Flashcards in Introduction Deck (34)
What is ICL?
International crimes (genocide, crimes against humanity, war crimes + aggression) and the principles/procedures governing the Int prosecution of these crimes.
What is the most fundamental distinction between ICL and other forms of law?
It imposes criminal liability on individuals for international crimes.
How does the preamble of the Rome Statute contextualise international crimes?
As the 'most serious crimes of concern to the Int community as a whole' and recognises that such crimes 'threaten the peace, security and wellbeing of the world'
Is international crime created by domestic or international law?
It is created by international law however often ratified through domestic law.
According to Art 21 of the Rome Statute, what are the sources of ICL?
Treaties, customary international law, general principles of law and precedent/other decisions
What is the hierarchy of the sources of law?
The ICC statute itself, other applicable treaties + customary international law, general principles of law and other decisions (including scholarly opinion)
How is ICL similar to IHRL?
ICL adopts many tenants of IHRL in its procedures - e.g. provisions to guarantee a fair and equal trial.
How does ICL differ from IHRL ?
IHRL usually refers to the obligations of a state as opposed to individuals.
Can a criminal act hold both the state and the individual responsible?
Yes - Bosnian Genocide case. ICTY + ICJ
Wtf is the translation of nullem crimen sine lege, nulla poena sine lege?
No crime without law, no punishment without law.
A layman's understanding of nullum crimen?
A person can only be guilty of an offence if it was an offence at the time.
What are the four elements of the nullum crimen principle?
Specificity, non-retroactivity, non-extension by analogy, and favour rei.
What is the specificity element of nullum crimen?
The provisions must be sufficiently precise to enable individuals to know what is criminalised.
What is the favour rei element of nullum crimen?
If there are conflicting interpretations, the interpretation that favours the accused must prevail.
What is ne bis in idem?
Not twice of the same or prohibition against double jeopardy.
What must be taken into consideration when applying ne bis in idem?
Whether the individual is actually being charged with the appropriate offence and with appropriate adjudicative procedures. E.g. man kills thousand ppl but only gets charged for common assault.
Is the ICC bound by stare decisis?
Nah however can be influential.
How can customary law enshrine the nullum crimen principle?
Customary law can establish whether the alleged conduct was a particular practice at the time of the commission of the conduct.
Which case demonstrates the applicability of customary law to the nullum crimen principle?
In the Norman case, the majority held that enlisting child soldiers was an offence under customary law which individuals were criminally liable for.
What was the dissenting judgement in Norman?
That individual liability for enlisting child soldiers was embedded within ICL, rather was a principle was that states are prohibited from enlisting child soldiers. Otherwise, what would the entire point of the Rome Statute and the movement preceding it, be?
How do we determine state practice?
By looking to the official practice of states - state notifications, announcements, state notifications and domestic decisions.
Does state practice require a number of states to engage in a particular conduct before it becomes state practice?
Nope, rather it is about the proportionality of states that engage in a particular conduct in contrast to those that don't.
Did the majority verdict of Norman determine that it was contrary to state practice if a state or two continue to enlist child soldiers?
It was identified that state practice = acknowledgment of the duty to not enlist child soldiers.
What is a scenario, in the context of civilian casualties, that demonstrates how state practice is identified?
Congolese PM making a commitment that the Congolese Air Force 'will limit its action to military objectives.'
In making public announcements and other official statements, are states affirming customs or accepting offers?
The former - affirming and respecting the custom.
What is the distinction between customary international law and a general principle of law?
Customary international law can refer to particular customs like the prohibition of child soldiers whereas general principles = 'elementary considerations of humanity and common sense'
Objectives of ICL can come in two forms...
Teleological (forward-thinking) and deontological (those that focus on the crime itself)
Identify the objectives of ICL.
Retribution, rehabilitation, incapacitation, denunciation, deterrence, justice for victims, recording history, post-conflict reconstruction, distinguishing between individual and group responsibility.
Is revenge a valid objective of ICL?