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

INT’L CRIM LAW OUTLINE
 
INTRODUCTION
Nuremberg and Tokyo after WWII were the first attempt to articulate a global vision of international criminal justice
Legal norms within international criminal law share several characteristics:
Offenses against this body of law are criminalized at the international level, although they may also find expression in domestic penal codes
Violations give rise to individual criminal liability
But they may also generate state and individual civil responsibility such that violation may generate parallel proceedings against different classes of defendants under different theories of liability
Therefore combines both int’l humanitarian law and international human rights law, but also goes past both
International criminal law violations are prosecuted before international penal tribunals
However, violations are increasingly prosecuted before domestic courts under various jurisdictional principles which give domestic courts expansive extraterritorial reach
International criminal law violations may trigger state obligations to prosecute offenders under treaty law and arguably customary international law
Most int’l criminal law dates from the WWII proceedings before the Nuremberg and Tokyo Tribunals
After the cold war and the reappearance of genocide in Europe, sparked a renaissane in int’l criminal law
Jurisprudence comes from a variety of places
International and hybrid criminal tribunals
International Court of Justice
Treaty bodies (Human Rights Committee)
Regional human rights institutions (Europena Court of Human Rights)
Formal domestic courts
Alternative or traditional courts (gacaca proceedings in Rwanda)
Transactional justice institutions (truth commissions and lustrations panels)
International and domestic institutions are engaged in an iterative process of vertical and horizontal cross-fertilization with respect of the normas, principles, and processes of international criminal law
WHAT IS INTERNATIONAL CRIMINAL LAW?
TRANSITIONAL JUSTICE MECHANISMS
Basic assumption, prosecution of individuals accused of transgressions is the best way to promote desirable substantive norms and societal
However after a armed conflict, mass violence there are other options to address the commission of international law
Ivan Simonovic, Attitudes and Types of Reaction Toward Past War Crimes and Human Rights Abuses
Controversy still surround the extent to which seeking justice for past war crimes and grave human rights abuses represents an obstacle to the overall stability of post-conflict and transitional societies
There is a difference between “simple” transitions from a repressive regime to democracy from transitions following patterns of atrocity that had racial, religious, or ethnic underpinnings
Attitudes toward past war crimes and human rights abuses (possible responses post-conflict or transitional society can take)
Willfull ignorance: to forget and to pardon
Derives from the perception that past experience is so controversial, divisive, and painful as to merit being forgotten—being cast into oblivion
Could be an opportunistic position taken by politically important group trying to hide its reponsibilitys
This attitude tires to cut off the divisive past in a single instant and look only to the future
Brings about “immediate peace”
Historical record: to establish the truth, but to pardon
Belief that inspite of the desire to facilitate reconciliation by pardoning the perpetrators, knowing and recording the vents that have taken place is ESSENTIAL to avoid their repetition
Revealing truth provides symbolic satisfaction to the victims
Could represent a compromise between former abuses and their victims, victims settle for the limited satisfaction of truth rather than receiving actual redress through punishment
Pragmatic retribution: to forget, but still punish
Motivated by the will to get rid of the abusers fast, but without raising controversial issues from the past
Pragmatism > justice
Essential to eliminate the perpetrators of abuses from political life by either taking administrative means to exclude them or by punishing them for crimes that are not directly tied to war crimes and abuses and therefore not politically divisive
No peace without justice: to establish the truth and to punish the perpetrators
Belief that only legal proceedings against the perpetrators of war crimes and human rights abuses can
Provide the truth and punishment necessary to satisfy the victims
Prevent individual retaliation for past injustices
Prevent history from repeating itself
Victims and human rights NGO’s typically adopt this position, but it can also be dominant in post-conflict or by the international community
Attitudes correspond to the following set of societal choices
Amnesty: to forget and to pardon
Could be blanket amnesty with no questions asked or conditional or individual amnesty in exchange for cooperation in establishing the truth
Can create stability by eliminating the uncertainty surround the potential prosecutions or the prosecutions potential misuse
Shortcoming: potential frustration of the victims (motivation for individual revenge could result) and crimes could reoccure because they were neither condemned or punished
Truth commissions: to establish the truth, but to pardon
High level of commitment to establishing the truth, but also a willingness to pardon the offenders
Establishing a reliable historical record can be important because past abuses can be systematically hidden (ex. disappearing perons in Latin America) or because different sides may give competiong and conflicting versions of the truth
Symbolic satisfaction fo the victims and can help mitigate the risk of future conflict
Strengths: victims recive some level of symbolic satisfaction but without pushing perpetrators too hard and risking the reemergence of conflict
Shortcoming: victims who know the truth but who see the perpetrators not punished might be movtivated for individual revenge
Lustration or substitute criminal charges: to forget and to punish
Avoid the risks related to establishing the truth and to punish the perpetrators in some way
Individuals may be excluded from active political life and prohibited from participating in public administration
Substitute criminal charges impose a higher degree of punishment than lustration; they not only place restrictions on participation on public life, but the also involve actual imprisonment
Lustration requires some legal determination of the scope of persons affected and the extent of consequences for those individuals
Substitute criminal charges do not require any changes to the legal system; exisiting rules and used to punish and remove
Can prepared the society psychologically for future prosecutions of more seriouls/ poltically sensitive crimes
If someone is convicted of murder easier to accept he was a war criminal too
Rids society of the most dangerous people without risking widespread social or political instability
Shortcomings: war crimes or abuses may reoccur because theyw ere never properly confronted and conemned
Individual or collective criminal justice proceedings: to establish the truth and to punish
Strong demand for establishing the truth with a desire to mete out either collective or individual punishment against the perpetrators
Raction targeting a collective body considred responsible for the abuse of victims
Collective responsibility can be regulated through legal institutions, but its basis is the awarding of compensation
Strengths: proceedings based on theories of collective responsibility are less threatening to former abusers because not targeted individually and because findings of cimrinal responsibility give rise to obligations that are FINANCIAL, not moral
Shortcomings: financial compensation fails to vindicate the victim’s claims as completely as invidual prosecution and punishment might
What is ideal?
Approaches to past war crimes and human rights abuses should be holistic, taking into account various social, legal, political and moral dimensions and the most suitable reaction should take into account questions of appropriate timing and other specific circumstances
Flexibility in choosing response can ensure that the response chose is prompt and pragmatic and that justice is finally satisfied
Amnesty more and more just used for minor crimes
Truth commissions can help to gather evidence for criminal proceedings
Lustration can help to remove criminals and abusers from public life quickly, which does not preclude their criminal prosecution for war crimes and human rights abuses when the conditions are ready
Collective responsibility can provide for the fast compensation of victims
Truth Commissions
Emerged as a response to mass violence in countries where prosecutions were precluded by the operation of an amnesty law, the lack of political will, and an entrenched military
Alternative form of justice by establishing a historical record of abuses, forum for victims to bear witness, investigating the fate of disappeared, creating an environment more ripe for reconciliation and forgiveness than adversarial trial, propose institutional reforms
Commissions usually presided over by respected public figures rather than judges/lawyers
Ex. South Africa post apartheid
Were able to grant amenesties if the perpetrator revealed the full truth
Gacaca Courts
Rwanda face with prosecuting thousands of low level perpetrators
Objectives of these courts are:
Reveal the truths about what happened
Speed up genocid

set up by clean hands
believes that only the International Court, which is set up by treaty and to which not only the victorious but the vanquished states are parties of, can handle these difficulties of “victors justice”
grapples with two questions
whether a war of the alleged character is a crime in international law
whether individual members of a State commit a crime in international law by preparing, etc. for such a war
unconditional surrender does not allow victor nations to legislate for Japan and for the Japanese or in respect of war crimes
Postdam declaration and the Intrument of Surrender did not contemplate that the Allied Powers would have authrotiy to give, whatever character they might choose, to past acts and then punish such acts as they see fit
Clear intetntion was for tribunal to be a “judicial tribunal” and not a “manifestation of power’
To use its own discretion to determine decisions not to be influenced by victorious bodies
Majority says that the victors have accurately defined the crim in accordance with existing international law, but they overlook the fact that if it is not open to the Tribunal to examine this definition with refernce to existing law, it becomes a definition now given by the victor
No national state, neither the victor nor the vanquished, can make any ex post facto law affecting their liability for past acts, particularly when they are placed on trial before an international tribunal
As soon as they set up an international tribunal, they cannot create any law defining the crime for such tribunal
It is beyond the competence of any victor nation to go beyond the rules of international law as they exist, vie new definitions of crime and then punisht he prisoners for having committed offense according to the new definition
Usurpation of power which international law denies that nation
While the people who set up the tribunal may enact what matters will come up for trial before the tribunal, its for the Tribunal to decide, with reference to international law, what offense, if any , has been committed
MODERN AD HOC INTERNATIONAL TRIBUNALS
·         Tadic (first defendant at the ICTY, charged with genocide and war crimes)
o        Detained in Germany and came to tribunal via deferral motion by the prosecution pursuant to Rule 9(iii) of ICTY’s Rules of Procedure and Evidence
§         Rule 9(iii) allows the Tribunal to makea requrest for deferral where a national court investigation “is closely related to or other wise involves significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal”
§         Tribunal denied double jeopardy claim by defense (German trial and ICTY trial)
WAR CRIMES
·         International humanitarian law (law of war) describes international rules governing armed conflict
o        Contained in a web of bilateral and multilateral treaties making IHL the most codified area of int’l crim law
o        A rich body of customary int’l law also developed to supplement IHL treaties
o        Treaties sought to limit the tactics of war and prohibit the use of certain weapons designed to cause excessive suffering “Hague Law”
o        ICRC treaties in Geneva established protection for individuals uniquely impacted by war, especially those who do not—orwho no longer—participate directly in hostilities like POWs or civilians (Geneva Law)
o        Laws of war almost exclusively addressed international armed conflicts but now they increasingly apply to non-international armed conflicts as well
·         Contemporary International Humanitarian Law
o        Modern IHL based upon the four Geneva Conventions of 1949 + two protocols in 1977
§         Conventions provide specific protections to four classes of protected persons
·         The wounded and the sick in the field (Geneva Conv. I)