International Criminal Law Study Guide

International Criminal Law

Rules on the personal accountability of individuals for conducts amounting to "international crimes"

Key principles of International Criminal Law

Individual criminal responsibility (not just "following orders" defense) (not state responsibility but same conduct can be IWA state responsibility

Non-retroactivity

Nullum crimen sine lege

no crime without law

Nulla poena sine lege

No punishment without law

New Methods of ICL

Until 1990s- left to national courts

Except post-WWII (International MIlitary Tribunals IMTs)

Since 1990s- new int'l accountability mechanisms

*Ad hoc tribunals (ICTY, ICTR)

*Hybrid courts

* ICC

Transnational crimes

Not ICL's focus (e.g. trafficking, piracy, organized crime, money laundering, counterfeiting, etc.)

Non-political (greed)

Committed by private individuals/groups across borders

No int'l courts/tribunals

International crimes

E.g. war crimes, crimes against humanity, genocide, crime of agression (+ torture, terrorism?)

Political in nature: grave violations of IHRL and IHL

* Need not cross any borders

Can be committed by public officials or others

IMTs- 3 innovations helped develop ICL

1. International tribunal

2. Individual responsibility under IL- paradigm shift (What logic?)

3. 3 counts, incl. 2 new categories of crimes

3 counts and categories

1. War crimes

2. Crimes against peace (Planning and waging aggressive war- controversial when applied to individuals, Violation of 1928 Pact of Paris (Kellogg-Briand)

3. Crimes against humanity (CAH) (Even if acts are lehal under domestic law, controversial)

International Criminal Tribunal for the former Yugoslavia (ICTY)

Established by the UNSC (Ch. VII resolutions)

The Hague (1993-2017)

161 indictments

o Incl. 1st head of state (Milošević)

o 1990s ad hoc tribunal

International Criminal Tribunal for Rwanda (ICTR)

A tribunal that has investigated allegations of war crimes and genocide resulting from the breakdown of order in Rwanda during the 1990s. The indictments against suspected war criminals detail what can only be described as genocide on a massive scale.

o Arusha, Tanzania (1994-2015)

o 96 indictments

o 2 still at large

Tadić case (ICTY)

All war crimes apply to internal conflict (CIL)

CAH can be committed outside armed conflict

Nahimana/Barayagwiza case (ICTR)

Hate media and incitement to genocide

Radio as tool of genocide

Akayesu case (ICTR)

Genocidal rape

stare decisis

precedent

Internationalized domestic courts

Hybrid (or "mixed" criminal tribunals)

Apply both domestic law and IL/ICL

May include both domestic and int'l judges

(vs. ICTY/ICTR: only IL and int'l judges)

Not linked to ICC

Often set up by UNSC

Lots of variation

International Criminal Court

Created by 1998 Rome Statute of the ICC (EIF: 2002)

Legally independent from UN (not equal to ICJ)

o But UNSC can refer cases to it

Structure of ICC

18 judges, 9-year terms

3 chambers

o Pre-Trial- preliminary investigation

o Trial

o Appeals

Members of ICC

125* ICC members

o No US, Russia, China, India

o Ukraine joined in 2025

o Reservation: no ICC jurisdiction over war crimes for 7 years

o *6 pending withdrawals

ICC Jurisdiction criteria

Core crimes only (War crimes, CAH, genocide, agression)

Where/who?

1. Nationality: If accused is a national of state party

2. Territory: If crime took place on a state's party territory

3. UNSC: If it refers a situation to ICC (Universal jurisdiction

4. Voluntary: If a non-state party accepts ICC jurisdiction (Ukraine before 2025)

Prospective cases only (No investigations of crimes committed before ICC's EIF

* no crime without law

ICC Admissibility: criteria

1. Complementary- court of last resort

o Only when nat'l courts unable/unwilling to investigate, prosecute

o Not IMTs, ICTY, ICTR

2. Sufficient gravity (to justify ICC action)

o In terms of scale, nature, impact

ICC core crimes

"limited to the most serious crimes of concern to the int'l community as a whole"--- "core crimes"

a) War crimes

b) Crimes against humanity

c) The crime of genocide

d) Crime of agression

Other crimes (e.g. terrorism, torture-- not "core crimes"- not (yet?) covered by ICC

o But may be crimes under CIL, other treaties

War crimes

War crimes: grave, large-scale violations of IHL (e.g. "Graves Breaches of the Geneva Conventions")

During armed conflict only (IAC or NIAC)

o So determining exsistence of such AC is key

o Otherwise no "war crimes"

o Committed as part of a plan or policy

o Not just random acts of violence during AC

o Not "ordinary" crime under domestic law (nexus w/AC)

Crimes Against humanity

CAH: particularly odious offenses constituting a seriou attack on human dignity or grave humiliation or a degradation of one or more human beings

o Committed as part of a widespread or systematic attack against a civilian population

o No "ordinary" crime: not just "murder" under national law

o Not neccesarily linked to armed conflict

o Rome Statute: 1st treaty-based definition of CAH

o Not war crimes or genocide

Mens rea

To establish intent, mental element

"With knowledge of the attack"

Acta reus

Not just which illegal acts

Material element

Crime of Aggression

The planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

The perpetrator of the act of agression is a person who is in a position effectively to excersise control over or to direct the political or military action of a State

Examples: Invasion, military occupation, forced annexation, bombardment, military blockades

Crime of Agression: in Rome Statute (Art. 8 bis), but initially left undefined

2010 Kampala Review Conference: amended Rome Statute

o Adoption of definition (Art. 8bis)+ conditions of excersise of ICC jurisdiction (Art. 15bis/ter)

o Amendments EIF in 2017: ICC now has jurisdiction over such crimes

o 49 states (so far) have ratified the amendments

ICC Currently investigated "situations"

1. Congo (DRC) (2004)

2. Darfur, Sudan (2005)

3. Libya (2011)

4. Côte d'lvorie (2011)

5. Mali (2013)

6. Burundi (2017)

7. Bangladesh/Myanmar (2019)

8. Afghanistan (2020)

9. State of Palestine (2021)

10. Phillipines (2021)

11. Venezuela (2021)

12. Ukraine (2022)

13. Lithuania/Belarus (2026)

ICC Cases

From "situations" the Chief Prosecutor decides which specific "cases" to investigate and if warranted, prosecute (incl. arrest warrants)

76 indictments so far (in 34 seperate cases)

o 15 convictions

o 4 acquitted

o 34 still at large/fugitives

o Incl. Putin, Netanyahu