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International Criminal Law

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Title: International Criminal Law


1
International Criminal Law
  • Minna Kimpimäki
  • University of Lapland
  • 2008

2
Timetable
  • Tue 9.9. at 10-12, lr 6
  • Wed 10.9. at 10-12, lr 6
  • Thu 11.9. at 10-12, lr 6
  • Fri 12.9. at 10-12, lr 6
  • Lecture test I, Mon 15.9 at 10-12, lr 10
  • Lecture test II, Mon 22.9. at 10-12, lr 6
  • Essays deadline Fri 10.10.2008

3
Courses
  • OLAW0302 INTERNATIONAL CRIMINAL LAW
  • Lectures lecture test essay compensate the
    litterature of the course
  • OAIT1014 KANSAINVÄLINEN RIKOSOIKEUS
  • Luennot luentokuulustelu essee korvaavat
    opintojakson kirjallisuuden
  • OAIO1001 RIKOSOIKEUS
  • Luennot luentokuulustelu kelpaa pakolliseksi
    luentosarjaksi (0,5 op. keskeneräisiin
    opintoihin)
  • OSYO0102 RIKOSOIKEUDEN PROJEKTIOPETUS
  • Luennot luentokuulustelu/luentopäiväkirja ovat
    osa projektiohjelmaa

4
Instructions for the essays
  • Max. 10 pages
  • May be written in English or in Finnish
  • Student may decide the theme - must be connected
    to international criminal law
  • May be done alone or in groups of 2-3 students
  • All sources used (including Internet sources)
    must be mentioned in a list of sources AND at the
    text (footnotes/brackets) !!!
  • Use different kind of sources books, articles
    etc. - NOT only Internet sources!
  • DO NOT copy directly from the Internet!
  • DEADLINE Fri 10.10.2008

5
Basic Concepts
6
International law / International Criminal Law
  • Traditionally international law and criminal law
    have been regarded as separate areas of law
  • Criminal law in the competence of sovereign
    states
  • Compare INTERNATIONAL CRIMINAL LAW
  • As an area of law is located in between
    international law, criminal law and criminal
    procedure

7
International criminal law a special area of
law or a part of other areas of law?
PROCEDURAL LAW
CRIMINAL LAW
INTERNATIONAL CRIMINAL (AND PROCEDURAL) LAW
INTERNATIONAL LAW
8
Contents of the International criminal law
  • Crimes / Substantive intl criminal law
  • Crimes (f.ex. war crimes, genocide, terrorist
    acts)
  • General principles (f.ex. immunity,
    retroactivity, statutes of limitations)
  • Enforcement / Adjective intl criminal law
  • Jurisdiction of states
  • International tribunals
  • International co-operation between states (f.ex.
    extradition)

9
Enforcement of international criminal law
  • Mechanisms of direct enforcement
  • International tribunals enforcement directly at
    the international level
  • Mechanisms of indirect enforcement
  • National courts enforcement at the national
    level
  • Prosecution
  • Extradition

10
Aim Limits of international criminal law
  • Aim
  • To secure prosecution for serious crimes
  • No escape from the punishment
  • Protection for human rights
  • Limits
  • Sovereignty of the states
  • Connection between the crime and the prosecuting
    state is demanded
  • Human rights, principle of legality

11
International Crimes
12
International crimes
  • International or transnational character
  • committed on the area of several states / common
    threat to several states
  • Serious nature
  • threat to the peace and stability in general even
    if committed on the area of one state
  • International measures
  • conventions / international tribunals /
    extraterritorial jurisdiction

13
Two groups of international crimesA. Core crimes
  • Core crimes, international crimes in the narrow
    sense, crimes under general international law
  • Basis in the customary law individual
    responsibility directly on the basis of
    international law
  • Created after WW II
  • War crimes, crimes against humanity, genocide
  • International tribunals

14
B. Treaty crimes
  • Treaty crimes / common international crimes /
    international crimes in the broad sense
  • Basis in international treaties, criminalizations
    in national criminal codes of the states
  • Enforcement in states extradition/prosecution
  • First international treaties at the late 19th and
    early 20th century (slave trade, piracy,
    narcotics)
  • Several treaties since 70ies, still expanding

15
Typical features of international treaties
  • Definitions of crimes
  • Obligations to make punishable
  • Statements concerning punishments
  • Jurisdictional obligations
  • Obligations to prosecute/extradite
  • Regulations concerning co-operation in criminal
    matters and extradition

16
  • In treaties creating international crimes
  • Rules concerning definitions, jurisdiction,
    co-operation
  • Obligation to create criminal legislation on
    national level
  • Each State Party shall make the crimes set out
    in paragraph 1 punishable
  • Often obligation to extradite or to prosecute
    (Aut dedere aut iudicare)
  • The State Party in whose territory the alleged
    offender is present shall, if it does not
    extradite that person, submit, without exception
    whatsoever and without undue delay, the case to
    its competent authorities for the purpose of
    prosecution, through proceedings in accordance
    with the law of that State
  • Some demands for the punishment (often very
    general in nature)
  • by appropriate penalties which shall take into
    account their grave nature

17
The role of intl organizations
  • Most treaties are created in the context of
    international organizations
  • United Nations
  • Council of Europe
  • European Union
  • Red Cross
  • International Civil Aviation Organization
  • International Maritime Organization

18
European union and international criminal law
  • Originally criminal law was not a task of the EU
  • Nowadays EU regulation has important effects on
    national legislation
  • Protection of the economic interests of EU
  • Council framework decisions
  • F.ex. Council framework decision on combatting
    terrorism, 13.6.2002 (2002/475/YOS)
  • Binding for members states vs. no direct power to
    enact criminal law minimum rules for crime
    definitions and punishments

19
I Crimes committed during armed conflict other
serious violations of human rights
  • Core crimes that are in the jurisdiction of
    international criminal tribunals
  • Other serious violations of human rights

20
A. Offences that are in the jurisdiction of the
criminal tribunals (esp. ICC)
  • War crimes
  • Crimes against humanity
  • Genocide
  • ---
  • (The crime of aggression)

21
  • War crimes, law of Geneva humanitarian
    restrictions of warfare
  • Geneva conventions 1949
  • I wounded and sick in armed forces in the field
  • II wounded, sick and shipwreked members of armed
    forces at sea
  • III prisoners of war
  • IV civilian persons in time of war
  • Grave breaches obligation to extradite or to
    punish
  • Definition of war crimes in the statutes of
    international criminal tribunals
  • Cases in the international criminal tribunals
    in the national courts

22
  • War crimes, law of Hague restrictions of the
    weapons and of the methods of warfare
  • ICC statute art. 8(2)
  • Protection of cultural property in the event of
    armed conflict
  • Prohibition of the recruitment, use, financing
    and training of mercenaries
  • Prohibition of chemical weapons
  • Prohibition of biological weapons
  • Prohibition of anti-personnel mines

23
ICC, article 8 War Crimes 1. The Court shall
have jurisdiction in respect of war crimes in
particular when committed as part of a plan or
policy or as a part of a large-scale commission
of such crimes 2. For the purpose of this
Statute, war crimes means
art. 8 continues ?
24
  • Grave breaches of the Geneva Conventions of 12
    August 1949, namely, any of the following acts
    against persons or property protected under the
    provisions of the relevant Geneva Convention
  • Wilful killing
  • Torture or inhuman treatment, including
    biological experiments
  • Wilfully causing great suffering, or serious
    injury to the body or health
  • Extensive destruction and appropriation of
    property, not justified by military necessity and
    carried out unlawfully and wantonly
  • Compelling a prisoner of war or other protected
    person to serve in the forces of a hostile Power
  • Wilfully depriving a prisoner of war or other
    protected person of the rights of fair and
    regular trial
  • Unlawful deportation or transfer or unlawful
    confinement
  • Taking of hostages.

art 8 continues ?
25
  • Other serious violations of the laws and customs
    applicable in armed conflict, within the
    established framework of international law,
    namely, any of the following acts
  • Intentionally directing attacks against the
    civilian population as such or against individual
    civilians not taking part in hostilities
  • Intentionally directing attacks against civilian
    objects which are not military objectives
  • Intentionally directing attacks against
    personnel, installations, material, units or
    vehicles involved in a humanitarian assistance or
    peacekeeping mission in accordance with the
    Charter of the United Nations, as long as they
    are entitled to the protection given to civilians
    or civilian objects under the international law
    of armed conflict

art 8 continues ?
26
  • intentionally launching an attack in the
    knowledge that such attack will cause incidental
    loss of life or injury to civilians or damage to
    civilian objects or widespread, long-term and
    severe damage to the natural environment which
    would be clearly excessive in relation to the
    concrete and direct overall military advantage
    anticipated
  • Attacking or bombarding, by whatever means,
    towns, villages, dwellings or buildings which are
    undefended and which are not military objectives
  • Killing or wounding a combatant who, having laid
    down his arms or having no longer means of
    defence, has surrendered at discretion
  • Making improper use of a flag of truce, of the
    flag or of the military insignia and uniform of
    the enemy or of the United Nations, as well as of
    the distinctive emblems of the Geneva
    Conventions, resulting in death or serious
    personal injury

art. 8 continues ?
27
  • The transfer, directly or indirectly, by the
    Occupying Power of parts of its own civilian
    population into the territory it occupies, or the
    deportation or transfer of all or parts of the
    population of the occupied territory within or
    outside this territory
  • Intentionally directing attacks against buildings
    dedicated to religion, education, art, science or
    charitable purposes, historic monuments,
    hospitals and places where the sick and wounded
    are collected, provided they are not military
    objectives
  • Subjecting persons who are in the power of an
    adverse party to physical mutilation or to
    medical or scientific experiments of any kind
    which are neither justified by the medical,
    dental or hospital treatment of the person
    concerned nor carried out in his or her interest,
    and which cause to or seriously endanger the
    health of such person or persons
  • Killing or wounding treacherously individuals
    belonging to the hostile nation or army

art. 8 continues ?
28
  • Declaring that no quarter will be given
  • Destroying or seizing the enemys property unless
    such destruction or seizure be imperatively
    demanded by the necessities of war
  • Declaring abolished, suspended or inadmissible in
    a court of law the rights and actions of the
    nationals of the hostile party
  • Compelling the nationals of the hostile party to
    take part in the operations of war directed
    against their own country, even if they were in
    the belligerents service before the commencement
    of the war
  • Pillaging a town or place, even when taken by
    assault
  • Employing poison or poisoned weapons
  • Employing asphyxiating, poisonous or other gases,
    and all analogous liquids, materials or devices
  • Employing bullets which expand or flatten easily
    in the human body, such as bullets with a hard
    envelope which does not entirely cover the core
    or is pierced with incisions

art. 8 continues ?
29
  • Employing weapons, projectiles and material and
    methods of warfare which are of a nature to cause
    superfluous injury or unnecessary suffering or
    which are inherently indiscriminate in violation
    of the international law of armed conflict,
    provided that such weapons, projectiles and
    material and methods of warfare are the subject
    of a comprehensive prohibition and are included
    in an annex to this Statute, by an amendment in
    accordance with the relevant provisions set forth
    in articles 121 and 123
  • Committing outrages upon personal dignity, in
    particular humiliating and degrading treatment
  • Committing rape, sexual slavery, enforced
    prostitution forced pregnancy, as defined in
    article 7, paragraph 2 (f), enforced
    sterilization, or any other form of sexual
    violence also constituting a grave breach of the
    Geneva Conventions

art. 8 continues ?
30
  • Utilizing the presence of a civilian or other
    protected person to render certain points, areas
    or military forces immune from military
    operations
  • Intentionally directing attacks against
    buildings, material, medical units and transport,
    and personnel using the distinctive emblems or
    the Geneva Conventions in conformity with
    international law
  • Intentionally using starvation of civilians as a
    method of warfare by depriving them of objects
    indispensable to their survival, including
    wilfully impeding relief supplies as provided for
    under the Geneva conventions
  • Conscripting or enlisting children under the age
    of fifteen years into the national armed forces
    or using them to participate actively in
    hostilities.

art. 8 continues ?
31
  • In the case of an armed conflict not of an
    international
  • character, serious violations of article 3
    common to the four Geneva Conventions of 12
    August 1949, namely, any of the following acts
    committed against persons taking no active part
    in the hostilities, including members of armed
    forces who have laid down their arms and those
    placed hors de combat by sickness, wounds,
    detention or any other cause
  • Violence to life and person, in particular murder
    of all kinds, mutilation, cruel treatment and
    torture
  • Committing outrages upon personal dignity, in
    particular humiliating and degrading treatment
  • Taking of hostages
  • The passing of sentences and the carrying out of
    executions without previous judgement pronounced
    by a regulatory constituted court, affording all
    judicial quarantees which are generally
    recognized as indispensable.

art. 8 continues ?
32
  • Paragraph 2 (c) applies to armed conflicts not of
    an
  • international character and thus does not apply
    to situations of internal disturbances and
    tensions, such as riots, isolated and sporadic
    acts of violence or other acts of a similar
    nature.
  • Other serious violations of the laws and customs
    applicable in armed conflicts not of an
    international character, within the established
    framework of international law, namely, any of
    the following acts
  • Intentionally directing attacks against the
    civilian population as such or against individual
    civilians not taking direct part in hostilities
  • Intentionally directing attacs against buildings,
    material, medical units and transport, and
    personnel using the distinctive emblems of the
    Geneva Conventions in conformity with
    international law

art. 8 continues ?
33
  • Intentionally directing attacks against
    personnel,
  • installations, material, units or vihicles
    involved in a humanitarian assistance or
    peacekeeping mission in accordance with the
    Charter of the United Nations, as long as they
    are entitled to the protection given to civilians
    or civilian objects under the international law
    of armed conflict
  • iv. Intentionally directing attacks against
    buildings dedicated to religion, education, art,
    science or charitable purposes, historic
    monuments, hospitals and places where the sick
    and wounded are collected, provided they are not
    military objectives
  • v. Pillaging a town or place even when taken by
    assault
  • vi. Committing rape, sexual slavery, enforced
    prostitution, forced pregnancy, as defined in
    article 7, paragraph 2 (f), enforced
    sterilization, and any other form of sexual
    violence also constituting a serious violation of
    article 3 common to the four Geneva Conventions

art. 8 continues ?
34
  • Conscripting or enlisting children under the age
    of fifteen years into armed forces or groups or
    using them to participate actively in
    hostilities
  • Ordering the displacement of the civilian
    population for reasons related to the conflict,
    unless the security of the civilians involved or
    imperative military reasons so demand
  • Killing or wounding treacherously a combatant
    adversary
  • Declaring that no quarter will be given
  • Subjecting persons who are in the power of
    another party to the conflict to physical
    mutilation or to medical or scientific
    experiments of any kind which are neither
    justified by the medical, dental or hospital
    treatment of the person concerned nor carried out
    in his or her interest, and which cause death to
    or seriously endanger the health of such person
    or persons

art. 8 continues ?
35
  • Destroying or seizing the property of
    anadversary unless
  • such destruction or seizure be imperatively
    demanded by the
  • necessities of the conflict
  • Paragraph 2 (e) applies to armed conflicts not of
    an international character and thus does not
    apply to situations of internal disturbances and
    tensions, such as riots, isolated and sporadic
    acts of violence or other acts or a similar
    nature. It applies to armed conflicts that take
    place in the territory of a State when there is
    protracted armed conflict between governmental
    authorities and organized armed groups or between
    such groups.
  • 3. Nothing in paragraph 2 (c) and (e) shall
    affect the responsibility of a Government to
    maintain or re-establish law and order in the
    State or to defend the unity and territorial
    integrity of the State, by all legitimate means.


36
  • Crimes against humanity
  • This group of international crimes was created
    after WWII
  • No general convention of these crimes
  • Definition in the statutes of international
    criminal tribunals
  • International restrictions for the national
    politics of the state
  • A crime committed against groups of people
  • Rome statute committed as part of a widespread
    or systematic attack directed against any
    civilian population

37
  • ICC, article 7 Crimes against humanity
  • For the purpose of this Statute, crime against
    humanity means any of the following acts when
    committed as part of a widespread or systematic
    attack directed against any civilian population,
    with knowledge of the attack

art. 7 continues ?
38
  • Murder
  • Extermination
  • Enslavement
  • Deportation or forcible transfer of population
  • Imprisonment or other severe deprivation of
    physical liberty in violation of fundamental
    rules of international law
  • Torture
  • Rape, sexual slavery, enforced prostitution,
    forced pregnancy, enforced sterilization,or any
    other form of sexual violence or comparable
    gravity
  • Persecution against any identifiable group or
    collectivity on political, racial, national,
    ethnic, cultural, religious, gender as defined in
    paragraph 3, or other grounds that are
    universally recognized as impermissible under
    international law, in connection with any act
    referred to in this paragraph or any crime within
    the jurisdiction of the Court

39
  • Enforced disappearance of persons
  • The crime of apartheid
  • Other inhumane acts of a similar character
    intentionally causing great suffering, or serious
    injury to body or to mental or physical health.
  • Paragraphs 2-3 Definitions (Attack directed
    against any civilian population,
    Extermination, Enslavement, Deportation or
    forcible transfer of population, Torture,
    Forced pregnancy, Persecution, The crime of
    apartheid, Enforced disappearance of persons,
    gender)


40
  • Genocide
  • Prohibition of massive destruction of human lifes
  • Directed against a protected group
  • A purpose to destroy this group
  • Often done with knowledge, approval or
    participation of the decisionmakers of the state
  • Need for international measures
  • Convention on the prevention and punishment of
    the crime of genocide (1948)
  • Same defintions have also been taken to the
    statutes of international criminal tribunals

41
  • Definition of genocide
  • Purpose to distroy partly or totally a group
    mentioned in the convention
  • Act is directed against a group of people
  • National, ethnic, racial or religious group
  • Methods
  • Killing,
  • Causing serious bodily or mental harm,
  • Inflicting on the conditions of life,
  • Measures intented to prevent births,
  • Transferring children of the group to another
    group

42
  • ICC, article 6 Genocide
  • For the purpose of this Statute, Genocide
    means any of the following acts committed with
    intent to destroy, in whole or in part, a
    national, ethnical, racial or religious group, as
    such
  • Killing members of the group
  • Causing serious bodily or mental harm to members
    of the group
  • Deliberately inflicting on the group conditions
    of life calculated to bring about its physical
    destruction in whole or in part
  • Imposing measures intended to prevent births
    within the group
  • Forcibly transferring children of the group to
    another group.

43
  • Genocide individual criminal responsibility?/
    state responsibility?
  • The criminal responsibility of individuals
  • International tribunals
  • National courts
  • The responsibility of states
  • International responsibility, not criminal
    responsibility
  • International Court of Justice (ICJ) Case
    concerning Application of the Convention on the
    Prevention and Punishment of the Crime of
    Genocide (Bosnia and Herzegovina v. Serbia and
    Montenegro), Judgment of 26 February 2007

44
  • Crimes against peace (aggression)
  • Most disputed of the war crimes
  • Is there individual criminal responsibility on
    the basis of international law?, How wide is this
    responsibility?
  • Was created in the statute of the Nuremberg
    tribunal
  • Was not taken in the statutes of the ad hoc
    tribunals
  • No definition in Rome statute

45
  • Definitions are partly overlapping
  • F.ex. Rape in the armed conflict
  • ICTY ICTR statutes rape is mentioned as a
    crime against humanity
  • Practice of these courts Sexual violence may be
    regarded as
  • crime against humanity
  • war crime (see f.ex. ICTY Furundzija)
  • genocide (see f.ex. ICTR Akayesu)
  • torture (see. f.ex. ICTY Furundzija)
  • ICC Rome Statute rape mentioned as a war crime
    and as a crime against humanity
  • Rape other forms of sexual violence (sexual
    slavery, enforced prostitution, forced pregnancy,
    forced sterilization other forms of sexual
    violence)

46
B. Other serious violations of human rights
  • Racial discrimination apartheid
  • Forced disappearance of persons
  • Torture

47
  • Racial discrimination apartheid
  • International convention on the elimination of
    all forms of racial discrimination
  • International convention on the suppression and
    punishment of the crime of apartheid (1973)
  • Policies and practices of racial segregation and
    discrimination
  • Inhuman acts committed for the purpose of
    establishing and maintaining domination by one
    racial group of persons over any other racial
    group of persons and systematically oppressing
    them

48
  • Forced disappearance of persons
  • International convention for the protection of
    all persons from enforced disappearance (not in
    force yet)
  • Arrest, detention, abduction or other deprivation
    of liberty
  • Perpetrated by agents of the state or by
    persons/groups acting with the authorization,
    support or acquiescence of the state,
  • Followed by a refusal to acknowledge the
    deprivation of liberty or by concealment of the
    fate or whereabouts of the disappeared person
  • Person is placed outside the protection of the
    law

49
  • Torture
  • Convention against torture and other cruel,
    inhuman or degrading treatment or punishment
    (1984)
  • Infliction of severe pain or suffering, whether
    physical or mental, which does not arise only
    from lawful sanctions
  • The intentional infliction of pain or suffering
  • The involvement of a public official in the
    commission of an act of torture or in its
    authorization
  • Torture / other cruel, inhuman or degrading
    treatment - Ireland v. United Kingdom
  • National courts, international tribunals,
    supervision of human rights

50
II Offences connected to terrorism
51
  • Terrorism
  • Several treaties regulating different forms of
    terrorist action
  • No global, comprehensive treaty
  • European convention on the suppression of
    terrorism (1977)
  • Definition of terrorism?
  • Use/threat of violence
  • Creation of an atmosphere of fear
  • Attempt to influence on the acts or opinions of
    other persons or institutions

52
  • Criminal acts against air traffic
  • Increase of criminal acts against air traffic at
    -60ies and -70ies, international nature of the
    acts
  • Convention for the suppression of unlawful
    seizure of aircraft (Hague, 1970)
  • Convention for the suppression of unlawful act
    against the safety of civil aviation (Montreal,
    1971)
  • Lockerbie -case

53
  • Piracy
  • Historically high seas were an important
    economical, political and militarian arena
  • Special jurisdiction on the basis of customary
    law any state (earlier any person) has the right
    to punish for piracy
  • UN convention on the high seas 1958 / UN
    convention on the law of the sea 1982
  • Very restrictive definition
  • Illegal violence against another vessel,
  • for private purposes,
  • on the high seas

54
  • Criminal acts against the safety of maritime
    navigation
  • Convention for the suppression of unlawful acts
    against the safety of maritime navigation (1988)
  • Protocol safety of fixed platforms located on
    the continental shelf
  • Regulation concerning piracy was not
    comprehensive enough new treaties were needed
  • Achille Lauro
  • In new treaties similar regulation as in the
    previous treaties concerning air traffic

55
  • Criminal acts against internationally protected
    persons
  • Need to grant the safety of diplomatic personnel
    and of the personnel in peace keeping forces
  • Convention on the prevention and punishment of
    crimes against internationally protected persons,
    including diplomatic agents (1973)
  • Violence / threat against protected person or
    his/her family (f.ex. killing, kidnapping etc),
    attacks against his/her apartment, office or
    means of transport
  • Convention on the safety of United nations and
    associated personnel

56
  • Taking of hostages
  • International convention against the taking of
    hostages (1979)
  • Taking a hostage in order to force a third person
    to do something
  • Covers acts that are part of political terrorism
    but also acts that are done for private ends
    (f.ex. economic purposes)
  • International element is demanded

57
  • Terrorist bombings
  • International convention for the suppression of
    terrorist bombings (1997)
  • Delivers, places, discharges, detonates explosive
    or other lethal device in, into or against place
    of public use, a State or government facility, a
    public transportation system or an infrastructure
    facility
  • Financing of terrorism
  • International convention for the suppression of
    the financing of terrorism (1999)
  • Prohibition to provide or collect funds with
    intention that they should be used or in
    knowledge that they are to be used in order to
    carry out a terrorist offence

58
III Offences connected to organized crime
59
  • Organized crime
  • United nations convention against transnational
    organized crime
  • Three protocols
  • trafficking in persons,
  • smuggling of migrants
  • illegal manufacture of and trade in arms
  • Organized criminal group
  • Three or more persons
  • Exists for a period of time
  • Acts in concert with an aim of committing one or
    more serious crimes or offences
  • In order to obtain, directly or indirectly,
    financial or other material benefit

60
  • Narcotic drugs a complex set of international
    treaties
  • Single convention on narcotic drugs (1961)
  • Convention on psychotropic substances (1971)
  • United nations convention against illicit traffic
    in narcotic drugs and psychotropic substances
    (1988)
  • Cultivation, production, manufacture, extraction,
    preparation, possession, offering, offering for
    sale, distribution, purchase, sale, delivery,
    transport, importation and exportation, money
    laundering
  • Offences and sanctions, jurisdiction,
    confiscation, extradition, mutual legal
    assistance, transfer of proceedings

61
  • Trafficking in persons / smuggling of migrants
  • International treaties etc
  • Protocols for the UN convention against organized
    crime,
  • Council of Europe convention on action against
    trafficking in human beings,
  • Council framework decisions (EU)
  • Trafficing
  • Act recruitment, transportation, transfer,
    receipt
  • Means threat, use of force, deception, abuse of
    vulnerability
  • Aim/purpose exploitation (sexual exploitation,
    forced labour, removal of organs )
  • Trafficking in persons Smuggling of migrants

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  • Counterfeiting currency
  • International convention for the suppression of
    counterfeiting currency (1929)
  • Council framework decision (14.6.2000,
    2000/383/YOS) protection of the Euro
  • Money laundering
  • Rules concerning f.ex. money laundering in
    international treaties concerning organized crime
    and drug trafficking
  • Directive Council framework decision (EU)
    concerning money laundering
  • Corruption
  • Active / passive
  • EU, OECD, Council of Europe, UN treaty against
    transnational organized crime, UN treaty against
    corruption

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Enforcement
64
I Criminal Jurisdiction
65
Jurisdiction
  • Persons who have committed crimes travel from
    state to another
  • International crimes
  • Common crimes having international connections
  • Idea that there should be no escape from the
    criminal proceedings fight against impunity
  • Rules of jurisdiction in national legislation
  • Sovereignty of states, no jurisdiction on
    arbitrary basis (nexus demanded)
  • vs.
  • Jurisdictional obligations in international
    treaties

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Forms of jurisdiction
  • Legislative jurisdiction (jurisdiction to
    prescribe)
  • Jurisdiction to establish the contents and
    application of national criminal law
  • Judicial jurisdiction (jurisdiction to
    adjudicate)
  • Jurisdiction to apply established jurisdiction in
    a particular proceedings
  • Executive jurisdiction
  • Jurisdiction to commit government actions / to
    enforce orders

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Principles of jurisdiction
  • Principles on international level exact rules
    on national level
  • Principles of jurisdiction describe connections
    that are more or less generally accepted
  • Rational connection between criminal act /
    offender and prosecuting state
  • Territorial / extraterritorial jurisdiction

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Principle of territoriality
  • Jurisdiction of the state where the crime was
    committed
  • For a long time was the only jurisdictional
    principle that was generally accepted, especially
    in common law countries
  • Is still often the most rational place for
    prosecution (availability of evidence and
    wittnesses, knowlede of language and culture )
  • Where the act was committed? In the place where
    the act was committed and in the place where the
    result of the act came out

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Flag principle
  • Jurisdiction for crimes committed on a ship / air
    plane registered at the state
  • Rational basis ships/air planes are moving from
    one place to another, crews/passangers have
    different nationalities
  • Earlier was sometimes considered to be a part of
    territorial principle (floating part of the
    state)
  • Nowadays is usually considered to be a
    jurisdictional principle of its own

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Protective principle
  • Jurisdiction for crimes committed against the
    state itself
  • Need of the state to defend itself from crimes
    directed against its interests
  • Internal / external safety of the states, other
    important interests of the states
  • Protection of the state f.ex. against spying,
    forgery of the currency, violations of customs
    legislation)
  • Necessary because states dont always defend
    interests of other states

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Passive personality principle
  • Jurisdiction over offences committed against
    nationals of the state
  • Disputed principle persons abroad are entitled
    to the protection of the territorial state
  • Some states find it necessary to protect their
    nationals from serious crimes even abroad
  • In most cases demand of double criminality
  • Should be a crime both in the prosecuting state
    and in the place where the crime was committed

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Active personality principle
  • Jurisdiction over offences committed by nationals
    of the prosecuting state (nationality principle)
  • Traditionally accepted in continental Europe
  • Originally obedience of the nationals towards
    the legislation of the home state (right of the
    state to monitor its citizens)
  • More liberal views after WWII in most cases
    demand of double criminality
  • Nowadays international solidarity and practical
    considerations restricted extradition of the
    nationals

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Universality principle
  • Jurisdiction regardless of the place where the
    crime was committed and regardless of the
    authors / victims nationality
  • Possibility to prosecute international crimes in
    any state
  • Restricted group of international crimes crimes
    directed against universal, generally accepted
    and important values
  • Different interpretations which are this kind of
    crimes
  • Origins in the regulation of piracy enemies of
    the mankind

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Principle of representation
  • Jurisdiction on behalf of other state
  • This principle isnt recognized in all states
  • Principle of representation / principle of
    universality
  • Request from the state where the crime was
    committed
  • Double criminality demanded

75
Competence conflicts
  • Jurisdiction of the states has got wider
  • Often several states have jurisdiction over
    same act
  • Positive competence conflicts
  • No binding rules concerning hierarchy
  • In practice proceedins usually in the state that
    has most interest and best practical
    possibilities to prosecute

76
II International Criminal Tribunals
77
International criminal tribunals
  • Efforts after WWI
  • Treaty of Versailles responsibility of
    individuals on the basis of international law
  • In practice no success
  • Emperor of Germany was not extradited from
    Netherlands
  • Few war criminals were prosecuted, many were
    found innocent, lenient punishment, some escaped
    during their punishment
  • New idea was created basis for prosecutions
    after WWII

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  • After WWII war tribunals in Nuremberg and Tokyo
  • Special circumstances serious crimes, global
    disapproval, total capitulation of Germany,
    evidence available etc.
  • Courts of victors - not clearly international
  • Partly retroactive criminal legislation
  • Important for the development of the
    international criminal law
  • Crimes against peace, war crimes, crimes against
    humanity

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  • ICTY www.un.org/icty
  • International tribunal for the prosecution of
    persons responsible for serious violations or
    international humanitarian law committed in the
    territory of the former Yugoslavia since 1991
    (ICTY) UN security council 827 (1993)
  • ICTR www.ictr.org
  • International criminal tribunal for the
    prosecution of persons responsible for genocide
    and other serious violations of international
    humanitarian law committed in the territory of
    Rwanda and Rwandan citizens responsible for
    genocide and other such violations committed in
    the territory of neighbouring states between 1
    January 1994 and 31 December 1994 (ICTR) UN
    security council 955 (1994)

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  • ICTY and ICTR were created by UN security council
    was in that situation an efficient way to
    create an international court
  • Jurisdiction limited certain crimes, certain
    place, certain time
  • ICTY Grave breaches of Geneva conventions,
    violations of laws and customs of war, genocide,
    crimes against humanity
  • ICTR genocide, crimes against humanity,
    violations of article 3 common to the Geneva
    conventions and of additional protocol II
  • Primary nature compared to national jurisdictions
  • Special courts also f.ex. in East Timor, Sierra
    Leone, Cambodia

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International criminal court, ICC
  • www.icc-cpi.int
  • Created by an international treaty Rome statute
    (1998, came into force 2002)
  • Jurisdiction for the crimes committed after the
    statute came into force
  • Jurisdiction over natural persons (18 years?)
  • National jurisdiction of the state is primary
  • ICC when national courts are unwilling/unable to
    prosecute

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  • Most serious crimes which are a concern of whole
    community of states
  • Genocide, Art. 6
  • As in the genocide convention
  • Crimes against humanity, Art. 7
  • Widespread or systematic attack against civilian
    population
  • Murder, extermination, enslavement, deportation,
    forcible transfer, imprisonment, torture, rape,
    sexual slavery, forced pregnancy, enforced
    sterilization, persecution, enforced
    disappearance, apartheid, other inhumane acts
  • War crimes, Art. 8
  • International conflicts
  • Grave breaches of the Geneva Conventions, other
    serious violations of the laws and customs
    applicable in international armed conflict
  • Armed conflict not of an international character
  • Serious violations of article 3 common to the
    Geneva Conventions, other serious violations of
    the laws and customs applicable in armed
    conflicts not of an international character
  • In the future perhaps aggression

83
  • ICC definitions vs. definitions of crimes in
    national penal codes
  • ICC No clear obligation to criminalize certain
    acts
  • Complementary nature Jurisdiction if state is
    unwilling/unable to prosecute
  • States often want to formulate their criminal
    legislation as such that they are not regarded as
    unwilling/unable to prosecute
  • ICTR The Prosecutor v. Michel Bagaragaza,
    ICTR-05-86-AR11bis, Decision on rule 11bis
    appeal A request to refer case of Michel
    Bagaragaza to the Kingdom of Norway was denied

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  • Referral of the cases to the ICC
  • By security council no state consent required
  • By state party state consent required, must
    specify relevant circumstances and include
    supporting documentation
  • By ICC prosecutor state consent required
  • State consent
  • Agreement of the state where committed or of the
    state whose national accused person is
    (ratification/ad hoc agreement)

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  • Penalties
  • Imprisonment for a specified number of years
  • Max. 30 years
  • Life imprisonment
  • Fine / forfeiture in addition to imprisonment
  • Determination of the sentence
  • Gravity of the crime
  • Individual circumstances of the convicted person
  • Enforcement of sentences
  • Imprisonment is served in a state designated by
    the Court

86
  • General obligation to co-operate, art. 86
  • States Parties shall, in accordance with the
    provisions of this Statute, cooperate fully with
    the Court in its investigation and proscution of
    crimes within the jurisdiction of the Court.
  • Fex.
  • Surrender of persons arrest provisional
    arrest identification and whereabouts of
    persons location of items taking of evidence
    questioning service of documents facilitating
    the voluntary appearance of persons examination
    of places execution of searches and seizures
    provision of records and documents protection of
    victims and witnesses identification, tracing
    and freezing or seizure of proceeds, property and
    assets

87
Situations and cases Situation in Democratic
Republic of the Congo Case The Prosecutor v.
Thomas Lubanga Dyilo Case The Prosecutor v. Bosco
Ntaganda Case The Prosecutor v. Germain Katanga
and Mathieu Ngudjolo Chui   Situation in
Uganda Case The Prosecutor v. Joseph Kony,
Vincent Otti, Okot Odhiambo and Dominic
Ongwen Situation in Central African
Republic Case the Prosecutor v. Jean-Pierre Bemba
Gombo Situation in Darfur, Sudan Case The
Prosecutor v. Ahmad Muhammad Harun (Ahmad
Harun) and Ali Muhammad Ali Abd-Al-Rahman (Ali
Kushayb)   
88
Conclusions
89
International Criminal Law
Criminal jurisdiction
Definitions of crimes
Extradition cooperation in criminal matters
International criminal tribunals
90
Developments
  • More international treaties more international
    offences
  • Wider jurisdiction at the national level
  • International tribunals
  • From ad hoc solutions to permanent one (ICC)
  • Regional and global development
  • More active role of the EU
  • Forms of co-operation created at the regional
    level are taken also to the global treaties
  • New types of international co-operation mutual
    assistance
  • F.ex. gathering of the evidence, transfer of
    prisoners, recognition of foreign penal
    judgements, transfer of criminal proceedings,
    assets freeze and seizure

91
Problems / challenges
  • International tribunals
  • Limited jurisdiction
  • Limited resources practical possibilities
  • Lack of prevention?
  • National jurisdiction
  • Selective
  • Unpredictable
  • Disputed

92
Aiming high
  • Rome Statute, preamble
  • Mindful that during this century millions of
    children, women and men have been victims of
    unimaginable atrocities that deeply shock the
    conscience of humanity,
  • Recognizing that such grave crimes threaten the
    peace, security and well-being of the world,
  • Affirming that the most serious crimes of
    concern to the international community as a whole
    must not go unpunished and that their effective
    prosecution must be ensured by taking measures at
    the national level and by enhancing international
    cooperation,
  • Determined to put an end to impunity for the
    perpetrators of these crimes and thus to
    contribute to the prevention of such crimes
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