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M. S.
This flashcard set covers advanced concepts of international criminal law at the university level, focusing on key principles, crimes, and legal frameworks such as the ICC, genocide, war crimes, and joint criminal enterprise. It delves into the responsibilities of leaders, the challenges of universal jurisdiction, and the complexities of trials in absentia. Law students and legal professionals will benefit from this comprehensive overview, gaining insights into the intricacies of international justice and the mechanisms that hold individuals and states accountable for grave offenses.
Flashcards
122
Students
1
Language
English
Category
Law
Level
University
Created / Updated
27.03.2023 / 16.05.2023

Flashcards

diffrence deportation and forcible transfer?

deportation = crossing boarders

forcible transfer = inside of state

When is the act of imprisonment commited?

Abitroury imprisonment 

procedural safeguards applied?

what is torture in the sens of crimes against humanity?

  • Larger than Art. 1 Convention on Torture (New York, 10.12.1984, SR 0.105): author, relation between act and goals.

  •  Bodily or mental harm (eg. mock executions, force to observe mistreatment of 

    Perpetrator has victoms under control/custody

what needs to be fullfilled on the subjective side of the crime against humanity?

 General knowledge of context and of the connection of the single act

 Intent and knowledge concerning single act, dolus eventualis recklessness.

every genocide also a crime against humanity?

probably not, if a smaller group or single perpetrator acts with the intent to destroy a group, but there is no wide spread attack. Question if genocide requires a real possibility to achieve the destruction of a part or the whole group. 

But besides this yes always

a problem with genocide?

Law is there to cool down conflict in his opinion

With law you can take 1 step backwards, and ts cold, theoretical and not caring about the victims.

Genocide is highly emotionalized, because the concept is hard to apply in a legal context, but it sterrs a lot of unrest in the media etc. like terrorism. 

would not put genocide in international law again. 

hybrid courts and capacity building

By working along international lawyers, the lawyers from the area should learn somewhat how to organize themselves and how trials work. 

- process takes time and if you do it with actual cases its very much of a learning by doing situation

- often not the best judges and lawyers there

colonial idea?

Two groups of international humanitarian law (law applied in armed conflict)

Genevaconventions mostly there to protect specific groups in war. 

Hague convention traditionally seen as protecting the combatants and all the people affected by crazy weapons. 

armed conflict? definition and problems?

international conflict = declaration of war etc. 

non-international conflict = where to draw the line geographically limited riots not, aditional protocol of GC needs: - 

  • Capability of caring out military organizations (there must be some kind of command structure)
  • Usually that is linked to some territory control.

ICTY wants to treat international and non-international armed conflict the same

rome statute makes a difference, also no combatant immunity for non-international conflicts

where do you draw the line

  • Consequence of the definition of armed conflict in practice: international humanitarian law applies...

  •  ... as of «the first shot» in international conflicts
     ... otherwise after a certain expansion of the conflict

how are warcrimes criminalised in the rome statute?

 

  •  Exhaustive list of war crimes the ICC prosecutes = Principle of legality

  •  Codified customary international law

  •  Formation of more extensive customary international remains possible

  •  «two-box-approach»: differentiated provisions for international and non-international conflicts

  • Initiation of proceedings primarily when committed as part of a policy or as part of a large-scale commission (Article 8 Para. 1)

problem with the principle of legality in the rome statute?

The interpretation of every legal text happens by way of use of the text.

no sense inherent to any Terme or sentence. We create the sense by using words and sentences.

Analogie does not work with principle of legality, you say its not the same

in dubio pro reo only for facts, not for law application. 

rome statute has to be adjusted to the evolvement of international criminal law

 

permitted to bomb a truck cariing oil that would be sold and the money finances the war?

yes, also the financial aspect of war is to be considered. 

PRoblem driver often not combatant, so fly over lorry and then shoot it down later

problem with all people getting involved in war?

the line between combatants and civilian blurs. like handing out weapons to everyone

does not mean everybody can be killed, but there is a chance the aggressors will use this as their defense. 

Categories of war crimes (1)

people

civil property

prohibited methods of battle (Appropriation and destruction without necessity of civil property)

prohibited means of battle (poisonous gases; „dum-dum“-bullets)

 

how are the penal norms built up in international criminal law?

offence 

objective and subjective sides (conduct and context, intent and knowledge maybe dolus eventualis)

defenses (art. 31 Rome statute, self defense, necessity and so on). 

Prerequisits for investigation of ICC

 

Preliminary Stages of Offence

art. 25 rome statute

Preliminary Stages of Offence

 Attempt / Abandoned attempt Art. 25-3-f ICC

 Contribution to crime committed by group with common purpose Art. 25-3-d ICC

 Incitation to genocide Art. 25-3-e ICC

 NOT conspiracy

Grounds for Exclucing Criminal Responsibility

  •  Self defence Art. 31-1-c ICC

  •  Necessity/duress
    Art. 31-1-d ICC

  •  Mistake of fact or law
    mistake of fact or law, Art. 31 ICC

  •  Mental disease / Intoxication Art. 31-1-a/b ICC

 Immunities, official capacity ground for exluding criminal responsability?

 

 Istates cant act against head of state, but ICC can, so no

Art 27 ICC

Relation to art 98 ICC not very clear

 

  Statutes of limitation  ground for exluding criminal responsability?

 

no, does not matter how long ago crime was comitted

Consent of victim ground for exluding criminal responsability?

no

ground for excluding criminal responsability, if the other person comitted the crime aswell?

no. have to start somewhere

verjähren kriegsverbrechen etc. nach CH-REcht?

nein, art. 98 ff. StGB

what is the milgram-experiment?

they showed, that people were willing to give other people very heavy electro shocks, even suppoedly deadly ones, if a person with autority told them to do so. 

problem with real accountability, if orders dont help to stop criminal responsability.

human behavior is influenced by situational context and the information they are given. That’s why in the end the principle of individual guilt is hard to apply here. Ver often people act in conformity with rules and orders and don’t act critical anymore. 

what is the milgram-experiment?

 

they showed, that people were willing to give other people very heavy electro shocks, even suppoedly deadly ones, if a person with autority told them to do so. 

problem with real accountability, if orders dont help to stop criminal responsability.

human behavior is influenced by situational context and the information they are given. That’s why in the end the principle of individual guilt is hard to apply here. Ver often people act in conformity with rules and orders and don’t act critical anymore.

Requirements for war crimes according to ICTY

  •  Open formulation of war crimes based on customary international law;

  •  Armed conflict;

  •  Violation of customary or conventional rules of international humanitarian law;

  •  Serious violation;

  •  Individual criminal responsibility for the violation according to

    customary law;

  •  Violation relates to the armed conflict.

Verjärhung englisch

Staturory limitations

What makes crime international?

 

 

 

International actors, but we also have domestic law enforcement agencies. 

Could also say, the interests that they try to protect, makes them international. (Rechtsgut)

In a way these crimes are targeting the conditions of existence of life of human society as a whole. 

Hybrid Courts examples

  • Cambodia, Timor Leste

what is a important question on the procedural side?

allow crossexaminations?

risk for secondairy trauma during crossexamination

Could a domestic court judge a head of state?

Could it enforce a arrest warrant by the ICC?

no, because of immunity reasons, but the ICC can. 

The state can enforce such an arrest warrant. In this case it just borrows the power of the ICC

Art. 27 vs art 98 ICc

What is the goal of international criminal justice?

To cool a conflict down and stopp the thing from happening again.N

Not necessairily the emotional wellbeing of victim

Why is factfinding so crucial?

because its way harder to use history in a political way, if it the facts have been established by a neutral part, where both parties were able to tell their side of the story. 

diffrent structures of hybrid courts?

  • own creation through UN-Resolutions

  • linked to domestic courts

Questions with hybrid tribunals?

  • structures ? (Conventions with UN, linked to domestic courts)

  • Which law?

  • Balance between national and international elements (e.g. judges) ?

  •  Domestic problems (e.g. corruption, lack of independence) influence court’s work

what does complementarity mean in regards to the ICC?

it will only act, if the domestic jurisdiction does not act or does not act in a way that constitutes a proper investigation. 

 

trial in absentia?

in Switzerland person has to be there for the pre-procedure. has to have had the opportunity to say something to the allegations. 

In some parts of ICL, a full trial in absentia is possible, but thats highly critizied. 

possible to invoque self defense as a whole state, because you were attacked?

no, there must be a particular act of the perpetrator that makes the self defense necessairy. 

what is duress?

no choice, like an order from a superior under threat of life to the person that got the order

necessity?

choice of the lesser evil, 

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