ICL – International criminal law
IHL – International Humanitarian Law
ICC – Rome Statute
Actus reus and mens rea – about being prosecuted
ICC established in 2001
Before that Nuremberg and Tokyo tribunals – Following up Nazi’s before start of ICC
ICC – set up by the countries itself
States give money to ICC to exist à will never close
ICC is a reaction to massive atrocities globally
Article 38(1) ICJ Statute = sources of ICL
Deals with responsibility of individuals for international crimes
ICC only looks at the actions of responsible individuals
Prosecutes core crimes, but no generally accepted definition of international crimes (Which
is interesting because the Rome Statute exists)
Permanent court located in Scheveningen, The Hague
Convictions of massive atrocities after WW2 (Nuremberg and Tokyo Tribunals)
ICL International Criminal Law (ICL)
No clear definition, therefore Core Crimes
- Depends on context matter
- Rome statute 5-8 bis
Art. 5 Rome statute – Core crimes of International Criminal Law.
International community – the countries that have signed the statute
Rape – Human traXicking – terrorism, not a core crime itself. Can be a part of a core crime
,Connection IHL and Human Rights (IHRL – Int. Human Rights Law)
- ICCPR and ICESCR provisions connected with ICL
- Widespread and systematic human rights violations (IAC VS NIAC)
o IAC – International Armed Conflict
o NIAC – Non-international Armed Conflict
- General principle of law had source in IHRL (Tadic, paras 42-47)
- Violation of ICL is violation or IHRL, but not other way around directly
- Crimes against humanity was the first crime (Nuremberg and linked with war)
- IHL and ICL both protect victims of armed conflicts
- Judgements international tribunals may influence IHL
o Not per se the other way around
o Law of wat crimes continuously innovated
State responsibility has separate legal instruments, ICL only covers half (elements of attribution,
wrongful act and ARSIWA à international law, weeks 2,3,4)
Broader objectives and goals – To prosecute individually responsible perpetrators of core
crimes before competent tribunals
- Objectives formed by international law and IHL
- Gives/oXers closure and justice for victims, important role for victims (Al Mahdi, para 67)
- In many cases it’s necessary to prosecute, especially for CAH and genocide
- Reconciliation or no peace without justice
- Prosecutions focus on restoring peace in conflict-torn areas, yet may leave many locals
unsatisfied (they won’t get proper closure (transitional justice)
- :ess sensitive to political influences (in comparison to local trials)
Punishing people hard is the way to possibly scare people from doing the same thing’
Transitional justice à aftercare of the victims of a core crime
- Can be better (conflict with millions of victims, rape crimes can be hard)
Need to be studied for the exam – Modes of liability
Individual Criminal Responsibility
- Going for the ‘big fish’ – Minister, commander leader
- Being the person in charge (eXective control)
DiXerent variations (modes of liability)
- Superior/command responsibility à instructing and exercise power, meaning individual
has eGective control
- Assisting, aiding and abetting à OGerint materials (weapons), finances, encouraging or
inciting
- Instigating or planning à Making it possible, detailed planning, preparation
Joint criminal enterprise 1, 2 and 3 (Tadic para 185)
- Used by tribunals to investigate the collective, widespread and systematic elements of a
core crime
Rule 102 – All custom, having the option to sue someone with custom
Article 28 Rome statute – superior responsibility
Article 25 modes of liability
Article 7 ICTY statute
, Mens rea – Actus Reus
Mens Rea – mental element
- Actual guilt – mental element
- The intent to commit a crime
- Special (intentional, knowingly causing harm) or general intent (knowing it is prohibited
by law)
- Special intent to prove genocide (knowing the harm that is caused and letting it be
intentionally) ONLY for genocide
Modes of liability/elements of crime. Art. 25 Rome statute
- Aiding and abetting
- Soliciting/inducing
Actus Reus – Physical act
- Actual act, physical act
- The actual commission of a crime
- Voluntary act (recklessness, negligence, strict liability)
Modes of liability / elements of a crime
Instigating or planning
When (combined) can lead to (1) superior or (2) command responsibility in sentencing
- International criminal responsibility can only be achieved IF both elements are present
- Proving mens rea is sometimes needed for the actus reus but not per se the other way
around
2 roads for genocide
Knowledge about genocidal intent
Superior knows or has reason to know of knew it
Superior there for the planning à can’t be the one committing genocide
Special intent – Knowing about what they are doing and the consequences it has
Subordinates have the knowledge
Dolus specialis à special intent
IHL – International Humanitarian Law
ICC – Rome Statute
Actus reus and mens rea – about being prosecuted
ICC established in 2001
Before that Nuremberg and Tokyo tribunals – Following up Nazi’s before start of ICC
ICC – set up by the countries itself
States give money to ICC to exist à will never close
ICC is a reaction to massive atrocities globally
Article 38(1) ICJ Statute = sources of ICL
Deals with responsibility of individuals for international crimes
ICC only looks at the actions of responsible individuals
Prosecutes core crimes, but no generally accepted definition of international crimes (Which
is interesting because the Rome Statute exists)
Permanent court located in Scheveningen, The Hague
Convictions of massive atrocities after WW2 (Nuremberg and Tokyo Tribunals)
ICL International Criminal Law (ICL)
No clear definition, therefore Core Crimes
- Depends on context matter
- Rome statute 5-8 bis
Art. 5 Rome statute – Core crimes of International Criminal Law.
International community – the countries that have signed the statute
Rape – Human traXicking – terrorism, not a core crime itself. Can be a part of a core crime
,Connection IHL and Human Rights (IHRL – Int. Human Rights Law)
- ICCPR and ICESCR provisions connected with ICL
- Widespread and systematic human rights violations (IAC VS NIAC)
o IAC – International Armed Conflict
o NIAC – Non-international Armed Conflict
- General principle of law had source in IHRL (Tadic, paras 42-47)
- Violation of ICL is violation or IHRL, but not other way around directly
- Crimes against humanity was the first crime (Nuremberg and linked with war)
- IHL and ICL both protect victims of armed conflicts
- Judgements international tribunals may influence IHL
o Not per se the other way around
o Law of wat crimes continuously innovated
State responsibility has separate legal instruments, ICL only covers half (elements of attribution,
wrongful act and ARSIWA à international law, weeks 2,3,4)
Broader objectives and goals – To prosecute individually responsible perpetrators of core
crimes before competent tribunals
- Objectives formed by international law and IHL
- Gives/oXers closure and justice for victims, important role for victims (Al Mahdi, para 67)
- In many cases it’s necessary to prosecute, especially for CAH and genocide
- Reconciliation or no peace without justice
- Prosecutions focus on restoring peace in conflict-torn areas, yet may leave many locals
unsatisfied (they won’t get proper closure (transitional justice)
- :ess sensitive to political influences (in comparison to local trials)
Punishing people hard is the way to possibly scare people from doing the same thing’
Transitional justice à aftercare of the victims of a core crime
- Can be better (conflict with millions of victims, rape crimes can be hard)
Need to be studied for the exam – Modes of liability
Individual Criminal Responsibility
- Going for the ‘big fish’ – Minister, commander leader
- Being the person in charge (eXective control)
DiXerent variations (modes of liability)
- Superior/command responsibility à instructing and exercise power, meaning individual
has eGective control
- Assisting, aiding and abetting à OGerint materials (weapons), finances, encouraging or
inciting
- Instigating or planning à Making it possible, detailed planning, preparation
Joint criminal enterprise 1, 2 and 3 (Tadic para 185)
- Used by tribunals to investigate the collective, widespread and systematic elements of a
core crime
Rule 102 – All custom, having the option to sue someone with custom
Article 28 Rome statute – superior responsibility
Article 25 modes of liability
Article 7 ICTY statute
, Mens rea – Actus Reus
Mens Rea – mental element
- Actual guilt – mental element
- The intent to commit a crime
- Special (intentional, knowingly causing harm) or general intent (knowing it is prohibited
by law)
- Special intent to prove genocide (knowing the harm that is caused and letting it be
intentionally) ONLY for genocide
Modes of liability/elements of crime. Art. 25 Rome statute
- Aiding and abetting
- Soliciting/inducing
Actus Reus – Physical act
- Actual act, physical act
- The actual commission of a crime
- Voluntary act (recklessness, negligence, strict liability)
Modes of liability / elements of a crime
Instigating or planning
When (combined) can lead to (1) superior or (2) command responsibility in sentencing
- International criminal responsibility can only be achieved IF both elements are present
- Proving mens rea is sometimes needed for the actus reus but not per se the other way
around
2 roads for genocide
Knowledge about genocidal intent
Superior knows or has reason to know of knew it
Superior there for the planning à can’t be the one committing genocide
Special intent – Knowing about what they are doing and the consequences it has
Subordinates have the knowledge
Dolus specialis à special intent
