INT’L CRIMINAL LAW OUTLINE – GROSSMAN FALL 2014
UNIT I. INTRODUCTION TO ICL
A. WHAT IS INTERNATIONAL CRIMINAL LAW?
a. Categories of International Criminal Law
i. Transnational criminal law (TCL): when a nation’s criminal law (domestic law) regulates actions or events beyond the nations borders (i.e. Canadian hacker attacks an American Bank virtually on Canadian Soil; a crime syndicate committing a crime in the US and then fleeing and committing a crime in Europe). Crosses boundaries but is tried in domestic courts.
ii. International Criminal Law (strict sense): wrongs that are criminalized under international law
1. “Great Crimes”: CaH; War Crimes; Genocide and Crime of Aggression
a. Can be tried domestically, internationally or by hybrid tribunals
2. List on page 5 of the book – why did they make the cut?
a. Heinousness of the crimes
b. The fact that need int’l community to assist, some states do not criminalize it – forces states to adopt law domestically
iii. Treaty-Based Domestic Crimes: Activity declared criminal by international treaties, but enforced under the domestic law of states that join the treaties. (i.e. Con. Against Torture)
1. Treaties require their parties to enact domestic legislation against activities, grant domestic J to try crimes, even when committed abroad and participate in international enforcement by agreeing to extradite or prosecute alleged criminals in their custody.
a. Tried in domestic courts
b. What is makes conduct “criminal” Who Decides?
i. Per Henry Hart, Jr. -What distinguishes criminal v. civil law is the idea that in criminal law it is an expression of the community’s hatred, fear, or contempt for the convict, which alone characterizes physical hardship as punishment. [moral condemnation]
1. Therefore an issue in ICL is – should we let one community influence another community?? (i.e. international community versus a nation) Who gets to decide, whose values win??
ii. Malum in Se/Malum Prohibitum
1. When a state’s criminal laws are imposed transnationally – how can the community be put on notice that the behavior is a crime?
a. Certain crimes are malum in se – crimes “wrong in themselves” – all legal systems criminalize them (murder, rape, armed robbery, aggravated assault)
b. Malum Prohibitum – crimes “wrong bc prohibited” – crimes because the community has decided to punish them.
c. Basic Protections in Criminal Law and Procedure
i. Balancing enforcement against wrongful conviction
1. Basic Protections in Criminal Law and Procedure
ii. Three safeguarding Principles
1. Principal of Legality:
a. Nulla crimen sine lege (Actus reus/Mens rea)
b. Nulla poena sine lege
2. Principle of Fair Notice
3. Principle of Nonretroactivity
B. INT’L PREMLIMINARIES
a. International Legal System
i. Classical Picture of International Law
1. Only states make the law
2. Only states have rights under IL
3. States are bound only by those rules they choose to accept, or consent to.
4. IL governs the relations btwn states.
5. States are like “black boxes”-sovereignty, non-interference, territorial integrity.
6. No world gov’t.
ii. See a shift after WWI, establishment of League of Nations and begin to discuss human rights: Watershed moment, Nuremburg Trials
1. States agreed to individual accountability for violations of law of war (int’l humanitarian law)
2. Convention on Universal Declaration of Human Rights is ratified.
3. Tribunals held
a. High gov’t position does not immunize you from state prosecution
b. Whether it was domestically legal does not immunize you on the IL plane
c. Eliminated the Superior Orders Defense
4. Summary: Nuremburg shows that high gov’t officials and heads of state can be accountable to other sovereigns for abuses to their own people on their soil – no longer impenetrable black boxes.
iii. Post WW II/Modified Classical Picture of Int’l Law
1. ICCPR & ISCSCR
2. Establishment of the U.N.
3. After WWII, see the challenge of enforcement
a. Little development on the issue of enforcement after the cold war.
b. Following Cold War, transitional countries were facing the need to address the mass atrocities (transitional justice). Horrendous atrocities happened in Rwanda and former Yugoslavia.
i. Tribunals formed – ICTY, Special Tribunal for Rwanda.
4. Creation of ICC — Rome Statute (1998)
5. ICL and IHR law have modified the classical picture of IL. States are no longer the actors….but the classical picture isn’t the world today, individuals have duties under International Human Rights Law etc..
b. Sources of Int’l Law
i. Consensual Sources: Treaties & Custom
1. TREATIES -Treaties regulate the behavior between states and are also a source of international law
a. Article 38(1) of ICJ Statute – treaties are a source of international law
b. Treaties are basically contracts between governments of states; however they play a bigger role in international law than ordinary contracts do
c. Basic doctrine of international law – pacta sunt servanda (treaties ought to be obeyed) it validates treaties
d. Treaties validate agreements between governments, ratification, reservations etc..
e. Treaties offers a technique through which vague concepts of international law can be made more concrete
f. What the state accepts is law – positivist or voluntarist approach
2. CUSTOM –
ii. Non-consensual Sources:
1. GENERAL PRINCIPALS
2. JUDICIAL DECISIONS & TEACHING OF PUBLICISTS
3. JUS CONGENS–rules of law that are of such fundamental importance that derogation from them is prohibited. Jus cogens may be modified only be emergence of new peremptory norms. Law that just is—imperative.
a. Norms which are fundamentally repugnant – slavery, genocide, aggression, etc. – would still be violation of international law even if two states agreed to the practice
b. You cannot agree by treaty to violate jus cogens – Article 53 of the Vienna Convention on the Law of Treaties describes jus cogens as fundamental customary norms
c. Jus cogens can only be changed if everyone agrees that there is a more important right requiring a change
d. Jus cogens can be seen as a type of custom, but that is not the only way it is viewed
e. Subject to much controversy: due to divergence of positivist (challenge the existence of any laws that the state’s have not consented) and natural law(maintain that there are rules that exist independently of state’s action) approach. The Vienna Convention refers to Jus congens but avoids naming specific examples
f. Identifying rules of Jus Congens: few rules are accepted as peremptory norms. Those generating the least amount of controversy are the pacta sunt sevanda (“agreements of parties must be observed”) and prohibitions on the use of or threat of force (genocide; piracy; terrorism)
4. Restatement (3d) § 102 – Sources of International Law
a. customary law
b. international agreement (treaties)
c. general principles common to the major legal systems of the world
i. Customs; treaties; Resolutions of IO; Judicial Decisions; Views of Scholars; Transnational Regulation; Soft Law
c. Sources according to ICJ vs. ICC
i. ICJ Article 38 Sources that the court applies:
1. international conventions (treaties)
2. international custom [1) state practice (Usus – widespread, reasonably consistent state practice) & 2) opinion juris – sense of legal obligation (view that something is required to do it by law])
3. general principles of law recognized by civilized nations
4. judicial decisions and teachings of the most highly qualified publicists of the various nations
5. EXCEPTION: as subject to Article 59 (see below)
6. Note: Previous categories show evidence of law; this list is copied from VattelàMadison.
7. Article 59 – the decisions of the court has no binding effect except between the parties
a. very different idea from that taught in U.S. where court decisions have precedential value
b. unlike the U.S. Supreme Court, the ICJ does not have similar authority in determining international law
c. ICJ does cite its own decisions in other opinions as if they have precedential value
ii. ICC Article 21 – Legal framework
1. The ICC legal instruments (Rome Statute, Rules of Procedure and Evidence; Regulations of the Court)
2. Int’l treaties and principles of established int’l law of armed conflict
3. General principles of law derived from national laws of legal systems of the world
4. Precedents of the court
5. The application and interpretation of the law must in any case be consiste
uslim, Serb and Croat. Bosnia Serb and Bosnia Muslim – fierce fighting and the UN came in for peacekeeping mission. Dutch UN troops were outgunned and manned – surrounded by Bosnia Serb units (slaughtered more than 7,000 men and boys)
5. 1992, Serbia and Montenegro established Serb dominated state – Fed Rep. of Yugoslavia, JNA it’s army. Objective was to make a Serbian dominated territory, taking Serb-dominated portions of Croatia and Bosnia. The large Muslim and Croat populations native and living in Herzogovina and Bosnia posed a problem. Ethnic cleansing was adopted: murdering, driving away, expelling…Serb units created concentration camps, rape motels
a. Serbs formed a new army – Serbian Army of Bosnia (VRS), composed of former JNA soldiers and officers who remained in Bosnia to fight on the Serbs’ behalf after JNA was ostensibly withdrawn.
b. The VRS and Bosnian troops were allegedly under the gov’t of serbia’s control – Milosevic
6. 1992, Helsinki Watch issues a report on War Crimes in Bosnia, concluding: to varying degrees, all parties to the conflict in Bosnia-Herzegovinia have violated IHL/laws of war.
7. UN S.C. adopted Res 780, created a commission to investigate; the commission recorded evidence that would be used at the ICTY. 1995, NATO forces bombed Serb forces to protect UN safe zones and Croatian forces defeated JNA. Dayton, Peace Talks in 1995 – resulted in treaty Dec 14th
8. 1999, Kosovo attempted to succeed from Yugoslavia. Kosovo has a serb minority and an Albanian muslim majority. Muslim KLA (Kosovo Liberation Army) fought the Serb army; fear of another Bosnia
9. NATO forces bombed Serb units. Serb militia’s attacked killing several thousand muslims and driving 100Ks out. NATO expanded its bombing – Kosovo, Belgrade, Serbia and Milosevic surrendered in June 1999 (three months after)
10. ICTY issued an indictment against Milosevic for War Crimes. A popular uprising would overthrow him and lead the gov’t to send him to the Hague.
11. Milosovec Trial would become notorious, he refused counsel and insisted on representing himself. Counsel would be appointed to him once his ill health became apparent. He wanted to be sent to Russia for treatment (fear that he would not be returned by the Russians). He would die before his verdict was rendered. Some say he choose not to take his heart medication so he would die in anticipation.
iii. Prosecutor v. Tadic: TADIC affirmed that the UN SC Resolution that the ICTY had J over the case Facts: first individual to be tried by the ICTY- criminal court set up by the security counsel. Tadic argues: that the UN is not capable of creating Int’l Tribunal. However, the Security Counsel was endowed with the power to create this IT as a measure under Chapter 7 of the UN Charter.
1. Under Chapter 7, Art 39:–The Security Counsel shall determine the existence of any threat to the peace, breach of peace, or act of aggression…Security Counsel will decide what constitutes a threat.
i. Security Counsel gets to determine that there’s a threat—in this case they decided that there should be a IT to take care of threats…therefore OK!!
b. Tadic argues that what he is being charged with wasn’t a crime at the time he was committing them nor was the court even established at that time.
i. Argues: There is a general principle of law of civilized nations—they agree that the court must be established by law. The UN security counsel should have added an amendment. There is no legislative body then you will have to look at the Charter. The charter does not establish the tribunal.
