Summary Book An Introduction To International Criminal Law and Procedure Seminar 1 9

lOMoARcPSD|1273900
Summary - book "An Introduction to International Criminal

Law and Procedure" - seminar 1-9
International Criminal Law (University of Nottingham)
StuDocu is not sponsored or endorsed by any college or university

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)
lOMoARcPSD|1273900
Seminar 1 – Introduction to International Criminal Law and the Nuremberg and Tokyo
Military Tribunals
Reading:
Chapter 1 – What is International Criminal Law?
 International law governs the rights and responsibilities of states and criminal law is concerned with
what individuals cannot do subject to the penal powers of the state
 International Criminal Law is relatively new concept
 Cri i al La is o o er ed ith i di iduals a d ith their prote tio s fro ide-s ale atro ities
 Cherif Bassiouni – 25 categories of international crimes, they are things which affect a significant
international interest or are largely seen as horrific in terms of commonly shared values
 International crime – those crimes which are dealt with by international courts or tribunals and that
fall within their jurisdictions (e.g. that of the International Criminal Court (ICC))
 Transnational Criminal Law – pre International courts and tribunals, a form of ICL that involved a
state s do esti ri i al la hi h dealt ith cross-border crime – now its own type of law because
the source of law is domestic and not international like ICL
 ICC Statute – the ost serious ri es of o er to the i ter atio al o u ity as a hole a d
su h ri es threate the pea e, se urity a d well- ei g of the orld
 International crime places criminal responsibility directly upon individuals – Nuremberg Military
Tribunal - … i di iduals ha e i ter atio al duties hi h tra s e d the atio al o ligatio s of
obedience imposed by the individual state
 Sources of ICL – that of International Law because criminal law is a subset of it
- Treaties – incorporated either directly or used to interpret
- Customary International law – the body of law that derives from the practice of states, can
originate from a treaty or written instrument
 The ICTY and ICTR made reference to both domestic and international case law
 Human Rights law and ICL have a common inspiration of preventing Nazi actions of WW2
 Most recent developments in ICL come from the 2 ad hoc tribunals or former Yugoslavia and Rwanda
(ICTY and ICTR)
 ICL commonly used Human Rights law to assist in drawing boundaries of offences (such as in
genocide in ICTR) because they have the same aim of ensuring a basic level of treatment for humans
 ICL also finds common ground with International Humanitarian Law designed to protect victims of
armed conflict. Large areas of IHL are now war crimes.
 The responsibility of a state under International Law is NOT dealt with by International Criminal Law,
but an International Crime by an agent of a state can be punished individually in ICL and as a state in
other areas of law
 ICL comprises of Criminal Law and International Law, IL being its source CL being the penal
consequences
 Nullum crimen sine lege – Principle of criminal law that the conduct has to be pre prescribed as
wrong and have clear boundaries and punishment
 Nulla poena sine lege – defined penalties attached to a crime
Chapter 2 – The Aims, Objectives and Justifications of International Criminal Law
 Aims – 2 types – forward looking (teleological) and crime focused (deontological)

lOMoARcPSD|1273900
- Retribution – Punishing those who have done wrong irrespective of other future benefits on the
basis that they deserve it. ICT (International Criminal Tribunals) such as ICTY have tried to make it
less about revenge and more about expressing outrage at crimes. Can the punishment match
every crime however? Likely that the crime in many circumstances cannot be repaid through
punishment. Different states will have different cardinal points (level of severity of response)
- Deterrence – Best known justification of punishment. Reduces chance that offender of
population as a whole will repeat the offence because of fear of punishment. Humans however
do not always act rationally in situations.
- Rehabilitation – the idea of reformation of the offender. Are people who perform such crimes
appropriate receivers of this though?
 Broader goals:
- Vindicating the rights of victims – sense of justice being done and of closure on the crime
through seeing prosecution or being able to testify what happened
- Recording history – forensic scrutiny of crimes will set down a permanent record of them which
will stand the test of time
- Post conflict reconciliation – testifying and revealing what happened can create an opportunity
for moving onwards in peace that justice has been served – o pea e ithout justi e
Chapter 6 – The History of International Criminal Prosecutions: Nuremberg and Tokyo
 Post World War 1, the allies set up a 15 member commission to investigate the causes of the
outbreak of War, as well as to assess the war crimes committed and decided what tribunal would be
best suited for dealing with these. The commission reported that Central powers were to blame and
that an allied High Tribunal should try the violations
 Few tribunals took place however and countries such as the US and Japan criticised the decisions
stating a lack of agreed criminal law and punishments
Nuremberg International Military Tribunal
 1943 – Moscow – Allied declaration promises punishment for war criminals without prejudice
 France, UK, US and Soviet Union draft charter of an international tribunal in London (The London
Charter) which formed the basis of the Nuremberg IMT
 The London Charter agreed in August 1945 despite difficulties in negations on procedure and
rebutting the Soviet presumption that all were guilty and tribunal function was to punish
 Tribunal made up of 8 judges – 2 from each major ally – a principle judge and an understudy
 President was UK principle judge. Each country elected chief prosecutor
 4 counts held – Overall conspiracy, crimes against peace, war crimes and crimes against humanity
 24 defendant in tribunal and 6 criminal organisations – emphasis on fair trial argued from beginning
by allies
 10 month trial found 6 acquitted including 3 organisations, 12 were sentenced to death and 7
sentenced to prison between 10 years and life
 Tribunal contributed considerably to International law
 Argued against crimes against peace being contrary to nullum crimen sine lege
 Used a treaty to create case that aggressive war criminalised by customary international law
 Nullum crimen principle not established as an absolute of international law at time
 Established direct liability under international law
Nuremberg IMT Assessment
 - Victor s Justice – The concept that the trial was:

1) Unfair – Financial resources of prosecution much greater than that of the defence. Proceedings
however were fair
2) Bias – Lack of German or impartial judges

lOMoARcPSD|1273900
3) The law applied was designed to guarantee prosecution – Law on crimes against peace and
humanity created in London with Nazi crimes in mind
4) similar acts were conducted by prosecuting states but were not prosecuted – defence not
permitted to raise this issue.
Tokyo International Military Tribunal
 Set up in January 1946 by a Proclamation of General Douglas MacArthur with powers granted by
allied states as Supreme Commander and accepted by Japan in its surrender
 11 judges, 9 from signatory states to Japans surrender and with one each from India and the
Philippines
 Australian Judge oversaw bench with American appointing Chief Prosecutor and other countries
choosing associate prosecutors
 55 counts charged at 28 defendants in a 2 and a half year trial
 All accused found guilty although not on all counts they were charged with. 7 sentenced to death, one
to 25 years, one to 7 years and the rest to incarceration for life.
 Tri u al losely follo ed Nure erg IMT s opi io o all aspe ts of la o the asis of the i di g
nature of the decisio of the tri u al s harter
 Tokyo IMT unlike Nuremberg IMT considered the issue of commands
Tokyo IMT Assessment
 Victor s Justice present again.

 Flaws in trial process – issues of things such as the bombing of Hiroshima and Nagasaki not
considered. Issues in translating from English to Japanese hindered the trial
G. Simpson, 'Didactic and Dissident Histories in War Crimes Trials'
 The Problem of Partiality – Usually criminality by international law coincides with defeat leading to
Vi tor s Justi e ithout o sideratio of o e s o ri es i a hie ing the victory. However both N
and T are unusual in the fact that it took place under universal jurisdiction and international law
 War crime trials are often proceeded by racial stereotyping which can affect the conduct of the trial
itself to the detriment of the accused.
 More sophisti ated eapo s are see as ore frie dly tha traditio al eapo s therefore there is
bias for more developed countries
 The Problem of legality – Nullem crimen sine lege – lack of any definition of ICL meaning that such
law is underdeveloped leading to unclear precedent and confusing law
 Defences – Superior orders and act of state – Nuremberg disallowed these defences which led to a
higher conviction rate but which compromised achieving justice
- If the act of some officials are immune by prosecution because of their office why can heads of
states be punished?
 International criminal law assumes the existence of a sovereign which is of higher importance than
states
 It is difficult to get states to agree on what International criminal law encompasses
 Shift in international legal order that the acts of an individual may not be tried by domestic courts
possessing jurisdiction and custody but by an international court
 International Criminal Tribunals create an accurate account of history and make it into a current
event
 ICT s e lighte the pu li at the sa e ti e as pu ishi g the ri i als

lOMoARcPSD|1273900
Questions:
1) The purpose of International Criminal Law is largely based upon the concepts of retribution,
deterrence, and rehabilitation. Retribution is the notion of punishing offenders for crims that have
been committed. They are deemed worthy of sanction under ICL because they are horrific acts which
contradict common values held by the International community. This in turn creates deterrence. If
individuals can see that possible sanctions will follow such acts, then there will be a reduced chance
of the same incidents being repeated.
The idea of rehabilitation as a purpose of International Criminal Law however is more disputed. It is
hard for example to predict how effective this will be for offenders when they have already ignored
many moral and mental barriers when performing acts worthy of punishment by International
criminal law. As a result, retribution as a purpose of ICL seems only feasible when considering lower
level crimes and issues such as following orders.
International Criminal Law also has the secondary purposes of vindicating the rights of victims,
recording history accurately and allowing post conflict reconciliation. By allow victims to testify on an
International stage a certain amount of release and closure is allowed which can help individuals and
society move on from such crimes. These events scrutinised by law can also be accurately recorded
and dealt with creating a full picture of what actually occurred
2) International Criminal Law by its nature, overlaps with other alternative areas of International law.
Notably the easiest to see connection is that with International Humans Rights Law. Both these
elements of International law have a similar aim of protecting individual rights and setting down a
common standard of human care. This is partially due to the fact that both ICL and IHRL have origins
from post-World War 2, and the desire to ensure that the tragedies that occurred such as the
Holocaust will not be repeated. How this is achieved, the procedures and methods drawn on by both
areas of International Law is however different.
International Criminal Law also relates to International Humanitarian Law. IHL is based upon the ideas
of protecting the victims of armed conflict. Large aspects of International Humanitarian Law are now
considered War Crimes and therefore punishable via tribunals under International Criminal Law.
3) The Nuremberg and Tokyo Tribunals were created following the end of World War 2. Nuremberg was
created by an agreement between the United Kingdom, United States, France and the Soviet Union.
The London Charter was found on the declaration that German actions would not go unpunished and
that justice would be served for those that not only caused the outbreak of the War, but committed
atrocities during it. In comparison, the Tokyo tribunal was an element of Japanese surrender set up by
a Proclamation of General Douglas MacArthur, with powers granted by allied states as Supreme
Commander.
Whilst the origins of the two tribunals differ slightly, both were created for the same reasons of
punishing those who had committed terrible offences in World War 2.
4) Both tribunals can be praised for the way in which, procedurally at least, there were largely fairly
conducted and were internationally recognised, even by the states whose citizens were the targets of
prosecution. Both tribunals successfully prosecuted, as they had set out to do, those who committed
such acts that were deemed worthy of punishment under International Criminal Law. The Tribunals
allowed a sense of justice to prevail in the form of retribution.
5) Perhaps the biggest critique of both Tribunals surrounded the fact that they contained so-called
Vi tor s Justi e . I oth ases, although the heari g ere ge erally fair, there as a la k of i partial
judges, or judges from defeated Japan and Germany which would have produced a more balanced

lOMoARcPSD|1273900
bench. Instead both benches consisted of representatives of victorious nations out for retribution. In
addition, whilst the tribunals focused on actions of German and Japanese individuals, the failed to
consider the actions of the allies and other victorious nations who had also committed crimes
punishable by International Law. Instead the approach was taken that defeat was an element of the
crime.
 Another criticism of Nuremberg in particular is that the crimes were based upon the London Charter,
which was created with Nazi crimes in mind. As a result the tribunal can be criticised for having a
significant lack of Nullum crimen sine lege – the principle of criminal law that the conduct has to be
pre prescribed as wrong and have clear boundaries and punishment in order to allow for fair
prosecution.

lOMoARcPSD|1273900
Seminar 2 – The International Criminal Tribunal for the former Yugoslavia and the
International Criminal Tribunal for Rwanda
Reading:
Chapter 7 – The Ad Hoc International Criminal Tribunals
The International Criminal Tribunal for Yugoslavia (ICTY)
 Response to the Yugoslav wars of dissolution which saw the country break up over a series of armed
conflicts
 Sexual offe es a d eth i lea si g o u ed o a la ge s ale
 Before the end of the conflict the UN Security Council approached with Resolution 780 (1992) which
created a commission to investigate allegations of international crimes. Originally the commission
struggled financially but it was subsequently able to find private funding
 Secretary General of UN consults states about the creation of a future tribunal as a branch of the
Security Council via a treaty. But idea rejected because it was suggested it would take too long to
organise and not every state would support it.
 The epo t ho e e eated a d aft statute ased so e hat o Nu e e g s IMT s ha te
 Draft statute adopted by Security Council in resolution 827 (1993) – whether the SC should act in this
area however has proved controversial as it is a political entity
 The resolution set out the aims of the SC in setting up the ICTY to put an end to such crimes and to
maintain peace – argued such goals were very optimistic – can punishment really achieve this?
 SC argued ICTY would contribute to and not individually allow reconciliation
 Structure of ICTY: 1) The Registry – administrative role 2) Office of the Prosecutor – investigate
allegations, issue indictments and bring matters to trial 3) The Chambers – made up of a presiding
judge and two others – subject to control of Appeals Chamber (7 man chamber, which sits in a panel
of 5 and has final say on matters of law in the tribunal)
 Jurisdiction of ICTY and relationship with national courts:
- Jurisdiction over war crimes, crimes against humanity and genocide from beginning of 1991 in Y
- Art 2 – grants jurisdiction over breaches of Geneva convention
- Art 3 – jurisdiction granted over a list of violations of the laws or customs of war
- Aggression not included in the jurisdiction
- Tribunal has primacy over national courts and could defer their proceedings
 Milestones in practice:
- Tadic case – Work of ICTY slow at first and hampered by funding issues and lack of staff as well as
the continuation of fighting. April 1995 Germany defer proceedings against low ranking Bosnia-
Serb to ICTY. Tadic argued against the jurisdiction of ICTY over him. Appeals chamber decided
ICTY did ha e p e ede e o e atio al la . ICTY dealt ith the uestio of it s o la ful ess
and creation – this has proved controversial to many. Argued security council created ICTY in the
exercise of its function in relation to peace and security. Sovereignty of Yugoslavia not violated
because it was a member of the UN
- Dayton Peace Agreement (which brought an end to the wars and dissolution) obliged all former
Yugoslavia states to comply with ICTY
- NATO investigated for its air campaign in relation to Kosovo but a full investigation was not
initiated – was this positive or a reluctance to tackle NATO?
- Expansion of Tribunal – various resolutions (pg 133) allowed one-case judges, senior lawyers to
do deal with pre trial issues, and expansion of the Appeals Chamber
- Residual Mechanism – timing restraints placed on ICTY by the SC led to this being introduced
which allowed branches of Arusha (ICC) and The Hague (ICJ) to deal with outstanding matters.

lOMoARcPSD|1273900
- Tribunal obtained custody over all indictees over whom it asserted jurisdiction
 Evaluation:
- Accountability – brought charges against leaders and those under alike and gave victims a voice
strengthening the rule of law
- Statute based – set a precedent for ICTR and the ICC somewhat
- Prosecution outside of defeat – e o ed ele e ts of i to s justi e IMTN IMTT
- Accurate documentation of what happened in former Yugoslavia
- Bias – argued unfair treatment of some sides involved in the conflict
- Expensive – cost of over 2 billion US dollars
International Criminal Tribunal for Rwanda
 Set up through condemnation first by the UN, then setting up a commission of experts, and then
before they fed back, setting up an International Tribunal
 ICTR statute drafted by members of SC closely mirroring ICTY. Rwanda voted against the tribunal after
its attempts to include the death penalty and limit its jurisdiction failed
 Made up on Officer of the prosecutor, registry, and one trial chamber.
 Jurisdiction:
- War crimes, crimes against humanity and genocide with the latter two having different
definitions from ICTY
- Has precedence over national court but can refer cases to domestic jurisdictions
 Practice of ICTR:
- Teething issues – Short staffing led to slow progression. This was partially due to a lack of
funding. Frequent violations of UN rules and regulations reported.
- Moving forwards – Jean Kambanda (PM of government in charge of genocide) pleaded guilty and
was sentenced to life imprisonment. Led to an increase in trial work which led UN to increase trial
chambers to 3
- Completion strategy – cases transferred to national jurisdictions during wind down process
 Evaluation:
- Admittance of actual genocide in Rwanda allowed legal recognition of it
- Assisted development of international criminal law, particularly with regards to sex offences
- Slow trial process, partially due to language difficulties
- Failure to prosecute offences by Rwandan Patriotic Front
- Geographically located far from Rwanda, added sense of distance of proceedings
Statute of ICTY
Article 1 – Competence of tribunal Article 7 Individual Criminal Responsibility
Article 2 – Grave Breaches of Geneva Convention Article 8 – territorial and temporal jurisdiction
Article 3 – Violations of the laws or customs of Article 9 – Concurrent jurisdiction

war
Article 11 – Organisation of Tribunal
Article 4 – Genocide
Article 15 – Rules of procedure and evidence
Article 5 – Crimes against humanity
Article 21 – Rights of the accused
Article 6 – Personal Jurisdiction

lOMoARcPSD|1273900
Questions:
1) The ICTY and ICTR were both established for core reasons, mainly the retribution of crimes committed
and the promotion and restoration of peace and security in the areas affected. Through punishing
those who had committed offences, both tribunals would be able to create a precedence that would
have the outcome of deterring any future potential perpetrators from carrying out similar acts.
Successful convictions also often led to incarceration meaning that those who had committed such
acts were removed from society and therefore unable to continue breaching International Criminal
Law. This, as well as a sense of justice prevailing through the application of the rule of law allowed
peace to be resumed in the territories of former Yugoslavia and Rwanda. As a result reigniting of the
conflicts was much less likely because it allowed for a sense of closure on what had occurred allowing
those effected to move on in a peaceful manner.
2) In some respects it could be said that the Security Council did act in accordance with the UN charter
when creating the tribunals. The Security Council was under Chapter VII (article 39) of the UN Charter
entitled to act against any threat or breach of peace internationally. However, in that chapter
reference is only made to the use of sanctions (economic or otherwise) and military force (in extreme
cases). The creation therefore of an International Criminal Tribunal could therefore be argued to be
controversial.
However, the aim of both tribunals (as can be seen above) was to punish offenders of the acts
committed and to promote and restore peace and security. The creation of a tribunal as a means of
achieving this can be argued to be effective. Therefore the creation of the tribunals under Chapter VII
of the UN charter would to me, appear an effective and justifiable method of achieving this outcome
3) One challenged with bringing the accused to justice in the ICTR was clearly the language difficulties.
Hearings and procedures took place in either English or French meaning much time and resources was
drained on translation. This contributed to a slower process of bringing the accused to justice.
Another challenge in relation to the ICTR was the reluctance of Rwanda to co-operate with the
tribunal. This occurred because of the pre-trial detention of Jean-Bosco Barayagwiza (a mass advocate
of the genocide). Rwanda argued this was against his human rights. As a result Rwanda refused to co-
operate which considerably affected the speed and ability of the tribunal to convict considering much
of the evidence and witnesses needed were in Rwanda. This forced the tribunal to reverse their
decision so that the issue could be resolved
One issue with bringing the accused to justice in relation to ICTY was in relation to ongoing situation
in former Yugoslavia. At the beginning of the process there was very little for judges to do because of
an absence of defendants, evidence or witnesses. This issued however was eventually resolved with
the signing of the Dayton Peace Agreement
4) I think the main goal of an international criminal tribunal should be to achieve peace and security in
regions where such hideous crimes are occurring. Punishing and deterring future acts can help bring
stability to the areas effected through a sense of closure on the past. ICT should shed light on the
facts of what occurred through trials and the allowances of witnesses to give evidence. This will also
help speed the closure process.
To say that either ICTY or ICTR brought about peace or security is hard to justify. Whilst this can be
said to be true retrospectively, it is difficult to argue that at the ongoing time of the conflict an ICT is
able to achieve this. This is largely, as seen above, due to the fact that ICT cannot effectively operate
whilst the conflict continues, and therefore their ability to bring about peace and security through
convictions is limited.

lOMoARcPSD|1273900
Seminar 3 – International Criminal Justice and National Legal Systems
Reading:
Pages 70-74 – National Prosecutions of International Crimes
 International Criminal Law sees national courts as the courts of first resort – known as the Indirect
Enforcement system
 Although the intention, the prosecution of International Crimes in domestic courts is a rare
occurrence and instead reliance is placed upon International Criminal Tribunals
 War Crimes are the crimes most often prosecuted in domestic courts
 The Second World War saw many prosecutions for International Crimes take place in national courts,
particularly in Germany and France
 Such cases saw clarification on evidentiary matters, defences, and mental requirements for crimes
 Completion strategies of ICTY and ICTR saw cases referred to domestic courts as well as any
subsequent appeals
 Specialized domestic courts for some international crimes (internationalized courts) have been
established in some countries with international assistance
 National prosecutions of international crimes are often highly selective and generally focus on people
of other nationalities and now their own citizens
 National courts often show uneasiness in dealing with prosecuting for international crimes and often
try to apply national law alongside international law
Pages 79 – 83 – Domestic Criminal Law and Criminal Jurisdiction
 National prosecutions assumed there is an applicable criminal law and criminal jurisdiction
 Genocide and Geneva Conventions requires states to enact necessary legislation
 States either rely directly upon the conventions in application or adopt it into domestic law
 Some states have domestic versions of crimes such as genocide but these are often not criminalised
to the extent which they should be – eg Australia. In other cases special legislation that is introduced
is unsatisfactory
 Even when national courts interpret international law in good faith, there is a significant chance that
judges not well versed in international law my misunderstand what is requires
 ICC assumes jurisdiction when national courts fail to act – the complementarity principle
 States will want to meet the complementarity test – there is no legal obligation under statute
 Important to ensure criminalisation complies with ICC to prevent future intervention from it, the
safest adoption is to adopt the offences as defined in the ICC statute
 Domestic case law may have an impact as a source of law for international criminal courts
 To what extent national courts rely on International case law is dependent on the state however
Pages 154 – 159
Complementarity and other grounds of inadmissibility
 The Complementarity Principle – ICC Court of last resort. Supplements national jurisdiction. Ever
states has a responsibility to exercise own jurisdiction over international crimes. Principle reflects
respect for national sovereignty as well as the concept that the ICC may not be as well placed to
prosecute offenders. ICC will not intervene when state adequately prosecutes. Ask 1) is there a
ongoing investigation or prosecution of the case at national level; and, if so, 2) is the state unwilling or
unable to genuinely carry it out?
 Step 1 – Is there an ongoing investigation? – Article 17 ICC Statue – if a state fails to carry out
investigation a claim of inadmissibility on the grounds of complementarity must fail.

lOMoARcPSD|1273900
 Step 2 – Unwilling to carry out investigation – Article 17 ICC Statute – ICC can take over a case if
domestic court deemed not to be genuinely prosecuting individual in question. Court will consider in
deciding a) if decision made was to shield person from criminal responsibility for crimes b) unjustified
delay in the proceedings inconsistent with intent to bring person concerned to justice c) no
impartiality and being conducted in a manner inconsistent with intent to bring person to justice.
Chapter 9 – Other Courts with International Elements
 Courts with international elements Internationalized courts’ set up as a response to large and
expensive tribunals
 These courts differ in set up, some are via agreement between post conflict government and the UN,
others solely established by the UN or another international administration
Courts Established by agreement between the UN or the African Union and a state
 Special Court for Sierra Leone (SCSL):

- Civil war in Sierra Leone between two rival groups ended by British intervention and UN
peacekeepers
- SCSL established with treaty between SL and UN after President of SL made a request to SC, who
referred to SG who negotiated the statute
- International UN appointed judges with Prosecutor and Deputy Prosecutor
- Not subsidiary organ of SC but separate institution. SCSL and national courts had jurisdiction but
SCSL had primacy
- SCSL did not adhere to immunity for heads of state or for amnesty granted for International
Crimes
- Objective was a short life span to target those most responsible for acts committed
- Child soldiers under 15 were excluded from trial and those 15-18 had special conditions about
treatment before and after conviction
- Definition of war crimes inspired by the ICTR statute
- 13 suspects indicted. Trials held at the Hague because of security concerns
- SCSL plagued by funding issues but greatly advanced International Criminal Law, particularly on
sexual offences
 Cambodia: Extraordinary Chambers – Extraordinary Chambers in the Courts of Cambodia (ECCC)
- Dealt with acts committed during Khmer Rouge rule in Cambodia before regime ousted by
invading Vietnamese forces
- Culmination of long process beginning at request of Cambodia to UN for assistance in bringing
justice. UN expert group recommends ad hoc tribunal. Cambodia wanted it dealt with internally
however so the process was slow. A model was agreed on based on Cambodian law.
- ECCC formed part of domestic system of Cambodia. Aimed to trial senior leaders most
responsible for the crimes. Included Genocide under Genocide convention and crimes against
humanity as defined by ICC statute.
- Cambodian judges in majority in both trial chamber and Supreme Court but supplemented with
International judges. Balanced qualified majority system used but this was criticised as it could
lead to an acquittal even if all International judges voted for conviction.
- Allowance to consider procedural rules developed at international levels
 Special Tribunal for Lebanon (STL)
- Se urity Cou il esta lished o issio to help i vestigate the assassi atio of Le a o s
former Prime Minister, including links to Syria. Lebanon request IT a statute set up. Constitutional
elements in Lebanon meant not all provision could take effect so SC used Chapter VII to enforce
them
- Treaty based not an organ of the SC. Not part of Lebanese system and sits in the Hague with
mostly international judges. Limited jurisdiction
- Tribunal applied Lebanese law with removal of things such as the death penalty
- Tribunal took primacy over national courts

lOMoARcPSD|1273900
Courts established by the UN or other International administration
 Kosovo and East Timor Special Panels

- SC Resolution in 1999 UN assumed sovereignty of activities in authorities of East Timor and
Kosovo both having suffered violence during struggles for independence. Both UN missions had
legislative authority and were permitted to administer justice
- Essentially state building mandates to establish law and order and a fair justice system
- Aim to restore peaceful relations between different groups
- Panels being domestic applied domestic law
Courts Established by State with International Support
 Iraq – The Iraqi High Tribunal (IHT)

- Specialised court set up to deal with crimes of old regime. Domestic court not set up by SC, UN,
Treaty or occupying powers
- Set up by Iraqi interim government authorised by the coalition. Statute set up with considerable
international input
- Jurisdiction discounted coalition crimes or those of Iraqi civilians
- Judges and prosecutors all Iraqi Nationals. International advisers and observers could be called
upon
- Funding and security contributed by coalition
Evaluation
 Shortage of financial resources. Require voluntary contributions by states in money personnel and
equipment. This effects effectiveness and efficiency of tribunals concerned
 Domestic courts will suffer from influence of national systems or politics
 Difficulty in securing co-operation with other states because they do not have to legally assist
 Positive influences on domestic legal systems
Questions:
1) National courts have the advantage of being better placed to punish breaches of International
Criminal Law. This is because defendants will be within their jurisdiction, as will most the of the
evidence and witnesses so it is more practical to bring cases to trial. National courts will also be a
cheaper means of prosecution because they already exist and so do not require the time consuming
and lengthy process of being established. One disadvantage of using national courts however is that
they are often reluctant to prosecute their own citizens. Investigations can often be highly selective
and focused. However it could e argued the ICC s a ility to i terve e if the dee the a tio s of the
state to be insufficient could overrule this. National courts often show uneasiness in dealing with
prosecuting for international crimes and often try to apply national law alongside international law
2) Primacy is defined as being of most important. In the context of courts and the law primacy dictates
the court or tribunal which choices are seen as more binding and of greater precedence than the
courts below it. A court with primacy will to some extent be able to dictate and overrule the decisions
of lower courts. In the application of primacy to the ICTY and ICTR, the tribunals used primacy in order
to decide who was prosecuted where. Those who played a greater role in the crimes performed were
dealt with by the tribunals. Those who played a lesser role were tried in national courts. This allowed
the tribunals to focus on those most responsible for the acts committed

lOMoARcPSD|1273900
3) The Complementarity Principle – ICC Court of last resort. Supplements national jurisdiction. Every
states has a responsibility to exercise own jurisdiction over international crimes. Principle reflects
respect for national sovereignty as well as the concept that the ICC may not be as well placed to
prosecute offenders. ICC will not intervene when state adequately prosecutes. Ask 1) is there a
ongoing investigation or prosecution of the case at national level; and, if so, 2) is the state unwilling or
unable to genuinely carry it out?
4) Unwilling and unable were misinterpreted early on to mean an ineffectiveness to prosecute those
who were accused of committing crimes. What they actually stand to mean by the ICC is that a
country is attempting to shield the individual in question for political and internal reasons. In deciding
if a state is unwilling or unable the ICC has adopted the following guidelines:
a) if decision made was to shield person from criminal responsibility for crimes
b) unjustified delay in the proceedings inconsistent with intent to bring person concerned to justice
c) no impartiality and being conducted in a manner inconsistent with intent to bring person to justice.
5) Complementarity – pressure on states to prosecute and achieve results which could lead to injustice.
ICC can override national jurisdiction if they believe decision is not properly made leading to issues
with invasion of sovereignty. However is better for ensuring that justice is served and the biases of a
state which they could potentially show to an individual is removed. Effective way of keeping costs
and resources at a minimum but at the same time maintaining an impartial means of investigating an
accused. For this reason this approach is preferable
Primacy – allows states to maintain sovereignty whilst at the same time having a higher court. Less
pressure put on states to achieve certain results.

lOMoARcPSD|1273900
Seminar 4 – The International Criminal Court
Reading
Chapter 8 – The International Criminal Court
 Statute of the ICC has established a judicial institution to investigate and try crimes, as well as set out
a code of International Criminal Law
Creation of the ICC
 Post WW2 – Despite Nure erg pro ise o su essors to IMT s

 Genocide Convention approved by UN in 1948, General Assembly (GA) also request International Law
Commission to look at possibility of creating international judicial organ for genocide.
 Draft statute for permanent court produced by special committee appointed in 1950, but GA
postponed matter till aggression could be defined and the process stalled.
 Cold War took place and claims of ICL crimes were seen as propaganda
 1989 – Trinidad and Tobago raises concerns about international prosecution for drug offences. GA ask
International Law Commission to draft statute for a court. Final text produced in 1994
 Draft of ILC proposed more jurisdiction than current ICC has but it was also more protective of states
sovereignty
 Political timing right and a lot of support present for creation of an ICC. Ad hoc committee established
to consider idea more closely. Within a year enough support to set up Preparatory Committee who
put together a draft statute for a new court. This formed basis for negotiation for Rome Conference.
The 1998 Rome Conference
 Many issues considered at the conference. One of the key issues was balancing the need to
prosecution of those responsible for atrocities but avoiding undue exposure of national leaders to the
court.
 Sub groups of different nations (such as the EU) also separately met and formulated coordinated
positions on various provisions of the statute. NGO s also i ol ed ut ot dire tl i egotiatio s
 Controversial issue of who would have to consent for court to exercise Jurisdiction hard to resolve.
 Statute finally adopted with a vote of 120 to 7 and 21 abstentions
 Statute came into force on 1st July 2002 bringing court formally into existence after required 60 states
became part to the statute
Structure and Composition
 Pre-Trial, Trial and Appeals Chambers. President and two Vice Presidents voted elected by judges
from among their number. Registry to deal with non-judicial aspects of administration as well as
Victims and Witnesses unit. Also an office of the Prosecutor
 Article 36(3) Judges have to have competence in criminal law or relevant areas in international law.
States sele t judges hilst o sideri g ala i g pri ipal orld legal s ste s geographi al
representation and gender
Crimes in the Jurisdiction of the ICC
 Jurisdi tio o er the ost serious ri es of i ter atio al o er I ludes ge o ide, ri es agai st
humanity, war crimes and aggression (Article 5(1)).
 ICC statute goes to greater lengths to define these crimes. Judicial creativity is restricted
Applicable Law - Article 21 – Court to appl i the first pla e the Statute, The Ele e ts of Cri es a d its Rules
of Pro edure a d E ide e. i the se o d pla e it is to appl treaties a d pri iples a d rules of international
law, failing that, general principles of law, including national law consistent with the statute.

lOMoARcPSD|1273900
The Complementarity Principle
 ICC o ple e tar to atio al ri i al jurisdi tio . E er state has a respo si ilit to e er ise it s
own jurisdiction over International Crimes. Based on idea of effectiveness and efficiency in that a
state is has better access to evidence and witnesses and other resources.
 Article 17 – ICC should ask 1) is there an ongoing investigation of prosecution of the case at national
level 2) whether the state is unwilling or unable genuinely to carry out that investigation or
prosecution.
 Case of inadmissibility is looked at before the prosecutor opens an investigation and before
prosecution begins to take place
 1) - A case is inadmissible on the grounds of Complementarity if it is being investigated or prosecuted
or has been by the state with jurisdiction over it (Article 17(1)(a) and (b)).
 2) ICC can take over a case if domestic court deemed not to be genuinely prosecuting individual in
question. Court will consider in deciding a) if decision made was to shield person from criminal
responsibility for crimes b) unjustified delay in the proceedings inconsistent with intent to bring
person concerned to justice c) no impartiality and being conducted in a manner inconsistent with
intent to bring person to justice
Amnesties and truth and reconciliation commissions
 Issues as to whether amnesties or truth and reconciliation commissions will suffice was left open by
the Rome Conference and therefore the issues will be dealt with by the application of the
admissibility provisions and the powers of the Prosecutor and Chambers
Other grounds for inadmissibility
 Ne bis in idem – person cannot be tried by ICC for conduct which has already been tried by the Court
itself or other courts in previous proceedings. Exception when other court is satisfying the
unwillingness test
 Not of sufficient gravity – case is not of sufficient seriousness to justify further action by the court.
Considered by the Prosecutor. Will include scale and nature of the crime, as well as the manner of
their commission and their impact. Case of Ntaganda considered the issue. Pre-Trial Chamber held 3
criteria to be met – 1) conduct must be systematic or on a large scale and social alarm can be
considered 2) suspect must be one of the most senior leaders in situation 3) regard should be made
to role played by suspect and the role played by the state or organisation at fault. Appeals chamber
reject this proposal
Initiation of Proceedings (the trigger mechanisms)
1) States Parties – States party to the Statute may refer the situations to the court. Those which are not
can seek a referral by the Security Council if the situation threatens international peace and security,
or can pass information to the prosecutor who may act.
2) Security Council – Council can refer a situation to the ICC but does not have to act. Security Council
can also impose additional obligations like for a state to co-operate with the court. But ICC is separate
entity from the SC
3) Prosecutor’s po er to initiate an in estigation – idea that court should not be entirely dependent on
the decision and actions of others to work. Article 15 confers this power. Requires authorisation of
Pre-Trial chamber.
4) Self-Referrals – First situations dealt with by ICC were referred to it by States in relation to crimes
committed on their own territories. Suggest ICC actions welcome and help can be expected from that
state. However could be used by a state for politically motivated reasons.
Enforcement of ICC Decisions
 ICC fully dependant on the co-operation of states to the statute to enforce its decisions. Part 9
requires Sates Parties to supply assistance

lOMoARcPSD|1273900
 Punishments are carried out in national jails. States willing to accept the prosecuted will display their
willingness and the court will select which the sentence is to be carried out in

lOMoARcPSD|1273900
International Criminal Law Seminar 5 – War Crimes
Reading – Chapter 12 War Crimes
 Definition of a war crimes – serious violation of the laws and customs applicable in an armed conflict
which gives rise to criminal responsibility under International Law
 Laws and customs applicable in an armed conflict are subject to International Humanitarian Law
 No requirement for systematic or widespread breach for there to be jurisdiction, a single breach
under International Humanitarian Law is sufficient for prosecution
History of Humanitarian Law
 Development of Internal Humanitarian Law spurred by Herni Dunant, a businessman from Geneva
who witnessed the aftermath of the Battle of Solferino and was shocked by the horrors of wounded
soldiers left to die on the battlefield
 This led him to urge for action to prevent such incidents, which in turn led to the creation of the
International Committee of the Red Cross which was established in 1863 and the adoption of the first
Geneva Convention
 Many treaties have since adopted IHL ith ele e ts of Hague La a d ele e ts of Ge e a La
 The Hague Conventions – limit the methods and means of Warfare to reduce unnecessary
destruction and suffering
 The Geneva Conventions – based upon protecting civilians and those who are considered o -
o ata ts
 Other treaty developments have strengthened the protection of cultural property, regulations on
what weapons can be used as well as banning child soldiers
 These provisions are now seen as part of customary law and so are applicable even if the state whom
the offender is under the jurisdiction of has not ratified the treaties
 Key Principles of Humanitarian Law:
- Non-combatants are to be spared from various forms of harm. This not only included civilians,
ut also e te ds to POW s a d those injured upon the battlefield
- Combatants can only attack military objectives and must distinguish civilian objectives
- In attacking military objectives combatants must take steps to avoid, so far as possible, collateral
damage
- Means and methods of war restricted to reduce suffering
 IHL is triggered by the outbreak of a war. It is not however concerned with ending or resolving it as
this is of political concerns
 Separation of the ius ad bellum (law governing resort to the conflict) and ius in bello (law governing
the conduct during the conflict)
 IHL applies equally and uniformly in the conflict to all sides involved regardless of whether they are at
fault or fighting a just cause
Issues with Regulating Warfare
 Warfare leads to the reduction is applicable law. Offences which are usually crimes (such as killing)
become legal in such circumstances. However there are often regulations on this to prevent barbaric
acts. International Criminal Law also acts as a deterrent to prevent serious offenses.
The relationship between war crimes and IHL
 Which of the IHL rules constitutes a criminal offence when violated?

 Geneva Convention – expressly criminalises some breches of fundamental provisions
 Tadic – set out following requirement for war crimes within the jurisdiction of the tribunal
1) The violation must infringe a rule of IHL

lOMoARcPSD|1273900
2) That rule must be found in customary law or applicable treaty law

3) The violation must be serious, in that the rule protects important values and the breach involves
grave consequences for the victim
4) The violation must entail individual criminal responsibility
 Because war crimes are serious breaches of IHL it is often necessary to refer to IHL provisions when
interpreting International Criminal Law. Article 8(2)(a) of ICC Statute refers to the provisions of the
rele a t Ge e a Co e tio s a d Arti le 8 2 refers to the esta lished fra e ork of i ter atio al
la
War Crimes in Internal Armed Conflict
 Traditionally no rules governing what a government could do against its own citizens
 Changed with negotiation of four Geneva Conventions in 1949 where Article 3, setting out limited
norms for internal armed conflict, was introduced. No action for the breaches given though so
argument that there were in fact not criminalised after all
Common Issues
 Armed Conflict:
- IHL and war crimes law does not wait for recognised conflict so can act if states deny a war
- Internally use of military force amounts to armed conflict
 Distinguishing between international and internal affairs:
- Armed conflict also includes fighting colonial domination, alien occupation, racist regimes and
fighting for the right of self determination
- UN peacekeepers also subject to IHL when on operations in a domestic peacekeeping situation
- When UN peacekeepers intervene with consent the conflict seems to remain internal, when they
intervene without it appears to make the conflict international
- With pro for es if it a e pro ed o erall o trol as held by a state for punishment of
concerned individuals
 Internal conflict or riot?
- Consider intensity of the conflict and the organization of the parties
- Has to be widespread, regular etc. Existence of a command structure, access to weapons, training
and control of territory also a factor
 Nexus between conduct and conflict
- To be a war crime conduct must be related to the conflict
- Conduct has to be closely related to it
 Perpetrator
- Conduct of a civilian can also be a war crime if linked to the conflict
- Perpetrator has to be aware of factual circumstances that established the existence of an armed
conflict
 Victim or object of crime
- Crimes must effect protected persons or objects under the Geneva Convention
1) A war crimes is different from a normal offence committed during wartime because a war crime
is dee ed as ei g a serious rea h of the la a d customs of war. Such crimes are found in
International Humanitarian Law often under the Geneva Convention or Hague Convention. War
crimes are often a set list of crimes nominated and chosen because they have particularly grave
consequences against other crimes that may or could be committed during a war

lOMoARcPSD|1273900
International Criminal Law Seminar 6 – Crimes Against Humanity
Reading – Chapter 11 – Crimes Against Humanity
 Crimes against humanity often appear in different instruments with varying definitions
 The increase of International Criminal Law has led to a more consistent view of CAH
 CAH = the commission of certain inhumane acts in a certain context – must be part of a widespread systematic
attack directed against the civilian population
Historical Development
 Nuremberg charter first to create an actual notion of CAH to punish Nazi war crimes. Included elements of
ei g agai st a populatio i ludi g a state s o , a e ui ed o e tio to a , a d a e ui e e t of
being on a large scale
 Tokyo charter expanded this slightly to include rape and torture as well
 ICTY and ICTR greatly influenced CAH by defining more clearly the idea of a systematic attack. This was
adopted by the ICC statute in 1998 which also went on to list crimes which are considered as serious enough to
be CAH (Article 7(2))
Crimes Against Humanity and War Crimes
 Frequently overlap as an act could amount to being both

 CAH however can occur in the absence of an armed conflict, and CAH have to be widespread whereas in
comparison war crimes do not have to be. CAH are also primarily concerned with matters off the battlefield
Common Elements of Crimes Against Humanity
 No Nexus to armed conflict:

- International conventions following Tokyo and Nuremberg set out no nexus to armed conflict needed for there
to be an actionable CAH
- 1998 Rome Conference (Article 7) formally rejects need for a nexus
 No requirement for acts to be discriminatory to constitute a war crime
 Must be widespread or systematic
- Ge e all e epted ele e t f o the 99 s that a ea h has to e idesp ead o s ste ati to e see to be a CAH
- Prosecutor need only establish either widespread or systematic for there to be an offence
- Widespread seems to relate to large scale attack and a high number of victims
- Systematic – e e t ases suggest o ga ised atu e of the a ts of iole e a d the improbability of their random
occurrence (Nahimana et al (ICTR))
 Attack:
- Need no involve an armed force, can included the mistreatment of civilian population. Refers to broader course of
conduct involving prohibited acts of which the accused forms a part
- ICC Statute – Article 7(2)(a) – Definition of attack – requires a minimum level of scale and some minimal level of
collectively
 Any civilian population:
 Civilian suggests non-combatants, can be own citizens. Population suggests larger body of victims is visualised
 Could apply to military personnel outside of a combat setting
 Whether or not it applies to POW and injured personnel is unclear. But appears it would be intended only to not apply
to those who are genuine military targets
 Link Between the accused and the attack
 Awareness of context that acts forms part of a broader situation
Prohibited Acts – Article 7 ICC Statute

1. Murder

lOMoARcPSD|1273900
2. Extermination – killing on a larger scale. Mass killing

3. Enslavement – e e isi g the po e s atta hi g to the fight of o e ship o e o e o o e pe so s
4. Deportation of forcible transfer of population – usually done by committing acts to scare people out of a territory
which the preside in – commonly ethnic cleansing
5. Imprisonment
6. Torture
7. Rape and other forms of sexual violence including sexual slavery, enforced prostitution, forced pregnancy, forced
sterilization or things of comparable gravity
8. Persecution – requires the following grounds – Deprivation of fundamental rights, on discriminatory grounds,
which are grave or serious, which have a connection to other acts, with knowledge of the broader context and
with a relationship to other crimes
9. Enforced disappearance
10. Apartheid – i hu a e a ts of a ha a te o itted i the o te t of a i stitutio alised a ial egi e of
systematic oppression and domination by one racial group over any other racial group and committed with the
i te tio of ai tai i g that egi e
11. Other inhumane acts – of similar character to other prohibited acts that they cause great suffering or injury to
body or to mental or physical health
Questions
1. 1945 saw the first real introduction and use of Crimes Against Humanity. This occurred through the post-
World War 2 military tribunals of Nuremberg and Tokyo. Crimes Against Humanity was the title informally
given to try the atrocities of the war. There makeup and composition however are much removed from
modern day definitions of CAH. Later tribunals such as the ICTR and ICTY also led to the development of
Article 7 of the ICC statute which defines what war crimes are. It also included an exhaustive list.
2. The actus reus of crimes against humanity is the following:

- A widespread or systematic attack against any civilian population, with a link between the act and
the accused party
3. The mens rea of crimes against humanity is the following:

- Awareness of the context in which the act is committed. Knowledge that it is in fact performed in
the context of a larger systematic action
4. Crimes against humanity do not require a nexus to the armed conflict. Instead they can be performed
independently so long as they can be considered as being widespread or systematic. CAH also do not
have to necessarily be discriminatory to constitute a crime against humanity. The exception is in the
case of two specific offences under Article 7 of the ICC statute of persecution and apartheid which
require an element of discrimination to be present.

lOMoARcPSD|1273900
International Criminal Law – Seminar 7 – Genocide
Chapter 10 – Genocide
 Ge o ide is the de ial of the right of e iste e of e tire hu a groups

 Requires an intent to destroy a group of people
 The term is to be used carefully to maintain the seriousness of the offence
 Main definition – Article 2 Genocide Convention:
Any of the following acts committed with the intent to destroy, in whole or part, a national, ethnical,
racial or religious group, as such:
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
 Recognised after the holocaust, term used in 1944 by Raphael Lenkin (Polish Lawyer)
 The crimes of genocide was not developed until after the Nuremberg trials. Instead it was dealt with
as a CAH but this meant it required a connection to war
 Genocide Convention came into force on 12 January 1951 following GA Resolution 96(1) of December
1946. ICJ also confirmed it formed part of customary international law same year
Nature of Genocide
 Jelisic (ICTY) – killi gs o itted a si gle perpetrator are e ough to esta lish the aterial
element of the crime of genocide and it possible to conceive that the accused harboured the plan to
exterminate an entire group without this intent having been supported by any organisation in which
other i di iduals parti ipated
 ICTY Prosecution – Genocide should not become too broad to reserve the fact that it is for acts of
exceptional gravity that it should be considered the ultimate crime
 Conduct for which defendant is o trial takes pla e i the o te t of a a ifest patter of si ilar
o du t or is of itself a le to destro the group or part of it
Protected Groups
 Convention lists only national, ethnic, racial and religious groups

 Evidence suggests that this list is intended to be exhaustive
 Some states have adopted broader definitions as they are entitled to do but other states do not have
to follow this precedent
 National, ethical, racial and religious groups – No internationally recognised definition. Overlap also
present. Attempt to define could lead to difficulties in applying groups that should be covered under
the definition.
 Identification of the groups and its members – Difficulty in deciding whether a person is a member
of a group or not. Suggested that it should be whether or not the defendant saw the victim as a
member of the group in whom they are targeting. Perceptions would as a result therefore be based
potentially on imagined distinctions rather than genuine ones. Group has to have an objective based
existence in the first sense though.

lOMoARcPSD|1273900
Material Elements
 The prohibited acts:

- Killing – Article II(a) Genocide Convention – relates to killing members of the group. Neutral
though as to the mens rea of killing (intent or recklessness) depending on national perceptions.
Kayishema – act must be intentional but not necessarily premediated.
- Causing serious bodily or mental harm to members of the group – Artilce II(b) Genocide
Convention – Eichmann – could be caused by enslavement, starvation, deportation, persecution
or detention in campes designed to caused their degradation, deprivation of HR. Akayesu (ICTR)
sexual violence can also be included
- Deli eratel i fli ti g o the group o ditio s of life al ulated to ri g a out its ph si al
destru tio i hole or i part – provides for cases were killing not actually adopted but same
outcome will be achieved
- Imposing measures to prevent birth in a group – Article II (d) – includes sterilization etc
- Forcibly transferring children of the group to another group – not restricted to physical force but
can also include threats and coercion
 The Contextual Element
- The conduct took place in the context of a manifest pattern of similar conduct being directed
against that group or was conduct itself that could effect such destruction
- Must be a clear pattern and not a set of isolated crimes taking place over a period of several
years
Mental Elements
 Intention to commit the underlying act and the intent special to genocide
 i te t to destro i hole or part [a prote ted group]
 Intent –
- Not restricted to leaders of a campaign, anyone can be the a principle perpetrator provided they
have the necessary intent
- Intent often hard to prove. Instead tribunals have been prepared to deduce intent from
circumstantial evidence including action and words of the perpetrator – Seromba
- Intent, not knowledge – Greenawalt suggested intent should be satisfied if perpetrator acted in
furtherance of a campaign targeting members of the group and knew that the goal was to
destroy the group in whole or part
- But Krstic case rejected saying there must be the necessary intent
 To destroy –
- Definition may fall short of death of the individual
- May involve other forms of destruction in definitions of countries own law
 In whole or in part –
- ICJ – widely accepted that genocide may be found to have been committed where the intent is
to destroy the group within a geographically limited area
 As such –
- I te t to destro group or part of it, as su h
- Relied upon by some as the evidence for the need for motive
- Seems to be a necessary part of genocide because it is discriminatory and so therefore requires
the singling out of individuals
- Has been used by some tribunals to mean to seek or aim at the destruction of a group

lOMoARcPSD|1273900
The Bosnian Genocide Judgement
Paragraphs 186-201
 Requirement of specific intent. Not simply enough to satisfy MR that victim belongs to group being
targeted, as this is discrimination. Something more is required
 Instead an intent is needed to destroy, in whole or part a group to which the victim belongs
 Ethnic cleansing – rendering an area ethnically homogenous by using force or intimidation to remove
persons of given groups from that area
 Ethnic cleansing will only be genocide when it complies with one of the acts set out in Article 2 of the
genocide convention. This is because it does not necessarily contain an intent to destroy a group in
whole or part
 Issues he group is applied i a egati e a e.g to kill all o -Serbs). A group must have positive
characteristics and be specifically identifiable. Drafting confirms this
Paragraphs 276-277
 Court not required to show who was killed or how many were killed, so long as they could satisfy that
members of the protected group were killed
 Lack of evidence to show that the killing of the group was an act intended in whole or part to bring
about the destruction of that group
Paragraphs 278-271
 Krstic - The e e ts surrou di g the Bos ia Ser take-o er of the U ited Natio s UN safe area
of Srebrenica in Bosnia and Herzegovina, in July 1995, have become well known to the world. Despite
a UN Security Council resolution de lari g that the e la e as to e free fro ar ed atta k or a
other hostile a t , u its of the Bos ia Ser Ar VRS lau hed a atta k a d aptured the to .
Within a few days, approximately 25,000 Bosnian Muslims, most of them women, children and elderly
people who were living in the area, were uprooted and, in an atmosphere of terror, loaded onto
overcrowded buses by the Bosnian Serb forces and transported across the confrontation lines into
Bosnian Muslim-held territory. The military-aged Bosnian Muslim men of Srebrenica, however, were
consigned to a separate fate. As thousands of them attempted to flee the area, they were taken
prisoner, detained in brutal conditions and then executed. More than 7,000 people were never seen
agai .
 The specific intent must be established for the crime of genocide to be present
Paragraphs 292-297
 The acts of genocide need not be premeditated and the intent may become the goal later in an
operation
ICC Prosecutor Charges the President of Sudan with genocide…in Darfur
 First case brought against an acting head of state

 Issue of an arrest warrant not a formal indictment but a way of getting the accused to trial to bring
about proceedings
 To obtain an arrest warrant the Prosecutor must show, first, that "there are reasonable grounds to
believe that the person has committed a crime within the jurisdiction of the Court"
 Article 58(2) of the Statute the Prosecutor must demonstrate that the arrest sought is necessary (i) to
ensure the person's appearance at trial; or (ii) to ensure that the person does not obstruct or

lOMoARcPSD|1273900
endanger the investigation or the court proceedings; or (iii) to prevent the person from continuing
with the commission of the crime charged or a related crime arising out of the same circumstances.
 Genocide has a specific intent element which distinguishes it
 Charges under AR of killing, causing serious bodily or mental injury, and inflicting conditions on life
calculated to bring about destruction in part or whole
 Attempt to bring a claim of genocide controversial. Argued the groups would not be deemed so under
the genocide convention and difficult to prove the specific intent
 Defence of immunity of head of state will not be accepted
The ICC Appeals Chamber Decision on the Warrant of Arrest in Prosecutor v. Bashir
 Found insufficient evidence to support a claim of genocide

 Article 51(8)(a) – Pre Trial chamber must have reasonable grounds that someone has committed a
crime under the jurisdiction of the court for there to be an issuing of an arrest warrant
 Based on the progress made so far, it seems likely that the arrest warrant for Bashir may never be
executed; pouring the ICC's resources into determining which charges may form the basis of this
warrant suggests that, for better or worse, the work of the Court is divorced from realities on the
ground
Prosecutor v Kristic Judgement (IT-98-33-A)
 The facts of this case relate mainly to events which took place in the town of Srebrenica around July
1995. Srebrenica is located in eastern Bosnia and Herzegovina. It gave its name to a United Nations
so- alled safe area , hi h as i te ded as a e la e of safet set up to 2 prote t its i ilia
population from the surrounding war
 Krstić as a Ge eral-Major in the VRS and Commander of the Drina Corps at the time the crimes at
issue ere o itted. For his i ol e e t i these e e ts, the Trial Cha er fou d Radisla Krstić
guilty of genocide; persecution through murders, cruel and inhumane treatment, terrorising the
civilian population, forcible transfer and destruction of personal property as crimes against humanity;
and murder as a violation of the laws or customs of war. For these convictions, the Trial Chamber
se te ed Mr Krstić to fort -si ears i priso e t.
 Appeals chamber unanimous in agreeing genocide did take place
 Argued he did not destroy in part or whole a group because not enough damage caused but this was
dismissed
 Argued also the conviction for persecution and extermination were culmative with the crime of
genocide.
 The established jurisprudence of the Tribunal is that multiple convictions entered under different
statutory provisions, but based on the same conduct, are permissible only if each statutory provision
has a materially distinct element not contained within the other.

lOMoARcPSD|1273900
International Criminal Law Seminar 8: Transnational and Other Posited International

Crimes
Reading – Chapter 13 – Aggression

 Cri e agai st pea e o itted y leader or poli y-maker of a state who participates in an act of
aggression carried out by the state. Prevention of aggression is one of primary purposes of the UN
 About unlawful act committed by one state on another – is about protecting state sovereignty, whilst
making leaders directly accountable under international law
 Negotiations during the London Charter showed not a widely held view that there should be a crime
of aggressio . Ho e er Nure erg IMT had jurisdi tio o er ri es agai st pea e u der Arti le a
of the harter hi h i luded pla i g, preparatio , i itiatio of agi g of a ar as a ri e.
 The charter was applying law ex post facto however and Nuremberg was criticised for this
 Ne ly for ed UNGA e dorse pri iples of i ter atio al la re og ised y the Lo do Charter a d
Nuremberg judgement
 1950 – International Law Commission asked to elaborate definition of crime of aggression by no
agreement reached
 Definition of aggression reached in 1974 by GA Resolution 3314 and recommended to the Security
Council as guidance. However it itself is not a crime but simply states that a crime against
international peace will give rise to international responsibility
 ICC Court Negotiations – Failure to reach a definition at the Rome Conference for the crime of
aggression. Final compromise in Article 5(1)(d)and(2) which includes aggression in the jurisdiction of
the court but not until parties reached further agreements to the crime
 ICC Statute Review Conference, Kampala 2010 – New elements of crime adopted. Amendments
a o pa ied y u dersta di gs i orporati g agreed interpretations. Court cannot exercise
jurisdiction until a decision is made after January 1st 2017 by a 2/3 majority.
Definition in ICC Statute
 Defined in what will be Article 8bis of the Statute as: the planning, preparation. Initiation or
execution, by a person in a position effectively to exercise control over or to direct the political or
military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes
a manifest violation of the Charter of the U ited Natio s
 Act of aggression is defined as: the use of a ar ed for e y a State agai st the so ereig ty,
territorial integrity or political independence of another State, or in any other manner inconsistent
with the Charter of the United Nations. Any of the follo i g a ts, regardless of a de laratio of ar….
Shall qualify as an act of aggression [acts then listed out]
Relationship to other crimes
 Aggressio ofte pro ides a o asio for other offe es u der I ter atio al Cri i al La to e
committed
 Concerns the ius ad bellum (law governing recourse to armed conflict) unlike any other crime
 Can only be committed by an individual in control of a state on behalf of that state and as part of a
state plan or policy.
Material Elements
1. By a perpetrator:
- A leadership ri e so a o ly e o itted y leaders of high-level-policy-makers.
- Von Leeb and Others – the ri i ality hi h atta hes to the agi g of a aggressi e ar should
e o fi ed to those ho parti ipate i it at poli y le el
2. Planning, preparation, initiation or execution:
- Forms the nexus between the acts of the leader or policy maker and the act of the state
- No crime of conspiracy to commit acts of aggression
3. Act of aggression:
- Any unlawful use of force by a state is defined as an act of aggression for the purpose of the ICC
definition

lOMoARcPSD|1273900
- Examples set out in GA Resolution 3314 which includes invasion, bombardment, annexation etc
but this is not an exhaustive list
- UN Charter Article 51 – nothing in the Charter shall i pair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United National, until
the Se urity Cou il has take easures e essary to ai tai I ter atio al pea e a d se urity
- Authorisation under Chapter VII – Use of force authorise under Chapter VII of UN Charter will
not constitute an act of aggression
- Humanitarian Intervention – military action taking for humanitarian reasons without Security
Council authorisation. Technically breaches international law but u likely to o stitute as a a t
of aggressio .
4. ‘[A] a ifest violatio of the Charter’
- Manifest – Oxford English Dictionary – e ide t to the eye, i d or judge e t; o ious
- 2 of the Kampala understandings relate to this threshold. 1st – aggression is the most serious and
dangerous form of illegal use of force, and that a determination of whether an act of aggression
has been committed requires the consideration of all circumstances of each particular case. 2 nd –
the three components of hara ter, gra ity a d s ale ust e suffi ie t to justify a ifest .
Mental Elements
 ICC Elements of Crime Adopted at Kampala Review: Elements 4 and 6
- Element 4 – perpetrator is aware of the factual circumstances establishing inconsistency of the
use of armed force by the state with the Charter of the United Nations
- Element 6 – perpetrator is aware of the factual circumstances establishing the manifest violation
of the Charter
Jurisdiction of ICC
 State parties have a choice as to the jurisdiction which they wish to accept and there is no jurisdiction
over an act committed by nationals of a non-state party or of acts committed on the territory of
another state.
Chapter 14 – Transnational Crimes, Terrorism and Torture

 Transitional Crimes – crimes which are subject to international suppression conventions, but for
which there is yet no international criminal jurisdiction
 They are crimes which have actual or potential transboundary effects by their very nature
 Examples include trafficking, piracy, slavery, terrorism, torture, apartheid, enforced disappearances
International Suppression Conventions
 Transnational criminal law relies on domestic legal systems to prosecute defendants. To aid the
process states conclude treaties with one another so they might ensure the efficiency of this process
and allow for cooperation
 Typical agreements require states to create criminal offences in their own domestic law, but create in
the offences to a similar make-up to produce sufficient grounds for extensive cooperation
 There will often be a link in jurisdiction between the offender and the state
 The conventions themselves do not go into detailed matters of the law because it is for the
implementing states to create the domestic law in-line with the aims of the convention
1. Terrorism
 A concept which is very difficult to define in terms of covering all aspects necessary and all examples
that might present themselves
 The committing of normal, serious criminal acts with are performed on a large scale and/or for a
particular purpose
Development of international cooperation against terrorism
 Attempted 1937 Convention for the Prevention and Punishment of Terrorism failed to get enough
ratifications – a e up ith defi itio of ri i al a ts dire t agai st a state a d i te ded or
al ulated to reate a state of terror i i d of [i di iduals, group or pu li ]
 Instead thematic approach taken where certain acts of terrorism in treaties when enough support
exists – eg. Civil aviation protection. These are implemented in national law
Definition
 No set agreed on definition in any of the 11 conventions prohibiting certain acts of it

lOMoARcPSD|1273900
 Human rights issues would need to be considered in defining terrorism as any sentence is likely to be
harsher
Material Elements
 AR – the underlying act – a serious offence under national law such as murder
Mental Element
 Must be a special intent it seems to spread terror or fear, or to attempt to coerce a government or
group to act
 Appeals Chamber for Special Tribunal for Lebanon – recognised terrorism as a crime under customary
international law. 3 elements – carrying out or threatening of a serious act, with the intent to spread
fear or incite an authority to take action or refrain from action, with the crime involving a
transnational element
Prosecution
 Balance between protecting the community from acts of terror and maintaining the rights of all
citizens
 Cases of terrorism usually complex so often difficult to keep to strict time limits about releasing or
charging
Terrorism as an International Crime
 ICC does not have any jurisdiction over terrorism
 May be an international crime though if it can be proved to be a war crime or CAH
 Terrorism as a war crime
- Acts of terror prohibited by IHL any may constitute a war crime
- ICTY – first case of terrorism before an international court. General Galic convicted on charge of
a ts of iole e the pri ary purpose of hi h is to spread terror a o g the i ilia populatio
- Not a war crime to cause terror as it is to be expected that all acts of war result in fear. Galic –
have to prove fear specifically intended
- Fear does not have to be the only purpose, but it needs to be the primary one – AFRC case
- Case law shows 3 elements of terrorism as a war crime – 1) acts or threats of violence, 2) accused
wilfully made civilians objects of violence, 3) carried out with specific intent on spreading terror
among civilian population
 Terrorism as a CAH
- Acts of terrorism that fall within definition of a CAH will be punishable
2. Torture
 Absolute prohibition of torture in international law. Even applies in war and times of national
emergency
 Not punishable by an international court or tribunal however
 Instead punishable as a CAH or war crime
UN Convention on torture
 To make more effective the already existing law on torture
 Requires state parties to criminalize offence in domestic law, as well as offences of attempted torture
and complicity in it
Material Elements
 Two objective elements – 1) any act by which severe pain or suffering, physical or mental, is inflicted
on a person 2) committed by or at the instigation of or with the consent of a public official or other
person acting in an official capacity
Mental Element
 Pain or suffering must be intentionally inflicted against a person for such purpose as obtaining from
him or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected to have committed, or for any discriminatory reason

lOMoARcPSD|1273900
International Criminal Law Seminar 9 – Individual Criminal Responsibility and Defences
Chapter 15 – General Principles of Liability
 Principles of liability are not watertight compartments and so there is overlap. When this occurs, ICTY
suggests that trial chamber has discretion to choose most appropriate responsibility.
Perpetration/Commission
 ICTY – ph si al perpetratio of a ri e offe der hi self, or the ulpa le omission of an act that
was mandated by a rule of criminal law
 ICTR – Seromba – dire t a d ph si al perpetratio eed ot ea ph si al killi g [for ge o ide],
other acts which constitute direct participation in AR enough
 Article 25(3)(a) ICC Statute – a perso ho o its su h a ri e hether as a i di idual, joi tl …
or through another perso , regardless of hether that other perso is ri i all respo si le . 3 for s
of perpetration:
- Physically carrying out all elements of offence
- Has control over the offence by tasks assigned to him
- Has control over will of those who carry out elements of offence
 Customary international law accepts that omissions can about to perpetration where they reflect a
duty to act, but article criminalising omissions dropped by ICC statute. View is however not
categorically excluded by drafters
Joint Criminal Enterprise
 ICTY – Tadic – JCE – purpose of ICTY statute to cover all those responsible for international crimes.
Arti le 7 1 does ot e lude those odes of parti ipati g i the o issio of ri es hi h o ur
where several persons having a common purpose embark on criminal activity that is then carried out
either joi tl [or 1 perso o ehalf of the group]
 Actus reus JCE – A plurality of persons, the existence of a common plan which amounts to or involves
the commission of an offence, participation of the accused in the common design involving the
perpetration of the offence
 Mens rea JCE – First type of JCE – an intention to commit the crime that occurs. Second type of JCE –
where knowledge of the system of ill-treatment suffices. Third type of JCE – where the foreseeability
of a crime is said to be the test
 Nature of JCE – Mulutinovic – controversially decided JCE a form of committing an offence. Especially
questionable in relation to Type III JCE.
- ICC statute – Article 25(3)(d) provides liability for someone who contributes to the commission or
attempted commission of such a crime by a group acting with a common purpose. Such
contribution shall be intentional and shall either (i) be made with aim of furthering activity where
such activity involves commission of a crime within jurisdiction of the court; or (ii) be made in the
knowledge of the intention of the group to commit the crime
Co-perpetration
 ICC – Lubanga – here the su of the oordi ated i di idual o tri utio s of [ ultiple people] result
in the realisation of all the objective elements of a crime, any person making a contribution can be
held vicariously responsible for the contributions of all the others and, as a result, can be considered
as a pri ipal to the hole ri e .
 Basic requirements –
- Agreement between accused and at least one other, which once implemented, will result in
commission of the crime in the ordinary course of events

lOMoARcPSD|1273900
- Accused provided an essential contribution to that common plan

- Accused meant to commit relevant crime or he was aware that implementing plan would in the
ordinary course of events produce the outcome
- The accused was aware he provided an essential contribution to the implementation of the plan
 Actus reus –
- Plan can be inferred from later concerted action, does not have to be express. Plan will need to
objectively lead to crime
- Contribution of D must be essential to commission of the objective elements of the crime
 Mens Rea –
- Accused must have the mental element for the relevant crime
Indirect Perpetration / Perpetration through another person
 Perpetration through another when you control the will of that other. Committing a crime through an
unwilling person
 May occur through control of an organisation – but d must be in control of organisation which must
be hierarchically organised, with sufficient subordinates that if the order are not carried out by one,
another will do so automatically and organiser must have means of excersisng control
 Requires mens rea of underlying crime by d as well
Indirect co-perpetration
 A horizontal co-perpetrator in organisation can be co-responsible for crime committed by those for
whom another co-perpetrator is vertically responsible through indirect perpetration
 Eg – foreign minister having a common plan with minister of defence whose soldiers then commit war
crimes
 ICC requirements – page 369 textbook
Aiding and Abetting
 Recognised in Article 7(1) ICTY statute and Article 6(1) ICTR statute – not uncommon or contested
 Conduct which aid and abets must have a direct and substantial effect on the commission of a crime –
eg case of Zyklon B – where 2 Germans provided poison gas for use in concentration camps
 ICTY – any conduct which is more than minimal. Conduct itself need not be criminal
 Omissions may count when a legal duty to prevent the crime and d has a means to intervene
 Aider and abetter must know that his conduct assists a specific crime
 ICC statute takes view that assistance does not have to make a substantial contribution to the crime.
Only has to be material
Ordering
 ICC statute treats giving an order as a separate offence than acting through an unwilling agent. ICTY +
ICTR – a perso i a positio of authorit uses it to o i e a other to o it a d offe e
 Requires superior position, transmission of an order, and the relevant mental element
 Mental element – ICTY – the a are ess of the su sta tial likelihood that a ri e ill e o itted
in the execution of that order.. ordering with such awareness has to be regarded as accepting that
ri e
 Order does not have to be illegal to constitute an offence
Instigating, soliciting, inducing and inciting
 ICTR – urgi g a d e ouragi g a other to o it a ri e

 Blaskic – must be proved that the instigation was a clear contributing factor to the commission of the
crime. Can be expressed or implied. Does not need to be the only cause
 Mental element – an awareness of the substantial likelihood that a crime will be committed in the
execution of that instigation

lOMoARcPSD|1273900
 Direct and public incitement to genocide specifically criminalised – unlike other crime not necessary
to prove that anyone even attempted to commit genocide – page 377
Planning and preparation
 Considered at national level to amount to inchoate (incomplete) crimes that are punishable without
proof that the crime itself was completed
Chapter 16 – Defences / Grounds for Excluding Criminal Responsibility
 ICC statute – grou ds for e ludi g ri i al respo si ilit rather tha defences used
 Failure of proof defences – denials that a person can be held responsible on the basis that the
prosecution has failed to show a fundamental element of the offence
 Justifications – pleas that the conduct of the defendant was acceptable, and therefore lawful
 ICC statute first treaty which attempts to deal with defences in a systematic way
 Article 31 sets out reasonable proportion of defences applicable to international crimes. Subsection 1
makes clear this list is not to be treated as being exhaustive
 Article 31(2) – ICC has a residual power to refuse to apply a defence to an individual case even where
the text of the ICC statute might require it
Mental Incapacity
 Article 31(1)(a) Insanity applies when person suffers from a mental disease or defect that destroys
their capacity to appreciate unlawfulness or nature of their conduct, or capacity to control conduct to
conform to the requirements of law
 No requirement for insanity to be permanent if capacity was destroyed at time of unlawful conduct
 Requires expert evidence from both sides
 High standard – destroying or capacity not just impairment of it
Intoxication
 Article 31(1)(b) – states of intoxication, that destroys capacity to appreciate unlawfulness or nature of
conduct, or capacity to control conduct to conform to the law, unless the person has become
voluntarily intoxicated under such circumstances the person knew, or disregarded the risk, that as a
result of the intoxication they were likely to engage in conduct that is unlawful
 Chronic alcoholism or drug addiction may be a case of mental incapacity
 Voluntary intoxication only a defence when defendant did not realise that they might commit a crime
whilst under
 Can be used seemingly against all crimes as a full defence under ICL
Self Defence
 Article 31(1)(c) – acquittal when d acts reasonably to defend himself or another, or in case of war
crimes, property which is essential for survival of the person or another or property which is essential
for accomplishing military mission, against an imminent and unlawful use of force in a manner
proportionate to the degree of danger
 Defendant does not have to wait for someone else to strike the first blow – can act pre-emptivley
 When considering proportionality circumstances at the time d had to make decision to be considered
– not a retrospective approach
Mistake of fact and law

lOMoARcPSD|1273900
 Article 32 – 1) ground for excluding responsibility only if it negates the mental element required by
the crime 2) mistake of law as to whether a particular type of conduct is a crime under jurisdiction
of court shall not exclude responsibility. Mistake of law may be though if it negates the mental
element required by such a crime
Superior orders
 Article 33 (1) – of a crime has been committed pursuant to an order of government or a superior, a
person shall not be relieved of criminal responsibility unless
a) The person was under a legal obligation to obey orders of government or superior
b) The person did not know the order was unlawful and;
c) The order was not manifestly unlawful
(2) orders to commit genocide or crimes against humanity are manifestly unlawful (page 413)
 Finta – manifestly unlawful – a order a ot e relied upo if it as so outrageous as to e

manifestly unlawful

Summary Book An Introduction To International Criminal Law and Procedure Seminar 1 9

Uploaded by

Document Information

Original Title

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Summary Book An Introduction To International Criminal Law and Procedure Seminar 1 9

Uploaded by

Copyright:

lOMoARcPSD|1273900

Summary - book "An Introduction to International Criminal

StuDocu is not sponsored or endorsed by any college or university

Chapter 1 – What is International Criminal Law?

Chapter 2 – The Aims, Objectives and Justifications of International Criminal Law

 Aims – 2 types – forward looking (teleological) and crime focused (deontological)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Chapter 6 – The History of International Criminal Prosecutions: Nuremberg and Tokyo

Nuremberg International Military Tribunal

Nuremberg IMT Assessment

 - Victor s Justice – The concept that the trial was:

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Tokyo International Military Tribunal

Tokyo IMT Assessment

 Victor s Justice present again.

G. Simpson, 'Didactic and Dissident Histories in War Crimes Trials'

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Chapter 7 – The Ad Hoc International Criminal Tribunals

The International Criminal Tribunal for Yugoslavia (ICTY)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

International Criminal Tribunal for Rwanda

Article 1 – Competence of tribunal Article 7 Individual Criminal Responsibility

Article 3 – Violations of the laws or customs of Article 9 – Concurrent jurisdiction

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Seminar 3 – International Criminal Justice and National Legal Systems

Pages 70-74 – National Prosecutions of International Crimes

Pages 79 – 83 – Domestic Criminal Law and Criminal Jurisdiction

Pages 154 – 159

Complementarity and other grounds of inadmissibility

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Chapter 9 – Other Courts with International Elements

 Special Court for Sierra Leone (SCSL):

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Courts established by the UN or other International administration

 Kosovo and East Timor Special Panels

Courts Established by State with International Support

 Iraq – The Iraqi High Tribunal (IHT)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Seminar 4 – The International Criminal Court

Chapter 8 – The International Criminal Court

Creation of the ICC

 Post WW2 – Despite Nure erg pro ise o su essors to IMT s

The 1998 Rome Conference

Structure and Composition

Crimes in the Jurisdiction of the ICC

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

The Complementarity Principle

Amnesties and truth and reconciliation commissions

Other grounds for inadmissibility

Initiation of Proceedings (the trigger mechanisms)

Enforcement of ICC Decisions

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

International Criminal Law Seminar 5 – War Crimes

Reading – Chapter 12 War Crimes

History of Humanitarian Law

Issues with Regulating Warfare

The relationship between war crimes and IHL

 Which of the IHL rules constitutes a criminal offence when violated?

Downloaded by Munni Bhavna (munni.bhavana.m@gmail.com)

2) That rule must be found in customary law or applicable treaty law

War Crimes in Internal Armed Conflict