Week 2 - The Crimes

Question 1

What are the 4 crimes

Answer 1

1) Genocide
2) Crimes against Humanity
3) War Crimes
4) Crime of Aggression

Question 2

Is there a crime which is the most important? (2)

Answer 2

1) Genocide?
- The crime of crimes (ICTR, Kambanda)
- No superior orders defence for genocide or CaH

2) Crime of aggression?
- aggression is required for the other crimes (at least back in the days)

Question 3

Where is Genocide in Rome Statute?

Answer 3

Article 6

Question 4

What is the history of Genocide? (4)

Answer 4

1) originally sub-category of CaH (IMT, Control Council Law No 10)
2) Coined by Lemkin

3) 1948 Geoncide Convention in reaction to holocaust
- -> domestic enforcement

4) ICTY, ICTR, ICC
- -> international enforcement

Question 5

What is the difference between Genocide and the CaH of persecution? (4)

Answer 5

1) Protects from
- Genocide: elimination
- CaH: discrimination

2) MR
- Genocide: dolus specialis
CaH: no dolus specialis

3) Scale
- Genocide: no requirement of scale
- CaH: widespread and systematic

4) Groups
- CaH: also protects Political, cultural and gender groups

Question 6

What is the structure of Genocide? (3)

Answer 6

1) Objective element: 5 possible acts (exhaustive)
2) Subjective element: intent to destroy in whole or in part a national, ethnic, racial or religious group as such
3) Contextual requirement (EoC): must take place in context of similar pattern of similar conduct directed against that group or was conduct that could itself effect the destruction

Question 7

What are 3 approaches to delimiting a group protected from genocide?

Answer 7

1) Objective Standard (Akayesu ICTR): groups defined by birth
2) Subjective (Rutaganda ICTR): do victim or perpetrator perceive belonging

3) Mixed approach (Semanza ICTR): both may be considered
- -> this is the settled approach

Question 8

How are the 4 protected groups defined? (6)

Answer 8

1) Akayesu, ICTR
2) National: legal bond of citizenship
3) Ethnic: common language or culture
4) Racial: hereditary physical traits often identified with geographical region
5) Religious: religion, denomination or mode of worship
6) HOWEVER this is simply guide - not strict interpretations

Question 9

What are the 2 branches of Genocide’s mental element?

Answer 9

1) intention to carry out the prohibited act (e.g. killing)

AND

2) intention to destroy in whole or in part the protected group

Question 10

What does the intent to destroy entail? (3)

Answer 10

1) Krstic, ICTY
2) “seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individual within it”
3) Although no need to seek to destroy entire group, must view part of the group they wish to destroy as a distinct entity to be eliminated

Question 11

What is the history of CaH? (4)

Answer 11

1) 1868: ‘The laws of humanity’ (St Peterburg Declaration)
2) 1899/1907: Hague Regulations: Marten’s clause mention laws of humanity
3) 1915: FRA, UK and RUS call massacre against ARM in TUR ‘CaH’

4) Art 6(c) IMT Statute
- CaH not previously established in CIL so fluid border with war crimes (CaH had requirement for nexus with armed conflict)
- but CaH incl. to ensure prosecution for persecution of GER population

Question 12

Distinction between CaH and war crimes (5)

Answer 12

1) CaH: no requirement for armed conflict
2) war crimes: no requirement for widespread/systematic commission
3) War crimes traditionally not protect against violations towards own side
4) CaH only covers acts against civilians

5) Torture
- CaH: no purpose requirement
- War crimes: purpose requirement

Question 13

The structure of CaH (2)

Answer 13

1) Objective element
- certain specific act being part of
- Widespread OR Systematic (chapeau)
- Attack
- against civilians

2) Subjective element: intention to do act and knowledge of the attack

Question 14

What does the ‘attack’ requirement of CaH’s chapeau mean? (2)

Answer 14

1) Art 7(2)(a) Rome Statute

2) multiple commission of acts from para 1 pursuant to or in furtherance of State/organizational policy

Question 15

To commit CaH, how many acts must a perpetrator commit? (1)

Answer 15

A single act suffices when done in the context of widespread/systematic attack

Question 16

What does ‘widespread’ entail for CaH? (2)

Answer 16

1) quantiative character

2) EX: number of victims, geographic area

Question 17

What does ‘systematic’ entail for CaH? (2)

Answer 17

1) qualitative character

2) EX: organized nature of acts, improbability of random occurrence, based on official decree or plan

Question 18

What does State/organizational policy entail under CaH? (2)

Answer 18

1) EoC Art 7(3)

2) State/organization must actively promote or encourage the attack

Question 19

Who may be the perpetrator of the CaH of torture? (2)

Answer 19

1) Kunarac ICTY

2) does not have to be State official but may also be organized group

Question 20

What does the mental element of CaH require? (3)

Answer 20

1) Art 30 Rome Statute
2) Intention as to the specific act AND its consequence

3) knowledge that:
- a systematic and widespread attack against civilians is taking place; AND
- that his action is part of the attack

Question 21

Who may be a perpetrator of CaH? (2)

Answer 21

1) not only the architect of the widespread or systematic attack
2) incl. anyone implementing or supporting the State/organizational policy

Question 22

What new development is happening regarding CaH? (3)

Answer 22

1) ILC is formulating draft articles on CaH
2) inspired by ICC Statute
3) however goes further than ICC Statute and more alike CAT and Genocide Conv.

Question 23

What are war crimes? (2)

Answer 23

War crimes are serious violations of (1) customary or (2) treaty law belonging to IHL

Question 24

What are 2 kinds of IHL rules?

Answer 24

1) Hague Law: means and methods of warfare

2) Geneva Law: protection of civilians, wounded and the sick

Question 25

How to determine whether IAC or NIAC? (4)

Answer 25

First Treaty

1) IAC: CA 2 and Art 1(4) API
2) NIAC: CA 3 and Art 1 APII

–> Tadic

1) IAC: armed conflict is resort to armed force between States
2) NIAC: protracted armed violence between govt authorities and organized armed groups or between such groups

Question 26

What is the test for war crimes? (5)

Answer 26

1) Tadic ICTY
2) infringement
3) which is serious
4) of either CIL or treaty rules of IHL
5) with the violation entailing individual criminal responsibility

Question 27

How does the war crimes contained in Rome Statute reflect CIL? (4)

Answer 27

1) far more express war crimes in Rome Statute than IMT or ICTY Statutes
2) many of the ICC definitions are based on Tadic
3) However not incl as many war crimes for NIAC as Tadic was thought to go too far
4) also not incl. chemical/biological weapons since no agreement on nuclear weapons

Question 28

What is the structure of the different war crimes in Rome Statute? (4)

Answer 28

IAC:

1) Art 8(2)(a): GRAVE breaches of GCs
2) Art 8(2)(b) other SERIOUS IHL violations

NIAC:

3) Art 8(2)(c): SERIOUS violations of CA 3 (Geneva law)
4) Art 8(2)(e): other SERIOUS IHL violations (Hague Law)

Question 29

What is the mental element for war crimes? (3)

Answer 29

1) Intent to do the act; AND
2) knowledge of the circumstances making it a war crime; (Art 30 Rome Statute) AND
3) awareness of the factual circumstances of the armed conflict (EoC)

Question 30

Who are potential perpetrators of war crimes? (3)

Answer 30

1) members/leaders of armed forces
2) members/leaders of NSAG
3) civilians (if nexus to armed conflict)

Question 31

How must conduct be related to an armed conflict to be a war crime? (2)

Answer 31

1) EoC

2) the conduct must be in the context of and associated with an armed conflict for it to be a war crime

Question 32

What is the structure of war crimes? (5)

Answer 32

1) armed conflict (IAC/NIAC)
2) Nexus to armed conflict (EoC)
3) ‘in particular’ as part of plan or policy or large scale commission (chapeau)
4) actus reus
5) mens rea

Question 33

What is the history of the crime of aggression? (4)

Answer 33

1) IMT Statute
- Crime against peace
- challenged as part of CIL (Kellogg-Briand Pact did not estab. indiv. criminal res.)

2) No appearance in subsequent ad hoc or hybrid tribunals
3) controversial for Rome Statute due to overlap with UNSC competence
4) entered into force july 2018

Question 34

What does the crime of aggression require? (5)

Answer 34

1) Art 8bis(1) Rome Statute
2) planning, preparation, initiation or execution
3) by perpetrator in leadership position in State
4) of an act of aggression
5) which constitutes a manifest violation of the UNC

Question 35

What amounts to an act of aggression? (5)

Answer 35

1) Art 8bis(2) Rome Statute
2) use of force
3) between States
4) inconsistent with UNC
5) List of examples from UNGAres 3314 (XXIX) ‘Definition of Aggression)

Question 36

What are 2 unique jurisdictional exceptions to ICC jurisdiction over the crime of aggression? (2)

Answer 36

1) States may opt out of ICC jurisdiction over the crime of aggression (Art 15bis(4) Rome Statute)

2) no jurisdiction for crimes of aggression by non-contracting State nationals or on non-contracting State territory (Art 15bis(5) Rome Statute)
- HOWEVER still possibility of UNSC referral (Art 15ter)

Question 37

How must the prosecutor approach UNSC findings of aggression for the crime of aggression? (4)

Answer 37

1) Where UNSC determination of aggression –> go ahead (Art 15bis(7))
2) Where no UNSC determination –> prosecutor wait 6 months (Art 15bis(8))
3) then may proceed if whole pretrial division authorises (15bis(8))
4) any findings of aggression by organs other than ICC are irrelevant (Art 15bis(9))

Question 38

Advantages of ICC’s findings of aggression independent from UNSC (4)

Answer 38

1) UNSC deals with politics and States, not law and individuals
2) avoids P-5 and allies being immune from crime of aggression
3) UNSC has only very rarely in past made determination of aggression
4) UNSC may still refer situations to ICC without determination of aggression (Art 15ter Rome Statute)

Question 39

Disadvantages of ICC’s findings of aggression independent from UNSC? (3)

Answer 39

1) Could undermine UNSC
2) could lead to inconsistency between StateRes and individualRes
3) might escalate situations where UNSC not permitted to intervene first