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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

Cartes-fiches

equality of arms between persecution and defense?

Prosecutors are better equipped to gather evidence on the territory of states. Much more funding and personel. 

for the defense very difficulte to do her own investigation

problems with right to legally defend oneself?

people may use it for propaganda purposes and with that hinder the integrity of the court. 

in such cases an option is to give the people a legal council

2 important things in the treaty of versailles?

1. the germans acknowledged individual criminal responsibiliity. Willhelm was convicted individually. 

2. Also the german gouvernement had to bring forward the people that committed warcrimes, so they made the Leipzig-trials. 

what is the London-Statute?

Rules made for the Nürnberger process

Was there something special in the london-Statute?

individual criminal responsibility for individuals. It went very far. If you helped to form a plan in a commitee, you could also be responsible for acts of people that enforced that plan excessively and did way more than the plan wanted. 

In this cases there is no mens rea, the person that helped organise the plan, didnt want the excessive enforcement of that plan. 

What ways of committing a crime are in internatinoal criminal law?

individual, jointly with another and trough another person (child soldier)

Instigation

Aiding and abiding

let. d for leaders that helped to plan something, but not for excessive execution of the plan. 

public incitigation to genocide

attempting

What is the responsibility of superiors?

superiors can also be responsible for omissions. 

military commanders have the duty to assure that their subordinates dont commit crimes

basically the superior has to act, if he new or should have known that his subordinates are committing a crime. 

what is joint criminal enterprise

Way to establish criminal responsibility for superiors and people who did planing.

The ICTY developped this. JCE = just convict everyone

three cases

- basic, everyone who helped had intent in regards to the result

- camp constellations, everyone wants to keep the camp running, but some people help the inmates maybe at the same time, problematic. (medical personel etc. )

- extended type, what was in the london-statute, person helping in making a plan also responsible for excessive execution of that plan. missing mens rea so should not be applied

problems with individual criminal responsibility?

division of labour vs. individual responsiblity for the endproduct. 

Jurisdiction of ICC

 

- Stuff happening on the territory of memberstates

- Referel by security council

- state accepts jurisdiction of ICC (ukraine)

When does the ICC act withing its jurisdiction?

complementarity (art. 17 Rome-Statute)

- case not investigated or not properly investigated by country

- ne bis in idem

Wann kann schweiz einen Täter dem ICC überstellen?

- commission in another country

- victime and perpetrator both not swiss nationality

- ICC is doing investigation

problems with universal jurisdiction?

  • uncoordinated procedures
  •  waste of resources 
  • not possible to reinforce judgements
  • bystander phenomenom (why me?)
  • Trial in absencia
  • Forumshopping by victims and perpetrators

why are sanctinos against states not very functionning?

1. Extreamly hard to completely isolate a state on the economical and political sphere.

2.  sanctions take there time to deploy effect. Also they first work against the population and the economy. But if the dictator does not care about the people, its not effective. 

What is another advantage of domestic courts?

rules how to collect evidence are usually diffrent from icc. And the police in that country knows the rules of the country bette

Art. Participation and forms of commiting?

Art. 25

art. responsibility of leaders?

28 a miliary leaders

28 b non military leaders

colonial endevour ICL?

only african cases ? self referals 

Still selection mechanism is problematic. veto power etc. 

hybrid courts helping to establish jurisdictional systems? we know how its done? depends on time and what you do, fine line

link to security council and veto power? Justice if not applicable for everyone?

Deferral art 16

principle of universiality and with that forcing our views onto other countries?

how can immunities become inaplicable for the states enforcing a jugement by the ICC?

- through treaty provisions between parties,

- Chapter VII resolutions of the Security Council or

- waivers of immunity. 

problems with genocide?

highly emotionalised

groups still good in our time?

only physical genocide or also cultural genocide?

prjnciple of legality rome statute?

Art. 22 ff. 

in dubio pro reo and principle of legality?

in dubio pro reo, if two scenarios based in facts are as likely. 

but if the judge has to say, if this norm is covering this situation, its the juge who has to decide. If he is not sure, its not covered.

in the swiss criminal code difference between military and non military leaders?

no, but you can make a difference because you use different standards for the two in defining what is negligence.

winners justice and ICC

one of the reasons the ICC makes sence is also, because it looks less like winners justice, if principle of legality is applied, juges are already there, not selected specifically, and so on.

Problem trough the selection of conflicts, you can still stear a bit. Also often only 1 side trialed

who has veto right?

USA, CHina, Russia, France and England

why is it nearly impossible to trial the big nations in the ICC or at least there nationals?

 

not partie of ICC and

Vetoright in securtiy council

befehl als strafausschlussgrund=

in CH

wenn man nicht weiss, dass befehl rechtswidrig ist. Also theoretisch auch Genozid und crimes against humanity

praktisch aber eher nicht, denn who knows of widespread and systematic attack or intention to kill a group or parts of a group, should know its not right. 

Another advantage of complementarity?

it can create an insentive to domestic investigations, because the states dont want to give their sovregnity.

how did ICC creat jurisdiction for myanmar=

rohingya were driven over boarder to bangladesch, and that is a party of ICC. 

but only jurisdiction for crimes related to boardercrossing or on bangladeschian soil . 

advantages of hybrid tribunals in the courty

all witnesses and evidence is there. 

easier opperations with some judges knowing the language, geographics and so on of region

more legitimicy and maybe effect on the victims

help rebuild system, but that need a specific plan

principles of internatinoal humanitarian law?

 

- protection of non-combatants

- distinctino

- proportionality

articles big crimes

 

6 genocide

7 crimes against humanity

8 war crimes

group 1 JCE?

every member of group plays a role and has intent to kill. Wants this result

camp constellations mens rea?

knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates.

extended version of JCE

A plurality of persons.

he existence of a common plan,

Participation of the accused in the common design (any assistance or contribution to the common plan)

responsibilty for not planed crimes only, if commission was forseeable and accused willingly took that risk

examples of international customary law and how it evolved?

genocide, after genocide convention

individual criminal responsiblity, versaille treaty, nürnberg

two forms of state sanctinos?

warsanctions or

economical sanctions

non international armed conflict icc

 

art. 8 para. 2 let. c following ICC

where do we have universal jurisdiction?

basically in the Geneva conventions

in the end universal jurisdiction if only applied, if person is on state theritory = same as complementarity

where trial in absentia all the way? good?

in lebanontrials, not very convincing results if defendant cant do a proper defense.

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