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INTERNATIONAL CRIMINAL LAW

SPRING 2016
Georgetown University Law Center
Professors W. Raabe, S. Koh, V. Prugh

SOME QUESTIONS TO HELP YOU REVIEW


1. What would be the proper basis under international law for each of the following:

Service of subpoena in a U.S. criminal prosecution upon a U.S. citizen living in


France?
U.S. prosecution of foreign nationals who kill a U.S. Congressman visiting their
country?
Foreign prosecution of a U.S. national for taking a deposition in that country?
U.S. prosecution of a U.S. national for acts of genocide committed overseas?
Indictment by the International Criminal Court of a head of state for aggression?
Remember difference between ius ad bello and ius in bello
U.S. prosecution of a U.S. national for killing another American in a foreign country
with which we have no extradition treaty?
U.S. prosecution of a foreign political leader for his/her role in a campaign of
atrocities committed against the civilian population in his/her own country?
Foreign prosecution of a U.S. national for advocating racial hatred over the internet?
Foreign prosecution of a U.S. service member for committing war crimes in a third
U.S. prosecution of a private contractor (U.S. national or third country national) for
torture committed in a foreign country?

2. True/False: The United States never relies on nationality to assert criminal jurisdiction?
3. What standard(s) do U.S. courts use when deciding whether a particular U.S. criminal law
should be (or can be properly) applied to extraterritorial acts? How should courts analyze the
issue?
4. In the Georgescu case, what jurisdictional basis justified criminal prosecution of a foreign
national in the U.S. for an incident that occurred on board an aircraft while it was over the
high seas?
5. What is the difference between customary international law and jus cogens?
6. Who can be prosecuted for crimes within the jurisdiction of the International Criminal Court?
7. Can you articulate the difference (or dividing line) between international human rights law,
international criminal law, international humanitarian law, and the international law of war?
When, for example, does the one apply to the exclusion of the others?

8. Define (and distinguish between) the following concepts as they apply to criminal
prosecutions:

Foreign Sovereign Immunity

Head of State Immunity

Diplomatic Immunity

Consular Immunity

9. What is a letter rogatory? When is (or should) it be used? What shortcomings does it
entail? Look in extradition
10. What is the principle of legality?
11. What change, if any, did the House of Lords decision(s) in Pinochet make in the scope of
head of state immunity?
12. Why wasnt Noriega protected by head of state immunity from criminal prosecution in the
U.S.?
13. What are the main differences between a crime against humanity and genocide? Could you
describe a situation in which rape could be the central element in a charge of genocide?
14. What are the major elements of the crime of torture? What defenses does the Torture
Convention permit? However torture can be a crime against humanity
15. What was the holding in the PCIJ in the Lotus case? How would that case be decided today?
16. Name the principal international criminal conventions and treaties. Describe their common
elements. Genocide, 1988 convention, drug convention, CAT, 19 counterterrorism
conventions, UNCAC, UNTOC (titles of classes can be used as guide)
17. In what ways, or to what extent, have the ad hoc tribunals for the Former Yugoslavia and
Rwanda been successful/failures? What are their strengths and weaknesses? Would you
advocate creating more tribunal like them? To deal with what kinds of situations? Another
form of differences, strengths and weaknesses of ad hoc v hybrid
18. Why is it so difficult to arrive at a definition of terrorism, particularly in a forum like the
UN?
19. Under what circumstances does it make most sense to create a hybrid criminal tribunal to
prosecute serious crimes? Name some examples of different kinds of hybrids? what are the
difference with ad hoc, what are their strengths and weaknesses
20. Name the specific crimes which are recognized by international law. First reading has general
description of crimes in international law, you can talk about the four crimes in odern
ICC.with all the conventions there are out there you cn com up with 22 crimes.

21. In 1812, Chief Justice Marshall wrote that [j]urisdiction of the nation within its own
territory is necessary and absolute. It is susceptible of no limitation not imposed by itself.
The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 336. Is this still true? Look
at the lotus case. It is in the book why not?
22. There are some 19 terrorist-related multilateral conventions or protocols, counting the
Bombing Convention. Name three key obligations that States Parties to these conventions
are required to undertake.
23. Do you see any jurisdictional or other problems with trying to regulate or criminalize virtual
child pornography across national boundaries?
24. Explain the principle of extradite or prosecute? (aud dedere aut judicare) typically found in
international criminal law conventions. How does the U.S. comply with that obligation?
What is the significance for the U.S. of the fact that the obligations is in fact stated as
submit for prosecution?
25. What is the definition of genocide under international law? Name its specific components.
26. Under what circumstances can the United States extradite a fugitive to a foreign country?
Does it matter whether the fugitive is a U.S. national or not?
27. Explain the meaning and legal relevance of the following key concepts in extradition from
the United States?

Dual criminality definitely covered


Specialty (or specialty) definitely covered
Political Offense
Rule of Non-Inquiry
Provisional Arrest

28. What are the advantages for the U.S. in entering into a treaty on mutual legal assistance in
criminal matters? How can a foreign country get assistance from the U.S. without a treaty?
29. What is extraordinary rendition? When is it permissible? What constraints, if any, exist on
sending a suspect, or a convict, to a third country where torture is likely?
30. What options are available for a lawyer in the U.S. to obtain bank records from a bank
abroad to use as evidence in prosecuting a criminal case in the U.S.?
31. What is meant by male captus bene detenus? Nullum crimen sine lege? Hostes humani
generis?
32. What principles of jurisdiction were determinative in Blackmer? Zehe? Bond of allegienac
and why it matters. Around 193/194 It was talked about in class but not in reference to the
cases.

33. Does international law support the establishment of national military commissions to
prosecute foreign nationals accused of international crimes? Which crimes? Under what
circumstances?
34. Does the Fifth Amendment (U.S. Constitution) privilege against self-incrimination allow a
non-U.S. national to avoid testifying in U.S. court about actions which could potentially form
the basis for his prosecution in a foreign court? What about an individual threatened with
prosecution for crimes against humanity by the International Criminal Court?
35. Define and give examples of universal criminal jurisdiction. Which specific crimes does it
cover?
36. How is the crime of aggression dealt with in the ICC Statute? What are or should be its
principal elements?
37. Under a typical bilateral MLAT, on what grounds can a request for assistance be denied?
What provisions are made for dealing with testimonial privilege?
38. Why is the criminalization or prevention of money laundering viewed as having an
increasingly important role in fighting narcotics trafficking and other transnational crimes?
What are the main elements of the UN convention against terrorist financing?
39. Describe the European arrest warrant. How does it differ from an Interpol Red Notice? In the
powerpoint I was mentioned as well as the readings. You should be familiar with it but not in
huge detail. Interpol is broader construct unlike European
40. What is the principal difference in the substantive jurisdiction of the ad hoc International
Criminal Tribunal for the Former Yugoslavia and its sister ad hoc tribunal for Rwanda? What
is the reason for the difference? What is the latest ad hoc international criminal tribunal?
41. Some argue that amnesties (even the post-conflict, pro-reconciliation kind) contravene the
principle of accountability and are the handmaidens of impunity. Whats your view?
42. In your view, what are the major challenges to the success of the International Criminal
Court? Do you think the United States will ever become a party to the Rome Statute?
Should it?
43. Define crime against humanity and give its most important characteristics or attributes.
What important changes have occurred recently in the definition (especially its jurisdictional
dimension)?
44. Under what circumstances can a convicted prisoners in the U.S. be transferred to another
country to serve out the remainder of his or her sentence?
45. What is the doctrine of command responsibility and when does it apply? Related to modes
of liability, and to PIOCCA
46. Do you see any contradiction between the principle of complementarity in the Statute of
the ICC and the ne bis in idem provision? If so, how would you remedy the problem?

47. The Genocide Convention was the first multilateral international criminal law treaty and
the UN Convention against Corruption is one of the most recent. Describe the main
differences in their jurisdictional provisions.
48. True/False: In U.S. v. Yunis, the District Court for the District of Colombia agreed with the
principle underlying the Mexican prosecution of a U.S. national in the Cutting Case a
hundred years earlier.
49. What is the Ker-Frisbe doctrine? Is it still good law? What, if any, exceptions exist to the
doctrine? Extradition slide on it
50. True/False: Extradition treaties, where they exist, are the exclusive means by which U.S. law
enforcement may lawfully obtain custody of suspects and fugitives within foreign
jurisdictions.
51. What is Justice Stevens principle objection to the majoritys analysis in Alvarez-Machain?
52. Describe the main options for prosecuting international terrorists.
53. Is transnational abduction lawful? If so, when? And what distinguishes it from statesponsored terrorism? Alvarez Machain. It may not be clear differentiation
54. What is a Ghidoni waiver?
55. What specific challenges did Dusko Tadic make to the jurisdiction ratione materiae of the
ICTY? What was the Tribunals response in its 1995 decision?
56. When does the political offense exception to extradition apply? Do you agree with the
district courts decision in Pitawanakwat?
57. Describe the substantive crimes articulated in the COE Convention on Cybercrime?
58. True/False: Every violation of the law of war is a war crime, over which there is universal
jurisdiction.
59. Does international law prohibit states from granting amnesties, or individual pardons, for the
most serious international crimes? If so, which crimes? If not, why?
60. In international criminal proceedings, are there accepted minimum guarantees of due process
for defendants? If so, what are they?
61. What are the core offenses in the Convention against Transnational Organized Crime?
62. In 1825, Chief Justice Marshall of the U.S. Supreme Court states that the courts of no
country execute the penal laws of another. The Antelope, 23 U.S. (10 Wheat.) 66, 123
(1825.) Is this still true and if not, in what ways?
63. How does international criminal law address the dangers of group or organized criminality?
Relates to UNTOC, ask this question in the context of UNTOC

64. Why create a stand-alone crime related to the organized nature of criminal activity? Why not
just pursue the criminals for the underlying crimes?
65. The textbook identified 7 attributes of organized crime what are they?
66. What crime are snakeheads and coyotes associated with?
67. What are the three elements to combat the threats or organized crime identified by the
textbook authors?
68. Why should the international community focus on transnational organized crime and not the
underlying criminal offenses, such as murder, bribery, and money laundering?
69. True/ False: The U.S. Racketeer Influenced and Corrupt Organizations (RICO) statute is a
civil remedy to deal with the unlawful activities of criminal syndicates.
70. What is a pattern of racketeering activity? Provide some examples.
71. True/False: A treaty can grant Congress domestic regulatory power it would otherwise lack,
subject to the constraints that the issue must be one that is properly the subject of negotiation
with a foreign country, and the treaty cannot transgress other limitations within the
Constitution.
72. The textbook refers to Medellin as the most important decision on foreign relations law in
decades. What is the underlying dispute about?
73. What did Mexico do?
74. How does ICJ get jurisdiction?
75. The ICJ decided that the U.S. must review the Mexicans cases. Whats the problem with
that under US domestic law?
76. What did Pres. Bush do?
77. Whats the issue before the Court? One question is whether Pres. Bush had authority to issue
the order. But the main question for us is this: Does the US have a domestic law obligation to
obey the ICJ decision?
No, it does not. (To see why read answers 78 and 79).
78. What would that obligation be based on?
The answer depends on whether a treaty is of the self-executing kind or not. A self-executing
treaty is the one that has automatic effect as domestic law without the aid of any legislative
provision; on the other hand, a not self-executing treaty can only be enforced pursuant to
legislation to carry them into effect.
It is also important to note that there were three treaties being analyzed for this matter: The
Vienna Convention on Consular Relations (VCCR), an Optional Protocol to the VCCR and
the UN Charter, specifically its article 94. The first one grants Mexican nationals certain

rights if they are arrested in the US, the second one specifies that the parties to a treaty would
settle disputes over the treaty by going to the International Court of Justice (ICJ), and the
third one states that Each member of the United Nations undertakes to comply with the
decision of the ICJ in any case to which it is a party. The United States was, at the moment,
a party to all of them.
79. Whats the Courts response?
According to the Court, since the ICJ decision flows from the treaties from which the United
States submitted to ICJ jurisdiction with respect to Vienna Convention disputes, it constitutes
an international law obligation but that does not necessarily mean it constitutes binding
federal law enforceable in the United States courts. The Court also states that the obligation
on the part of signatory nations to comply with ICJ judgements derives from Article 94 of the
UN Charter which addresses the effect of ICJ decisions. Said article states that Each
member of the United Nations undertakes to comply with the decision of the ICJ in any case
to which it is a party. The phrase undertakes to comply is not an acknowledgement that an
ICJ decision will have immediate effects in the courts of UN members, but rather a
commitment on the part of UN members to take future action through their political branches
to comply with an ICJ decision.
Also, Article 94(2) provides as the sole remedy for noncompliance the referral to the United
Nations Security Council by an aggrieved state, this is, according to the Court evidence that
ICJ judgements were not meant to be enforceable in domestic courts.
Therefore, the Court concludes that, because none of the treaties create binding federal law in
the absence of implementing legislation, and because it is uncontested that no such
legislation exists the ICJ decision is not automatically binding domestic law.
80. Extradition treaties general require what specific information to be included in the request?
(see text pp. 393-94):

An affidavit from the prosecutor explaining the facts of the case (A summary of
applicable law, the offense charged, and their relation to the relevant treaty);

Copies of the specific statutes alleged to be violated and the statute of limitations;

If the fugitive has not been convicted, certified copies of the arrest warrant and complaint
or indictment;

Evidence, in the form or affidavits or grand jury testimony (discouraged), establishing


that the crime was committed and establishing the defendants identity (photo,
fingerprints, witness ID);

If the fugitive has been convicted, a certified copy of the order of judgment and
committal establishing the conviction, and an affidavit stating that the sentence was not
or was only partially served, the amount of time remaining, and evidence concerning
identity.

81. For requests made to the United States for the extradition of person from the United States to
foreign countries, what limited role does a magistrate play in the extradition process?
82. What does doctrine of self-execution mean? If a treaty is non self-executing does this mean
that the treaty gives rise to no individual causes of action?
83. What is the traditional justification for a criminalizing conspiracy quite apart from the crime
that is its object?
84. What is the Pinkerton rule?
85. What is the mens rea requirement for federal conspiracy?
86. True/False: U.S. Supreme Court held that the definition of enterprise for RICO purposes
does not include associations in fact of persons who come together for totally illicit
purposes.

87. Under the Turkette standard, what do you need to prove the existence of a RICO enterprise
aside from the predicate racketeering acts?

common purpose;

evidence of ongoing organization, formal or informal;

the various associates function as a continuing unit.

88. UNTOC only applies to serious crimes. What does that mean?

2 essay questions, each 35% fact-pattern questions do these first


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Issues are not hidden, there may be some nuggets hidden. Assignment for each of the
questions will be fairly straightforward. More analysis than issue spotting
Some of the issue spotting may come in with subtleties that we tried to tease out in class
Past exams for structure not necessarily for content
May 11th at noon is deadline for questions

6 short answer questions pick 2 of the 6, each 15%