3 pages take home exam for my political science class. the subject of the class is international law. There are short answers and one essay question. I attached the exam also some class slides that should be helpful and can get the information from there.
Michelle_Michy
20190507055427chpt_21_repression_of_international_crimes.pptxThe Repression of International Crimes
Chpt 21 Cassese
21.1 Traditional Law
Discuss the concept of international crimes during the Traditional Law period?
Individuals were not addressed by international rules
At International level individuals could not be held responsible for crimes
What would happen if an individual committed an international crime?
Could be prosecuted and punished by national courts of a foreign country
Based upon what conditions?
1) that the international rule they broke, was also a national rule
2) courts possessed jurisdiction (individual does not have immunity)
3) there is a link b/w the offence and the forum State
21.1 Traditional Law
There was one exception to this, what was it?
Piracy
All States were empowered to search for and prosecute pirates, regardless of the nationality of the pirate and whether or not they were victims of the pirate
21.2 Modern Law: International Crimes
What has changed with the modern era of IL?
New classes of acts considered punishable crimes, offences entailing personal criminal liability (as opposed to State responsibility)
What specifics are international crimes said to embrace?
1) violate customary rules—values considered important to the whole international community, or treaty rules—many treaties elaborate, clarify international crimes
2) any state may prosecute and punish an international crime
3) if perpetrator has acted in official capacity they are barred from claiming immunity
21.2 Modern Law: International Crimes
What are some of the customary international crimes?
War crimes
Crimes against humanity
Genocide
Torture
Aggression
Terrorism
NOT INCLUDED in customary IL: apartheid, illicit traffic in narcotic drugs and psychotropic substances, unlawful arms trade, smuggling WMD, and money laundering-----it is possibly that treaties ban these, but you must be member of the treaty
21.2.1 War Crimes
What are the objective elements of the crime?
Principle of nullum crimen sine lege – “no law no crime” must be satisfied
Objective: what law was broken (custom or treaty)
ICC Article 8 http://www.preventgenocide.org/law/icc/statute/part-a.htm
1949 Geneva Conventions and Additional Protocol I of 1977:
grave breaches—which must be committed within the context of an international armed conflict; Tadic claimed that custom now applies to internal conflict ICRC--Geneva Conventions
21.2.1 War Crimes
What are the subjective elements?
Sometimes the subject element is specific to a certain crime
What is required is intent, or knowledge or recklessness for the offence
Or assert culpable negligence: recklessly acting without reasonable caution and putting another person at risk of injury or death
Legal/Illegal Actions During War
Geneva Conventions comprise 4 treaties, and 3 protocols, that establish IL for the humanitarian treatment of the victims of war
Applies to:
all cases of declared war and armed conflict b/w signatory nations.
to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of Gen. Conv.
“Grave Breaches” of Geneva Conventions
willful killing, torture or inhumane treatment, including biological experiments
willfully causing great suffering or serious injury to body or health
compelling someone to serve in the forces of a hostile power
willfully depriving someone of the right to a fair trial if accused of a war crime
taking of hostages
extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly
unlawful deportation, transfer, or confinement
21.2.2 Crimes Against Humanity
Why was there a need for change as it regards traditional law and international crimes and crimes against humanity?
Many of crimes perpetrated by the Germans were not prohibited by traditional IL
Laws of warfare only proscribed violations b/w adversary and enemy
Germans performed inhumane acts against their own populations
So what did the international community do to address the violations of Germany in WWII?
London Agreement of August 1945—Charter of the International Military Tribunal (IMT)
Charged with punishing persons guilty of crimes against humanity
21.2.2 Crimes Against Humanity
What did the London Agreement declare as a crime against humanity?
“murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political racial, or religious grounds in execution of or connection with any crimes within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”.
Shortfall—applied only to criminal acts during or surrounding warfare—not ordinary domestic/internal issues
Was the London Agreement applied ex post facto, retroactively?
Yes
Nuremburg and Tokyo War Tribunals
21.2.2 (a) Crimes Against Humanity
What are the objective elements of international law and crimes against humanity?
1) crimes are particularly odious, constitute a serious attack on human dignity, or grave humiliation or degradation of one or more human beings
2) they are not isolated or sporadic events, but are govt policy or widespread or systematic in practice or condoned by the govt—murder, extermination, torture, rape, political, racial, or religious persecution, or other inhumane acts—but individual can be guilty if only engages in one or two offences if part of a larger, consistent pattern of offences
3) May be punished whether they occur during times of war or peace
21.2.2 Crimes Against Humanity
What a crime against humanity from an ordinary war crime?
Awareness of the broader context into which the crime fits, knowledge that the offences are part of a systematic policy or widespread and large scale abuses
Persecution—must show intent
21.2.3 Genocide
What is genocide?
The intentional killing, destruction, or extermination of groups or members of a group
London Agreement had genocide as a separate crime from crimes against humanity—crime of persecution
What does the UN GA Genocide Convention do?
1) defines genocide
2) punishes other acts connected to genocide (conspiracy, complicity)
3) prohibits genocide in times of or war and peace
4) considers genocide a personal and State crime
21.2.3 Genocide
What are a couple of the problems UN GA Genocide Convention?
Does not provide for extermination of a group on political grounds, nor cultural genocide
Lacks enforcement mechanism
21.2.3 (a) Genocide
What is the objective element, actus reus, of genocide?
Genocide is: killing members of a national or ethnic, racial, or religious group
Causes serious bodily harm or mental harm to members of the group
Deliberately inflicting condition on group calculated to destroy the group in whole or in part
Imposing measures intended to prevent birth within the group
Forcibly transferring children of the group to another group
Does this have to be widespread?
No
21.2.3 Genocide
What is the subjective element, mens rea, of genocide?
Intent, to destroy in whole or in part, a national, ethnical, racial or religious group
In addition to willing the death of victims, also had the intent to destroy in whole or in part the group
21.2.4 Torture
When is torture prohibited? Only when it is widespread and systematic? Or when it is a single act, outside of large-scale practice?
Prohibited in both circumstances
If torture occurs during times of war, against the ‘enemy’ it is a war crime
If torture occurs during times of peace, or during times of war but unrelated to the war, then it is a discrete international crime under customary IL
21.2.4 Torture
Can the use of torture be a crime against humanity?
Yes, but needs to be part of widespread or systematic practice
Either by private persons or State officials
From crimes against humanity, torture committed by private persons, must be some ‘passive involvement’ of the State
21.2.4 Torture
How does the 1984 UN Convention on Torture define torture?
‘pain or suffering’ must be inflicted ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’
Why is it necessary that there is some involvement from the State?
B/c international crime needs to distinguish from state sanctioned torture and ‘ordinary’ torture which would constitute as a national crime (torture of woman by husband, child by group of other children)
21.2.4 Torture
What are the objective elements that need to be satisfied for an international crime of torture?
Act of torture
a) ‘any act by which severe pain or suffering, whether physical or mental, is …inflicted on a person; or
B) such pain or suffering does not arise ‘only from’ or is inherent in or incidental to lawful sanctions’
Discrete crime: the pain or suffering must be inflicted at the instigation or with the consent of a public official
21.2.4 Torture
What is the subjective element, mens rea?
A) Requires that the purpose of the torture was
for obtaining information or a confession
punishment
intimidation
humiliation
B) Infliction of pain and suffering must be intentional
21.2.5 The Crime of Aggression
What is the crime of aggression?
Crimes against peace: namely planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances
Problem?
Since 1948 there have been no national or international trials for alleged crimes of aggression
Why?
Most States lack any legislation granting their courts jurisdiction over the crime of aggression (except a few like: Germany and Iraq)
21.2.5 The Crime of Aggression
What are the objective and subjective elements of the crime of aggression?
Objective: prohibited by customary law, UN Charter—planning, organizing, preparing, or participating in the first use of armed force by State officials against the territorial integrity of another State
Subjective: perpetrator intended to participate in aggression and was aware of the scope, significance, and consequences of his action
21.2.6 Terrorism
Why was there great debate in the UN GA over how to define terrorism?
3rd World countries didn’t want the definition to include acts of violence perpetrated by freedom fighters—those fighting for self-determination
How did they get around this?
Created small, specific treaties that could outlaw agreed upon acts: hijacking of aircraft, crimes against internationally protected persons including diplomats, taking of hostages
21.2.6 Terrorism
Then eventually agreement was reached on this definition in the UN General Assembly:
UN GA resolution 49/60 1994 definition: “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them’
21.2.6 Terrorism
What are the three main elements of terrorism?
1) acts must constitute a criminal offence under national legal systems
2) must be aimed at spreading terror among civilians, with a view to intimidating, coercing, or influencing the policy of a govt.
3) the must be politically or ideologically motivated
21.2.6 Terrorism
What are the objective elements?
Definition see previous slide
Can be an: a individual discrete crime, war crime (must be done during time of war and linked to the war), or crime against humanity (widespread and systematic)
What are the subjective elements?
Must show criminal intent to perpetrate the acts, kill or injure person, destroy property; as well as special intent to spread terror
Crimes against humanity: awareness of widespread or systematic practice of terrorism
21.3 International Crimes and Immunity from Jurisdiction
Do Heads of State, Diplomats, Generals etc enjoy functional immunity from international crimes?
No*---you cannot justify a crime against humanity
But Heads of State and other top diplomats still have personal immunity when on missions abroad
Personal immunities cover all acts while the official is working, but ceases with the cessation of the official’s function
*Heads of State may not be brought to trial abroad for alleged international crimes as long as they are in office, unless their State is party to a treaty under which it has waived immunity
21.4 Prosecution and Punishment by State Courts
Under traditional law how/when could States punish international crimes? What were the three principles that guided traditional IL?
3 principles:
1) territory—offence happened on your territory
2) passive nationality—victim is national of prosecuting State
3) active nationality—perpetrator is a national of the prosecuting State
How has this changed in the modern era?
Universality—these three principles are no longer relevant
21.4 Prosecution and Punishment by State Courts
Principles of Traditional Law have been pushed aside by the principle of universality, which means what?
Any state is empowered to bring trial to persons accused of international crimes
Must a State have the individual in custody in order to prosecute them?
No
Rationale behind universality?
1) Crimes are of such gravity and magnitude that they warrant universal prosecution and repression
2) to exercise this jurisdiction does not amount to a breach of the principle of sovereign equality of States, not does it lead to undue interference in the internal affairs of the State where the crime has been perpetrated
21.4.2 Trends in State Practice
What is the distinction between ‘individual’ and ‘system’ criminality as it regards war crimes?
Individual: combatants on their own initiative and for ‘selfish’ reasons (rape, loot, murder, and so on);
repressed by the culprits national authorities
System: war crimes perpetrated on a large scale to advance the war effort at the request, or encouragement, or toleration of the govt (killing of civilians to spread terror, refusing quarter, use of prohibited weapons, torture of captured enemies, and so on)
Repressed by international tribunals or national courts of the adversary
21.5 Prosecution and Punishment by International Courts
What were some major drawbacks of the original international criminal tribunals (Tokyo and Nuremberg)?
Judges and prosecutors were appointed by the WWII winners
Courts didn’t feel international, but rather as victor’s justice
21.5 Prosecution and Punishment by International Courts
1990s a new ethos developed in regards to International Law and crimes—what occurred?
End of the Cold War bought SC cooperation
Agreement the UN should try to fulfill its purpose
12.5.2 The Establishment of two ad hoc tribunals
What two ad hoc international criminal tribunals were established in the 1990s?
UN SC Resolution 827 (1993) ICTY
UN SC Resolution 955(1994) ICTR
21.5.3 The ICC
What document created the ICC? When?
Rome Statute, 1998—went into effect in 2002
122 States are party to the treaty
What areas of law do they have jurisdiction?
‘the most serious crimes of concern to the international community as a whole’ genocide, crimes against humanity, war crimes, and the crime of aggression
21.5.3 ICC
Which countries do they have jurisdiction over?
Signatories
A) alleged crime has been committed on the territory of a State to the party to the treaty
B) the person accused of the crime is a national of a State party to the Statute
CANNOT exercise jurisdiction over an individual whose State has not ratified the treaty even if the act was perpetrated on a State that has ratified
21.5.3 ICC https://vimeo.com/ondemand/thereckoning/
The ICC’s jurisdiction is said to be complimentary to that of national criminal justice systems. What does this mean?
Article 17 a case shall be inadmissible if is being investigated or prosecuted by national authorities
Is the ICC subject to the UN Security Council approval?
Greatly debated—US wanted this, but ultimately
‘trigger mechanism’ causes court to be activated—what are the triggers?
A) a State party to the Statute refers case to the ICC
B) SC refers case to the ICC
C) ICC Prosecutor initiates an investigation
Article 16 allows the security council, by means of resolution, to block the ‘commencement or continuance’ of investigations for 12 months
21.6 The Establishment of so-called Internationalized or Mixed Criminal Courts or Tribunals
What are Mixed Courts?
Internationalized courts mixed composition: judges, prosecutors
Where?
Sierra Leone, East Timor, Cambodia
Benefits of these courts?
1) assist post-conflict peace building process, deter future commission of large-scale offences
2) historical factors may make national judiciaries incapable of handling cases in an unbiased and even handed manner
3) ICTY style courts may lack the international will to be created
4) helps to address nationalistic concerns about outsiders handling justice, brings added visibility to court proceedings can have a healing effect
21.7 International Trials: Main Merits
What are the main merits of international courts over domestic courts?
1) many national courts are reluctant to institute proceedings for crimes that lack a territorial or national link with a State
2) these crimes at issue are serious breaches of IL
3) international judges may be more impartial, unbiased, and even-handed
4) they can investigate crimes more easily and without consequence, unlike some national courts/justice
5) ensure some sort of uniformity in application of IL
21.8 The Need for International Criminal Courts to rely upon State Co-operation
Because International Courts, are not located in the place where the crime was committed, because they lack a police force, and are not close to crime-scenes—they must rely upon the support of States
They can issue arrest warrants, warrants for seizure of evidence or searching premises—but have no international police force
They are like giants without arms and legs, who use artificial limbs to walk and work, these limbs are State authorities and without them, the International Courts are paralyzed
21.9 The Main Problems Besetting International Criminal Proceedings
1) State Cooperation
2) Coordination of judges and legal systems/training
3) Lengthy international criminal procedures
Need to prove crime, evidence
Complexity of crimes, time, space, learn the historical cultural context of crime
Discrete, or crime against humanity—demonstrate widespread—go over every offense
Difficulty collecting evidence
4) Language
