Lecture Week 4 Flashcards
(25 cards)
Characteristics of International Criminal Law
Individual Criminal Repsonsibility: ICL focuses on individual criminal liability. It criminalizes specific actions (such as genocide, war crimes, crimes against humanity, and aggression) and holds individuals accountable for these violations, rather than addressing state-to-state relations or the actions of organizations.
International Prosecution Mechanisms: ICL provides mechanisms for international prosecution of serious crimes that often go unpunished at the national level due to political or state interests protecting perpetrators. These crimes, like genocide and war crimes, typically involve powerful state actors or political leaders, whose influence may shield them from accountability in their own countries. ICL aims to prevent impunity for these atrocities through international courts and tribunals, such as the International Criminal Court (ICC).
Focus on the most heinous crimes: Unlike transnational criminal law, which deals with cross-border crimes such as organized crime, drug trafficking, or terrorism, ICL targets the most egregious international crimes. These crimes are characterized by their extreme gravity, and the victims often suffer on a mass scale, warranting the involvement of the international community to ensure justice is served. ICL also includes detailed laws, procedures, and principles governing evidence, liability, defences, victim participation, and witness protection, all of which contribute to the functioning of international tribunals and courts.
What the difference between ICL and public international law?
In sum, while public international law regulates state conduct and transnational criminal law addresses cross-border crimes, ICL holds individuals accountable for severe crimes and ensures that perpetrators of atrocities, including state or political actors, do not escape justice.
What is the difference between International Criminal Law and Human Rights Law?
ICL:
- Focus on Individuals: International criminal law primarily deals with the criminal responsibility of individuals for acts that are considered international crimes
- Prosecution and Punishment: The main goal is to prosecute and punish individuals who have committed serious international crimes
- Exception to State Sovereignty: Normally the prosecution of individuals is handled within the state. ICJ deviates from this norm.
- Retributive Justice: seeking to hold individuals accountable for their actions and impose penalties for wrongdoing.
HRL:
- Focus on states: primarily focuses on the obligations of states to protect and respect the fundamental rights and freedoms of individuals within their jurisdiction.
- Protection of Individuals: While human rights law seeks to protect individuals, it does so by placing obligations on states to ensure that the rights of individuals are respected and upheld.
- State Accountability: States are held accountable for human rights violations, and mechanisms like international human rights treaties, monitoring bodies, and courts are employed to address violations
- Preventive Measures: Human rights law often emphasizes preventive measures, urging states to create and maintain conditions where human rights are safeguarded, aiming to prevent violations from occurring.
How is State Sovereignty overruled by ICJ?
- Jurisdiction Beyond National Borders: International criminal law grants international bodies the authority to prosecute individuals for certain egregious crimes, even if those crimes were committed within the borders of a sovereign state.
- Irrespective of Position or Authority: Importantly, this jurisdiction is not limited by the individual’s position or authority within their own country. High-ranking officials or leaders can be prosecuted, breaking from the traditional notion that those in power are immune from external legal action.
Rationale:
- Accountability for Gross Violations: The rationale behind this departure from traditional sovereignty principles is the recognition that in cases of genocide, war crimes, crimes against humanity, and similar offenses, there is a global interest in holding individuals accountable for gross violations of human rights, even if their own state may be unwilling or unable to do so.
- Protecting Human Rights Universally: By allowing international bodies to intervene and prosecute individuals, it aims to ensure that individuals are held accountable for actions that shock the conscience of the international community, promoting justice and protecting human rights universally.
How do ICJ, IHL and International Humanitarian Law have a close relationship?
Overlapping Objectives: Both international criminal law and human rights law share a common goal of promoting justice, accountability, and the protection of individuals from egregious violations.
Global Standards: Together, these legal frameworks contribute to the development of global standards for justice and human rights, fostering a shared understanding of the principles that should govern the behaviour of states and individuals on the international stage.
Conducts that international criminal law recognises as international crimes also embody violations of human rights sanctioned under international human rights treaties. For instance, conduct amounting to crimes against humanity is essentially premised on a violation of international human rights law. The elaboration of the right to life, the right to be free from torture and other inhuman or degrading treatment, the right to equality and, thus, to be free from discrimination and prosecution based on political, racial, or religious reasons contributes to the clarification of the scope of crimes against humanity.
A corollary of point 1 is that the case law on international crimes throws light on the way fundamental human rights should be protected in times of conflict or exceptional circumstances.
Another good example of this interplay is: international criminal law demonstrates an intrinsic and essential commitment to human rights, for example by ensuring the basic rights of accused persons (right to a fair trial) and also increasingly giving prominence to victims of international crimes.
Key Events in Early War Crimes Accountability: Trial of Sir Peter von Hagenbach (1469–1474):
- First international war crimes trial in history.
- Tried for crimes as governor of the Duke’s Alsatian territories, including murder, rape, and mutilation of civilians during the occupation of Breisach on the Rhine.
- Convicted by an ad hoc tribunal of 28 judges from regional city-states.
- Sentenced to death and beheaded upon conviction.
Key Events in Early War Crimes Accountability: The Lieber Code (1863)
- Issued by U.S. President Abraham Lincoln as “General Orders No. 100.”
- Authored by Francis Lieber, it outlined rules of conduct for Union soldiers during the U.S. Civil War.
- Addressed issues such as military necessity, humanity, and the distinction between combatants and civilians.
- Served as a foundational document for the laws of armed conflict.
Key Events in Early War Crimes Accountability: Post-World War I Accountability
- Treaty of Versailles (1919):
- Article 227 aimed to establish an international tribunal to try German Emperor William II for “supreme offense against international morality.”
- The Netherlands refused to extradite the emperor, and he was not prosecuted. - Article 228 allowed the Allies to bring individuals accused of war crimes to military tribunals.
- Germany’s resistance led to a compromise, with suspects tried in German courts (Leipzig Trials, 1921–1923).
- These trials were largely seen as unsuccessful due to lack of accountability.
After these small-scale and often unsuccesful attempts to try certain crimes internationally, a breakthrough comes. With what Agreement
The London Agreement in 1945:with the establishment of the International Military Tribunal (IMT, 1945), based in Nuremberg, and the International Military Tribunal for the Far East (IMTFE, 1946), which is based in Tokyo. They provide for the criminal prosecution and conviction of Nazi leaders and leading Japanese war criminals at the end of World War II. These tribunals have jurisdiction over war crimes, crimes against humanity, crimes against the peace
The Genocide Convention 1948
The Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations. It focuses on the protection of national, racial, ethnic and religious minorities from threats to their very existence.
Rome Statute 1998
ICC was established on July 17 1998, when 120 nationsadopted the ICC Statute at the Rome International ICC Statute Treaty Conference.
The First Review Conference on the Rome Statute, on 11 June 2010 in Kampala,adopted the package proposal on the crime of aggression.
Sometimes Atrocity crimes come before national courts. What is Universal Jurisdiction?
Definition: Universal jurisdiction is a legal principle that allows a state to prosecute individuals for certain grave crimes, such as genocide, war crimes, or crimes against humanity, regardless of where the crimes were committed, the nationality of the accused, or the victims.
Purpose: It aims to ensure that perpetrators of the most serious international crimes do not escape justice due to jurisdictional gaps or lack of action in their home countries.
Examples: Cases involving universal jurisdiction often involve crimes prosecuted in countries with no direct connection to the events, as seen in trials like those of Ousman Sonko in Switzerland or other high-profile human rights cases.
Fully International Criminal Tribunals
- Composition: Made up entirely of international staff (judges, prosecutors, etc.) and operate under international substantive and procedural criminal law.
- Costs & Legitimacy Issues: These tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), are often expensive and perceived as foreign by the local population, which can lead to resentment and accusations of “victor’s justice” (e.g., selective prosecution of certain nationalities or groups while overlooking similar crimes by the victors).
- Limited Local Understanding: The international staff may lack familiarity with the local context, culture, and judicial system, making it harder to build local trust and relevance.
Hybrid Criminal Tribunals
- Composition: These tribunals blend international and local staff, including judges and prosecutors from both the affected region and foreign experts.
- Application of Law: They apply a mix of international and national criminal laws, adjusted to align with international human rights and criminal law standards.
- Closer to Local Communities: Hybrid tribunals are often seen as more legitimate by local populations (e.g., in Cambodia and Sierra Leone), as they involve local legal traditions and are geographically closer to the affected communities. This proximity may enhance local engagement and support.
- Challenges: While cheaper than fully international tribunals, they still face funding challenges, and national politics can interfere with their operations. For example, the Cambodian government had significant influence over the Extraordinary Chambers in the Courts of Cambodia (ECCC), limiting the tribunal’s independence in some cases.
What factors influence the choice of tribunal type?
- Cost Considerations: Fully international tribunals are more expensive, while hybrid tribunals generally offer a cost-effective alternative, especially when local legal infrastructure is integrated.
- Legitimacy and Public Perception: Hybrid tribunals may foster greater local support due to their involvement of domestic judges and proximity to affected populations, whereas fully international tribunals often struggle with accusations of bias or irrelevance to local communities.
- Political Influence: Hybrid tribunals may be subject to national political pressures, which can complicate their independence and effectiveness, as seen with the Cambodian and Sierra Leonean governments’ roles in the ECCC and SCSL, respectively.
Nuremberg trials
After WWII the Allied Powers disagreed on how to persecute Nazi Leaders. The agreement were the Nuremberg Trials. The Nuremberg Trials began in November 1945, where Nazi officials were tried for war crimes, crimes against humanity, and genocide. The London Agreement of August 8, 1945, established the tribunal, with representation from the U.S., Soviet Union, France, and the UK.
War were the charges against the defendants at the Nuremberg Trials?
Conspiracy to commit crimes against peace
Planning, initiating, and waging wars of aggression
War crimes
Crimes against humanity
What did the International Military Tribunal during the Nuremberg Trials rely on?
The International Military Tribunal (IMT) could partially rely on existing codifications in the Hague Conventions when prosecuting war crimes. These conventions had established legal standards for the conduct of war and treatment of prisoners, thus providing a clearer legal basis for prosecuting war crimes.
What was one of the main critics on the Nuremberg Trials?
The International Military Tribunal (IMT) could partially rely on existing codifications in the Hague Conventions when prosecuting war crimes. These conventions had established legal standards for the conduct of war and treatment of prisoners, thus providing a clearer legal basis for prosecuting war crimes.
What were counterarguments of the IMT?
The judges countered this by acknowledging retroactivity in the prosecution of crimes against peace and crimes against humanity. For crimes against peace, the IMT argued that not prosecuting such crimes would be equally inappropriate. The judges also found that since crimes against humanity, like murder, were universally punishable in national laws, it logically followed that international law should also prosecute crimes like extermination. The retroactivity was justified partly by national law, natural law, and customary law.
What was the reason for the next important development in ICL and what was this development?
The war in Yugoslavia
What were the origins of the Yugoslav war
- The breakup of Yugoslavia
- Ethnic and Nationalist tenstions
- Rise of Nationalist Leaders
- Secessionist Movements
- Bosnian War
Territorial and Temporal Jurisdiction
Grants jurisdiction over natural persons allegedly responsible for crimes committed after January 1, 1991, in the territory of the former Yugoslavia. While the ICTY and national courts have concurrent jurisdiction over these crimes, the ICTY has primacy and may thus formally request national courts to defer to its competence.
Furthermore, article 29 of the ICTY Statute places a binding obligation on States to cooperate with the ICTY in its investigations and prosecutions.
- Sexual Violence as a War Crime
- Command Responsibility: , holding military and civilian superiors accountable for crimes committed by their subordinates if they knew or should have known about the crimes and failed to take necessary and reasonable measures to prevent or punish them.
- Forced Displacement as a Crime Against Humanity
The Rwanda genocide, which occurred in 1994, had deep historical roots and complex factors that contributed to its outbreak. Here are key points explaining its origin:
- Colonial Legacy: colonial policies of Germany and Belgium exacerbated ethnic divisions (Belgians introduced an identification system based on physical characteristics, classifying people into Hutu, Tutsi, and Twa ethnic groups)
- Ethnic tensions: The Hutu and Tutsi had historical ethnic tensions, with Tutsis traditionally holding more privileged positions in society.
- Independence and Political Instability: Rwanda gained independence in 1962, but ethnic tensions persisted, and political power shifted between Hutu and Tutsi leadership.
- Assasination of President Habyarimana (Hutu)
- Rise of Extremist Hutu Power: Extremist Hutu factions, within the government and military, exploited the assassination to launch a systematic campaign against the Tutsi population.
- Mass Mobilization: Hutu militias, such as the Interahamwe, were mobilized to carry out mass killings
- International Responses: The international community’s response was criticized for its failure to intervene promptly and effectively to prevent or stop the genocide.
