CRM219 International and Transnational Crime

what is public law?

public law regulates the structure of government and the relationship between individuals and the state

what are the four main branches of public law?

criminal law, constitutional law, administrative law, public international law

what is private law?

private law governs mutual relationships between individuals or entities, with the state’s role being more indirect

what are the main branches of private law?

property law, contract law, tort law, commercial law, family law, private international law

what does criminal law address?

conduct considered harmful to society, punishable by state-imposed penalties

who bears the burden of proof in criminal law?

the prosecution, who must prove the case beyond reasonable doubt

what does vicil law regulate?

relationships between individuals, defining rights and liabilities

who are the parties in a civil case?

claimant/plaintiss vs respondent/defendant

what are the main outcomes of a civil law case?

remedies such as damages or court orders, not punishment

can one act give rise to both civil and criminal proceedings?

yes - there can be some overlap

what are examples of subject-based law categories?

constitutional law, employment law, discrimination law

what is substantive law vs procedural law?

substantive law defines prohibited acts and elements, procedural law defines how legal processes operate

what are the two main sources of law?

parliament (statutory/legislation) and courts (common law/case law)

what is delegated legislation?

laws made by non-parliamentary bodies under authority from an act (e.g. regulations, ordinances)

what is common law as a legal system?

a tradition based on judicial decisions, precedent, and shared rules

what is common law as a source of law?

judge-made law created through rulings; operates longside statutes and delegated legislation

what is the difference between common law and equity?

equity developed to provide remedies where common law was too rigid; both systems merged by distinctions remain in some areas

what is national law?

governs relationships within a single state, enforced by domestic courts

what is international law?

governs rights and responsibilities between states; increasingly applies to individuals and corporations

why is international law limited compared to national law?

• no central legislature (UN resolutions are non-binding)

• no central executive (UN forces limited, UNSC power limited to P5 authorisation)

• no compulsory judiciary (ICJ requires state consent)

what is private international law?

also known as conflict of laws; governs cross-border disputes between private individuals/entities

what issues does private international law address?

which law applies, which court has jurisdiction, and recognition/enforcement of foreign judgements

give an example of private international law in action

divorce between spouses from different countries, or contract disputes across jurisdictions

what does ICL regulate?

prohibitions addressed to individuals, violations of which carry penal sanctions

when did the ICC come into force?

rome statute adopted in 1998; ICC formally established 2002-2007

what was the first international tribunal for war crimes?

Nuremberg and Tokyo Tribunals (1945-1947)

what courts followed before the ICC?

ICTY (1993) and ICTR (1994), created by the UN security council

what is the principle of mutual subsidiarity in ICL?

ICL acts when states fail to prosecute, but domestic prosecution is encouraged as the primary forum

what are the primary sources of ICL?

treaties/conventions (rome statute, geneva conventions), customary international law, general principles of law

what are subsidiary sources of ICL?

judicial decisions and scholarly writings

who can be perpetrators of international crimes?

state officials, servicemen, political leaders, or private individuals

what is teh contextual linkage requirement?

crimes must be connected to armed conflict (international or non-international) or tied to political/ideological/state or organised group conduct

why are international crimes often tied to state or systemic policy?

because acts committed by individuals are frequently linked to organised violence or systemic criminality

what is meant by the “double-layered” mental element?

international crimes require both mental state for the act (e.g. intent to kill) and awareness of the broader contact (e.g. systemic attack against civilians)

what distinguishes international crimes from domestic crimes?

their layered structure, requiring awareness of systemic or widespread contexts beyond the individual act

what are domestic crimes?

crimes within a single state, usually motivated by personal reasons like greed or revenge

what are transnational crimes?

private-goal crimes that cross borders in execution or impact

what are international crimes?

offences harming the international community as a whole (e.g. genocide, war crimes, crimes against humanity, aggression)

what are the two fundamental elements of all crimes?

actus reus (objective/act) and mens rea (subjective/mental state)

what are the three components of the objective elements?

conduct (act/omission), consequences (resulting harm), circumstances (contextual conditions, e.g. commander ordering transfer of civilians)

what are hte main categories of mens rea in domestic law?

intention, recklessness, negligence

define intention

acting with knowledge and desire that conduct will bring about a particular result

define recklessness

acting despite awareness of an unjustifiable risk

define negligence

failing to exercise reasonable care, either through inattention or belief harm would not occur

what is dolus directus?

direct intent - knowing conduct will cause a result and desiring that result

what is dolus specialis?

special intent - beyond general intent, requiring a specific purpose (e.g. intent to destroy a group in genocide)

what is dolus eventualis?

recklessness - foreseeing a possible harmful result, accepting the risk, and proceeding anyway

how does “knowledge” operate in ICL?

awareness that actions will almost certainly cause harm; may overlap with recklessness

how is negligence defined in ICL?

failing to meet standards of care; can be simple (unaware) of gross (aware/should have been aware of the risk)

what is the doctrine of substantive justice?

behaviour deemed socially harmful should be punished, even without prior codification (e.g. Nazi/Soviet models)

what is the doctrine of strict legality?

no punishment without prior law; offences must be written, precide, non-retroactive, and not based on analogy

which doctrine do civil law systems follow?

strict legality (favouring the accused)

which doctrine has common law systems leaned toward?

substantive justice, with less rigidity around retroactivity

how has ICL historically approached legality?

relied on substantive justice due to lack of codified norms, but shifting toward strict legality

what legality challenges arose at Nuremberg?

defence argued crimes against peace were not codified prior to WWII, thus prosecution violated legality

how did the tribunal justify prosecutions?

by applying substantive justice - arguing accused knew actions were morally/legally wrong and that the tribunal expressed existing international law

why is specificity important in criminal law?

prevents arbitrary interpretation, ensure fairness, protects accused, and ensures predictability

what are the challenges of specificity in ICL?

vague definitions of crimes/defences (e.g. “inhuman treatment”, “other inhumane acts") leading to reliance on judicial discretion

is retroactivity allowed in ICL?

no, individuals cannot be punished for acts not criminal at the time committed

how do courts adapt to evolving norms without violating legality?

by interpreting existing offences in light of social change, not creating new offences

what is the rule on analogy in ICL?

criminal liability cannot be extended through analogy

what are exceptions?

1. using general legal principles

2. ejusdem generis (including similar acts in defined categories)

3. logical extensions aligned with established principles (e.g. new indiscriminate weapons treated like banned ones)

what does favouring the accused mean in ICL?

where multiple interpretations exist, courts must adopt the one that benefits the accused

give an example of favouring the accused in ICL?

interpreting extermination under customary law (large-scale killings) rather than ICC statute (smaller group destruction)

what does legality of penalties require?

consistent penalties, forseeability of consequences, awareness of punishments

why is penalty legality difficulty in ICL?

no universal standard, penalties vary across jurisdictions

what are statutory penalty limits in ICTY and ICC?

• ICTY - imprisonment only

• ICC - may 30 years, or life for extreme gravity

why were early attempts (1919-1945) to prosecute international crimes largely unsuccessful?

because of the prevailing emphasis on state sovereignty, which limited accountability

what challenge pushed for international criminal tribunals instead of relying on domestic prosecutions?

the difficulty and limitations of prosecuting international crimes through domestic law enforcement

what atrocities led to the Nuremberg Tribunal?

the Holocaust and Japanese war crimes Southeast Africa

what was Churchill’s proposal for Nazi leaders?

execute top officials; prosecute only minor offenders through trials

who opposed Churchill and advocated for trials?

Roosevelt, the US defence secretary, and Stalin

what tribunal was established as a result?

the international military tribunal (IMT) for senior leaders, and Lesser Allied tribunals for lower-level perpetrators

give 3 US justifications for the Nuremberg Tribunal

ensure fair trials, exposure atrocities publicly, educate future generations, avoid biased national courts, validate/document crimes

what rights were granted to defendants at Nuremberg?

right to counsel, present evidence, testify, and cross-examine witnesses

what were 2 limitations of Nuremberg proceedings?

trials in absentia allowed; no appeals permitted

what was the tokyo tribunal also known as?

the international military tribunal for the far east (IMTFE)

why were the Nuremberg and Tokyo Tribunals significant?

first multinational prosecution of international crimes; created new legal categories like crimes against humanity and crimes against peace

whose accountability extended beyond ordinary soldiers?

military leaders, politicians, and civilians

what defence was rejected at these tribunals?

the “superior orders” defence

name three criticisms of the international military tribunals

judicial impartiality questioned, defendants couldn’t challenge jurisdiction, retroactive law (nullum crimen sine lege), victors’ justice, procedural weaknesses

why was ICTY created?

to address war crimes/genocide during the Yugoslav civil war (1990s, ~100,000 deaths)

when was ICTY established?

1993, by the UN security council

what crimes did ICTY prosecute?

genocide, grace breaches of Geneva Conventions, war law violations, crimes against humanity

give one stated purpose of ICTY

to deter future atrocities, promote accountability, and save international credibility

what were 2 objections to ICTY?

seen as substitute for failed intervention; UNSC overreached authority; selective justice accusations

why was ICTY established?

response to Rwandan genocide; calls for consistent global standards; new government sought legitimacy

what were common criticisms of ICTR and ICTY?

excessive cost, slow trials, distant from victims, focus on low-level offenders

why were hybrid courts introduced?

to mix local & international judges, improve efficiency, relevance, and legitimacy

give two justifications for hybrid courts

collapse of domestic courts, emergency peacebuilding, political/financial limits of international courts, focus on reconcilliation

name two examples of hybrid courts

sierra leone, cambodia, east timor, lebanon, bosnia’s war crimes chamber

what problems affect hybrid courts?

funding instability, security threats, cultural'/legal divides between actors

when was the rome statute adopted and when did ICC enter into force?

adopted 1998, in force 2002

where is the ICC located?

the Hague

what crimes fall under ICC jurisdiction?

genocide, crimes against humanity, war crimes

who can initiate ICC cases?

member states, UN security council, or the prosecutor

list 3 advantages of international criminal courts

impartiality, expert judges, uniform law, visibility/accountability, uphold human rights

list three limitations of international criminal courts

weak enforcement, inconsistent rulings, lengthy adversarial trials, selective prosecutions, immunity for victors

what is the principle fo terrirorality?

states prosecute crimes committed within their borders

list 2 advantages of territorality

easier evidence gathering, fairer trials in local language/culture, victims supported, judicial accountability, reinforces sovereignty