L11 - int'l criminal law Flashcards
(11 cards)
actus reus vs mens rea
The commission of an international crime requires both the actus reus (guilty act)
and the mens rea (guilty mind)
to be guilty of a crime you usually need to have both
- actus reus = basically the definition, if you have done something that is inlawful
- mens rea = guilty mind (e.g. shoot someone bc they are annoying or if you did self-defense and ended up killing someone)(if you purposely steal something it is illegal, if you forgot you had it in your bag it is fine, you had no mens rea)
! there are some exceptions where mens rea is not required, but most of the time both are required
art. 30 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.”
- should do it on purpose
- should know of its effects/consequences
In other words, the person must have intended to commit an act, and must have known (or should have reasonably known) of the consequences
command responsibility
another key concept of int’l criminal law
= 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
= if you are a commander, you are responsible for the crimes committed by those under your command
superior ordes
also known as the Nuremberg defence
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; and
- The order was not manifestly (obviously) unlawful
- Orders to commit genocide/crimes against humanity are always unlawful
if the 4 criteria are fulfilled, you can use this defence
exists to protect lower soldiers for things they couldn’t do anything about
= mostly works for war crimes, e.g. if you attack a building, not knowing there were civilians in it
= it is a very narrow defense, basically for war crimes
genocide
Genocide is the most infamous international crime, and generally considered the gravest
(but technically no hierarchy)
Conceived during WWII by Raphael Lemkin to describe the particular nature of the Holocaust, which was not being captured by existing international criminal law
- created new crime because it was so unique, so grave it could not be described with traditional language IL
Genocide Convention 1948:
Genocide = The commission any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group
- idk why, but he emphasized the commas
There has to be INTENT to destroy and the group targeted has to fall within one of the enumerated categories (national, ethnic, racial or religious groups) = very restricted definition
- why these 4 groups and not others?
Acts that can be constitutive of genocide are (next flashcard)
“In whole or in part”
= 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
- no minimum threshold/nr per se
Actus reus/mens rea
= both the overt act (e.g. killing) and the genocidal intent (to destroy a group) have to be present. Mere killing is not sufficient to constitute genocide
- mens rea hard to establish = the most tricky
- otherwise probably a war crime
- you need the mens rea (mental element)
- ! “not all atrocities are genocide”
- definition of genocide is really quite narrow
Protected groups:
= does not include, e.g. the killing of members of a political or socio-economic group
Because of these requirements and their inherent nature, what constitutes a genocide can be controversial
- E.g. whether the Holodomor (mass starvation Ukrainians bc Russia in the 1930s), Chinese imprisonment of the Uighurs, etc constitute genocide is hotly debated
- i.e. genocide label is very controversial
Some countries criminalize denying that certain historical killings constitute genocide
(e.g. France crime to deny Armenian genocide)
= politics of this are very controversial
Acts that can be constitutive of genocide are:
5
(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
- Russians are kidnapping Ukrainian children and transferring them to Russian households
*threshold: needs to be in whole or in part
definition based on the Holocaust, all of these things were done
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, e.g., however odious, will not constitute a crime against humanity in and of themselves
constitutive acts have to be either:
- part of gov policy
- tolerated/condoned by a gov or a de facto authority
many of the actus reus overlap with those of genocide/war crimes - the distinction lies in mens rea
- difference lies in the mens rea, the mental element required
- tendency to confuse the two, bc genocide is against humanity, but in IL they are diff crimes. some acts can be both at the same time, but generally speaking crimes against humanity easier to prove (mens rea easier to prove)
what acts can be constitutive of crimes against humanity?
most comprehensive list =
art 7 Rome Statute:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) 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 or any crime within the jurisdiction of the Court;
!!!!!!!!!! diff with genocide: broader definition of the groups
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;
- i: enforced disappearance = the (almost always) murder of dissidents, etc. but where there is no body nor evidence of what happened to a person == presumed death of a person
- j: 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 e.g. will not be Apartheid unless the other criteria are met - theses are fairly new additions
art 7 Rome Statute
a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) 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 or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;
Apartheid
Rome Statute art 7 j
(j) 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 e.g. will not be Apartheid unless the other criteria are met
points to take home
The same actus reus (e.g. murder) can be constitutive of several different international crimes, depending on the mens rea involved—or indeed not be an international crime at all
In the context of genocide and crime against humanity, international law is generally interested in systemic, or at least widespread conduct
Contra, individual acts can and are constitutive of war crime
open question
tell what it is (define)
discuss significance : history, controversies, debates, nuance, examples, recent developments
- tell anything that is relevant
- if you can refer to readings it is helpful,
readings: say something to surprise them, to show off
- no strict lists of lists you must mention to get full marks
usually easy to tell a good question vs an okay one
Q&A session thing
ECtHR:
- does believe in case law
- in practice it is a big part of any int’l court, even when they reject it
incidental vs contentious jurisdiction ICJ
- contentious = verdict
- incidental = interim to preserve the status quo
