International Criminal Law

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Genocide
Article VI

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• For the purpose of this Statute, "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
• (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; 
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 
(d) Imposing measures intended to prevent births within the group; 
(e) Forcibly transferring children of the group to another group

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Crimes Against Humanity
Article VII

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For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack
• Deportation
• Murder
• Imprisonment
• Torture
• Rape
• Persecution
• Disappearance of persons

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War Crimes
Article VII

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• The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
• For the purpose of this Statute, "war crimes" means:
• (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
• (i) Willful killing; (ii) Torture or inhuman treatment, including biological experiments; 
(iii) Willfully causing great suffering, or serious injury to body or health; 
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; 
(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; 
(vii) Unlawful deportation or transfer or unlawful confinement; 
(viii) Taking of hostages. 


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Rendition to Justice

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• Rendition to Justice – apprehension of suspects without recourse to judicial proceedings by U.S. officials who are brought to U.S. or another State for trial or questioning on specific crimes
o Eichmann case: Nazi who fled to Argentina and was kidnapped and brought back to Israel

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Reverse Rendition

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• Reverse Rendition – foreign authorities picking up persons in non-combat/battlefield situations and handing over to U.S. custody without basic legal protections

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Extraordinary Rendition

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• Extraordinary Rendition – transfer of an individual, with the involvement of the U.S. or its agents, to a foreign State in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman or degrading treatment

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Human Trafficking

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• Elements of trafficking
o (1) Action – recruitment, transportation, transfer, receipt of persons
o (2) Means – threat or use of force, coercion, fraud
o (3) Purpose – purpose of exploitation

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Types of Human Trafficking

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• Key is “exploitation”
o Mail order brides
o Forced marriage
o Forced domestic servants
o Forced labor
o Child soldiers
o Organ trafficking
o Illegal adoption
o Sex tourism
o Forced marriage
o Sexual slavery
o Camel jockeys
o Virgin sales
o UN/other peacekeepers

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Factors to consider in sentencing

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• Factors to take into consideration in sentencing:
o Cooperation
o Position in the military
o International/local custom
o Trying him by charge
o Mode of participation

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Torture Definition

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o Severe pain or mental, whether physical or mental; is intentionally inflicted on a person; for such purposes as:
• Obtaining from him/her or a third person information or a confession
• Punishing him/her for an act he or a third person has committed or is suspected of having committed
• Intimidating or coercing him or a third person
• Or for any reason based on discrimination of any kind
o When such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity
o Requires specific intent

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Joint Criminal Enterprise (JCE) - Types

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i. Basic – cases in which a group of person plans the commission of a crime under intl. law and the crime is carried out to a common design
ii. Systemic – running a system of ill-treatment of prisoners in a concentration camp or a detention facility
1. E.g. must be aware of the character of the system and have the intent to further it
iii. Extended – you are responsible for other participants conduct exceeding the framework of the common plan
1. Must be a natural and foreseeable consequence of the plan’s execution

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Joint Criminal Enterprise (JCE) - Definition

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b. JCE is (1) a group of persons, (2) the existence of a common plan, and (3) the contribution of the accused within the common plan
c. ICC requires an actual mens rea
i. Author puts JCE under 3(a) – therefore you can get the maximum punishment

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Modes of Participation

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1) Commission
b. (2) Omissions to act
i. Command responsibility
ii. When does an affirmative duty exist
c. (3) Instigation
i. To provoke or induce/ incite
ii. Propaganda
iii. Don’t need specific intent, must be aware
d. (4) Order
i. Don’t need specific intent, must be aware
e. (5) Assistance
i. Providing intelligence
ii. Giving weapons
iii. Financing
iv. Recruiting of troops
v. Must be aware that his assistance is giving a “substantial contribution” to the commission of the crime
f. (6) Inchoate Crimes
i. Incomplete crimes, the crime does not need to be carried out
ii. E.g. Attempt in domestic law, or Incitement charge

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Command Responsibility
Article 28

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(a) A military commander or person effectively acting as a military commander shall be criminally responsible either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes
With respect to superior and subordinate relationships not described in paragraph (a), The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes

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how to decide a State is unwilling/unable to prosecute

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• Shielding a person from their crimes
o Darfur pretending to be prosecuting people
• Have there been an unjustified delay that is an attempt to avoid justice
• The state is unable to obtain the accused or necessary evidence b/c of lack of infrastructure
o E.g. Congo/Uganda

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How a case is commenced

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o At the ad hoc level it was only the prosecutor who could initiate a case
o Under ICC various ways of commencement
• Situation where such crimes have appeared to have been committed the State can refer it to the ICC
• Uganda
• Crimes referred to them by the security council under Chapter 7 of UN charter
• The Prosecutor has initiated an investigation in respect to such a crime

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Who does the ICC have jx over

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• (1) If the state in which the crime occurred is a party to the Rome Statute
o Therefore the perpetrator can come from a nation not a party to the statute
• (2) If the person accused is a national of a party to the Rome statute
• (3) if a non-state party accepts jurisdiction
• (4) if the UN security council refers the case to the prosecutor than the ICC can exercise jx over a person who is national of a non-party member to the Rome Statute

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Forms of Jurisdiction

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• (1) Temporal Jurisdiction
• Very constricted
• 01/01/1994-12/31/1994
• Concerned with efficiency
• Didn’t want to focus on war crimes by the perpetrators prior to 1994
• (2) Subject matter jurisdiction
• Genocide
• Crimes against humanity
• War crimes
• (3) Territorial jurisdiction
• Crimes committed in Rwanda
• In regards to Yugoslavia it could only cover crimes that occurred in the former Yugoslavia