Exam
Week 1
Important to realize how the ICL has evolved and what we’ve learned
Bearing in mind that what the aims/objectives are is what every tutorial has come into play.
Week 2
need to know jurisdiction and admissibility (look at the last presentation)
jurisdiction is triggered and then if the Court is admissible and the Court can proceed. See Flotilla case: the
prosecution has to take into account the gravity and if it doesn’t go to that gravity it will end. Also interest of
justice. It is possible that a state tries to deal with a case themselves, but that wouldn’t be enough.
How is jurisdiction triggered and what does the prosecutor do after that
Most important case law is the two step test. You don’t have to mention the case law, but you have to know
the two step test
Have a look at the slides of the lecture of Alice
Difference in situation and a case
Afghanistan case: difference in powerplay between prosecutor and pre-trial chamber
Week 3
Self evident: know the material/core crimes of the ICC
Learn the EoC and have clear that contextual elements of all crimes are slightly different. So than you can
identify the crimes
Week 4
Same as week 3
Week 5
Most pivotal: combines week 3 and 4.
For direct perpetration and indirect perpetration
The mode of liability most likely to encounter is co perpetration, cooperation and aiding. They will need
elements that are not in the EoC, but are in the Case Law!!! Learn these elements to hold someone individual
liable!
The ICC deals with crimes that have been committed with intent, UNLESS otherwise provided. The intent
always goes to the conduct and consequence. The knowledge goes to the circumstances.
Indirect intent is a clear form of intent. Not dolus inventualis, but the way you go about it, without a doubt,
someone will die, unless a deus ex machina happens.
Command responsibility does not require intent, but grave negligence
Week 6
Admissibility of evidence
Need to know the court addressed that they can allow all evidence (needs to be relevant) the evidence that
can be used needs to have been submitted and discussed.
What if the evidence has been tainted (because of torture or something(? See case law (al hassan case), the
Court did not exclude the evidence, although he had been tortured. So the threshold is very high. The Court
doesn’t want people to get off because of a technicality
Roles of the victims
o How can you do with vicitims and what can they do
o Art. 68??? Something
o After that go the the Rules of Procedure and evidence to see what victims can do and in what stage
o In practicality the victims cannot really do that much.
Week 7
1
, SAMENVATTING
INTERNATIONAL CRIMINAL LAW
2023-2024
Cindy Reker
THE EMERGENCE OF INTERNATIONAL CRIMINAL COURTS AND
TRIBUNALS AND INTERNATIONAL CRIMINAL LAW
2
, Week 1
INTERNATIONAL CRIMINAL LAW – OBJECTIVES AND JUSTIFICATIONS OF INTERNATIONAL CRIMINAL LAW – ESTABLISHMENT
INTERNATIONAL CRIME: directly based on international law and not national law or those offences over which
international courts or tribunals have been given jurisdiction under general international law: 1) genocide, 2) crimes
against humanity, 3) war crimes and 4) crime of aggression (crime against peace).
Difference between terrorism/piracy and international crimes:
o the perpetrators of international crimes are acting on behave of the states.
o Terrorism/piracy, states are well equipped to deal with it themselves. However, with the core
international crimes the crimes are mostly committed during conflict or as a part of huge systems.
The state authority is then not the appropriate or equipped enough authority to address these
crimes
INTERNATIONAL CRIMINAL LAW: a body of public international law which imposes responsibilities directly on
individuals and punishes violations through international mechanisms. This encompasses the law concerning
international crimes: genocide, crimes against humanity, war crimes and the crime of aggression, AND the
principles and procedures governing the international investigation and prosecution of these crimes.
Wishes to address the unfairness where as a normal citizen stealing something Is more likely to be
punished than a state official committing genocide.
= a set of rules to protect the values of the international order. It imposes responsibilities directly on individuals
and punishes violations through international mechanisms.
OBJECTIVES OF INTERNATIONAL CRIMINAL LAW
Both national and international criminal law:
Retribution: punishing those who have done wrong
Deterrence: reduces the change that offender or population as a whole will repeat the offender because of
punishment
Incapacitation of the offender (works on national level very well, but at an international level it might not
really serve a purpose because when the conflict is over, these people will go back to their normal lives
Rehabilitation (connected to lower level offenders): idea of reformation of the offender
Additional goals in international criminal law:
Denunciation and education (difficult when tribunals are located far away because there is no ownership of
the tribunal by the local population, so it’s not really working well)
Vindication for the rights of victims (might have worked for some people, but not for all because the direct
perpetrators (low level soldiers that killed your family) are not brought to tribunal: sense of justice being
done and of closure on the crime through seeing prosecution or being able to testify how do you
vindicate hem?! How can you repair their damage?
Recording history: forensic scrutiny of crimes will set down a permanent record of them which will stand the
test of time problematic, there is no way of recording the absolute truth. You are limited by the evidence
and the specific offence description.
Post conflict reconciliation (acknowledgement): moving onwards in peace that justice has been served
The ICC has four main aims:
1) To ensure the worst perpetrators are held accountable for their crimes;
2) To serve as a court of last resort that can investigate, prosecute and punish the perpetrators of genocide,
crimes against humanity and war crimes;
3) Assist national judiciaries in the investigation and prosecution of perpetrators with the aim to allow States
to be the first to investigate and prosecute
4) Help promote peace and security by deterring potential perpetrators
WHY ARE INTERNATIONAL CRIMINAL TRIBUNALS ESTABLISHED
To respond to mass abuses of human rights by States Parties against their own citizens or others within
their territory,
To respond to egregious violations of human rights in the absence of effective alternative mechanisms for
enforcing the most basic human standards.
3
, DIFFERENCE BETWEEN INTERNATIONAL CRIMINAL LAW, INTERNATIONAL HUMANITARIAN LAW AND TRANSNATIONAL
CRIMINAL LAW
TRANSNATIONAL CRIMINAL LAW
Parts of a state’s domestic criminal law which deal with transnational crimes: crimes with actual of potential
transborder effects international aspects of national criminal laws
Includes the rules of national jurisdiction under which a State may enact and enforce its own criminal law,
where there is some cross-jurisdictional aspect of a crime.
Also covers methods of cooperation among states to deal with domestic offences and offenders where
there is a foreign element and the treaties which have been concluded to establish and encourage this
inter-State cooperation multiple nationals have jurisduction
o Vb: international drug trade, money laundering, human trafficking, slavery
While international law is thus the source of a part of this group of rules, the source of criminal prohibitions
on individuals is national law.
o States must prosecute in their own legal system.
INTERNATIONAL HUMANITARIAN LAW
= the body of law designed to protect victims of (non)armed conflict/buildings/citizens. Violations of a large number
of rules of IHL are now criminalized as war crimes and thus IHL serves as a point of reference in understanding and
interpreting the corresponding war crimes provisions
Addresses the states and parties to a conflict.
Controls collateral damage
ICL: individual responsibility vs IHL: state responsibility
THE NUREMBERG AND TOKYO TRIBUNALS WERE QUALIFIED BY SOME AS ‘VICTOR’S JUSTICE’.
JUSTIFIED? IF SO, WOULD YOU REGARD THE EXISTING COURTS/TRIBUNALS AS EXPONENTS OF ‘VICTOR’S JUSTICE’?
VICTOR’S JUSTICE
= toepassing van gerechtigheid op verslagen partij door de zegevierende partij na een gewapend conflict
Contains a number of linked allegations
NUREMBERG INTERNATIONAL MILITARY TRIBUNALS & TOKYO INTERNATIONAL MILITARY TRIBUNALS
= created through London Agreement by four allies. It was established because of the atrocities committed, to
avoid its repetition. A strong factor was that it needed to be recorded for history (fact finding mission).
Nuremberg trials: held by the Allies against representatives of the defeated Nazi Germany for plotting and
carrying out invasions of other countries across Europe and the atrocities against their citizens in WOII.
Tokyo trial: military trial 1946 to try leaders of the empire of Japan for their crimes against peace, conventional
war crimes, and crimes against humanity, leading up to and during second world war.
I. The trials themselves were not fair and the judges were biased against the accused
a. There was a heavy reliance on affidavit evidence and a considerable disparity in resources between
the prosecution and defense. However, given the trial standards at that time, the proceedings were
viewed, basically, as fair. Even so, the presence of neutral judges, or a judge from Germany, would
have increased the legitimacy of the proceedings and fight the argument of biased judges
II. The applicable law designed to guarantee a conviction
a. it is true that the law crimes against humanity and peace was defined by the Allies in London, with
the actions of the Nazis in mind and at least in relation to crimes against peace, the charter was, in
essence, ex post facto legislation crimes were put in law after the act principle of legality is
being violated.
b. It is doubtful, though, that the Nazis truly thought that their actions were not criminal according to
the principles of law recognized by the community of the nations, especially after the Moscow
Declaration of 1943.
III. Similar acts were committed by the prosecuting States but were not prosecuted flplea of tu
quoque
a. It has some purchase, although the Allies had not committed mass crimes of the magnitude of the
Holocaust. The defense was not permitted to raise the issue of crimes committed by the Allies but
cleverly raised the tu quoque issue as one of the law.
i. Also effect on indictment: no charges over the Blitz above UK since allies bombed Germany
as well.
ii. Criticism apart from victor’s justice: US saw trial more as one of aggression and not so
much as holocaust. Tribunal is now primarily remembered as being a trial of atrocities
rather than of aggression
4
Week 1
Important to realize how the ICL has evolved and what we’ve learned
Bearing in mind that what the aims/objectives are is what every tutorial has come into play.
Week 2
need to know jurisdiction and admissibility (look at the last presentation)
jurisdiction is triggered and then if the Court is admissible and the Court can proceed. See Flotilla case: the
prosecution has to take into account the gravity and if it doesn’t go to that gravity it will end. Also interest of
justice. It is possible that a state tries to deal with a case themselves, but that wouldn’t be enough.
How is jurisdiction triggered and what does the prosecutor do after that
Most important case law is the two step test. You don’t have to mention the case law, but you have to know
the two step test
Have a look at the slides of the lecture of Alice
Difference in situation and a case
Afghanistan case: difference in powerplay between prosecutor and pre-trial chamber
Week 3
Self evident: know the material/core crimes of the ICC
Learn the EoC and have clear that contextual elements of all crimes are slightly different. So than you can
identify the crimes
Week 4
Same as week 3
Week 5
Most pivotal: combines week 3 and 4.
For direct perpetration and indirect perpetration
The mode of liability most likely to encounter is co perpetration, cooperation and aiding. They will need
elements that are not in the EoC, but are in the Case Law!!! Learn these elements to hold someone individual
liable!
The ICC deals with crimes that have been committed with intent, UNLESS otherwise provided. The intent
always goes to the conduct and consequence. The knowledge goes to the circumstances.
Indirect intent is a clear form of intent. Not dolus inventualis, but the way you go about it, without a doubt,
someone will die, unless a deus ex machina happens.
Command responsibility does not require intent, but grave negligence
Week 6
Admissibility of evidence
Need to know the court addressed that they can allow all evidence (needs to be relevant) the evidence that
can be used needs to have been submitted and discussed.
What if the evidence has been tainted (because of torture or something(? See case law (al hassan case), the
Court did not exclude the evidence, although he had been tortured. So the threshold is very high. The Court
doesn’t want people to get off because of a technicality
Roles of the victims
o How can you do with vicitims and what can they do
o Art. 68??? Something
o After that go the the Rules of Procedure and evidence to see what victims can do and in what stage
o In practicality the victims cannot really do that much.
Week 7
1
, SAMENVATTING
INTERNATIONAL CRIMINAL LAW
2023-2024
Cindy Reker
THE EMERGENCE OF INTERNATIONAL CRIMINAL COURTS AND
TRIBUNALS AND INTERNATIONAL CRIMINAL LAW
2
, Week 1
INTERNATIONAL CRIMINAL LAW – OBJECTIVES AND JUSTIFICATIONS OF INTERNATIONAL CRIMINAL LAW – ESTABLISHMENT
INTERNATIONAL CRIME: directly based on international law and not national law or those offences over which
international courts or tribunals have been given jurisdiction under general international law: 1) genocide, 2) crimes
against humanity, 3) war crimes and 4) crime of aggression (crime against peace).
Difference between terrorism/piracy and international crimes:
o the perpetrators of international crimes are acting on behave of the states.
o Terrorism/piracy, states are well equipped to deal with it themselves. However, with the core
international crimes the crimes are mostly committed during conflict or as a part of huge systems.
The state authority is then not the appropriate or equipped enough authority to address these
crimes
INTERNATIONAL CRIMINAL LAW: a body of public international law which imposes responsibilities directly on
individuals and punishes violations through international mechanisms. This encompasses the law concerning
international crimes: genocide, crimes against humanity, war crimes and the crime of aggression, AND the
principles and procedures governing the international investigation and prosecution of these crimes.
Wishes to address the unfairness where as a normal citizen stealing something Is more likely to be
punished than a state official committing genocide.
= a set of rules to protect the values of the international order. It imposes responsibilities directly on individuals
and punishes violations through international mechanisms.
OBJECTIVES OF INTERNATIONAL CRIMINAL LAW
Both national and international criminal law:
Retribution: punishing those who have done wrong
Deterrence: reduces the change that offender or population as a whole will repeat the offender because of
punishment
Incapacitation of the offender (works on national level very well, but at an international level it might not
really serve a purpose because when the conflict is over, these people will go back to their normal lives
Rehabilitation (connected to lower level offenders): idea of reformation of the offender
Additional goals in international criminal law:
Denunciation and education (difficult when tribunals are located far away because there is no ownership of
the tribunal by the local population, so it’s not really working well)
Vindication for the rights of victims (might have worked for some people, but not for all because the direct
perpetrators (low level soldiers that killed your family) are not brought to tribunal: sense of justice being
done and of closure on the crime through seeing prosecution or being able to testify how do you
vindicate hem?! How can you repair their damage?
Recording history: forensic scrutiny of crimes will set down a permanent record of them which will stand the
test of time problematic, there is no way of recording the absolute truth. You are limited by the evidence
and the specific offence description.
Post conflict reconciliation (acknowledgement): moving onwards in peace that justice has been served
The ICC has four main aims:
1) To ensure the worst perpetrators are held accountable for their crimes;
2) To serve as a court of last resort that can investigate, prosecute and punish the perpetrators of genocide,
crimes against humanity and war crimes;
3) Assist national judiciaries in the investigation and prosecution of perpetrators with the aim to allow States
to be the first to investigate and prosecute
4) Help promote peace and security by deterring potential perpetrators
WHY ARE INTERNATIONAL CRIMINAL TRIBUNALS ESTABLISHED
To respond to mass abuses of human rights by States Parties against their own citizens or others within
their territory,
To respond to egregious violations of human rights in the absence of effective alternative mechanisms for
enforcing the most basic human standards.
3
, DIFFERENCE BETWEEN INTERNATIONAL CRIMINAL LAW, INTERNATIONAL HUMANITARIAN LAW AND TRANSNATIONAL
CRIMINAL LAW
TRANSNATIONAL CRIMINAL LAW
Parts of a state’s domestic criminal law which deal with transnational crimes: crimes with actual of potential
transborder effects international aspects of national criminal laws
Includes the rules of national jurisdiction under which a State may enact and enforce its own criminal law,
where there is some cross-jurisdictional aspect of a crime.
Also covers methods of cooperation among states to deal with domestic offences and offenders where
there is a foreign element and the treaties which have been concluded to establish and encourage this
inter-State cooperation multiple nationals have jurisduction
o Vb: international drug trade, money laundering, human trafficking, slavery
While international law is thus the source of a part of this group of rules, the source of criminal prohibitions
on individuals is national law.
o States must prosecute in their own legal system.
INTERNATIONAL HUMANITARIAN LAW
= the body of law designed to protect victims of (non)armed conflict/buildings/citizens. Violations of a large number
of rules of IHL are now criminalized as war crimes and thus IHL serves as a point of reference in understanding and
interpreting the corresponding war crimes provisions
Addresses the states and parties to a conflict.
Controls collateral damage
ICL: individual responsibility vs IHL: state responsibility
THE NUREMBERG AND TOKYO TRIBUNALS WERE QUALIFIED BY SOME AS ‘VICTOR’S JUSTICE’.
JUSTIFIED? IF SO, WOULD YOU REGARD THE EXISTING COURTS/TRIBUNALS AS EXPONENTS OF ‘VICTOR’S JUSTICE’?
VICTOR’S JUSTICE
= toepassing van gerechtigheid op verslagen partij door de zegevierende partij na een gewapend conflict
Contains a number of linked allegations
NUREMBERG INTERNATIONAL MILITARY TRIBUNALS & TOKYO INTERNATIONAL MILITARY TRIBUNALS
= created through London Agreement by four allies. It was established because of the atrocities committed, to
avoid its repetition. A strong factor was that it needed to be recorded for history (fact finding mission).
Nuremberg trials: held by the Allies against representatives of the defeated Nazi Germany for plotting and
carrying out invasions of other countries across Europe and the atrocities against their citizens in WOII.
Tokyo trial: military trial 1946 to try leaders of the empire of Japan for their crimes against peace, conventional
war crimes, and crimes against humanity, leading up to and during second world war.
I. The trials themselves were not fair and the judges were biased against the accused
a. There was a heavy reliance on affidavit evidence and a considerable disparity in resources between
the prosecution and defense. However, given the trial standards at that time, the proceedings were
viewed, basically, as fair. Even so, the presence of neutral judges, or a judge from Germany, would
have increased the legitimacy of the proceedings and fight the argument of biased judges
II. The applicable law designed to guarantee a conviction
a. it is true that the law crimes against humanity and peace was defined by the Allies in London, with
the actions of the Nazis in mind and at least in relation to crimes against peace, the charter was, in
essence, ex post facto legislation crimes were put in law after the act principle of legality is
being violated.
b. It is doubtful, though, that the Nazis truly thought that their actions were not criminal according to
the principles of law recognized by the community of the nations, especially after the Moscow
Declaration of 1943.
III. Similar acts were committed by the prosecuting States but were not prosecuted flplea of tu
quoque
a. It has some purchase, although the Allies had not committed mass crimes of the magnitude of the
Holocaust. The defense was not permitted to raise the issue of crimes committed by the Allies but
cleverly raised the tu quoque issue as one of the law.
i. Also effect on indictment: no charges over the Blitz above UK since allies bombed Germany
as well.
ii. Criticism apart from victor’s justice: US saw trial more as one of aggression and not so
much as holocaust. Tribunal is now primarily remembered as being a trial of atrocities
rather than of aggression
4
