Final Study Guide
Final Study Guide CRIM 405-002
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Date Created: 12/07/15
CRIM 405 Week 7 10/19/2015 ▯ International Criminal Court I ▯ ▯ Agenda: ▯ Origins of international law ▯ United Nations ▯ Introduction to international criminal law ▯ International criminal tribunals ▯ Rome Conference ▯ ▯ Origins of International Law ▯ What is International Law? International law is a fragmented web of rules originally designed to govern the behavior of states. It is not a single, unified legal system. o Borrows from domestic legal systems, but also incorporated into domestic legal systems. Mutual reinforcement between domestic and international. o International law is somewhat primitive, but it has vastly grown over last 100 (especially last 65 and last 25) years. o Not all rules are written. If states behave the same way for period of time, state practice becomes binding. Example: Prohibition on piracy on high seas ▯ Early Development of International Law International law grew out of natural law school, an intellectual civil law tradition based in the Netherlands in 1500s and 1600s. o Heavily influenced by Treaty of Westphalia (1648), which was the birth of the nation-state. Nationality replaced religion as basic unit of political organization in Europe. o Hugo Grotius (1583-1645) and other scholars of his time believed that states must follow rules of “global society” just as individuals do at home. Early development of rules of war o Red Cross founded in 1863 in Geneva. 1864 treaty re: treatment of wounded on battlefield o Code of Francis Lieber 1863: U.S. Civil War, order from Abraham Lincoln to Union troops o Hague Conventions of 1899 and 1907 prohibited certain weapons, tactics o Treaty of Versailles and League of Nations: new treaties on use of force and human rights. ▯ ▯ United Nations ▯ The United Nations System Founded in 1945 by the United Nations Charter, which controls the global use of force and aggression and creates collective security structure. “Legislative” branch o Security Council Five permanent members with veto power, representing critical mass of global military force: USA, China, Russia, UK, and France. Ten rotating members, which do not have veto power. o General Assembly Body comprising 194 state parties, each with one vote. “Executive” branch o UN Secretariat, led by Secretary-General (currently Ban Ki- Moon). Includes Department of Peacekeeping Operations, UN Police. o Large number of agencies in humanitarian aid, science/technology, human rights protection, international trade/development, finance. “Judicial” branch o International Court of Justice (World Court): Only decides disputes between states. ▯ The Human Rights Treaty Regime Human rights law and humanitarian law are complementary. Human rights law applies at all times. Humanitarian law applies during armed conflict. o Jus ad bellum: Law of whether a nation can go to war (“just war”). o Jus in bello: Laws governing behavior during conflict. Four Geneva Conventions (1949) protect sick, wounded, POWs, civilians League of Nations (1919) o First authentic human rights regime establishing treaties prohibiting slavery, protecting refugees, controlling opium trade, etc. Universal Declaration of Human Rights (1948) o Drafted by panel of intellectuals led by Eleanor Roosevelt, integrated human rights traditions from entire world into one “universal” document. o Non-binding. Not a legal instrument. Enforced by two treaties (1967): International Covenant on Civil and Political Rights International Covenant on Economic, Social, and Cultural Rights o Additional human rights treaties have added content to this legal framework, addressing racial discrimination, torture, forced labor, refugees. Also regional human rights treaties (African, Inter- American, European). Only as strong and effective as region’s unity and commitment. ▯ ▯ Introduction to International Criminal Law ▯ The Development of International Criminal Law Nuremberg Trials o November 1945 to October 1946. Judges from France, USSR, USA, UK. o Tried 22 defendants, of whom 12 sentenced to death for conspiracy, crimes against peace, war crimes, and crimes against humanity. Never addressed issue of “ex post facto” criminal laws. o Testimony itself became historical document, forcing Germany to confront its past honestly, delegitimizing Holocaust denialism. Tokyo Trials o Created January 19, 1946. Largely an American project. o 25 defendants convicted, of whom 7 sentenced to death. o Not seen as completely legitimate in Japan today. o Other international criminal law developments Trial of Lockerbie bombers (1993) o Scottish judges sitting in Zeist, Netherlands, to try Libyan defendants implicated in bombing of Pan-Am Flight 103. International Law Commission (1994) o Drafted statute for a permanent international criminal tribunal that required state consent, Security Council approval, broad crimes. ▯ ▯ International Criminal Tribunals ▯ The International Criminal Tribunal for Yugoslavia Came into operation in 1993 by UN Security Council Punished war crimes, genocide, and crimes against humanity o Worst crime: Attack on Bosnian Muslims at Srebrenica in 1995 Trial chamber and appeals chamber in the Hague. Primarily adversarial system, with panels of judges instead of juries. Trial of Slobodan Milosevic, former President of Yugoslavia, began in 2002 until his death in 2006. Prosecutions of Radovan Karadzic and Ratko Mladic still ongoing. o 161 arrests, 74 convictions, 18 acquittals, rest transferred/in progress. Improved upon Nuremberg trials: o More representative of global community o Effort not to be seen as “victor’s justice” o Defendants had rights to due process and appeal Shortcomings: o Sat far away from place where crimes took place o Extremely expensive (Rwanda and Yugoslav tribunals had 2000 employees and annual budget of over $250 million) ▯ The International Criminal Tribunal for Rwanda Created in 1995 and based in Arusha, Tanzania. Shared appeals tribunal with ICTY in the Hague. Tribunal opposed by Rwanda, as “loser’s justice.” Hampered by difficult investigations, isolated defense counsel, lax regard for due process, errors of strategy by prosecutor, resource constraints, opposition of Rwandan government. Indicted 95 individuals, convicting 59 perpetrators, including senior officials and head of “hate radio” station that broadcasted Tutsis to be killed. Like Nuremberg trial, created historical record, delegitimizing genocide denialism. Cases developed international jurisprudence, especially with regard to women and gender-based violence, such as rape as weapon of war. ▯ The Hybrid Tribunals “Hybrid” tribunal: Placed in country where atrocities took place, creating “hybrid” between domestic and international court. Far more cost-effective and more responsive to victims’ communities than ICTY and ICTR. o Special Court for Sierra Leone Sat in Freetown, Sierra Leone, but tried Charles Taylor (former Liberian president) in the Hague, Netherlands o State Court of Bosnia-Herzegovina o Extraordinary Chambers of Courts of Cambodia o Special Tribunal for Lebanon o Currently being established in Central African Republic and for trial of Hissene Habre (former dictator of Chad) in Senegal. “Internationalized” courts: Domestic courts within legal system that can prosecute international crimes. Cheap, often for low-level perpetrators. o Regulation 64 Panels in Kosovo o Special Panels for Serious Crimes at Dili District Court (East Timor) “International” prosecutions occurred in Bangladesh, Ethiopia, and Iraq (Saddam Hussein trial) but these were not recognized by UN for due process problems. ▯ ▯ Rome Conference ▯ The Rome Conference Idea of a permanent international criminal court shelved during Cold War. Reignited in late 1980s. Between fall of Berlin Wall in 1989 and terror attacks in 2001, human rights issues rose on international agenda. Included drafting successful treaty banning landmines without P5 support – first time civil society succeeded in doing this. In June-July 1998, diplomatic conference in Rome drafted Rome Statute. Germany led “Like-Minded Group,” the bloc of the world’s middle powers who were very supportive of the Court. Joined by a very large NGO Coalition, the largest delegation at the Conference, representing international civil society. o NGO Coalition of over 800 organizations, 236 present in Rome. Diverse group with feminist, religious, pacifist, legal, other organizations. o Succeeded in creating powerful prosecutor and limiting role of Security Council Opponents of the Court (U.S., China, Russia, India, Israel, France to some degree) were sidelined at the Conference and had no unified strategy. Final vote: 120 states in favor, including UK, France, Russia. 7 states voted “no” (China, USA, Libya, Iraq, Israel, Qatar, and Yemen). 21 abstentions. ▯ ▯ ▯ ▯ ▯ ▯ ▯ International Criminal Court The workings of the court Sentencing Restorative Justice Mechanisms Africa and Palestine The Workings of the Court Review of Jurisdiction o Limited role for UN Security Council Security Council cannot veto a prosecution, but can defer a prosecution for one renewable year Security Council can refer non-members to the Court ad has priority for the crime against aggression o Personal Jurisdiction Court can only punish natural persons over age 18 Perpetrators who are under 18 are deemed to be child soldiers, and therefor victims, not perpetrators No jurisdiction over legal persons, such as corporations. No sovereign immunity. Gender Justice o Women’s rights groups were powerful at the Rome Conference. Effective lobbying on sexual and gender violence won important concessions: Gender and sexual based violence is included in the definitions of the core crimes, including genocide, crimes against humanity and war crimes. Specific provisions for physical and psychological protection of victims of sexual violence. Fair representation requirement requires that half of the ICC’s judges and staff be women. Must select Judges and staff with expertise in sexual and gender violence. Judicial Division o Pre-Trial Chamber Equivalent of investigating judge in civil law criminal proceeding Confirms charges and requires that Prosecutor has enough evidence to proceed with trial o Trial Chamber Parties lead presentation of evidence, but truth is the ultimate goal International criminal trials are messy and often lengthy o Appeals Chamber Right to appeal is now due process right Can reverse of amend decision or sentence, or order a new trial. Can hear appeals from either Pre-Trial Chamber or Trial Chamber. Wrongfully convicted defendants entitled to compensation. Criminal Procedure o Arrest and transfer of suspect to the Hague Court has no police force or military Domestic law may prohibit some states from arresting foreign heads of state because they may have immunity. Procedure is mixture of adversarial, inquisitorial, and participatory Sentencing Introduction to International Criminal Sentencing o Unique characteristics of international criminal sentencing Goals: primarily based on retribution and deterrence, not rehabilitation Punishment by incarceration. No sentencing guidelines or minimums, since no consensus Command responsibility: the harshness of a sentence increase as one goes up the chain of command Basic Punishment Provision o Basic punishment provision: Sentence of imprisonment may not exceed 30 years, except where the offenses are extremely grave, then life imprisonment is permitted. Rome Statute does not define what “extremely grave” means. Statute does not authorize sentences longer than 30 years but shorter than natural life imprisonment. This provision was a compromise between states that have the death penalty, states that have life imprisonment, and states that have neither the death penalty nor life imprisonment. o Enforcement of a sentence: States parties volunteer to accept prisoners, and are responsible for conditions, payment of costs, and transfer at end of sentence. If no state volunteers, the Netherlands must accept the prisoner under the Headquarters Agreement between the ICC and Dutch government. Sentence is binding on the state of enforcement, and the state cannot alter the sentence or release prisoner early. However, the Court can release a prisoner early if he/she provides reparations or assists in later cases. Restorative Justice Mechanisms Victim participation o Permitted at all stages of a proceeding Victims entitled to make their views known Victim testimony must conform to the rules of evidence for witness testimony Reparations o Rome Statute allows victims of crimes that fall within its jurisdiction to file applications for reparations, compensation for injury, return of property. No provision in the Rome Statute for state reparations from governments or corporate criminal liability. Only individual reparations are authorized. Prior compensation schemes for mass atrocity have included one-time payments, flat pensions, individual claims for damages (usually for death or serious injury), and computerized sampling or statistical modeling (often for property crimes or lost profits). ICC may use a variety of methods to properly apportion reparations. o Thomas Lubanga case involving child soldiers: Court: Because “direct” victims are the child soldiers, not the people whom the child soldiers terrorized or killed (“indirect victims”), only child soldiers are eligible for reparations. Lubanga only responsible for reparations where child soldiers can show that he individually played a role in their recruitment or use. Trust Fund for Victims o The Rome Statute creates the Trust Fund for Victims, raising voluntary contributions to benefit victims and communities Can include anti-retroviral treatment for persons with HIV/AIDS in cases involving sexual violence, or building a community health clinic or school Administered by the Registry Africa and Palestine The “Africa” Problem o Concern: In a world of power politics, Prosecutor shies away from direct confrontation with powerful states like Russia and the United States. African countries are easy targets, since Great Power interests usually not at stake (unlike Palestine, Georgia, or Afghanistan). Prosecutor has indicted heads of state Omar al-Bashir (Sudan) and Uhuru Kenyatta (Kenya), causing internal political turmoil. Reinforces Africa’s subordinate position in international politics. o Response: African Union has called on members to stop cooperating with ICC. African Union has proposed a Criminal Chambers at the new African Court of Justice and Human Rights Punish international crimes and crimes by multinational corporations Double Jeopardy: Rome Statute doesn’t provide for complementarity with regional criminal tribunals. The “Palestine” Problem o Rome Statute defines as “war crime” transfer of ethnic population into militarily occupied territory in order to change demographic reality. Are the Palestinian territories “militarily occupied” by Israel after 1967? International law provides no clear answer and ICC is not in good position to decide the question. Israel would argue that Occupied Territories were already unlawfully occupied by Egypt, Jordan, and Syria before 1967. If it is occupied territory, Israeli settlement activity is a war crime. o Palestine’s membership is effective April 1, 2015, and retroactive to June 13, 2014, so encompasses August 2014 war with Israel. Palestine ineligible to join until November 29, 2012, when General Assembly “upgraded” Palestine to non- member observer state. o Palestine’s alleged war crimes: easy to prove and obvious. Using human shields, firing bottle rockets at civilian areas. o Israel’s alleged war crimes: difficult to prove and messy, matters of degree. Not providing enough warning before attacking civilian buildings where combatants were hiding; tolerating too much collateral damage for low-level fighters; building settlements for Israeli civilians in Palestine.
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