crimen sine lege (Principle of legality) - non retroactivity and clarity of law

34
Q

What is fourth source for ICC?

A

Judicial decisions of court.

International Criminal Law (12 decks)

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