Transcript International Criminal Law

International
Criminal Law
Minna Kimpimäki
University Lecturer
University of Lapland
Faculty of Law
Timetable
O Mon 2.2. at 14-16, LS 10
O Tue 3.2. at 14-16, LS 10
O Wed 4.2. at 14-16, LS 10
O Thu 5.2. at 14-16, LS 10
O Fri 6.2. at 14-16, LS 10
O Learning diary on Friday 6.2.
O Essays: deadline Mon 7.4.2015
Courses
O OLAW0302 INTERNATIONAL CRIMINAL LAW
O Lectures (including learning diary) + essay compensate
the litterature of the course (5 ECTS)
O OAIT1014 KANSAINVÄLINEN RIKOSOIKEUS
O Luennot (ml. oppimispäiväkirja) + essee korvaavat
opintojakson kirjallisuuden (5 op.)
O OAIO1001 RIKOSOIKEUS
O Luennot (ml. oppimispäiväkirja): pakollinen luentosarja
(0,5 op.) tai vapaaehtoinen luentosarja (1 lp.)
The Theme of the Essay
O Students may select the theme of the essay,
but it should deal somehow with either
O International crimes
OR
O International criminal courts/tribunals
Instructions for the essays
O About 10 pages
O May be written in English or in Finnish
O May be done alone or in pairs
O All sources used (including internet sources) must be
mentioned in a list of sources AND at the text
(footnotes/brackets)!!!
O There must be a reference in each paragraph where
information is derived from some source.
O Use different kind of sources: books, articles etc. - NOT
only internet sources!
O DO NOT copy directly from the internet!
Return of the essays
O DEADLINE 7.4.2015
O By e-mail:
O [email protected]
O Send your essay also to URKUND:
O [email protected]
O Send the essay to Urkund only ONCE even if
you write the essay together!
A. INTERNATIONAL
CRIMES
Two groups of international crimes:
A. Core crimes
O Core crimes, international crimes in the
narrow sense, crimes under (general)
international law
O Basis in the customary law: individual
responsibility directly on the basis of
international law (jus cogens character)
O Created after WW II
O War crimes, crimes against humanity,
genocide…
O International tribunals
B. Treaty crimes
O Treaty crimes / common international crimes /
international crimes in the broad sense
O Basis in international treaties, criminalizations in
O
O
O
O
national criminal codes of the states
Enforcement in states: extradition/prosecution
First international treaties at the late 19th and
early 20th century
Several treaties since 70’ies, still expanding
Terrorism, organized crime…
AI
War crimes
War crimes:
Law of Geneva
O Jus in bello, humanitarian restrictions of
warfare
O Geneva conventions 1949
O I: wounded and sick in armed forces in the field
O II: wounded, sick and shipwrecked members of
armed forces at sea
O III: prisoners of war
O IV: civilian persons in time of war
O Protocols
War Crimes:
Law of Hague
O Restrictions of the weapons and of the methods
of warfare
O Conventions of the Hague, Hague regulations
O Protection of cultural property in the event of
O
O
O
O
O
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
…
Rome Statute:
War Crimes
O Armed conflict
O International / Not of an international
character
O In particular when committed as part of a
plan or policy or as part of a large
commission of such crimes
Art. 8 (2) (a)
- Grave breaches of
the Geneva
Conventions
-International armed
conflict
Art. 8 (2) (b)
- Other serious
violations of the laws
and customs
- International armed
conflict
Art. 8 (2) (c)
- Serious violations of
article 3 common to
the four Geneva
Conventions
- An armed conflict
not of an international
character
Art. 8 (2) (e)
- Other serious
violations of the laws
and customs
- An armed conflict
not of an international
character
Art. 8 (2) (a)
O Acts against protected persons
O Grave breaches
O Wilful killing ◦ torture or inhuman treatment ◦
causing great suffering or serious injury to
body or health ◦ extensive destruction and
appropriation of property ◦ compelling
protected person to serve in the forces of a
hostile power ◦ deportation or transfer ◦
taking of hostages
Art. 8 (2) (b)…
O Obligation to make a distinction between civilian and
military targets
O Intentionally directing attacks against:
O civilian population ◦ civilian objects ◦ undefended
towns/villages ◦ buildings dedicated to religion,
education, art, science or charitable purposes…
O Prohibition of inhuman acts
O Physical mutilation ◦ medical/scientific experiments
◦ outrages upon personal dignity ◦ rape, sexual
slavery, enforced prostitution, forced pregnancy…
O Special protection
O UN personnel ◦ children…
O Destruction of property & pillaging
…Art. 8 (2) (b)
O Prohibited methods
O Killing/wounding a combatant who has
surrendered ◦ making improper use of a flag
or truce/uniform of the enemy/distinctive
emblems ◦ killing/wounding treacherously…
O Prohibited weapons
O Poison/poisoned weapons ◦
asphyxiating/poisonous
gases/liquids/materials/devices ◦ bullets
which expand/flatten easily…
Art. 8 (2) (c)
O Violations of the article 3 common to the
four Geneva Conventions
O Violence to life and person (murder,
mutilation, cruel treatment, torture)
O Outrages upon personal dignity (humiliating
and degrading treatment)
O Taking of hostages
O Passing of sentences/carrying out of
executions without previous judgement
Art. 8 (2) (e)
O Other serious violations of the laws and
customs applicable in armed conflicts not of
an international character, within the
established framework of international law
O Obligation to make a distinction between
O
O
O
O
civilian and military targets
Prohibition of inhuman acts
Special protection (UN, children)
Prohibited methods
Amendment: Prohibited weapons
A II
Crimes against humanity
Crimes against humanity
O This group of international crimes was
created after WWII
O Definition in the statutes of international
criminal tribunals
O Nuremberg, Tokyo
O ICTY, ICTR
O ICC
Rome statute:
Crimes against humanity
O Committed as part of a widespread or
systematic attack directed against any
civilian population
Acts…
O Murder
O Extermination
O Enslavement
O Deportation or forcible transfer of
population
O Imprisonment or other severe deprivation of
physical liberty in violation of fundamental
rules of international law
…Acts…
O Torture
O Rape, sexual slavery, enforced prostitution,
enforced pregnancy, enforced sterilization,
or any other form of sexual violence of
comparable gravity
…Acts…
O Persecution against any idenfiable 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
…Acts
O Enforced disappearance of persons
O The crime of apartheid
O Other inhumane acts of a similar character
intentionally causing great suffering, or
serious injury to body or to mental or
physical health
A III
Genocide
Genocide
O Convention on the prevention and
punishment of the crime of genocide (1948)
O Restricted definition
O Protected groups
O Purpose to destroy
O Prohibited methods
O Restricted jurisdiction
Rome statute:
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:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the
group;
c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the
group;
e) Forcibly transferring children of the group to another group.
A IV
Crime of Aggression
Crime of Aggression
O Nuremberg
O Crimes against peace:
O Planning, preparation, initiation or waging of a
war of aggression, or a war in violation of
international treaties, agreements or
assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the
foregoing
O UN Charter
O Definition of aggression (1974)
ICC, Crime of Aggression
O Art. 5 Crimes within the jurisdiction of the
Court
O 1 (d) The crime of aggression
O Once provision is adopted
O Review Conference, Kampala 2010
O Resolution RC/Res.6, The crime of aggression
O Art. 8 bis
RC/ Res.6, Art. 8 bis
O Person in a position effectively to exercise
control over or to direct the political or
military action of a State (leadership
element)
O Planning, preparation, initiation, execution
O Act of aggression
O GA Resolution 3314 (XXIX)
O ”Qualifier”
O A manifest violation of the Charter of the UN
AV
Torture
Torture
O International & national criminal law, human
rights law, humanitarian law
O Convention against torture and other cruel,
inhuman or degrading treatment or punishment
(1984)
O Infliction of severe pain or suffering, whether
physical or mental, which does not arise only
from lawful sanctions
O The intentional infliction of pain or suffering
O The involvement of a public official in the
commission of an act of torture or in its
authorization
A VI
Offences connected to
terrorism
Terrorism, definition?
O Use/threat of violence
O ”act…intented to cause death or serious bodily injury to
a civilian…”,
O violent acts against infrastructure/facilities (+danger to
human life/major economic loss),
O threathening
O Creation of an atmosphere of fear
O ”…the purpose of such act … is to intimidate a
population...”
O Or: Attempt to influence on the acts or
opinions of governments/int:l organisations
O ”… or to compel a government or an international
organization to do or to abstain from doing any act…”
Crimes considered in int:l
treaties
O Criminal acts against air traffic
O Piracy / acts against the safety of maritime
O
O
O
O
O
navigation
Acts against internationally protected
persons /UN personnel
Taking of hostages
Terrorist bombings, nuclear terrorism
Financing of terrorism
…
European documents
O EU, Council framework decision on
combating terrorism (2002)
O Terrorist offences (including i.a. directing a
terrorist group)
O CoE, Convention on the Prevention of
Terrorism (2005)
O Terrorist offences
+ Public provocation to terrorism,
recruitment for terrorism, training for
terrorism
Special arrangements
O Lockerbie court
O Special Tribunal for Lebanon
Fight against terrorism and
human rights
O Respect for human rights
O Right to life
O Prohibition of torture
O Liberty and security of person
O Fair trial
O Private and family life
O Freedom of expression
O …
A VII
Offences connected to
organized crime
Palermo Convention
O United Nations Convention against
Transnational Organized Crime
O Three protocols:
O Trafficking in persons,
O Smuggling of migrants
O Illegal manufacture of and trade in
arms
Organized criminal group
O Three or more persons
O Exists for a period of time
O Acts in concert with an aim of
committing one or more serious
crimes or offences
O In order to obtain, directly or indirectly,
financial or other material benefit
Crimes considered in int:l
treaties
O Narcotic drugs
O Trafficking in persons & smuggling of
O
O
O
O
O
migrants
Counterfeiting currency
Money laundering
Corruption
Participation in an organized criminal group
…
B. ENFORCEMENT
Responsibility & enforcement
O Criminal responsibility of individuals
O International criminal tribunals (ICTY, ICTR,
ICC…)
O Jurisdiction of the states
O International responsibility of the states
O ICJ
O Human rights machineries
BI
International Criminal
Tribunals
Earlier tribunals
O Efforts after WW I
O Nuremberg & Tokyo
O ICTY & ICTR
ICC
O Establishment
O Rome Statute
O Jurisdiction
O Referral of the cases
O State consent
O Composition & procedure
O Obligation to co-operate
B2
Jurisdiction
Forms of jurisdiction
O Legislative jurisdiction (jurisdiction to
prescribe)
O Jurisdiction to establish the contents of the
national criminal law
O Judicial jurisdiction (jurisdiction to
adjudicate)
O Jurisdiction to apply established jurisdiction
in a particular proceedings
O Executive jurisdiction
O Jurisdiction to commit government actions /
to enforce orders
Principles of jurisdiction
O Principle of territoriality
O Flag principle
O Protective principle
O Passive personality principle
O Active personality principle
O Universality principle
O Principle of representation
O Learning diary