Kinds of Int'l Crim Law • Transnational Criminal Law - national laws transcending national borders • International Crimes - internationally

formulated criminal laws enforceable by international, hybrid, and domestic tribunals • Treaty Based Domestic Crimes - Declared criminal by treaty and enforced by domestic laws; a hybrid of both Transational and International Purposes of Crim Law • Utilitarianism v. retributivism • Forward looking (general and special deterrence, incapacitation, rehabilitation) backward looking (retribution) and positive (encouraging respect for the law) (ICTY) • PROSECUTOR v BLASKIC o Individual and general deterrence, affirmative prevention and reassurance of legal process, retribution, public reprobation/stigmatisation, and rehabilitation • Safeguards in Crim Law • Principle of Legality o Nulla crimen sine lege (no crime without law) o Nulla poea sine lege (no punishment without law) • Principle of Fair Notice • Principle of Non-Retroactivity • Principle of Lenity - non-ambiguity and if ambuous, in the most lenient way • Presumption of innocence • Guilt beyond reasonable doubt • Basic procedural rights • Principle of Personal Responsibility • PROSECUTOR v EICHMANN pg 18 • Educational/political goals legitimate? Trial was guided and crafted. Defenders discouraged. Attempted to reframe war as atrocity against Jews not simply humanity. But justice was being sought of Eichmann personally as well. • Mark Osial - guilt in mass atrocities involves questions beyond personal involvement and actions • Hannah Arendt - Criminal justice is the sole aim • Did court owe duty to every witness of the horrors to testify or would a stipulation have been the right procedure? Balance of justice and public need Int'l Law Principle • • Consensualism v…. Prescriptivism?
• Nuremburg • Charter of the Int'l Military Tribunal (London Agreement // Nuremberg

o o o o

Pg 73 Crimes Against Peace War Crimes Crimes Against Humanity Victors' justice? Allies committed similar crimes but not tried. Why?

Crim Pro - 1

o Has many int'l hallmarks (int'l judges. rape. 41.Conspiracy was used here (Pinkerton liability) but subsequently dropped by most int'l tribunals • Inquisitorial system v.established Nuremberg Code modern medical and experimental ethics o Industrialists o Lawyers and Judges Radbruch Formula . made political speeches.self represented. at which point judges are at fault for upholding the bad laws • Tokyo Tribunal • Int'l Mil Tribunal for the Far East • Clash of cultures • Dominated by Americans.doing much the same since 2008 • Ratko Mladic . 42 • Plea Bargaining o Efficiency.LEGACIES OF NUREMBURG o Nuremberg Charter 6a makes state sovereignty supreme but is in tension with remainder of Nuremberg Charter and ability of states to intervene in human rights violations • Other cases o Doctor Cases . civil v common law concerns. and torture committed in armed conflict whether international OR INTERNAL o CONCURRENT jurisdiction with PRIMACY over nat'l courts (unlike ICC) • Prosecutor v Tadic (establishes legitimacy of court) (pg 102) o UN Charter VII art 39. adversarial (pg 76) • Nuremburg Opening Statement . delayed.ustice Jackson (pg 77) o Int'l Crim Law as outgrowth not reliant on precedent? • LUBAN . etc. died in custody • Karadzic . • Rwanda • Background • Crim Pro .2 . criticised as victors' justice • ICTY (est 1993) • Milosevic .Judges and lawyers must uphold unjust • law until conflict of law and morality reaches a point where it's intolerable. establishing that crimes were committed • Bosnian War Crimes Chamber (2002) o Part of domestic Bosnian court system o Hybrid court (like Spec Court for Sierra Leone and Cambodian Extraordinary Chamber) o ICTY is transferring low and mid-level cases to WCC as an exit strategy as mandate runs out. mixed adverse/inquisit system.captured 2011 • Substantive Crim Law o Derived from Allied Control Council Law no 10 (used in 2nd half of Nuremburg by Germany) o No Crimes Against Peace o Added imprisonment. prosecutors.

nat'l jurisdiction w/ int'l features . asked Netherlands to host at Hague .refugees to Rwanda o Arusha Accord makes Rwanda multipartite democracy but Hutu Power and Habyarimana supporters dislike o Habyarimana and Burundi pres assassinated .genocide begins o RTMC (radio/tv) assists in genocide via messages and directions o French (pro Habyarimana) intervention as RPF fights back and takes over the country (Hutu genocidaires escape to Congo) but RPF welcomes Hutus back in general o UNAMIR (under Dallaire) was hampered by US inaction (b/c Yugoslav and Somalia) • ICTR o Was it invasion of sovereignty since it wasn't really "international?" was it necessary to develop consistant doctrine on mass killing? Was it belated reaction to UNAMIR failure? o Rwanda wanted court in Rwanda and wanted death penalty Formation of GACACA system later • 2007 Rwanda abolished DP in order to receive cases from • ICTR as ICTR loses mandate o Statute puts genocide first and names humanitarian crimes as any that occur in relation to the conflict . etc. few Tutsis.Tutsi govt slaughters Hutu . afraid to keep Taylor in SL b/c liberian invasion.CDF (govt).) o Jurisdiction began in 1994 but many say too late. loc'd in SL • Operates jointly with TRC • Child Soldiers Problem o Immuity under 15. should start 92 o Slow because of various uncooperative elements but also because salary and because trying to develop detailed narrative o Is ICTR for Rwanda or for int'l audience? No translation. AFRC.refused until Britain promised to jail Taylor o Crim Pro . • Sierra Leone • Blood diamonds conflict .3 . Habyarimana] v Tutsi (pastoralists minority) o Tutsi refugees from Uganda form RPF and invade Rwanda 1992 o Hutu youth form interahamwe militia w/ Rwandan gov't o Burundi is opposite .Hutu (farmer majority) [Pres. but no power of compulsion of other states.and requires discriminatory intent (race. 15-18 prosecutable but protected and unlikely o Recruiting child soldiers is not ex post facto b/c customary int'l law by 1996 (declared on appeal in 2004) • Lome peace accord o Gave immunity to RUF from gov't but SCSL overrules b/c RUF not a gov't entity capable of treaties and because one jurisdiction (SL) cannot rob another jurisdiction (int'l community) • Charles Taylor o SCSL had no jur'n in liberia. Rwanda itself opposed.eliminated "war nexus" .declared Taylor's nonimmunity. politics. RUF (supported by Liberia's Taylor) • Hybrid court.

perp is in state's territory Crim Pro . indecent assault. enforced prostitution.closed on 2005 • TRC (Truth and Friendship) shared info with SCU so people were less willing to testify .4 .see Akayesu(holding that rape can be a form of genocide) • Sierra Leone Art 2g 3e include sex slaves. forced pregnancy. etc. forced pregnancy.within the territory (and property) of the state • Subjective . Timor guerrilla war. etc • Rome Statute of ICC . amnesty issues can't be overcome like in SCSL • Lebanon • Special Tribunal in Netherlands purely to try the one crime of assassination based entirely on domestic law b/c politically too sensitive and local gov't too weak to properly prosecute • Sexual Crimes • Not in Nuremburg • Tape is separately enumerated in ICTY and ICTR Art 4 includes forced slavery.largely a failure b/c couldn't reach Indonesian defendants .2004 added forced marriage • E Timor . sterilizations. brutal crackdown • 1999 UN referendum says Timor independence.authority to reach conduct in other nation o Territorial Principle . • Corporate Criminal Liability .rape. forced pregnancy .SS401 pg 170 • Prescription . . Australian intervention leads to UNTransitionalAuthorityET • Serious Crimes Unit investigated war crimes and crimes against humanity at hybrid Special Panels tribunals . often without any sentencing concessions but later defense attorneys forced sentencing concessions . Indonesian crackdown.• East Timor • 1975 Indonesia attacks Portuguese colony of Timor-Leste.was less successful • Plea bargains occurred often b/c of certain cultural beliefs. least int'l of courts and based off weak domestic 131 • JURISDICTION • Restatement 3d of Foreign Relations Law of US .positive or negative? • Cambodia • Kher Rouge auto-genocide 75-79 • 2004 Extraordinary Chambers in the Courts of Cambodia (ECCC) hybrid system • Majority national judges but decisions require supermajority (so at least 1 int'l judge's vote) • Lots of corruption/scandal. sex slavery. sterilization. forced prost.

aut prosequi • Hostis generis humani • Geneva Convention (GC1art49.5 . disregards all rinciples as long as has custody • of 211 •  Domestic criminalization. agreements for set of crimes against vital nat'l interests R3d FRLUS 402(3) .reasons for nationality principle • Pg 196 .c no int'l law forbids it .pg 202 .flag state or person's nationality  LOTUS PRINCIPLE .murder of US abroad • Dual criminality .national jurisdiction applies • everywhere Pg 194 . to prosecute.positive obligation to seek out enemies of humanity Subsidiary Universal Jurisdiction .perp is state national logical  Convention of the High Seas 30 years later established the opposite laws . 204 • Prosecutor v Eichmann (pg 205) •  Kinda ex post facto . establish jur. extradite or prosecute.3d FRLUS pg 193 .• • Objective .effect is against national R3d FRLUS 402 = 402 pg 201 • 18 USC 2332 .jewish state did not exist a time of Eichmann's crime but court says "masciturus pro jam nato habetur" (an unborn child is considered born) Universality historically. • GC4art146) .pg 185  Drug smugglers caught in boat in high-seas.explicitly extraterritorial laws based on nationality • principle • US v Clark 2006 . US attaches jurisdiction even without an overt act so long as intent would have effect in US  Principle used in Noriega o Nationality . Crim Pro .pg 196  PROTECT Act (18 USC 2423)  Nationality principle is clearly within 5th 208 • Aut dedere.crime in both states • Protective .(effects jurisdiction) effect is in state's territory SS Lotus (France v Turkey) PCIJ pg 179  Boat crash in high seas.(active personality) . Modern definition is special crime of universally accepted • body of particular crimes R3d FRLUS 404 . Turkey has right to prosecute and • jail french officer b.states have freedom to do anything not internationally prescribed US v Ricardo 1980 (US 5th Cir) . GC3art129. In conspiracy cases. o o o Passive personality .

thus Belgium enacted new law with overrides. plausible.3d. 235 • Sex tourism case  US v Bowman 1922 (pg 2412) • Inducing navy desertion • Analysis of when fed laws apply extraterritorially • Territorial Presumption .  NATO.Ugandan minister who incited Tutsi-killing  Belgians issued warrant but Congo had it cancelled b/c ministerial immunity . Foreign Rel Law of US . Geneva convention and extradite/prosecute treaties are evidence of growing body of jurisdiction separate from territorial concerns. controls. Buergenthal just because a state doesn't make law to full extent possible doesn't mean exercise of power beyond the law is 212  Yerodia .pg 231 o Three factors • Constitutional power for extraterritorial legislating  Venue Clause Art 3 "crimes not committed within any State"  Define and Punish clause (art 18.separate opinions for UJ • Guillaume No UJ here b/c foreigner v foreigner in a foreign land and no controlling subsidiary UJ treaties.When/how can state investigate/make arrests o • • • Extraterritorial Application of US Crim Stats .piracy on high sease. 172 Cannot prescribe unreasonably • See pg 172 for factors determining reasonableness • Adjudication . must be stopped • Van de Wyngaert The purpose of int'l law is to combat impunity in such grave crimes and LOTUS is foundation for Belgium's jurisdiction since Congo is unable/unwilling Belgium's UJ law fell apart b/c of overuse and overreach. offenses against the Law of Nations  Foreign Commerce . So. cl 10) .laws are presumed limited to territory Crim Pro .• DRC v Belgium ICJ 2002 .authority to decide cases based in other nations Enforcement . and auto immunity for key allies R. LOTUS does not grant such broad powers • Higgins. and US opposition.(art 18 cl 3)  Necc and Proper  US v Clark 2007 . so long as safeguarded • Bula-Bula Belgium has political agenda.6 .

itsef. not int'l rule  Torture prohibition is jus cogens (though UK says not itself enough to establish univ jur) • Lord Goff opinion  Torture as a gov't minister is a gov't act and thus immune via ratione materiae and waiver of such immunity must be express in treaty and convention • Lord Hope opinion  Convention on Torture destroys ratione materiae but not by waiver or implied term.7 . the gravity of the crime and the agreement simply override any possible claim of immunity • Lord Hutton  Convention overrides immunity b/c under Convention torture can never be an act of state and even a single instance of torture is enough (cf Lord Hope) • Lord Saville  Convention creates exception to ratione materiae by virtue of logic of express terms and is. but is 2dary jurisdiction to others  Special Military/Maritime Territorial Jurisdiction pg 251 • 9a-b expands jurisdiction to anything related to US missions abroad • • • Congress intended statute to be extraterritorial Int'l law permits assertion of jur. unequivca and express agreement to waive immunity Crim Pro . Immunities o Current and Former Heads of State and Officials • Includes family and personal staff • Ratione personae  Personal immunity b/c of position (ie current presidents get total immunity) • RationeMateriae  Immunity b/c of the function of a position (ie ex-presidents only get immunity for official acts) o PINOCHET .pg 266 • Chile 1999 • Pinochet given immunity from Chile for war crimes • Browne-Wilkinson opinion  Double criminiality must be in place at the time the act was committed.never construe law in a way contrary to law of nations unless there is no other possible construction • FLOWCHART .pg 249 •  Military Extrajudicial Jurisdiction Act = pg 253 • Personal jur over all persons accompanying employed by or accompanying military in crimes with 1yr punishments.Charming Betsy Canon .UK rule. not merely the day extradition is attempted .

ie 1373 . constitutional safeguard in order to sieze or freeze assets Crim Pro .has taken no action against politically motivated or overbroad definitions of terrorism o Terrorism Assets .immunity for officials acts but can be tried for grave crimes  STATE v KILLEEN 1979 . except for official acts Consular Immunity .• • o • o • • o • • • • • • Lord Millett  Torture is still an official act and to be prosecuted despite 262 • Local courts could try consulars for crimes outside of official capacities. family. so 260  Immunity ends with termination.8 . staff. only the sending state US v GUINAND 1988 .g 261  Based in Vienna Convention but limited .in US via Int'l Org Immunities Act • Terrorism • Definitions vary • -----------• UN Security Council o Can make binding resos under Chapter VII o Made binding anti-terror resos requiring states to enact anti-terror laws . residence. via Arrest Warrant.PG 695 o CTC oversees enaction of reso amongst states .thus avoiding "one state does not adjudicate the conduct of another" Diplomatic Immunity Vienna Convention on Diplomantic Relations is basis for immunity Applies to person.CTC is often asking states to circumvent national. papers. unlike fed courts • Specifically interpretted by DoS that tickets are not service and state's can give tickets even to ambassadors and ministers Int'l Org Immunity  Some immunity for certain NGOs . could ignore immunity  Maybe b/c non-state actor . and some property (diplomatic cases) Not waivable by diplomat. no int'l exception for war crims prosecutions SCSL Specifically chartered to not consider position for immunity Charles Taylor brought HoS immunity but lost b/c SCSL found itself to be an international court and. need to be violation of just cogens and so serious/of so great a scale that it is an attack on int'l order and in such case immunity cannot apply Lord Phillips  Int'l criminal law automatically overrides ratione materiae and creates obligation erga omnes ICJ Arrest Warrant (Congo v Belgium) Ratione personae always exists and. correspondence.

list with extra emphasis on sex • crimes and detailed persecution statute No war nexus.Increasing surveillance and infosharing may be tied to harsh practices/torture.9 . simply widespread/systematic. though?) • Prosecutor v Kupreskic . and torture • Removes war nexus and "before/after war" language • o ICTY . 963 o Persecution requires mens rea of intent. both int'l and internal • o o (b/c uncertain classification of Balkan wars as int'l or internal) ICTR Drops war nexus entirely (first int'l definition w/o war • nexus) Adds a discriminatory basis requisite (is the only treaty w/ • such a requirement) ICC .reorganizes CTC o UNSC Reso 1624 .knowledge that is was • widespread/systematic against a civilian 956 Adds imprisonment. no conflict • nexus Chapeau requires mens rea .pg 956 Against any civilian population • Murder type crimes and persecution type crimes • Completely international • (later statutes) connected to war .2000 .CCL 10.repression o Refugee crackdown in order to hunt/prevent "terrorists" o • UNSC Reso 1456 .pg 960 Rome Statute Art 7 • Any civilian population. Art 7(2) there has to be some organizational policy (what • about Rwanda.a war nexus • o Allied Control Council .pg 958 Identical crimes as CCL 10 • War nexus becomes conflict nexus.Rome Statute .tries to reduce negative affects by saying that anti-terror laws must still comport to international law and int'l hum rts law o UNSC Reso 1535 ."calls upon" states to prevent incitement (free speech concerns?) Terrorism and US Law o • Crimes Against Humanity • Definition o Nuremberg . not necessarily motive o Persecution can take many forms not enumerated o Acts must be looked at in context o Acts must be of as grave a violation as other enumerated crimes Crim Pro .

must be in proportion to military objective of attack Necessity .collateral damage.wick and wound soldiers and sailors • GC 3 .Theory of Crimes Against Humanity o Are crimes against humanity crimes against "humanness" of the individual victims or against human-kind as a victim? Whose interests are more important? • War Crimes • Just ad Bellum o What is war of aggression? It's in ICC Rome Statute but not being • enforced yet b/c unclear what that means Jus in bello o Principles Non-combatant immunity .PoWs  Article 4 .Non-Int'l Conflict • ICRC Interpretations are almost regarded as official interps • Common Article 2 (in all 4 GCs) .completely universal • GC 1 & 2 .civilians captured/interned 1977 .  But if a party is a non-state actor? Complicated o Common Article 3 . while understood to be • inevitable.definition of PoW .10 .pg 1045 o • o GC 4 . regardless of size of armies.PoW provisions o 1949 .must never intentionally harm • civilians Proportionality .Persecution is the gross or blatant denial of a fundamental right pg 970 o • Luban . violence that does not contribute to • overcoming the enemy No unnecessary suffering • o Belligerent privilege/immunity .warriors within JIB cannot be tried for what would normally be crimes Geneva Conventions o 1929 .the only article that applies to non-int'l conflict But AP II is entirely non-int'l conflict • No requirement to prsecute breaches of CA3 • o Crim Pro .applies GC to all conflicts and occupations ICRC interprets armed conflict as all differences between • two states that leads to intervention by armed forces regardless of if a party denies that it is a conflict.Int'l Armed Conflict • AP II .Additional protocols AP I . etc.four GCs .

so civilians but not with the same protection .pg 1054 • Analyzes what to do with quasi-internal conflicts and defining int'l • Overall control is standard for determining if a military type group is part of a state.weapons.Notion on DPH .mil comm 1946 Crim Pro . then should not targeted kill o ICRC .11 .GWOT is within non-int'l armed conflict because GC is to be read widely as possible (eg in Tadic) o o o • • Targeted Killings o GC IV doesn't distinguish civilians with military leadership roles o AP I art 51 makes civilians who are participants into legit targets o Public Com't against torture in Israel v Israel . some CA 3 • Expands CA 3 and protects UN Int'l v Non-Int'l o Prosecutor v Tadic .pg 1062 . not just actua location of fighting • John Yoo Memo . but not necessarily to the point of giving orders • Humanitarian laws must be interpreted broadly in order to have maximum effect o Prosecutor v Tadic . Gen Kurt Maelzer ."Grave breaches" is GC terminology for war-crimes All GCs have a Penal Sanctions provision requiring states to enact domestic laws to prosecute grave breaches o o • • War Crimes and Rome Statute o Article 8 • Chapeau limits jurisdiction to large-scale (maybe) • Largely itemized (all longer "effective control"  More than aiding/ 1071 • *those who sent the attacker and planners are DPH! • • One-offs in the past do not lose protection but civilians who join a terror group and make it their "home" lose protection even between DPH activities • *****if any way to capture DPH. thus making it int'l .pg 1060 • Hamdan v Rumsfeld . prepping for hostilities .2007 • Not AP I party but CIL provisions of AP I are part of Israeli law • Terrorists are civilians taking part in hostilities. AP I. maintaining capacity to harm does not count Humiliating Captives o Trial of Lt.unlawful combatants may make sense but isn't a firmly established category • ICRC says DPHs are legit targets of attack .51(3) of AP I DPH . intel.1 causal step from harm is DPH.when is internal violence an "armed conflict" (pg1058) • Armed Conflict =  Armed force between states  Protracted armed violence btwn groups  Covers whole territory.

saboteurs o Johnson v Eisentrager .Military Commissions Act • Congressional authority and rules for MCs • Prohibit any US court's jur except DC Circuit (pro gov't) and SCOTUS • Decriminalize humiliation and degrading treatment • Bar invoking the GCs • Bar all foreign and int'l law in the MCs • Torture evidence excluded but "disputed: torture evidence is ok (so baically anything the gov't says it's torture) o 2010 NDAA • Expands ban on torture evidence • Reduced ban on invoking GC to only limiting private actions • Genocide • Genocide Convention .civil war conspiracy (anti mil comm but strong dissent for mill comm) o Ex Parte Quirin . o Mental harm = permanent impairment o Requirement of specific intent o US nexus and centric Crim Pro in 1988 w/ several reservations and changed language (pg 993) o Consent for ICJ o No obligation to act against Const.12 .2006 .pg 990 • 5 enumerated crimes • 3 modes of participation • US Interpretation . US had no objection to Art 75 which guarantees CIL trial safeguards which MilComm don'y have b/c deviates too much from normal courts mrtial (only by plurailty) o Post Hamdan .habeas for prisoners o Boumediene . Germans in china o Rasul v Bush .habeas rights for prisoners o Hamdan v Rumsfeld .• o No parading prisoners Details of detainee abuse in guantanamo .1076 • US Prosecution of Terrorists by Mil Commissions o Ex Parte Milligan .pg 734 • Then mil comms insufficient and conspiracy is not offense • Mil Comm insufficient because:  Defendants can't see lots of evidence against them  Evidence standards are too lax ."any probative value" according to the presiding judge  2/3s vote is sufficient to sentence  Appeal panel is only 1 judge and 2 officers who are instructed to disregard variance of proceedings that would not have "materially affected" outcome of commission  **Though not a signatory of AP I.

victim services/reparations o Naming names? o Amnesties? .reasons it's good pg 1191 Transitional Justice Gacaca Lustration TRC o characteristics Focusses on past • Ivestigates abuses over time • Temporary body • Ends with a report • Officially sanctioned • No adjudicatory power • o Often tied or supplemental to courts .pg 791 • Opportunistic referrals .1006 o Substantial Part analysis .pg 779 (complementarity) • Territorial jurisdiction . conflict resolution (often preceded by • retribution) • See grading chart on 1226 • The ICC . etc o Victime centered .pg 1006 Prosecutor v Krstic 2004 .13 .victims more 792 • Triggers Crim Pro .pg 1012 o Tribes are not in themselves a protected group in genocide o Janjaweed were guilty of war crimes but not genocide o Many elements but not the dolus specialis or specific intent of genocide Prosecutor v Bashir • • After • • • • • Genocide ICC .pg 1196 o Context is important to success • Goals of crim transitional justice o Desert/retribution/justice o Detterence o Rehabilitation o Restorative justice 1009 Inquiry into Darfur .• • • • Amended in 2007 to include genocide committed abroad by non-US nationals Expanding deifnition of protected groups .July 2002 • Determining Jurisdication and Admissability .helps ease overflow.

etc. the ones who encourage to pull triggers vs. the one who orders them to pull the triggers vs. (in the U. counsels.. is punishable as a principal. Milosevic etc. Not give them clear instructions who counts as a civilian.” Abettor: someone who encourages Rome Statute Article 25 Every state’s statute has its own version of Mens Rea. people who shut their eyes. abets. commands. ALI Model Penal Code par. My troops committed warcrimes and I didn’t punish/do anything about it. ‘Willful blindness/ignorance’: I didn’t know but I should’ve known. 2 “Whoever commits an offense against the United States or aids. Sometimes more than 1 analysis in mens rea: Crime against humanity of murder: Rome Statute’s elements: 1. Example Purposely: blow up building strategically: you don’t want to kill people but there are going to be people in the building and you know that. 2. Perpetrator killed people intentionally  it was his purpose to kill people Accomplice: more mens rea to prove: prove that they are aware that the person who committed the crime was aware . Example Negligence: I didn’t train my troops for this: didn’t give them rules of engagement.o SC. induces or procures its commission. German scheme of mens rea. this counts as knowingly.) remote from the actual crime.S. just working for camps vs. How blameworthy are the members of the society who put their heads down? Downfall: Hitler’s secretary? How do you think about the bosses? (Hitler. Purpose or not: even if it didn’t have this outcome: yes  purposely. didn’t tell them not to shoot civilians. Intentional Crim Pro . why? Much of jurisprudence in international tribunals uses german scheme: German scheme distinguishes: 1. Aware there was an attack on a civilian population  knowledge as to the attack of the civilian population 2.14 . proprio motu MENS REA How do you rank culpability who pull the triggers vs.. self-ref. 18 USC par.02 Purposely: the act or result is perp’s conscious object Knowingly: the perp is aware of the nature of his/her act or aware that the result is practically certain Recklessly: the perp consciously disregards a substantial and unjustifiable risk Negligently: the perp should be aware of substantial unjustifiable risk.

shall be individually responsible for the crime. We don’t know who killed the victims. If you can prove this form of recklessness than you satisfied the mens rea of intent and knowledge. (recklessness) Reckless complicity. 3 Knowledge: awareness that a circumstance exists or a consequence will occur in the ordinary course of events. but he certainly was aware of the risks. 192 JCE1. ICTY Statute. He wasn’t objecting or reviewing troops. instigated. par. that person means to cause that consequence or is aware that it will occur in the ordinary course of events. civilians can be charged through it too Can charge commanders who did not participate in an active was but did fail to prevent or punish the crime Is it vicarious liability? Is it ok to punish person A for an act of person B when A didn't actually do anything illegal? Crim Pro . ordered.” Common purpose liability JCE liability. Article 7 (1) “A person who planned. Par.a. JOINT CRIMINAL ETERPRISE LIABILITY He was transporting men. possess the same criminal intention.15 . Par. 2 Discussion of Command Responsibility The final piece for the way int'l law will deal with commanders Command Responsibility does not necessarily mean only military commanders. If a crime doesn’t have mens rea than you go to article 30. 875. was nevertheless a natural and foreseeable consequence o the effecting of that common purpose. 202: Concentration camp cases JCE3.” Argument is that it is too easy for prosecutors (JCE3). while outside the common design. 871 Lubanga: The court imports dolus eventualis. Lazy investigation. Dolus indirectus – dolus directus in the second degree: the perp is aware of the nature of his/her act or aware that the result is practicually certain c. Dolus eventualis – conditional intention: the perp is aware of a risk. What are intent and knowledge: Article 30: 2 (a) Intent in relation to conduct.” JCE2. Lubanga may not have know that he enlisted 14 year olds. P. “know” and “knowingly” shall be construed accordingly. 204: common design to pursue one course of conduct where one of the perpetrators commits an act which. Negligent Article 30 is the basic Mens Rea in the Rome Statute: some crimes have their own mens rea attached and that’s the one that counts. preparation or execution of a crime…. “All acting pursuant to a common design. means to engage in the conduct 2 (b) In relation to a consequence. commited or otherwise aided and abetted in the planning. Dolus directus – dolus directus in the first degree: the wrongful act or result is the perp’s conscious purpose b. overcharging etc. P. and accepts or is reconciled to the adverse outcome (Sounds like Reckless) not just aware but reconciled (attitudinal element) 2.

Command responsibility is important b/c it's conceptually difficult to charge a command for an ommission under the other systems. A commander who covers up his troop's wrongdoing is also a separate crime. So it must be the case that the commander is being punished for commander's conduct. 1 Superior/subordinate relation 2 knew or had reason to know or should have known (mens rea) 3 Failed to take necessary and reasonable steps to prevent/punish Celebici says it's not necessarily formal chain of command but the de-facto chain of command.separate crime. So what is the conduct at fault? Old British military doctrine was that if a commander's troops were pillaging and the commander was not doing anything to prevent it. it would be illegitimate to punish commander for subordinate's conduct.See dictum in Nuremburg judgement that says that criminal guilt is personal In cases of command responsibility. or did in fact commit war crimes.16 .looks more like negligence standard See 903 Celebici indicates actual knowledge or specific willful blindness Rome Statute 28A military . This is not command responsibility . the commander would be shot and killed. should have known" . In US military. in the process of. Can apply to civilians but only insofar as they exhibit a degree of control over subordinates similar to military Mens Rea Difficult to figure out what the mens rea is for command responsibility If command _knew_ that troops were about to. or owing to the circumstances at the time.knew or should have known Looks like general negligence but "owing to the circumstances at the time" makes it more specific Crim Pro . CR provides a charge for culpable omissions. then definitely mens rea But Yugoslav statute "knew or had reason to known" while Rome statute says "knew. failure to prevent or punish might be self-standing crime of Dereliction of Duty.

17 . his troops went crazy and ran rampant.controversial b/c almost impossible to prove causation In Hamashita case. after an American attack. . killing everything in sight.knew or consciously disregarded information which clearly indicated the the subordinates were committing or about to commit crimes Prosecuting civilian is harder b/c must show that the commander "consciously disregarded" which is harder to show that "owing to the circumstances at the time. should have known" "As a result of" = controversial b/c means that prosecutor must show that in civilian case the commander's action/inaction was the cause of the subordinates' crimes. the Japanese General was convicted because he had failed to adequately train his troops beforehand when. Very high demand for prosecutor.28Bi civilian . Hamashita's defense was that the American attack had been so effective it destroyed his ability to assert command but was still convicted on the theory of prior failure to train. Crim Pro .

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