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International Criminal Law
University of Michigan School of Law
Starr, Sonja B.

International Criminal Law – Sonja Starr – Fall 2013

Justice Policy and Intro

1. Goals of ICTs

a. Retributive Justice

b. Incapacitation

c. Deterrence

d. Peace/Reconciliation/Stability

i. Both for global system and warring countries

ii. Especially when trials are for state leaders

iii. Peace war-shattered society on better footing going forward

e. Vindication/Benefits for Victims

i. Both trying to help victims who get to participate and provide emotional help for wider victim population

f. Truth/Historical Record

i. Not an objective in domestic courts

ii. “never again”

iii. Helps create a record for establishing more norms for international criminal law

iv. Helping victims/survivors – gain closure, finding out fates of friends/family, compensation

g. Expressive/Norm-Shaping

h. Transitional Justice

i. Strategies for confronting human rights violations after regime changes

2. Dangers Confronting ICTs

a. Inflaming/Prolonging Conflict or Instability

i. Ex. – Uganda – makes leaders less likely to surrender

b. Wasting resources

i. ICTY/R – occupy 2-3% of UN budget each year

ii. Diverts political energy, including from other efforts to help victims

c. Unfairness to Defendants

d. Traumatizing Victims

e. Selective Justice

i. Scapegoating just a few

f. Bad Historical Record

g. Interfering with local responses

i. ICTR has primacy – can take cases away from local courts

3. Substantive ICL

a. ICL – subset of international law that imposes criminal liability on individuals who commit certain serious offenses – created by treaties or customary laws of war

b. Specifically about four crimes – Genocide, Crimes Against Humanity, War Crimes, Aggression

c. Who enforces ICL?

i. ICTs

ii. Domestic courts

iii. Hybrid courts

iv. Non-judicial actors (governments, militaries, etc.)

d. How were ICTs created?

i. Nuremberg and Tokyo: Agreement of Allies, citing laws of war and terms of surrender

ii. ICTY and ICTR: UN Security Council, invoking Chapter VII power to address “threats to international peace and security”

iii. ICC: By treaty (Rome Statute)

e. Jurisdiction: Temporal/Geographic

i. Nuremberg, Tokyo, ICTY, ICTR:

1. Confined to particular situations

2. Jurisdiction is retroactive

ii. ICC

1. Theoretically global (subject to conditions)

2. Permanente, but not retroactive (2003 onward, post-ratification)

f. Subject Matter Jurisdiction (crimes):

i. Nuremberg, Tokyo, ICTY, ICTR:

1. Statute is purely jurisdictional – lists crimes, but doesn’t define them (ex post facto problem – must have been crimes already)

ii. ICC

1. Statute is prohibitory too

2. Further detail fleshed out by Elements of Crimes (only persuasive authority)

g. The Legality Principle – Nullem Crimen Sine Lege (No Crime Without Law): No one may be criminally punished for an act that was not a crime at the time it was committed. Also, no one can be punished more than the law had allowed.

h. Laws of War

i. Jus Ad Bellum – Law governing decision to go to war (including crime of aggression)

ii. Jus in Bello – law governing conduct of the war (including war crimes) – aka international humanitarian law

i. Hague Law

i. Drawn from turn-of-the-20th-century treaties governing means and methods of warfare; today mostly customary IL

ii. Protects combatants from inhumane weapons and tactics

iii. Protects noncombatants, mainly through the principles of distinction and proportionality

j. Geneva Conventions – four universally ratified treaties (1949) protecting people who are not active combatants:

i. Wounded and sick at land

ii. Wounded and sic at sea

iii. Prisoners of war

iv. Civilians

v. Common Article 3 – shared by all four conventions, provides basic protections in non-international armed conflict

vi. Protocol 1 (1977) – Includes detailed rules codifying many Hague Law principles

vii. Protocol 2 (1977): expands on CA3’s protections for non-international armed conflict

Substantive International Criminal Law

1. War Crimes

a. Only certain serious breaches of the laws of war are war crimes, including “grave breaches” of the GCs.

b. Contextual (Attendant Circumstances) Elements

i. Was there an armed conflict?

ii. Was D’s crime linked to the armed conflict (nexus)

iii. Was the conflict international or non-international?

c. Existence of Armed Conflict Within a State Test – Tadic/Boskoski

i. Intensity of conflict

ii. Organization of the parties (does the rebel group in practice act a lot like an army?)

d. Scope of Armed Conflict

i. Temporal: IHL applies from the time an armed conflict comes into existence until a general conclusion of peace (not just ceasefire)

ii. Geographic: IHL applies to whole territory under control of the parties – not just on the battlefield

e. Notes on Armed Conflict

i. Don’t need a declaration of war for something to be an armed conflict

us and legitimate reason to believe that they, individually, are engaged in subversive activities, AND

2. State security makes detention necessary

k. Rights of Civilian Detainees

i. Treated with humanity

ii. Fair trial if criminally charged

iii. Review of detention status 2x yearly

iv. Detention becomes “unlawful” if rights not respected, even if otherwise lawful – important because unlawful detention=grave breach

l. Geneva Convention III

i. Protects POWs and detained combatants

ii. Indirectly defines the category of persons who may invoke the combatant’s privilege

iii. Combatant’s Privilege: legal authority to use lawful force (including immunity from prosecution for doing so, provided IHL is obeyed)

m. Hague Law Requirements for Combatant

i. Commanded by a responsible superior

ii. Wears a fixed, distinctive emblem

1. Want enemy to be able to distinguish combatants from civilians

2. Want people to understand the threats.

iii. Carries arms openly

iv. Obeys the laws of war

n. Combatant’s Privilege under GC3

i. All members of government armies (and those working with them)

ii. Members of other militias (i.e., rebels), who comply with the four Hague criteria

iii. Those spontaneously resisting invasion, if carry arms openly and respect IHL (levee en masse)

o. Rights of POWs (GC3)

i. Can be detained until the end of the war, but this detention cannot be punitive, and must be let go when the war ends

ii. Humane treatment

iii. If charged with crime, trial with same courts and procedures used to try members of the Detaining Power’s military

iv. Cannot be criminally punished for acts within the combatant’s privilege

p. “Unlawful Combatants”

i. Persons who participate in battle in IAC but are not legal “combatants” under GC3:

ii. US Position: No GC protections

iii. ICTY, ICRC position: Civilians – GC4 applies

iv. Key different is rights when detained – when free, civilians who take up arms may be legit military targets.