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Full notes for all topics of the International Criminal Law (ICL) course.
1) Introduction to International Criminal Law + Nuremberg and Tokyo Military Tribunals
2) International Criminal Tribunals of Rwanda and former Yugoslavia
3) ICL and national legal systems
4) International Criminal Court
5) War Crimes
6) Crimes Against Humanity
8) Other International Crimes
9) Defences + Individual Criminal Responsibility
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 Criminal Law is now concerned with ‘individuals and with their protections from wide-scale atrocities’ 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 domestic criminal law which dealt with cross-border crime – now its own type of law because the source of law is domestic and not international like ICL ICC Statute – ‘the most serious crimes of concern to the international community as a whole’ and ‘such crimes threaten the peace, security and wellbeing of the world’ International crime places criminal responsibility directly upon individuals – Nuremberg Military Tribunal – …’individuals have international duties which transcend the national obligations 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) – 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 – ‘no peace without justice’ 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 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. Tribunal closely followed Nuremberg IMT’s opinion on all aspects of law on the basis of the binding nature of the decision of the tribunal’s charter 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’
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