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68 Cards in this Set
- Front
- Back
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What was the holding in Roper v. Simmons
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a. Juvenile death penalty case preemptively unconstitutional under 8th amendment cruel and unusually punishment
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3. What is a crime of international concern under treaty law (suppression convention)
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a. When a country is mandated to establish jurisdiction if they decide not to prosecute then they should extradite. Aut dedere aut prosequi – you judge or extradite
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4. What obligations does a suppression convention usually contain?
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a. Imposes an obligation on states to prosecute and punish or extradite those who commit offenses of international concern
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5. What is universal jurisdiction
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a. there are certain crime that are regarded as so destructive of the international order that any state may exercise jur in respect to them
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6. Is universal jurisdiction in absentia accepted under international law?
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a. According to the majority/plurality opinion in the arrest warrant case then the answer is no.
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7. What was the gist of the joint separate opinion of Higgins, Kooijmans and Buergenthal in the Arrest Warrant Case?
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a. A state may choose to exercise a universal criminal jur in absentia, however there must be certain safegaurds in place.
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8. What was the gist of President Guillaume’s opinion in the Arrest Warrant Case
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a. Accepted it only in terms of piracy.
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9. What is the difference between jurisdiction to prescribe and jurisdiction to enforce?
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a. The power of a state to bring any matter within the cognizance of its national law if prescriptive whereas the enforcement of that jur can only take place in its own territory
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10. What is the main holding of the Lotus Case and what is its important dictum
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a. The main holding is the states cannot exercise power for its enforcements in another state except with their permission
b. Dictum: the possibility of exercising limited territorial jurisdiction- counties can legislate within its borders without limitation. |
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11. What is the “Doctrine of Specialty” in extradition cases?
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a. Prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite. However, since the doctrine is based on comity, its protection exists only to the extent that the surrendering country wishes. Therefore, the extradited party may be tried for a crime other than that for which he was surrendered if the asylum country consents.
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12. What is the principle of dual criminality in extradition cases
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As a general rule, an extraditable offense must be a serious crime punishable under the criminal laws of both the surrendering and requested state
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13. Enumerate and give a very short definition of the various heads or categories of jurisdiction under customary international law.
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Too much to type. Plus Jon's gay
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14. What state determines when a crime is within the provisions of an extradition treaty? Explain the process
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a. The requested state. The requested state must determine whether the conditions of extraditions have been met
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15. What are the arguments for or against the extradition of nationals?
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a. Against – right to be tried by judges of their nation, right to live in their homeland, and the duty of the state to protect the welfare of its citizens, and would violate its own siverrignty.
b. For – non-extradition may cause an immunity jur |
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16. Does a Pinkerton instruction that permits a conviction of a substantive offense that is in furtherance of the conspiracy violate the rule of specialty? Explain
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a. No, bc the scope of liability can be different in the laws of the extraditing and the requesting country.
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17. What is the probable cause standard applicable in extradition proceedings
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is identical to the standard used by courts in federal proceedings which is evidence sufficient to cause a reasonable belief of the accused guilt – not necessary beyond a reasonable doubt
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18. Describe the two step procedure which divides responsibility for extradition between the judicial officer and the secretary of state
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a. Judicial determination of extraditability (existence of treaty, the offense charged, quantum of evidence)
b. The secretary has sole discretion to not to extradite - valentine |
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19. What is the rule of non inquiry
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a. The courts cannot asses the fairness of the judicial system of the requesting nation except when clear knowledge that the person is going to be tortured
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20. How was the statute of limitation issue decided in Ross v. US Marshal for the Eastern District of Oklahoma?
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a. The court said that the state of limitations was not time barred bc the defendant was fleeing from justice which means he has the intend to avoid arrest and/or prosecution
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21. What are the main tests to determine whether the political exception applies
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a. French -qualifies political offense by who is affected
b. Swiss - looks to (1) political motivations and circumstances surround offense and (2) comparing crime with political aims (politics above criminal) c. Anglo – American - requires (1) occurrence of an uprising or violent political disturbance at time of charged offense and (2) a charged offense that is “incidental to” or “furtherance of” the uprising |
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22. When did the United States Supreme Court address the political offense exception for the first time
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a. Ornelas v. Ruiz US allowed extradition from Mexico bc they were unrelated to political uprising and there was no political exception
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23. Why did the court in Quinn v. Robinson decide that the incident test excluded acts of international terrorism?
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a. bc they define uprising to mean peope rising up in their own land against the government of that land
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25. Why was the extradition denied in US v. Pitawanakwak
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a. Bc the Quinn’s standard was met. There was an uprising and the acts were committed incident to that uprising
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26. When does the United States have extraterritorial jurisdiction to prosecute criminal conduct
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a. First, if the federal statute would allow the exercise of extraterritoriality- formed directly or can be inferred legislative intent giving the mature of the crime, not logically dependent on the location.
b. Second, if international law would allow an exercise of extradition – does not contradict principles of international law |
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27. What is the famous dictum by Justice Marshall in Murray v. Schooner Charming Betsy
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a. If there is more than one interpretation of the statute they must chose the interpretation that does not offend international law
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hat was the basic reason(s) for the decision in US v. Layton?
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a. Killing a member of congress is injurious to the governmental interest wherever it happens
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31. What did Article 3 of the Tokyo convention provide?
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i. The state of registration of the aircraft is competent to exercise jur over offenses and acts committed on board
ii. Each contracting state shall take such measures as may be necessary to establish its jur as the State of registration over offences committed on board aircraft registered in such State iii. This convention does not exclude any criminal jur exercised in accordance with national law |
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32. What where the United States’ arguments to exercise landing jurisdiction in the Georgescu case
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a. The pilot can radio ahead for assistance
b. The witnesses will be immediately available c. Marshalls can be on hand to arrest i. If not the person would be able to go free |
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33. Under what principles did the Ninth Circuit exercise extraterritorial jurisdiction in the Chua Han Mow v. US case
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a. Objective territoriality and protective principle
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34. In US v. Ricardo, how were the jurisdictional requisites satisfied given that the statute did not require the proof of an overt act?
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a. It is reasonable to presume intent to cause an effect in the US and thus gain jurisdiction based on the objective territorial principle
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35. Discuss a case in which the nationality principle was applied by a United States court to bolster its statutory interpretation
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a. US v Walzach - no clue what he said after this
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36. What was the international jurisdictional basis applied by the court in US v. Yunis?
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a. Universal and passive personality
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37. What court decided the Soering case; on the basis of what treaty and under what provision?
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a. Article 3 of the European convention of human rights which prohibits degrading and inhuman punishment. The death row phenomenon was found to be in violation of this
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38. What was the relevant provision of the treaty between the United Kingdom- United States regarding extradition for crimes punishable by death, and what was the practice of the United Kingdom in that respect?
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a. Article 4 – extradition may be refused unless the requesting party gives satisfactory assurances to the requested party that the death penalty will not be carried out.
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39. What countries’ relevant law and practice did the European Court of Justice take into consideration for its decision?
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a. UK – the practice of state of Virginia, Germany, and UK
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40. How was the European Convention of Human Rights breached in Soering case
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a. Through the death row phenomenon, waiting for 8 years in poor conditions on death row
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41. What were the particular circumstances taken into account by the Court in the Soering case
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a. age and mental state of the D, conditions on death row, conditions if he were extradited to German
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42. What was the decision of the Dutch Supreme Court in the case The Netherlands v. Short
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a. Dutch SC gave priority to obligations derived from treaty obligation regarding Europeans Convention article 6 over treaty obligation with the US.
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43. Over what crimes does the International Criminal Tribunal for the former Yugoslavia (ICTY) have jurisdiction?
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a. War Crimes, crimes against humanity, and genocide
i. Grave breaches of the GC ii. Violations of customs of war |
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In what important treaty and how are jus cogens norms defined?
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a. The Vienna Convention of the Law of Treaties article 53
i. Preemptory norms that cannot be trumped by treaty – custom prevails over treaty in those situations. |
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48. In the Furundzija case, what were the specific sources of the torture prohibition?
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a. GC of 1949 (common article 3)
b. Additional protocols of 1977 (article 4) c. Already a crime in penal code of former Yugoslavia bf Bosnian became independent. |
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does it mean that the prohibition of torture imposes obligations erga omnes
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a. Against all of mankind (broader than jus cogens) – prohibition of torture can be imposed to all of human kind granting each member state to require compliance with the prohibition of torture just as slave trade or piracy.
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50. What does it mean that the prohibition against torture has attained the status of jus cogens?
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a. Bc of the importance of interest prohibition against torture protects, its has become a preemptory norm.
b. The probation against torture protects an important value and therefore is a preemptory norm |
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53. How did the Furundzija court arrive at the definition of torture in International Humanitarian Law?
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a. They compared all the laws of various countries legislation and conventions but they liked the definition used in the torture convention. Must be a physical or mental infliction by act or omission of severe pain or suffering in order to obtain information, punishment, confessions, humiliation, coercing, or discrimination against a victim or 3rd person and should be linked to an armed conflict and it must involve at least one official or someone acting in an non-private capacity
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54. What were the modifications to the Convention Against Torture introduced by the Trial Chamber in the Furundzija case?
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a. The inclusion of humiliation as a possible purpose of torture
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56. What article of the ICTY statute covers outrage upon personal dignity, including rape, and why?
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a. Article 3 of the ICTY statute bc all inhuman acts are covered
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57. What was the definition of rape of the Trial Chamber of the International Criminal Tribunal for Rwanda in the Akayesu case?
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a. A physical invasion of a sexual nature committed upon a person under a coercive circumstances
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58. What were the legal flaws in the Akayesu court’s definition of rape according to the Trial Chamber in the Furundzija case
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a. The violation of the principle of legality
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59. What were the legal reasons for the Furundzija court to include forcible oral sex in the definition of rape?
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a. the fact that it was a violation of human dignity outweighed all the criticisms against it
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61. What is the relationship between international criminal law and comparative criminal law in light of the Furundzija’s court’s definition of rape?
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a. The relationship bt int criminal law lie on the fact that when international criminal law rules are silent it is often necessary to rely on national legislation.
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62. Under what laws or treaties were the European war criminals tried after World War II?
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a. Under the London charter of 1945
b. Under law no 10 established by the allied control council c. those conducted in other european countries by their own governments |
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63. Over what categories of crimes did the Nuremberg International Military Tribunal (IMT) have jurisdiction?
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a. Crimes against peace, war crime, and crimes against humanity
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64. What were crimes against humanity in the London Charter, what were their peculiar condition and how did they differ from the Control Council Law No 10?
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a. London charter required a link to other crimes against humanity with other crimes contained in the statute but the control council eliminated this link.
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65. Was the decision of the Security Council establishing the ITCY legal and appropriate?
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a. Yes, bc the charter of the UN allowed the council to determine the existence of any threat or breach of the peaceand decide what measures should be taken to maintain or restore international peace and security
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66. What was the Tadic court’s interpretation of Article 3 of the ITCY Statute
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a. Art 3 confers on the IT jurisdiction over any serious offense against IHL not covered by article 2 (grave breaches of GC), art 4(genocide?), and art 5 (CAH)
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67. What are the conditions for a violation of international humanitarian law to be subject to Article 3 of the ITCY Statute?
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a. Must constitute an infringement of IHL (laws of war)
b. Must be customary in nature or conventional (treaty) c. Serious d. Must contain individually criminal responsibility |
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68. Define the notion of armed conflict in the context of the Bosnian situation at the time Tadic committed his deeds and whether it included violations committed in places and times where the actual conflict was not ongoing
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a. An armed conflict exists when there is a resort to armed force bt state or protracted armed violence within a state bt governmental auth and organized armed group between such groups.
b. Applies to the whole territory of the belligerents in international or internal conflict whether or not actual combat takes place there or took place there. |
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69. What was the test established by the International Criminal Tribunal for Rwanda to determine whether cumulative convictions would not infringe the principle of non bis in idem?
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a. Double Jeopardy – whether the crimes have different elements, whether they protect different interests, and whether it is necessary to record a conviction for both crimes to adequately show what the accused did
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70. Explain the notion of command responsibility contained in Article 6(3) of the statute of the International Criminal Tribunal for Rwanda?
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a. Held liable for the actions of you subordinates if you have reason to know or should have known about their crimes
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71. What is the specific intent of the crime of genocide? Describe one of the particular actions among the many that may constitute genocide
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a. The intent to destroy in whole or part religious, ethnic, national, or racial group
b. Prevent birth - |
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72. What are the elements of crimes against humanity under the ICTR Statute according to the Akayesu judgment?
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a. the act must be unhumane in nature and character causing serious injury to mental or physical health
b. the act must be committed as part of widespread or systematic attack c. the act must be committed against a memeber of the civilains population d. the act must be committed on discrimintory grounds |
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72. What are the elements of crimes against humanity under the ICTR Statute according to the Akayesu judgment?
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a. The act must be inhumane in nature and character, causing, serious injury to mental or physical health
b. The act must be committed as part of widespread or systematic attack c. The act must be committed against member of the civilian population d. The act must be committed on discriminatory grounds i.e. national, political, ethnic, racial, or religious |
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73. What are the main arguments in the joint separate opinion of Judge McDonald and Judge Vorhah in the Erdemovic?
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a. Duress cannot be a complete defense this conclusion was based on a social policy argument, the protection of the weak and vulnerable, and magnitude of the crime
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74. What are the main arguments contained in Judge Cassese separate and dissenting opinion?
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a. Duress can be complete defense as a majority of legislature demonstate and that the principle of legality preclude using social policy as a reason to criminalize acts
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US v Van Cauwenberghe
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Determination of whether a crime is within the provisions of an extradition treaty is within the sole purview of the requested state and that judgment shall be final
duel criminality case doctrine of speciality case |
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US v Lui Kin-Hong
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Bribery cig's case
D's arg that reversion would be to Chine not the UK. Rule of non-inquiry D's arg is therefore denied |
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Ntakirutimana v Reno
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Does extradition require a treaty?
No, it may come from a statute or treaty |
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Ross v US
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SOL tolled - requires the prosecution to prove, by a perponderance, that the accused acted with the intent to avoid arrest or prosecution.
Dual Criminality arg - |
