International criminal law

state dimension 

not very effective because nearly never all states are helping. also more against the civilian population. if the dictator does not care about them, not effective. War sanctions nearly never possible because of the veto right in the security council. 

personal dimension

Not very effective either, only possible to act outside of the country. so only limiting there possible range of movement. 

The statuts of the ad hoc tribunals have been UN-Acts. 

But the tribunals themselves give themselves some rules. For example the RPE (Rules of procedure and evidence). These rules shape the work of those tribunals

The mane duty to keep international criminal law alive is with domestic courts. See universal jurisdiction. There we have 2 groups of states, that could apply international criminal law. 1. States directly involved and 2. Third states. There is not a very big chance that a Russian court is going to deal with Russian war crimes. So nr. 1 is not very often used. 

• Important states have not ratified Rome statute (USA, Russia, China)
• ICC and politics? UN Security council, “Trigger Mechanisms”

Problem with the veto right

• Cooperation with states “Giant without arms and legs”

The ICC depends heavily on the cooperation of the memberstates. No own cells or police force. Also that the coutries let them do their thing.

• Crime of Aggression: Definition, trigger mechanisms

Not clearly defined, to many safeguards because states were scared to face persecution themselfs

• Lengthy procedures, high cost, distance to communities involved

Critics say, only does stuff in africa, so kind of colonial indevor? NO, because most of situation state referrels

highly dependant on political will and funding.

 risk of being seen as impartial or imbalanced

compromise between international and domestic justice. Mix between the two justice systems

main problem of this system is to balance the national and the international elements well. 

1. So one way is also to grant competence to the ICC like Ukraine did. 
2. Besides that it’s possible that core crimes, like displacements of persons, take effect on states that are state parties but originate outside of state parties. The fact, that crimes had effects on state parties, even dough the acts were committed outside of state parties, this can be enough aswell. For example the Rohingya case. Myanmar is not a partie-state. The Rohingya-community was driven outside of Myanmar to Bangladesh. 
3. Its also possible to apply the rules via a resolution of the UN security council. But difficult because you usually have someone opposing such a resolution. See next bullet point. Unlikely in Russia’s case because Russia is a member. 

• Retributive justice

Person who committed has to surf a proportionate punishment. 

• Resotrative Justice

All stakeholder (people affected by the crimes) have an opportunity to discuss how they have been affected, and how the community can be restored. 

easier to restart a society if not half of them are in jail

question if prevention is needed, if the problematic system is not there anymore?

people are left free, no justice for victims

crimes with a big number of perpetrators and big number of victims, and crimes are as well imbedded in a social context.  

possibility to trial everyone? capacity of criminal justice

Justice only one goal amongst others. People dont want to sacrifize economic wealth for justice

as soon as you build up a certain insentive/pressure to confess, everything you do becomes incompatible with criminal law/procedure, because it is not aligned with the right not to confess

fact finding is very important aswell after an event. 

in a criminal frame you have both sides bringing up what they think and then an authority that says these are the facts we see as established. 

in restitutional frames, you only have one side explaining the facts in her view and another side accepting it. 

for memberstates of genocide convention it's a duty. 

Other states might do it, because if not, their investigatinos might not be recognized by the ICC and with that the ICC can still be competent and do its own investigation. Usually no competence, if nation is doing a investigation

former president of “serbia”,

Präsident der republica serbska

chiefe general of army of republica serbska

Prbably a problem, that it took very long and the "justice" came from far away. Not the same emotional effect. 

probably still helps to have the facts established by a court.

You have to put the crime in the domestic criminal code. 

since its customary international law valid erga omnes you are bound not depending of if you signed it. 

if you dont have own legislation, your investigation may not be considered an obstacle to prosecution before the ICC

ethnic, religious, nationallity, rasse

an airplane got shot down over disputet teritorry in the donesk luhansk region. 

Doesk und luhansk wollen unabhängig von der ukraine werden. Ukraine hat anti terrororganisation gegründet. 

The investigation was under dutch law, because they had the most killed persons

the compensation was done according to ukrainien law. 

non of the defendants attendet the hearing in the netherlands, so trial in absencia. 

Question of combatant immunity

it was proven that the killers got some directions from the russian federation. 

But russia denied that and thats why they did not get combatant immunity. 

Murder and crashing a plane in the law of the Netherlands. 

• Evidence says plane shot down by a BUG. 
• Evidence of involvement of theses 4 people in the deployement and bringing back of the weapon in the area
• Hey says cant deduct from the bringing back of the weapon that there was a plan of shooting down a large passenger airplane. It’s a normal reaction after an event like that
• No use of shooting down a “normal” plane like that (must have probably been a mistake, from a military perspective they had to move the BUG away and couldn’t use it anymore. He says was mostprobably a mistake)
• Not clear who really operated the BUG
• Says if you lend someone a gun, you would not apply this logic

He thinks if you look at it correctly, it could have been some form of negligent manslaughter. 

Widespread or systematic attack on civilian population.

Crimes against humanity are not particualiry cruel, that’s not the point. 

 they undermine society as such and they undermine the coexistence of humans in human societies.

why Menscheitsverbrechen fits bettter

not boxes that have to be checked, can be only one aswell

• General historical circumstances of the criminal acts
• Establishment and implementation of autonomous political structures
• General content of a political programme
• Media propaganda
• And more on the slide. 

They are commited as part of a wide spread systematic attack against the civilian population. 

In German you would refer to geeignet instead of calculated. Simply have to prove that the mesures would in the ordinary course of events lead to many people dying.

as the words Multiple commission suggest, there need to be at least two

does not matter if they wore uniform

if the no longer take part in hostilities, because they had left the army 

not clear if they are no longer bearing arms or had been placed hors de combat.

•  the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology

•  the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;

•  the preparation and use of significant public or private resources, whether military or other;

•  the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.

widespread, and systematic attack against civilians and for this act:

1.  a particular population was targeted and

2. that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of

3. a numerically significant part of the population.

elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement;

often, the accruing of some gain to the perpetrator.

The consent or free will of the victim is absent. (often not to consider, because of the victim's vulnerability) ICTY also included socio-economic conditions, goes to far for Fiolka)

the exploitation of forced or compulsory labour or service (like sex; prostitution; and human trafficking)