lecture 6 - ICL Flashcards
(30 cards)
Who was the first person to stand trial in the ICC?
Thomas Lubanga
We got here in the early 20th century ➞ 4 April 2012
Before the 20th century there was no international criminal law (ICL)
What is the definition of International Criminal Law (ICL)?
A branch of IL that deals with criminal responsibility of individuals
What are the three main characteristics of ICL as defined in the book?
Jurisdiction, criminalization, sources
What does ‘jurisdiction’ refer to in the context of ICL?
The competence of a court to adjudicate a certain matter and the power/authority to say something in a particular case
What are the territorial grounds for jurisdiction?
a. Subjective (criminal act)
b. Objective (‘effects doctrine’)
Extraterritorial grounds for jurisdiction
- Active nationality (perpetrator)
- Passive nationality (victim)
- Security (or protective) principle (state interests)
- Universal jurisdiction (see e.g. ICJ Belgium v Senegal)
- Special agreements
why is the concept of jurisdiction problematic in ICL?
what would be the problem if you are a state? As a state it says that if there is an international court, where would that leave their country..? So kind of like another has a say in how you are working the system.
How do you get jurisdiction?
- Sovereignty = equals jurisdiction (jurisdiction over/relating to domestic law) ➞ you can make and enforce the laws, and you can also have judges to decide over these laws
- Treaties: giving jurisdiction to another entity
- Security Council: the basis is in the UN charter to give jurisdiction, but they also decided that they just have jurisdiction ➞ this was done in the ICTY court
- Bilateral agreements: because how can an IO give jurisdiction..?
So = jurisdiction determines who ( and where and when) has the power, or authority to prosecute a crime
What does sovereignty equal in terms of jurisdiction?
Jurisdiction over/relating to domestic law
What is criminalization in ICL?
The description of a certain behavior (act or omission) that must be written down in law
with a discription of the concequences
So = a description of acts or omissions in law for which an individual can be punished in accordance with the law
What is a key issue with criminalization in ICL?
What is acceptable in one state could be a criminal act in another
If you think bigger (war crimes), every counry also has their own. This can also differ from one country to another
So, jurisdiction can be hard to find. But the act is also hard.
What is the Rome Statute?
A treaty that defines core international crimes and establishes the ICC
Basis of criminalization and jurisdiction can be found in:
sources
- International law
- National law (domestic legal systems)
However, domestic law can be based on IL. So could be that for the dutch version of war crimes, you have to look at the Rome statue, etc
➞ this makes it difficult, because what are you going to base it on..?
So = the source can be domestic, IL or domestic law based on IL and each source may render a slightly different crime
Terrorism: what type of crime?
(Domestic, international, internationalized?) = so where the criminalization comes from (to install fear = terrorism) ➞ the origin of that act is an international crime, but not one of the four core international crimes
Murder: what type of crime?
& genocide
Murder = one of the acts in a crime against humanity, so it CAN be an international crime. Usually its within the domestic legal system, but this definition can change from state to state
Genocide = international crime, one of the four core international crimes, it is listed in the Rome Statue. However, it can also be domestic (states can have their own thoughts to criminalize this). There is also a genocide convention, where there is a state obligation, so it can also be internationalized (so many different origins)
What are the core international crimes listed in the text?
- Crimes against humanity
- War crimes
- Genocide
- Acts of aggression
Who gave the ICTY and ICTR the power to prosecute individuals?
The Security Council
Based on their chapter 7 powers, the security council said that the made a court who has jurisdiction over certain events. This is controversial….
How did the Nuremberg IMT acquire its jurisdiction?… and Tokyo IMT
Nuremberg = through the London Charter treaty between four states
Those states gave the Nuremberg tribunals jurisdiction over germans, and that was also weird because those country didn’t have jurisdiction themselves
Tokyo IMT = it was a proclamation of general Mc. Arthur. And one general was able to create a court to give punishments to people whom he had to link to.
What were the charges in the Nuremberg IMT? and basis for charges
- Crimes against peace (aggression)
- War crimes
- Crimes against humanity
- Conspiracy (e.g., genocide)
Basis was the London Agreement created by 4 states (France, USSR, UK, US)
Ex post facto basis = the fact that there was no jurisdiction during the times that the crimes were being committed, and there was no legal basis on the crimes which were being committed at the time. There was no treaty at that time about the acts on international level -> goes against the principle of legalit
What principle is questioned regarding the Nuremberg IMT’s legality?
Nullum crimen sine lege
It was only illegal based on domestic systems. They said that it also was customary, and therfore it was okay… but this was still controversial
What were the outcomes of the Nuremberg IMT?
- 24 defendants
- 3 acquittals
- 12 death penalties
- 7 prison sentences
What were the three types of crimes addressed by the Tokyo IMT?
- Crimes against peace
- War crimes
- Crimes against humanity
The international military tribunal for the far east
It was created by A person, general MacArthur
11 judges
One chief prosecutor appointed
What was a significant decision made regarding superior orders in the Tokyo IMT?
& other interesting discussion Tokyo IMT
The superior orders defense is no longer absolute/or an excuse
➞ here it was decided that you can also think for yourself. If you have an order that isn’t ok, you shouldn’t do it, period.
- As a commander you have respnsibilty of your troups (both on military and civilian defendants, so if you aren’t in the military)
- The crimes against peae: what is the international legal source and how can it be an international crime ➞ this wasn’t solved in this case, but it was debated
- Selection of judges ➞ you want a feeling of neutrality. Here you also had judge Pal, which said that it was a form of colonialism. And judge jaranilla, idk ➞ who can be judge in int setting, because they have a certain nationality?
- Selection of cases ➞ the Japanese tested treatments of diseases on the Chinese and make people very ill. these results were important for medical knowlegde, so they were kept out of the trials
What event marked the beginning of the Yugoslav Wars?
1991 when Slovenia and Croatia declared independence
