International Criminal Law (deGuzman – Spring 2011)
Jurisdiction
· Tadic Case
o each court has competence to determine its own competence
o Security council's powers under Art 41 to take measures not involving use of force to maintain and restore peace
· When under Art 39 there is a
§ Threat to peace
§ Breach of peace
§ Act of aggression
· Basis of ad hoc tribunals
o Basis for universal jurisdiction of court
Admissibility
· Art 17
o Gravity
o Unwilling or unable (complementarity)
· If state is investigating or prosecuting
· OR state has decided not to prosecute
ICC has no jurisdiction unless
· State is unwilling or unable to prosecute
o Unwilling
· Proceedings undertaken to shield criminals
· Unjustified delays in proceedings inconsistent with justice
· Proceedings rare not conducted fairly or independently
o Unable
· Due to total or substantial collapse
· OR unavailability of national judicial system
· Lubanga – no definitive gravity standard articulated. Rejected lower court's test
· Katanga – state must be unwilling or unable at the time ICC is deciding admissibility. Referral by state to ICC pretty much counts as unwilling or unable
Universal juridiction
· Belgian Arrest warrant – universal jurisdiction is only limited to gravest crimes, and it is not prohibited, so it is permitted
Hybrid tribunals
· Sierra Leone Case – hybrid tribunals were valid and constitutional in Sierra Leona
o Not part of national system so did not violate it
War Crimes
· Contextual elements
o Armed conflict
o Nexus to the armed conflict
o International or non international
· IHL – law of armed conflict
o Hague law
o Geneva Law
· Hague law
o 4 principles
· Humanity
· Necessity
· Distinction
· Proportionality
o Distinction
· Everything feasible
· In multiple acts, no need to look at every single commander
· Mens rea of commanders
· Geneva Law
o Injurious conduct towards protected person is grave breach
o Relevant provisions
· Com Art 2 and 3
· Protocol 1 and 2
o If international conflict
· Full range of Geneva protection applies
· Protected persons must be in the hands of enemy nationals
o If non-international conflict
· Com Art 3 and (maybe) Protocol 2 applies
· Boskoshi case
o What is armed conflict
· Two prong test
§ Intensity
§ Organization
· 5 Factors to find organization
· Level of organization
· Enough to engage in protracted violence
· Less than required for sustained military operations
· Kayeshima case
o When is there a war nexus
· Several standards articulated
§ Delalic – obvious link
§ Tadic – closely related
§ Akayesu – in conjunction with
· Used ICC commentary standard
§ In the context of and associated with
· Blaskic case
o Is it international v. non international
· Two standards of international intervention, or acting on behalf of foreign state
§ Direct intervention
§ Indirect intervention
· Control requirement in Geneva III
· 3 tests of control
· Unorganized individuals – specific instructions, later endorsed
· State organs – no specific instructions
· Military/Paramilitary (organized group) – overall control
· More than just financial or training
· Must have role in coordinating/planning
· Nationality
o If international conflict
o Nationals must be in hands of enemy for Geneva VI protection
· Delalic – nationality is based on substance of relationships rather than any formalistic rules.
· Classification in Geneva convention
o Common Art 2
· Applies to war or armed conflict between High Contracting Parties
o Protocol 1 Art 1
· Applies to Common Art 2
· Includes armed conflict where people are fighting against
§ Colonial domination
§ Alien occupation
§ Racist regime
o Common Art 3
· Applies to non-international armed conflict in territory of a High Contracting Party
· This is customary international law
o Protocol 2 Art 1
· Applies to Common Art 3
· Applies to conflicts not covered under Protocol 1
· Applies to conflicts between High Contracting Party and other organized armed group
§ Not sure if this is cust
AH paragraph)
· Or any crime within jurisdiction of Court
§ Persecution
· Intentional and severe deprivation
· Of fundamental rights
o Kupreskic case
· elements
§ Carrying out a prohibited conduct
§ Directed against civilian population
§ Motivated by discriminatory animus
· Extermination
o ICC definition
· Intentional infliction of conditions of life
· Calculated to bring about destruction of part of a population
o Krstic
· Elements
§ Particular population was targeted
§ Members were killed or subjected to conditions calculated to bring about destruction of
§ Numerically significant part of population
· Distinct from genocide
§ No discriminatory intent
o ICTR Definition
· Killing of certain named or described persons
· Act or omission was unlawful and intentional
· Part of widespread or systematic attack
· Against civilian population
Genocide
· Elements
o Act committed with
o Intent to destroy
o In whole or part
o A national, ethnic, racial or religious group
· Akayesu case
o What is an ethnic group
· Group that shares common language or culture
· Stable group
· Protected groups
o Immutability(?)
o Subjective identification as per perpetrators
o Spanish courts
· Broader definition
§ Differentiated human group
§ Characterized by some trait
§ Integrated into larger collection
· Jelisic case
o Specific intent
· Intent to attack AND
· Intent to participate
· Intent to destroy group
· Know acts are part of wider range
· Targeting leaders
· Aiding and abetting
§ Intent to cause destruction
· One man genocide mission
