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.
· 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
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
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
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)
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.:
§ 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.
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 General principles,
o Judicial teachings and decisions
o Vienna Convention on treaties
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