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International Criminal Activity
University of Illinois School of Law
Keenan, Patrick J.

 
Keenan_ICL_Fall_2014
 
INTERNATIONAL CRIMINAL LAW- OUTLINE
                                                           
 
I. Introduction to International Criminal Law: August 25th, 2014: Pgs. 1-26
 
·         International Criminal Law imposes criminal responsibility on individuals for certain violations of international public law.
·         At the same time is possible to engender others types of liability such as state liability and torts.
 
Differences:
·         International Criminal Law-
o   Borrows from domestic jurisdiction, human rights law etc.
o   It is the newest
·         International humanitarian law-
o   It is the law of wars (i.e. organised violence)
o   It is the one of the source of ICL, but not entirely
o   It regulates state v. state conflicts, basically inter-state
·         International Human Rights law-
o   It is different from ICL and IHL
o   It is the law regulating individual human rights and not representatives of the state
§  This is the thinking that moved to ICL
§  Eg.- protection of bodily integrity
 
Tribunals:
1.      ICC-
o   Permanent, not created as a response to a situation/conflict
o   On a voluntary basis, countries agree to be under ICC
o   Has its own statute unlike other tribunals
2.      ICTY-
o   Created to address the crimes in Yugoslavia in the early 1990s
o   Modern ICC is developed from this
o   The jurisdiction is limited to geography and time
3.      ICTR-
o   In 1994, 17000 people were killed in a genocide, which is why it was set up
o   Prosecutions are still going on
o   Principles applied here are general principles
4.      Special court of Sierra Leone
o   Not functioning as a court anymore, but are only acting as an informational source
o   Extraordinary cases (which were never dealt with before) were dealt with->
§  Combatants forced women to act as their wives
§  Truth and reconciliation commissions were also set up for victims and criminals for apologising
5.      Extraordinary chambers in the courts of Cambodia-
o   Not really a big sources, but some references are made
6.      International Tribunal of Lebanon
 
 
Goals of International Criminal Law:
1.      Desert/ Retribution/ Vengeance –(Punishment)
2.      Deterrence—prevention
3.      Rehabilitation
4.      Restorative justice
5.      Communication/Condemnation/Social solidarity
 
 
Four Means/ Attitudes in ICL and its answers:
 
1. Willful ignorance – to forget and to pardonàAMNESTY
·         Motive: Past experience is very controversial and painful as to merit being forgotten.
·         Political groups that seek to hide their past actions.
2. Historical record- to establish the truth, but to pardonàTRUTH COMMISSION
·         Motive: in spite of the desire to facilitate reconciliation by pardoning the perpetrators of abuse, knowing and recording the events is essential to avoid their repetition.
3. Pragmatic retribution – to forget, but still punishàLUSTRATION: SUBSTITUTE CRIMINAL PROCEEDINGS
·         Motive: to get rid of the abusers, but without raising controversial issues from the past.
4. No peace without justice – to establish the truth and to punish the perpetrators. à PROCEEDINGS BASED ON INDIVIDUAL OR COLLECTIVE RESPONSIBILITY
·         Motive: only legal proceedings against perpetrators can provide the truth and punishment necessary to satisfy the victims; prevent individual retaliation for past injustices and prevent history from repeating itself.
§  Position adopted by the victims.
·         If the position is no Peace without justice the appropriate reaction is proceedings seeking collective/individual responsibility.
·         Flexibility in combining different types of reaction can ensure that the response chosen is prompt and pragmatic.
 
Criminal procedures: gravest crimes.
Amnesties: minor crimes.
Lustration = purification. Forbidden people from the past regime to work in the new one.
 
 
II. International Jurisdiction: August 26th, 2014, Pgs. 27-61
 
Three kinds of jurisdiction:
1.      Prescribe- Power of the state to create law (legality) to regulate criminal conduct
2.      Adjudicate- State’s application of the law, try cases of the accused of international crimes
3.      Enforcement- (Punish/ compel)- Liberty to take life, arresting people from other countries, power to punish, to compel persons to comply with its law
 
–          ICC does not have the power to punish/compel, it waits for the states to arrest people for itself— under the doctrine of complementarity
–          ICTY + ICTR: claim primacy over domestic courts by virtue of their chapter VII provenance.
 
Origins of International Tribunals:
a)      by victorious allied powers (Nuremberg and Tokyo)
b)      by U.N. security council (ICTY, ICTR)
c)      by treat (ICC).
d)      Hybrid tribunals: created by agreement between UN and host state.
 
Ad hoc tribunals – established with a mandate limited in one or more of three ways: particular geographical area; particular period of time and to a particular class of individuals and crimes.
 
·         Justice Pal’s dissent (page 31):
o   Snapshot as the world was changing:
(EARLIER) Sovereignty mattered ——changed to—–> individuals matter (NOW)
o   Tokyo Tribunals were less formal
o   Meanings, at that time:
§  Conspiracy- Planning a war
§  Crimes against peace- launching a war
 
Legality Principle= Conduct can be only punished only if it defined as illegal and subjects to individual punishment if they are engaging in it.
 
Jus ad bellum- law governing decision of going to war
Jus ad bellow- law governing the conduct of war
 
Tadic case (Pg. 43- 45)
·         1st case of the ICTY- challenged the legality of the court
·         Trial chambers- held it did not have the authority to evaluate its own legality
o   So, Appeals court tried to determine this questionà held it could evaluate its legality
·         It Held:
o   That tribunals have judicial character and a court can evaluate its own legality
o   Each court has competence to determine its own competence
o   It can also try people for contempt of court
o   Security Council has the power to decide cases if
§  To restore peace
§  On the basis of ad hoc tribunals
o   The power doesn’t come from any statute, but comes from International Law and if you have the characteristics of à ‘inherent and incidental authority’ i.e.:
§  Prescribe
§  Adjudicate
§  Punish/ Compel
o   Further, it has to be established by “due process”- having established in accordance with all rules + procedural safeguards i.e. ‘established by law’
o   In theory, it could be limited, but a procedural safeguard cannot be failed to establish itself.
 
Rule:  Primacy v. Complementarity (Article 17-19 of the ICC Statute):
 
 
Domestic wins         International wins
 
 
 
States can make a choice
However, you cannot punish a crime twice and there has to be an application of either.
If two tribunals want the same personà ICC loses because of the principle of complementarity.
 
Definitions:
Sovereignty: It is the supreme authority within a territory. Other states cannot interfere. States are sovereign- masters of their own domain. They can follow certain external functions.
Positivism: Sum of rules that states have consented to be bound or agreed to. Consent can be explicit or implicit.
Natural Law overrides sovereignty- Slavery was wrong and no state can deny this rule.
Jus cogens: Pre-emptory norms. States cannot decide to not agree to these norms.
Erga Omnes norms: Fundamental norms, norms which can be made effective by all the states.
 
Sources of International Criminal Law:
1. Art. 38, ICJ Treaty:
o   International conventions,
o   Customs,
o   General principles,
o   Judicial teachings and decisions
2. Treaties:
o   Vienna Convention on treaties
o  

cide again in Congo. He is a Belgium minister and used his speech to incide people
·         Congo saidà this doesn’t fit in Universal jurisdiction as he was not even in Belgium.
·         Issue: How we define the category of universal jurisdiction, how the court goes about figuring out what the law —Para 20 pg119
·         Why state practice?
o   To find general customs- Customary law. They are looking into the statutes (of UK, Germany, Canada, Netherlands etc.)
 
Substantive Law: Introduction & Sources, Sept 15, Pgs 174-176, 914-934, 203-212
 
Sources of International Law (Defences under International Law)
a.             Nullem Crimen Sine Lege
·           Nullem crimen sine lege = no crime without law
·           Prohibition against retroactive legislation
·           An individual cannot be convicted of acts that were not criminal at the time when they were committed
·           The maxim is not a limitation of sovereignty but a general principle of justice
·           Valid only to protect citizens against the arbitrariness of courts
b.             Prosecutor v. Sam Hinga Norman (Sierra Leone) – child enlistment
·           Sources of international law under Article 38(1)of ICJ Statute
o    International conventions, whether general or particular, establishing rules especially recognized by the contesting states
§   Both Additional Protocols as well as Convention on the Rights of the Child prohibit conscription of children and guarantee fundamental rights
§   Sierra Leone was party to all these conventions
o    International custom, as evidence of a general practice accepted as law
§   The formation of a custom requires both state practice and a sense of pre-existing obligations (opinio juris)
§   Most states have laws prohibiting conscription of children
§   Widespread recognition of norms provided in CRC and Additional Protocols
o    General principles of law recognized by civilized nations
o     Judicial decisions and the teachings of the most highly qualified publicists of the various nations
·           Whether the prohibition on child enlistment also entailed individual criminal responsibility at the time?
o    Whether the underlying conduct at the time of commission was punishable
o    Emphasis on conduct and not the specific description of the offence
o    Must be “foreseeable and accessible to a possible perpetrator that his concrete conduct was punishable”
·           Tadic test for determining whether a violation of humanitarian law is subject to prosecution:
o    The violation must constitute an infringement of a rule of international humanitarian law
o    The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met
o    The violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must have grave consequences for the victim
o    The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule
·      No new legislation created by Rome Statute – principles had been around for a long time