International Criminal Law

Attitudes toward past war crimes and human rights abuses: to forget or to establish truth; to punish or to pardon

(1) "Willful ignorance"-to forget and to pardon (corresponds to amnesty); (2) "Historical record"-to establish the truth, but to pardon (corresponds to truth commissions); (3) "Pragmatic retribution"-to forget, but still punish (corresponds to lustration or substitute criminal charges); and (4) "No peace without justice"-to establish the truth and to punish the perpetrators (corresponds to proceedings based on individual or collective responsibility).

The Hague treaties and their progeny regulate the use of force within an armed conflict with reference to the principles of:

(1) Distinction (2) humanity (3) necessity (4) proportionality

ICC challenges:

(1) Potential loss of some African states support due to The Court's perceived "targeting" of African defendants (2) Lack of consistent state cooperation and compliance with the ICC Statute, court orders, and Security Council referral resolutions (3) Impending activation of the still-controversial crime of aggression.

Three trigger mechanism

(1) State party referral (2) UN Security Council referring situation to the court. (3) Prosecutor's own initiative through the exercise of her proprio motu powers.

(1) 1864 Geneva Convention (2) 1899 Hague Convention II (3) 1906 Geneva Convention (4) 1907 Hague Convention IV (5) 1925 Gas protocol (6) 1929 Geneva Conventions w/s & POW ***(7) 1949 Geneva conventions I, II, III, IV (8) 1954 Hague cultural property ***(9) 1977 Geneva Additional Protocols I & II (US has not ratified, Israel, Pakistan-however reflect custom) (10) 1980 Convention on Conventional weapons (I, II, III, IV, V) (11) 1944 Chemical Weapons Convention

(1) Treated wounded persons of enemy the same way as treat own wounded (2) Prisoners of war and targeting (3) Sea (4) (5) banned gases being used; unless other guy uses it first (6) extended beyond the wounded and sick to prisoners of war (7) jointed all 4-hostilities between naval forces, prisoners of war, addresses civilians (first law of war instrument that specifically protects civilians) (8) targeted cultural property (9) targeting law, treatment law, when can attack and what weapons you can use (10) nuclear weapons (non-detectable weapons, land mines, in-centenaries, blinding lazors prohibited, reminisces of war) (11) May not use chemical weapons even if the other side does.

Two Problems for Germany following WWII:

(1) What to do with war criminals? (2) Who do you take on to become members of the administration?

The key to winning greater international and US support going forward will be for the ICC to focus on strengthening itself as a fair and legitimate criminal justice institution that acts with prudence in deciding which cases to pursue. Critical to the future success of the ICC, and the views of the US and others in the international community of it, will be its attention to the four values:

(1) building institutional legitimacy; (2) promoting a jurisprudence of legality, with detailed reasoning and steeped in precedent; (3) fostering a spirit of international cooperation; and (4) developing an institutional reputation for professionalism and fairness.

Modern trend toward a convergence in IHL rules

(1)Tthe question of whether conduct constitutes a war crime is still determined by whether IHL is even applicable (2) Whether the conflict is considered to be international or non-international (3) Whether the victim is granted protection under IHL (4) Whether the acts in question have a sufficient nexus to an armed conflict.

Principles from Hague Law find expression as war crimes in Article 3 of the ICTY Statute concerning "Violations of the Laws or Customs of War," which include, but are not limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property.

Military objects has two elements:

(a) they must make an effective contribution to the military action; and (b) their destruction must offer a definite military advantage in the circumstances at the time.

Laws of War

*International Law divided into public and private. *Public divided into peace and war. *War divided into ad bellum and in bello. The law governing armed conflicts has historically been bifurcated between the jus ad bellum and the jus in bello. *Jus ad bellum ()-addresses the legality of going to war and historically took the form of theological, and then secular, "just war" theories. *Jus in bello (what you can/cannot do in war-regulates the conduct of hostilities, doesn't care about the use of ad bellum classification)-de facto existence of war and seeks to regulate belligerent conduct within it.

1933 National Socialist Party started (then wouldn't let anyone else become part of the party because they wanted to remain an elite party containing true Nazis)

1937-gates reopened. Most entering the party at this time were members of the SA (had to show enthusiasm for the socialist party).

Article 18: Obligation Not To Defeat The Object and Purpose Of A Treaty Prior To Its Entry Into Force

A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

State Referral

A state that is a party to the Rome Treaty may refer a situation to the Prosecutor in which one of the four crimes within the jurisdiction of the Court is believed to have been committed.

Purposes of the Criminal Law

A. Desert/Retribution/Vengeance B. Deterrence C. Rehabilitation D. Restorative Justice E. Communication/Condemnation/Social Solidarity

Prosecutor v. Boskoski & Tarculovski

Accused are each charged with three counts of violations of the laws or customs of war pursuant to Article 3 of the Statute, namely one count of murder, one count of wanton destruction of cities, towns or villages not justified by military necessity, and one count of cruel treatment. In addition to being satisfied that the crimes charged fall under this provision, it must be established that there was an armed conflict, whether international or internal, at the time material to the Indictment and that the acts of the Accused are closely related to this armed conflict. *Defense argued that since international law distinguishes between armed conflict and acts of "banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law," acts of a terrorist nature may not be taken into account in the determination of the existence of an armed conflict. *Essential point made by the Trial Chamber in Tadic is that isolated acts of violence, such as certain terrorist activities committed in peace time, would not be covered by Common Article 3. What matters is whether the acts are perpetrated in isolation or as part of a protracted campaign that entails the engagement of both parties in hostilities. *Chamber satisfied that at the times material to the Indictment, the conflict in FYROM had reached the required level of intensity. Was a state of internal armed conflict in FYROM involving FYROM security forces, both army and police, and the NLA.

United States v. Ali Mohamed Ali

Ali Mohamed Ali, a Somali national, helped negotiate the ransom of a merchant vessel and its crew after they were captured by marauders in the Gulf of Aden. Ali's alleged involvement was limited to acts he committed on land and in territorial waters-not upon the high seas. Thus, the district court restricted the charges of aiding and abetting piracy to his conduct on the high seas and dismissed the charge on conspiracy to commit piracy. Eventually, the district court also dismissed the hostage taking charges, concluding that prosecuting him for his acts abroad would violate his right to due process. On appeal, affirmed dismissal of the charge of conspiracy to commit piracy. Reversed dismissal of the hostage taking charges, as well as its decision to limit the aiding and abetting piracy charge.

Universal (focus is on crime) Jurisdiction

Allows all states to define and prosecute perpetrators of certain violations of international law regardless of the nationality of the perpetrator, the nationality of the victim, or the place of commission. Jurisdiction is based upon the heinous nature of the crime.

Dr. Eduard Dreher (prosecutor)

Applied to become a special prosecutor but denied due to story arising: Was the prosecutor who secured a death sentence for an innocent individual-not elected then as a special judge but was then allowed on ministry. Murder case tried and individual sentenced to death/killed 10hrs after the crime was committed.

United Nations Charter 5 states get to be on it permanently on the UNSC: (threat to international peace or security resort to 42 of the charter-UNSC resolutions are binding, determinations under the charter preempt all other international legal obligations.

Article 11 stated: any war, or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. 2(4) Threat or use of force (should add economic coercion) 25 UNSC resolutions binding 39 UNSC threat to international peace or security 41 measures short of 42 use of force 51 armed attack 103 Preempts all other international legal obligations

Phase Three: Admissibility

Assuming jurisdiction exists, the Prosecutor then considers whether any cases that the situation might generate would be admissible. Admissibility is an inquiry that is separate and apart from the existence of jurisdiction. Admissibility involves two distinct inquiries: complementarity and gravity. Complemntarity-the Prosecutor must access whether genuine investigations or prosecutions have been undertaken by a state with jurisdiction over the matter. Gravity-at the preliminary examination phase, the situational gravity, including the gravity of potential cases, is at issue. Later the prosecutor determines which cases within the situation are sufficiently grave to bring before the Court. Concept of gravity includes both quantitative and qualitative elements, including the scale, nature, manner of commission of the crimes, and their impact.

Preliminary Examinations

Before initiating an investigation into particular cases involving particular crimes and defendants, the Prosecutor undertakes what is called a preliminary examination. Depending on the outcome of the preliminary examination, the Prosecutor may (1) decline to initiate an investigation, (2) continue to assess relevant national proceedings, (3) continue to collect information, or (4) initiate an investigation, subject to judicial review in the event of a situation triggered by the Prosecutor's proprio matu powers.

Direct Participation in Hostilities

Civilians are entitled to immunity "unless and for such time as they take a direct part in hostilities." See Article 51(3), Additional Protocol I (applicable in international armed conflicts); Article 13(3), Protocol II (applicable in non-international armed conflicts). Thus, someone charged with willfully killing a civilian in the context of an armed conflict can, as a defense, put on proof that the victim was directly participating in hostilities.

The law applicable to Non-international armed conflict

Common Article 3 1949 Geneva Conventions: I, II, III, IV Additional Protocol II 1977 (treaty that exclusively addresses NIAC)

Protective (national security) Jurisdiction

Conduct that threatens interests that are vital to the state may also be criminalized pursuant to the protective principle of jurisdiction. Statutes embodying this basis of jurisdiction generally target extraterritorial offenses directed against the security of the state or threatening the integrity of government functions. Such statutes are those criminalizing espionage, counterfeiting, falsification of official documents, perjury before consular officials, and conspiracy to violate the immigration or customs laws.

Appeals

Convictions, acquittals, and sentences may be appealed by the Prosecutor or a convicted person. In addition, interlocutory appeals may be made against a decision regarding jurisdiction or admissibility, regarding the release of a person, or against decisions by the Pre-Trial Chamber involving investigations.

Difficulties with International Law-Watts

Custom Lack of enforcement power

Extradition

Duel criminality-is the official process whereby one country transfers a suspected or convicted criminal to another country. Between countries, extradition is normally regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. Through the extradition process, a sovereign (the requesting state) typically makes a formal request to another sovereign (the requested state). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.

Preliminary Examination involves four phases:

Filter Jurisdiction (Temporal and Subject matter); preconditions to jurisdiction (Nationality/Territorial) Admissibility Interests of Justice

Male Captus Bene Detentus

For many states, the way in which an accused is brought before their courts is irrelevant (wrongly captured, properly detained); others will refuse jurisdiction where an individual was apprehended in violation of international law or international obligations.

The Hessian State Attorney General

Fritz Bauer and the first Auschwitz Trial (1963-1965)

Ad Hoc Tribunals (temporary)

Gets its power from the United Nations (States) charter which creates the SEC, ICJ (International Court of Justice) , UNGA, and UNSC (United Nations Security Council). The UNSC (United Nations Security Council creates the ICTY (International Criminal Tribunal for Yugoslavia), ICTR (International Criminal Tribunal for Rwanda), etc. UN only gives the Security Council to pass legally binding decisions that affect all states. Trade off for being temporary is they have jurisdiction first; can take from Domestic courts.

Prosecutor v. Jelisic

Goran Jelisic was indicted by the ICTY for the murder, torture and inhuman treatment of Muslim detainees in Luka camp in the town of Brcko on the border of Bosnia-Herzegovina and Croatia. He had adobted the sobriquet "the Serb Adolf," and the testimony at trial revealed that on numerous occasions he had publicly articulated his desire to eliminate the Muslim population. He pled guilty to 31 counts alleging violations of the law or customs of war and crimes against humanity, but pled not guilty to a genocide count. The trial chamber announced the acquittal of the defendant on this count because the evidence presented by the Prosecution is insufficient to sustain a conviction. The trial chamber concludes that it has not been proved beyond all reasonable doubt that the accused was motivated by the specific intent of the crime of genocide; his behaviour appears to indicate that, although he obviously singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group.

ICJ (International Court of Justice)

Hears cases between States

Internal legitimacy

How the country being tried views what is going on

Private International Law

How the world does business with one another; business to business.

Conflict Classification

Identify all different parties involved in conflict then classify each conflict individually. Can simultaneously have NIAC and IAC.

Direct and Indirect Responsibility

Identifying the principal offender is usually relatively straightforward, the determination of who else should be criminally responsible for an offence by virtue of his or her involvement therein can be more difficult. There are several doctrines that may be employed to address the criminal activity. These are: collective responsibility, complicity, joint criminal enterprise, and co-perpetration. The inchoate offenses of conspiracy and incitement are also considered.

International, hybrid, regional, and domestic institutions

Institutions that currently interpret international criminal law, and thus the bodies of jurisprudence to which a litigant or judge may look for ascertaining the applicable substantive law.

Article 131

Integrate former Nazi members into new government.

ICC

International Criminal Court

IAC v. NIAC v. Riot/Banditry

International armed conflict (IAC) Non-international armed conflict (NIAC) Riot/banditry-hostilities that don't amount to either IAC or NIAC.

Phase One: Filter

Involves an initial assessment of information received by the office, whether from states, individuals, or organizations.

Public International Law

Is state law, treaties, the way states do business with one another that is governed by a variety of laws customary (common law) and conventional international law (treaties).

The United States and the ICC

John Bolton, speech two: Reject and oppose the ICC, in toward an ICC? Three options: I affirm today that I find (the Roman Statute) to be a pernicious and debilitating agreement, harmful to the national interests of the United States. In several respects the Court is poised to assert authority over nation-states and to promote the exclusivity of prosecution over alternative methods for dealing with the worst criminal offenses, whether occurring in war or through arbitrary domestic powers. The Court's flaws are basically two-fold: substantive and structural. The ICC's authority is vague and excessively elastic. How will these vague phrases be interpreted? Who will advise that a president is unequivocally safe from the retroactive imposition of criminal liability after a wrong guess? Main concern is for our country's top civilian and military leaders, those responsible for our defense and foreign policy. They are the real potential targets of the ICC's politically unaccountable prosecutor. The most basic error is the belief that the ICC will have a substantial, indeed decisive, deterrent effect against the perpetration of grievous crimes against humanity. Even if administratively competent, the ICC's authority is far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world.

Power and Jurisdiction

Jurisdiction is power over the individual

Treaties

Lay out temporal, geographic limits, subject matter

Situation in Libya

Libya challenges the admissibility of the case on the basis that its national judicial system is actively investigating Mr. Gaddafi for his alleged criminal responsibility for multiple acts of murder and persecution, committed pursuant to or in furtherance of a state policy, amounting to crimes against humanity.

Substantive Crimes Genocide

Modern word for an old crime. Greek word genos (race, tribe) and the Latin word caedere (to kill). The critical elements of genocide were not the individual acts, though they may be crimes in themselves, but the broader aim to destroy entire human collectivities. Deliberate and systemic genocide, the extermination of racial and national groups, against the civilian population of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups. General Assembly unanimously adopted: Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the consciences of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and the spirit and aims of the United Nations. Mens Reus-Specific Intent (intend to do this and nothing else), exterminating a group of people because of who they are. Actus Rea-(5 acts can be charged with) Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (1) killing members of the group (2) causing serious bodily or mental harm to members of the group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; (5) forcibly transferring children of the group to another group. Genocidal intent can develop over time. Intent to explore (thought he was going to China)-came with subsequent voyages as they learned what resources were available.

Democratic Republic of the Congo v. Belgium

Mr. Yerodia was a non-national of Belgium and the alleged offences described in the arrest warrant occurred outside of the territory over which Belgium has jurisdiction, the victims being non-Belgians, the arrest warrant was necessarily predicated on universal jurisdiction. Question is whether states are entitled to exercise jurisdiction over persons having no connection with the forum State when the accused is not present in the State's territory.

The law applicable to international armed conflict

Must establish beyond a reasonable doubt there is a state on both sides. Geneva conventions I, II, III, IV

Piracy

Not an ordinary offense. The federal piracy statute clearly applies extraterritoriality to whoever, on the high seas, commits the crime of piracy as defined by the law of the nations, even though that person is only "afterwards brought into or found in the US."

Deferral by the Security Council

Notwithstanding that a proceedings have been initiated before the Court, the UN Security Council retains the ability to defer action before the Court for a year on a renewable basis.

Objective and Subjective elements

Objective-how states do it Subjective-belief that you are supposed to do it that way

Harold Hongju Koh, International Justice

Of course, many in our country still have fundamental concerns about the Rome Statute that have prevented us from becoming a party. That is hardly surprising, given concerns about the potential risk of politicized prosecutions, the US unique posture of having more troops and other personnel deployed overseas than any other nation, and that we are frequently called upon to help ensure global peace, justice, and security. Our "smart power" view is that the way to advance US interests is not to shut ourselves off to those with whom we disagree, but to engage and work for mutually beneficial improvements. We have publicly urged cooperation and expressed sup;port for the Court's work in all of the ongoing situations in which the court has begun formal investigations or prosecutions, both in our diplomacy and in multilateral settings. We continue to find it a serious cause for concern that nine individuals who are the subject of existing ICC arrest warrants have not yet been apprehended. We have noted that states can lend expertise and logistical assistance to apprehend current ICC fugitives.

Investigations & Case Development

Once the Prosecutor has completed the preliminary examination and decided to proceed with an investigation, she establishes a team of investigators with representation from each of the three divisions of the OTP: Jurisdiction, Complementarity and Cooperation (JCCD); Investigations; and Prosecutions. The joint team then analyzes the information and evidence collected during the preliminary examination stage, develops additional evidence, and begins to formulate a case hypothesis. In developing a case hypothesis, the team focuses on the most serious crimes committed within the situation, with due regard of the factors related to jurisdiction, admissibility, and the interests of justice.

Admissibility Challenge

Once the Prosecutor has identified a defendant who will be charged in connection with crimes committed within a referred situation, a state or the accused can launch an admissibility challenge with respect to that individual. The Court can also undertake an admissibility analysis on its own motion.

The range of measures envisaged under Chapter VII

Once the SC determines that a particular situation poses a threat to the peace or that there exists a breach of the peace or an act of aggression, it enjoys a wide margin of discretion in choosing the course of action: it can either continue, in spite of its determination, to act via recommendations, I.e., as if it were still within Chapter VI ("Pacific Settlement of Disputes") or it can exercise its exceptional powers under Chapter VII. In the words of Article 39, it would then "decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

At the moment, the Prosecutor is undertaking preliminary examinations in nine situations. These situations are being considered with respect to two phases of analysis:

Phase 2-(subject matter jurisdiction): Honduras, Comoros, Ukraine, and Iraq. Phase 3-(admissibility): Afghanistan, Columbia, Georgia, Guinea, and Nigeria.

Prosecutor v. Tadi

Position comprises two arguments: one relating to the power of the International Tribunal to consider such a plea; and another relating to the classification of the subject-matter of the plea as a "political question" and, as such, "non-justiciable," i.e., regardless of whether or not it falls within its jurisdiction. This International Tribunal is not a constitutional court set up to scrutinise the actions of organs of the UN. It is, on the contrary, a criminal tribunal with clearly defined powers, involving a quite specific and limited criminal jurisdiction.

Situation

Refers to a group of crimes (or "crime base") within the Court's jurisdiction committed within a particular geographic and temporal context. Usually a situation encompasses a state, but not always which is only one part of the state .

Nationality (concerns parties involved) Jurisdiction

State may also apply its criminal law to its nationals, who may be either perpetrators or victims of criminal acts. Active personality principle (nationality of perpetrator/civilian of country)-permits jurisdiction when the offender is a national or resident of the state prescribing or prosecuting undesirable conduct. Passive personality principle (nationality of victim)-permits jurisdiction where the victim is a national of the prosecuting state.

Territorial (where crimes happen) Jurisdiction

Subjective-state may assert jurisdiction over criminal acts commenced within the state, even if they are ultimately consummated abroad. Treaties addressed to transnational crimes-counterfeiting currency, illicit traffic in dangerous drugs, exemplify this approach. Objective-state may assert jurisdiction over acts committed abroad that are consummated within the territory of the prosecuting state. Allows a state to regulate acts that cause effects within the state, or are intended to do so, even if the act that creates the effects in committed outside the state.

Phase Two: Jurisdiction

Temporal-ICC only has jurisdiction for acts that were committed after the Rome Treaty came into effect on July 1, 2002. Subject-must establish a reasonable basis for believing that one of the four crimes within the jurisdiction of the court has been committed. Nationality/Territorial-absent a SC referral, the Prosecutor can only consider crimes that have been committed on the territory of a State party or by the nationals of a State Party.

Reparations

The Court may order that a convicted person pay specific reparations to victims-including restitution, compensation, and rehabilitation costs-or that such amounts should be paid out of the Trust Fund for Victims.

The Prosecutor v. Akayese

The Courts sole task is to assess the individual criminal responsibility of the accused for the crimes with which he is charged, the burden of proof being on the Prosecutor. The chamber notes that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was required before 1994 to carry an indentity card which included an entry for ethnic group, the ethnic group being Hutu, Tutsi or Twa. Moreover, customary rules existed in Rwanda governing the determination of ethnic group, which followed patrilineal lines of heredity. The identification of persons as belonging to the group of Hutu or Tutsi (or Twa) had thus become embedded in Rwandan culture.

The Exercise of Proprio Motu Powers

The Prosecutor may on her own initiative request that the Court assert its jurisdiction over a situation. To do so, however, she must seek approval before a three-judge Pre-Trial Chamber (PTC). So far, the Prosecutor has used her proprio motu powers to bring two situations before the Court: Kenya and cote d'Ivoire. If the Pre-Trial Chamber concludes there is no reasonable basis to proceed with an investigation into the situation, the Prosecutor may later submit a similar request based upon new facts or evidence regarding the situation. If the Pre-Trial Chamber agrees that there is a reasonable basis to proceed with the investigation, the Prosecutor then moves to the investigation phase.

Security Council Referral

The SC may pursuant to its powers under Chapter VII of the UN Charter, refer a matter to the Prosecutor. Chapter VII of the United Nations Charter sets forth the SC's powers to address a threat to the peace, breach of the peace, or act of aggression.

Cases

The elements of each crime are further set out in the Elements of Crimes. Individuals who are suspected of having committed one of these crimes are prosecuted as part of a case. A case may involve just one person or more than one person.

Extraterritorial Jurisdiction

The extent to which a state exercises each form of jurisdiction with respect to extraterritorial conduct is often a function of municipal law, international law may place some limits on the exercise of domestic forms of jurisdiction. Through a process of assimilation, certain extraterritorial spaces may be treated as national territory. This includes the territorial sea or airspace, flagship vessels, diplomatic posts, the contiguous high seas, etc.

Aut Dedere Aut Judicare

The hostages treaty-like many multilateral treaties defining international crimes-contains in Article 5(2) the principle of aut dedere aut judicare ("either extradite or adjudicate") (also occasionally referred to as aut dedere aut prosequi ("either extradite or prosecute"), which requires parties to the treaty to either investigate/prosecute or to extradite offenders found within their territory. The principle bespeaks increasing recognition that states are bound to act, either through prosecution or through extradition, to ensure that individuals who perpetrate international crimes are brought to justice.

Liability

There are multiple ways in which individuals can be held individually, jointly, and vicariously liable for the commission of crimes. These liability theories may be principal or accessorial. Thus, a defendant can be found directly liable if she committed, planned, co-perpetrated, or ordered a crime. Likewise, she may be culpable if she instigated, incited, aided and abetted, or was otherwise complicit in a crime.

First Minister of Justice

Thomas Dehler (married to a Jewish woman), worked as an independent lawyer-not intermingled as a part of the Nazis party.

Relationship between attitudes and their corresponding types of reaction can also be presented graphically.

To Pardon / Willful Ignorance / Historical Record / Amnesty / Truth Commissions To Forget -------------------------------------- To Establish the Truth / Practical Retribution / No Peace Without Justice / Lustration: Substitute Criminal Proceedings /Proceedings based on Individual or Collective Responsibility To Punish

Article 98 Agreements

To protect itself and its nationals from the reach of the ICC, the US undertook a series of diplomatic and legislative actions. Bilateral agreements ("Bilateral Immunity Agreements")-State parties pledged not to surrender each other's citizens to the ICC.

ICC (permanent)-Independent International Tribunal created by states (only states participating in )

Trade off is Domestic Courts have jurisdiction first; if unable to handle then ICC steps in. The ICC brings cases against individuals accused of committing crimes as part of a situation that is referred to the Court or that is initiated under the Prosecutor's proprio motu powers.

Transnational element v. International element

Transnational element-crossed international boarders (not fighting within own borders) International element-fighting between two states.

End of WWII May 8th 1945

Trials started November 20th 1945 in Nuremberg; had a courtroom that was not destroyed and a prison facility big enough that was also not destroyed (security issues).

Trial

Upon the confirmation of the charges, the President constitutes a Trial Chamber for the case.

First State Secretary

Walter Straub; came from Jewish family and married to a non-Jewish wife (parents both died at camps).

Lotus Case

Was about the exercise of domestic jurisdiction, it has been cited for the broader principle that states retain residual freedom to act in situations in which international law does not prescribe a contrary rule. some commentators have rejected this far-reaching interpretation.

external legitimacy

What the rest of the world views

Phase Four: Interests of Justice

While the Prosecutor must show that there are reasonable grounds for believing that the requirements of complemntarity and gravity are met, the "interests in justice" elements is a countervailing consideration. Such interests are considered only once the requirements of jurisdiction and admissibility are met.

Confirmation of Charges

Within a reasonable time after the appearance of a suspect before the Court-whether pursuant to arrest, summons, or voluntary surrender-the Pre-Trial Chamber holds a hearing to confirm the charges for which the Prosecutor has requested a trial.

International humanitarian law (IHL), also called "the law of armed conflict"

describes international rules governing the conduct of hostilities and punishable acts therein-in other words, the jus in bello. *Only applies in the context of an armed conflict (or in a situation of occupation).

Armed Conflict

exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Two criteria: (1) the intensity of the conflict and (2) the organisation of the parties to the conflict (especially non-state party), as a way to distinguish an armed conflict "from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law." *Trial Chambers have taken into account a number of factors when assessing the organization of an armed group. They fall into five broad groups: (1) factors signaling the presence of a command structure, such as the establishment of a general staff or disseminates internal regulations, organizes the weapons supply, authorizes military action, assigns tasks to individuals in the organisation, and issue political statements and communiques, and which is informed by the operational units of all developments within the unit's area of responsibility. (2) factors indicating that the group could carry out operations in an organized manner (3) factors indicating a level of logistics have been taken into account (4) factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3 have been considered (5) includes those factors indicating that the armed group was able to speak with one voice, such as its capacity to act on behalf of its members in political negotiations with representatives of international organizations and foreign countries; and its ability to negotiate and conclude agreements such as cease fire or peace accords.

Crimes within jurisdiction

i.e. subject matter jurisdiction, are war crimes, crimes against humanity, genocide, and aggression.

Civilian casualties "collateral damage"

in and of themselves are thus not necessarily unlawful. Rather, IHL only prohibits deliberate attacks and attacks that cause damage to civilian objects that is excessive in relation to the anticipated military advantage.

Jurisdiction divided into three dimensions:

prescriptive, adjudicative, and enforcement. Jurisdiction to prescribe relates to the power of a state to enact substantive laws (generally by its legislature, but also by administrative agencies) to regulate criminal conduct.

Two varieties of International Law:

public and private

Necessity-US bounded to this protocol through common law, otherwise we wouldn't be as we haven't ratified this treaty.

requires that armed attacks be designed and intended to defeat the opponent militarily. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. i.e.-oil truck moving away from ICES-intelligence tells us not connected to ICES...going to the border to sell and receive monies for it. Destroy truck because its purpose will be to fund ICES (make an effective contribution to military action).

Distinction (Grandfather

requires that parties to an armed conflict distinguish between legitimate military targets and illegitimate targets, such as civilians. It has also been interpreted to prohibit certain types of weapons that, by their very nature, do not discriminate among lawful and unlawful targets. Indiscriminate attacks are thus prohibited under international law. Article 48 of Protocol I provides that "Parties to the conflict shall at all times distinguish between the civilian population and combatants." *Civilian objects lose their protected status if they are used to make an effective contribution to military action.

Humanity

requires that those means and methods of warfare that produce the least unnecessary suffering be employed. *US view is weapons that are calculated to cause(intended) unnecessary suffering cannot be used.

Proportionality

states that when military force is used against a proper military objective, parties may employ only that level of force that is proportional to the military objective to be gained. If a choice of weaponry, tactics, or force levels is available, the commander or combatant must choose those that will cause the least incidental harm. Collateral or incidental effects on civilian persons or civilian objects cannot be excessive in relation to the military advantage anticipated in an attack. Can be applied in both NIAC and IAC

International law today provides four broad justifications for a state to assert domestic jurisdiction:

territoriality nationality protection universality