International Humanitarian Law & Criminal Justice
Week 1
ICL – International Criminal Law
IHL – International Humanitarian Law
ICC
Sates established the ICC (The UN cooperates)
The ICC never closes
It is a reaction to massive atrocities globally (innocent lives were lost, things that
are unthinkable
Article 38 (1) ICJ Statue = sources of ICL
Rome statute -> States must sign the statute to be sued and they need to
acknowledge the jurisdiction of the court
Deals with responsibility of individuals for international crimes (usually big
leaders)
Prosecutes core crimes, but no generally accepted definition of international crimes
Article 5: Core crimes
1. The crime of genocide
2. Crimes against humanity
3. War crimes
4. The crime of aggression
Located in Scheveningen, The Hague, NL
Tribunals: Nuremberg and Tokyo (prosecuted war crimes), because the ICC was created
in 2001
Definition of ICL not generally accepted, but we can look at the core crimes (art 5 Rome
statute)
Rape, human traYicking, terrorism are also considered to be international crimes
(means of)
Article 5 Rome Statute -> Genocide
Article 7 Rome Statute -> Crimes against humanity
Examples of crimes that amount to the crimes against humanity
Article 8 Rome Statute -> War crimes, Crimes of Aggression
Connection with IHL and Human rights (IHRL)
IHRL
- ICCPR and ICESCR provisions connected with ICL
- Widespread and systematic human rights violation (IAC v. NAIC)
- General principle of law has source in IHRL (Tadic, paras. 42-47)
- Violation of ICL is violation of IHRL, but not the other way around per se.
IHL
- Crimes against humanity was the first crime (Nuremberg) and linked with war
, - IHL and ICL both protect victims of armed conflicts
- Judgments international tribunals may influence IHL
Not per se the other way around
Law of war crimes continuously innovated (new types of weapons)
Aims, objectives and goals
To prosecute individually responsible perpetrators of core crimes before
competent tribunals
- Objectives formulated by international law and IHL
- Gives/oYers closure and justice for victims, important role for victims (Al Mahdi,
para. 67)
- Truth-telling narrative in trials and focusing on history (Karadzic, para. 46)
- 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 (after
proses) -> organizations like red crotch will help the victims
- Less sensitive to political influences (in comparison to local trials)
Criminal responsibility
Art 25 and 28 Rome Statute
Individual criminal responsibility
Can only be carried by the personal who is planning, the brain behind it or leading
the criminal act (only the big fish)
DiYerent variations (modes of liability)
- Superior/command responsibility -> instructing and exercises power, meaning
individual has eYective control
- Assisting, aiding and abetting -> oYering materials (weapons), finances,
encouraging or inciting
- Instigating or planning -> making it possible, detailed planning, preparation
(pushing -> putting oil on the fire)
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 (Henckaets, ICRC International comity red crotch) -> customs
Article 7 ICTY Statute (Mucic et al., para. 54.)
To find out whether the perp Is responsible for the committed (core) crime involved, the
judges look at the Mes Rea and Actus Reus
, Mens Rea (mental) (Intent)
- Actual guilt, mental element
- The intent to commit a crime
- Special (intentional, knowingly causing harm or general intent (knowing it is
prohibited by law) -> only necessarily for genocide
- Modus of liability/elements of crime
E.g. aiding and abetting
E.g. soliciting/inducing
- Which can lead to (1) superior or (2) command responsibility in sentencing
Actus Reus (physical) (Act)
- Actual act, physical act
- The actual commission of a crime
- Voluntary act (recklessness, negligence, strict liability)
- Modus of liability/elements of crime
E.g. instigating or planning
!! When Mens Rea is proven the sentence will be much higher!!
International criminal responsibility can only be achieved if both elements are
present
Proving Mens Rea Is sometimes needed for actus Reus, but not per se the other way
around
Example proving guilt:
(3) Crime of genocide (3) Superior responsibility
(2) Special intent (2) Knew or had reason to know
(1) Subordinates (1) Superior
Knowledge about genocide intent
Special intent = dolus specialis
Superior cannot have the special intent, but they can have intent because of the
planning
Special intent: torture, genocide, forced pregnancy
- These crimes need careful planning
Abraham Accords
Some sort of custom
To establish peace in the middle east
- The AA normalizes diplomatic relations Isreal, UEA, Bahrain, Sudan, Morocco,
Oman, Saudi Arabia (2020-now) -> Biden administration not a fan of the peace
treaty
- Middle Eastern peace or conflict impacts the entirety of the world
Syrian conflict
Week 1
ICL – International Criminal Law
IHL – International Humanitarian Law
ICC
Sates established the ICC (The UN cooperates)
The ICC never closes
It is a reaction to massive atrocities globally (innocent lives were lost, things that
are unthinkable
Article 38 (1) ICJ Statue = sources of ICL
Rome statute -> States must sign the statute to be sued and they need to
acknowledge the jurisdiction of the court
Deals with responsibility of individuals for international crimes (usually big
leaders)
Prosecutes core crimes, but no generally accepted definition of international crimes
Article 5: Core crimes
1. The crime of genocide
2. Crimes against humanity
3. War crimes
4. The crime of aggression
Located in Scheveningen, The Hague, NL
Tribunals: Nuremberg and Tokyo (prosecuted war crimes), because the ICC was created
in 2001
Definition of ICL not generally accepted, but we can look at the core crimes (art 5 Rome
statute)
Rape, human traYicking, terrorism are also considered to be international crimes
(means of)
Article 5 Rome Statute -> Genocide
Article 7 Rome Statute -> Crimes against humanity
Examples of crimes that amount to the crimes against humanity
Article 8 Rome Statute -> War crimes, Crimes of Aggression
Connection with IHL and Human rights (IHRL)
IHRL
- ICCPR and ICESCR provisions connected with ICL
- Widespread and systematic human rights violation (IAC v. NAIC)
- General principle of law has source in IHRL (Tadic, paras. 42-47)
- Violation of ICL is violation of IHRL, but not the other way around per se.
IHL
- Crimes against humanity was the first crime (Nuremberg) and linked with war
, - IHL and ICL both protect victims of armed conflicts
- Judgments international tribunals may influence IHL
Not per se the other way around
Law of war crimes continuously innovated (new types of weapons)
Aims, objectives and goals
To prosecute individually responsible perpetrators of core crimes before
competent tribunals
- Objectives formulated by international law and IHL
- Gives/oYers closure and justice for victims, important role for victims (Al Mahdi,
para. 67)
- Truth-telling narrative in trials and focusing on history (Karadzic, para. 46)
- 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 (after
proses) -> organizations like red crotch will help the victims
- Less sensitive to political influences (in comparison to local trials)
Criminal responsibility
Art 25 and 28 Rome Statute
Individual criminal responsibility
Can only be carried by the personal who is planning, the brain behind it or leading
the criminal act (only the big fish)
DiYerent variations (modes of liability)
- Superior/command responsibility -> instructing and exercises power, meaning
individual has eYective control
- Assisting, aiding and abetting -> oYering materials (weapons), finances,
encouraging or inciting
- Instigating or planning -> making it possible, detailed planning, preparation
(pushing -> putting oil on the fire)
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 (Henckaets, ICRC International comity red crotch) -> customs
Article 7 ICTY Statute (Mucic et al., para. 54.)
To find out whether the perp Is responsible for the committed (core) crime involved, the
judges look at the Mes Rea and Actus Reus
, Mens Rea (mental) (Intent)
- Actual guilt, mental element
- The intent to commit a crime
- Special (intentional, knowingly causing harm or general intent (knowing it is
prohibited by law) -> only necessarily for genocide
- Modus of liability/elements of crime
E.g. aiding and abetting
E.g. soliciting/inducing
- Which can lead to (1) superior or (2) command responsibility in sentencing
Actus Reus (physical) (Act)
- Actual act, physical act
- The actual commission of a crime
- Voluntary act (recklessness, negligence, strict liability)
- Modus of liability/elements of crime
E.g. instigating or planning
!! When Mens Rea is proven the sentence will be much higher!!
International criminal responsibility can only be achieved if both elements are
present
Proving Mens Rea Is sometimes needed for actus Reus, but not per se the other way
around
Example proving guilt:
(3) Crime of genocide (3) Superior responsibility
(2) Special intent (2) Knew or had reason to know
(1) Subordinates (1) Superior
Knowledge about genocide intent
Special intent = dolus specialis
Superior cannot have the special intent, but they can have intent because of the
planning
Special intent: torture, genocide, forced pregnancy
- These crimes need careful planning
Abraham Accords
Some sort of custom
To establish peace in the middle east
- The AA normalizes diplomatic relations Isreal, UEA, Bahrain, Sudan, Morocco,
Oman, Saudi Arabia (2020-now) -> Biden administration not a fan of the peace
treaty
- Middle Eastern peace or conflict impacts the entirety of the world
Syrian conflict
