International criminal law

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

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

USA, CHina, Russia, France and England

not partie of ICC and

Vetoright in securtiy council

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. 

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

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 . 

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

- protection of non-combatants

- distinctino

- proportionality

6 genocide

7 crimes against humanity

8 war crimes

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

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

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

genocide, after genocide convention

individual criminal responsiblity, versaille treaty, nürnberg

warsanctions or

economical sanctions

art. 8 para. 2 let. c following ICC

basically in the Geneva conventions

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

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

if she was not there and no legal council of her choosing was there. 

based on human rights. 

art. 63 para 2.  for sending out of perpetrator

art. 67 let. d for right to legal council

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

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

War crimes, historically an affair between states. So the rules governing war could only be of international nature. After the 2 WW war was banned. How to apply the rules on armed conflict inside of states but not between states. 

Problematic because terrorism is not clearly defined. One mans terrorist is another mans freedom fighter

International treaties

International customary law 

Acts of international organizations

Two elements,

1. State practice and

2. The opinual that those rules are followed because the constitute law and are legally binding.

Never formally accepted rules. Problem with “nulla poena sine lege". How far does this principle work anyways, because every legal text has to be interpreted,

He sais we always have some leagal stuff building up without real content. Then something happens and we really fill these norms with contents. For example treaty of Versaille, WW 2 and then the Nürnberg trials. 

Two crutial events for fixing international customary law in the field international criminal law. Nürnberg and ad hoc tribunals for Jugoslawia and Ruanda. There we see, that there are some connections between treatylaw and international customary law, because the things in treaties evolve into customary law. For example the convention of genocide made sure, that the idea that genocide should be punishable found the way into international customary 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”,