Summary International Criminal Law

INTERNATIONAL CRIMINAL
LAW
Summary




ZINA AL JOUBORI
THE HAGUE UNIVESITY OF APPLIED SCIENCES

, International Bachelor of Law 2020-2021
ProgramSummary
Course 151515 International Criminal Law Y2 – Q3
By Zina Al Joubori


TAB LE OF C ONTENTS

Foundations and Principles of International Criminal Law ......................................................................................2
Jurisdiction and structure of International Criminal Courts and Tribunals ..............................................................4
Crimes against Humanity and Genocide ....................................................................................................................7
War Crimes and Crime of Aggression ......................................................................................................................13
Modes of Liability ....................................................................................................................................................18
Grounds Excluding Criminal Responsibility ............................................................................................................22
Immunities ...............................................................................................................................................................25




IC L S U M M AR Y
1

, International Bachelor of Law 2020-2021
ProgramSummary
Course 151515 International Criminal Law Y2 – Q3
By Zina Al Joubori



FOUNDATIONS AND PRINC IPLES OF INTERNATIONAL CRIM INAL LAW

Historical development
 Modern development
 1915 joined Declaration UK, France, Russia on the massacre of the Armenians: crimes against civilization
and humanity
 WWI prosecutions
o The German Kaizer: Art.227 of the 1919 treaty of Versailles
o National prosecutions for violations of war crimes by military tribunals
 Leipzig Trials (criticism)
 Famous case: the Llandovery Castle
 Conviction of 3 naval crew of a sub-marine for firing on shipwrecked in lifeboats; defense of superior
orders was not available when the order was manifestly unlawful

World War II – how to deal with war criminals?
 Different approaches to the question of how to deal with German and Japanese war criminals after the War
 In the European front, eventually an agreement was reached to try in an international military tribunal the
principal Nazi criminal
 London Charter 1945 of the IMT Nuremberg
 3 crimes
o Crimes against peace
o War crimes
o Crimes against humanity
o Conspiracy as a broad ranging separate charge
 Conspiracy as a broad ranging separate charge
 Criminal organizations (where participation was criminalized)

IMT Nuremberg the result and criticisms
 Establishment of a historical record of atrocities
 Convictions and executions of some of the most important figureheads
 Subsequent proceedings
 Control Council Law No.10
 Acceptance of the Nuremburg Principles by the UN general Assembly, endorsing the outcome of the
process
 Numerous criticisms levelled against the process (‘victor’s jusice)
o Legality of the creation of the tribunal
o Selectivity of the defendants
o Retroactive criminalization’s of crimes against peace and particularly crimes against humanity

Important contributions of Nuremberg IMT
 Principle of Individual Criminal Responsibility: crimes are not committed by abstract entities, but by
human beings
 Crimes committed in accordance with national law or not alleviate individual criminal responsibility under
international law
 The defense of superior orders does not preclude individual criminal responsibility under international
crimes
 Official capacity (viz. immunity) does not preclude individual criminal responsibility for international
crimes

After IMT: The Cold War – international proceedings?
 For the duration of the Cold War, nothing much happened on the establishment of international criminal
institutions to prosecute international crimes

2

, International Bachelor of Law 2020-2021
ProgramSummary
Course 151515 International Criminal Law Y2 – Q3
By Zina Al Joubori


 Efforts on point included Art. V of the 1974 Convention on the Crime of Apartheid, which provided for the
creation of the international penal tribunal for its prosecution.
 International crimes were discussed before the International Law Commission of the UN in the context of
its work on the Code of Crimes
 Important: Convention on the Non-Applicability of Statute of Limitations for war crimes and crimes
against humanity
 During the Cold War, national prosecutions took place before national courts, exercising criminal
jurisdiction.
Important cases: Eichmann (Israel), Barbie (France), Finta (Canada)
 Basis of state jurisdiction
o Territoriality: French prosecutions for crimes committed in France (Barbie- the ‘Butcher of Lyon’)
o Nationality: Polish prosecutions of Polish collaborators for crimes committed in Hungary, Romania
etc.
o Passive personality: British prosecutions of Nazi naval officers for war crimes against shipwrecked
British nationals in the open seas
o Protective: prosecutions for protection of certain essential state interests from the offences of
espionage, counterfeiting and sedition
o Universal: jurisdiction solely on the basis of the importance of the crime (Eichmann, Finta)


After the Cold War
Creation of two international criminal tribunals by the UN SC as a measure to maintain international peace and
security in former Yugoslavia and Rwanda under Chapter VII UNC
 UN SC Res. 827/1993: Creation of the ICTY
 UN SC Res. 955/1994: Creation of the ICTR
 Circumstances surrounding the creation of the tribunals
 After the ICTY/R, a number of other tribunals were established. In those cases, it was not clear always
whether they were national or international tribunals. A new category emerged: hybrid tribunals, i.e.,
tribunals containing elements of both (‘the best of both worlds’ in the opinion of one commentator); SC
Sierra Leone (held that it is international); ECC Cambodia, special tribunal for Lebanon etc.


Sources of ICL
ICL as a branch of international law
 Sources of international law: what are they
 IMT: Treaty
 ICTY/ICTR: SC Res Statutes and Customary law
 ICC: treaty
 Important
Art. 21 ICC Statute: the Hierarchy of Sources (only for icc)
Significance of sources per institution: national courts, international courts.

Article 21 ICC Statute
1. The Court shall apply:
a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
b. In the second place, where appropriate, applicable treaties and the principles and rules of
international law, including the established principles of the international law of armed conflict;
c. Failing that, general principles of law derived by the Court from national laws of legal systems of
the world including, as appropriate, the national laws of States that would normally exercise
jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and
with international law and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its previous decisions.


3