Int. Criminal Law Flashcards
(19 cards)
What does the commission of an international crime require?
It requires both the actus reus (guilty act) and the mens rea (guilty mind)
Example of what is meant by the requirement of both actus reus and mens rea?
Homicide, murder requires the overt act of killing (actus reus) as well as wanting to maliciously harm them (mens rea)
What is a strict liability crime?
One where you can get in trouble even with only actus reus without mens rea
Article 30 of the Rome Statute (“mental element”)
“A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”
- In other words, the person must have intended to commit an act, and must have known (or should have reasonably known) of the consequences
– Often means judges will apply their own test of mental reasonable-ness
Command responsibility in relation to international crime prosecution
Officers and civilian superiors are responsible for the crimes committed by those under their command if they:
- Knew or should have known that they were being committed
AND
- Failed to take all reasonable measures to prevent their occurrence or to submit the matter for investigation and prosecution
Superior orders (Nuremberg defence) in relation to international crime prosecution
Article 33 of the Rome Statute: having been ordered by a superior officer to commit a criminal act is no defence unless:
- The person was under a legal obligation to obey
- The person did not know that the order was unlawful
- The order was not manifestly unlawful
Orders to commit genocide/crimes against humanity are always unlawful
How is genocide perceived and when was it conceived?
- Genocide is the most infamous international crime, and generally considered the gravest
- Conceived during WW2 by Raphael Lemkin to describe the particular nature of the Holocaust, which was not being captured by existing international law
What is genocide under the Genocide Convention of 1948?
“The commission any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group”
- There has to be intent to destroy and the group targeted has to fall within one of the enumerated categories
What acts can constitute genocide?
- a) killing members of the group
- b) causing serious bodily or mental harm to members of the group
- c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- d) imposing measures intended to prevent births within the group
- e) forcibly transferring children of the group to another group
What is meant by “in whole or in part” in the Genocide Convention?
Has to be both a sizeable number and a sizeable portion of the population in question - as the targets of genocide are groups, not individuals
What is actus reus/mens rea in the context of the Genocide Convention?
Both the over act (eg. killing) and the genocidal intent (to destroy a group) have to be present, mere killing is not sufficient to constitute genocide
What are not protected groups in the Genocide Convention?
Does not include (eg.) the killing of members of a political or socio-economic group
Why can assigning the label of genocide be controversial?
- Because of the requirements and their inherent nature, what constitutes a genocide can be controversial
- eg. whether the Holodomor, Chinese imprisonment of the Uighurs, etc. constitute genocide is hotly debated
- Some countries criminalize denying that certain historical killings constitute genocide
What is meant by crimes against humanity?
- An eclectic group of acts which “constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings”
- Have to be “part of a widespread or systematic practice” against a civilian population - individual acts of murder eg. however odious, will not constitute a crime against humanity in and of themselves
What requirements are there for something to be a crime against humanity?
- The constitutive acts have to be either part of government policy or be tolerated or condoned by a government or a de facto authority - but perpetrators do not need to belong to such an authority
- Many of the actus reus overlap with those of genocide/war crimes - the distinction lies in the mens rea
Who specifies what counts as a crime against humanity?
- There is some difference of opinion as to what acts can be constitutive of crimes against humanity
- Article 7 of the Rome Statute is probably the most comprehensive in existence
What acts constitute crimes against humanity?
- Murder
- Extermination
- Enslavement
- Deportation or forcible transfer of population
- Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
- Torture
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
- Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph on any crime within the jurisdiction of the Court
- Enforced disappearance of persons
- The crime of apartheid
- Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health
What is meant by enforced disappearance?
The (almost always) murder of dissidents, etc. but where there is no body nor evidence of what happened to the person
What is meant by the crime of apartheid?
Inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them
- The mere existence of racial discrimination in law, eg. will not be Apartheid unless the other criteria are met
