international and Transnational Crime Revision

Question 1

Three meanings of common law?

Answer 1

Legal system – principles, institutions, values, procedures etc

• Law created by courts – source of law
• Common law v. equity – crimes, civil actions in tort, property, contracts

Question 2

Different classifications of law

Answer 2

Civil law – regulating relations between people and stating the rights and liabilities they have towards each other. Eg: contracts, torts, claimant – plaintiff; respondent – defendant, damages; orders as opposed to punishment and fines

• Criminal law – mainly deals with ‘prohibitions addressed to individuals’ which if violated would be penalized by the State. Eg: burglary, murder, armed robbery etc• Procedural law – the way in which the court handles a particular case and enforce legal rights and remedies as defined by substantive law
• Substantive law – prohibited acts and subjective elements

Question 3

Difference between Public and private law?

Answer 3

Public – functioning of State and its relationship with citizens.
• Private – relationships in areas where the state interest is less obvious or is indirect.

Eg: smoking indoors is illegal however in some households where there is a mutual agreement it could differ.

Question 4

difference between national law and international law (private and public)?

Answer 4

National law - mainly governs the relationship between people within a State and exists within a particular State

• International law - Is a branch of law that governs the rights and responsibilities between States
• Private International Law – [conflict of laws] civil and commercial law transactions
• Public International Law [PIL] – law between sovereign states
• i.e. ICL would fall under Public International Law

Question 5

what are the three Arms of government?

Answer 5

Executive – puts the law into action, made up of the Queen represented by the Governor-General, Prime Minister and ministers

• Legislature [Parliament] – parliament makes and amends the law, legislature is madeup of the Queen represented by the Governor-General, the Senate and the House of Representatives
• Judiciary – makes judgments about the law, made up of the High Court and other federal courts

Question 6

Definition of Actus reus

Answer 6

Guilty act

Question 7

Definition of mens rea

Answer 7

Guilty mind

Question 8

What is IHL?

Answer 8

International humanitarian laws

Question 9

Sources of International criminal laws

Answer 9

• Treaties
• Customary International Law
• State practice and opinion juris – the belief that such practice is required by law
• General principles of ICL and PIL
• General principles of law recognized in national legal systems [recognized by civilized nations]
• Judicial decisions and writings of ‘the most qualified publicists’ (do not count as a source of law per se but can be referred to as a subsidiary means

Question 10

What is the doctrine of substantive justice?

Answer 10

Doctrine of substantive justice- ‘socially harmful’ should be prohibited and punished

• Eg: Soviet criminal system, Nazi criminal law- favours society over individual
• Radbruch’s formula (1946)- great inconsistency between statute law and justice

Question 11

What is the doctrine of strict legality and its elements?

Answer 11

Doctrine of strict legality - liable and punished if law existed at time of crime

• Eg: Barons and knights opposition to arbitrary powers of monarchy
• Have to prove actus reus [guilty act] and mens rea [guilty mind]
• A mens rea is a mental state which accompanies the actus reus, the physical action. In order to prove that a defendant is guilty of a criminal offence, the state has the onus of proof of mens rea. This therefore means that in order for a defendant to be criminalised, the prosecution must prove the occurrence of a mental event in relation to a criminal action committed

Question 12

What do we mean when we say that intl. crimes may have a ‘double layered’ aspect?

Answer 12

Doubled layered aspect – additional mental element

• Murder is also a crime against humanity

Question 13

what does the term ‘Ejusdem generis’ mean?

Answer 13

‘of the same kind’

Question 14

Name two pros of having international tribunals and courts

Answer 14

Impartial
• Judges competence, specialty, collecting evidence….
• International values
• Uniformity (not being bound by national tradition and values)
• Visibility leading to stigmatization

Question 15

Name two cons of having international tribunals and courts

Answer 15

Enforcement.

Various approaches among judges.

Adversarial, hence lengthy, needing to keep defendants in custody..

Mainly prosecuting high ranking official, not others who victims may want to see prosecuted.

Question 16

Define genocide

Answer 16

• Intentional destruction, in whole or part of ‘a national, ethnical, racial or religious group as such’
• Previously prosecuted as persecution which is a form of crimes against humanity

Question 17

Of the core intl. crimes, which one is the oldest crime?

Answer 17

crimes against humanity

Question 18

Why was the Nuremberg tribunal a turning point in dealing with intl. crimes?

Answer 18

• Nuremberg Tribunal and then Tokyo Tribunal were a crucial turning point
• New crimes created
• High ranking officials and even private individuals held responsible
• They were punished by foreign states (allied/ victors)
• International standards more important than national commands
• 1949 Geneva conventions were adopted and it greatly advanced and extended both substantive law and the ‘enforcement of substantive prohibitions’ (principle of universality) with regards to war crimes

Question 19

Why the term crimes against humanity?

Answer 19

Victims are ‘all’ of the human race
• Origin of crimes against humanity:
• 1915- Armenians and the Ottoman empire crimes against Christianity and civilization
• WWII and crimes against German civilians by the Nazis
• 1945 and persecution for political or racial misconduct, London agreed to bring to trial those guilty of crimes against humanity nexus with crimes against peace (war crimes), includes acts against human dignity

Question 20

What are the most common forms of international crimes?

Answer 20

Crime against international law.
Crime against humanity.
Crime against peace.
War crime.
International criminal law.

Question 21

What are the most common forms of transnational crimes?

Answer 21

Drug trafficking
Arms trafficking
Human trafficking.