International Criminal Law—Payam Akhavan

AUTHOR'S NOTE

International criminal law is amazing. Payam Akhavan is amazing. Combine both, obtain the most interesting course I have ever taken in my life. This course is little work and the evaluations are not too hard. Payam's lectures typically will talk in a disorganized way of "textbook material" for a third of his lecture and the rest will be amazing conceptual discussions. Readings usually do not go beyond 30 pages and are somewhat superficial. But don't worry, so are Payam's exams. He only expects his students to have a good basic legal and conceptual understanding of international criminal law. Do all readings—even his articles are important for the final. The most important sections are the infractions and modes of responsibility. I will underline them in the syllabus.

Je vais habituellement mettre mes notes de cours en premier pour chaque cours, suivies d'un résumé des lectures. Mes notes de cours ne sont pas ce qui est le plus clair, à l'image des cours de Payam. Ce qui a le plus de valeur dans ce document est le résumé que j'ai fait de chaque lecture. J'estime qu'il rend les lectures avec assez de précision pour ne pas avoir à les faires soi-même.

I hope you enjoy as much as I did,

Vincent Dalpé.

SYLLABUS

6. Schedule of Sessions

1.Jan. 7th: INTRODUCTION(skipped and unimportant)

a. Can radical evil be punished? (Or: is International Criminal Law futile?)

2. Jan. 9th: INTRODUCTION: FUNDAMENTALS OF INTERNATIONAL CRIMINAL LAW (skipped and unimportant)

a. Cassese, International Criminal Law: Introduction, pp. 3–9

January 14th re-scheduled for January 22nd 7:00-8:30 pm.

3. Jan. 16th:FUNDAMENTALS OF INTERNATIONAL CRIMINAL LAW: SOURCES AND

CONCEPT

a. Cassese, International Criminal Law, pp. 9-21

4. Jan. 21st:JURISDICTION: INTERNATIONAL v. NATIONAL JURISDICTION

  1. Cassese, International Criminal Law, pp.271–305

5.Jan. 22nd:INTERNATIONAL CRIMINAL COURTS: HISTORICAL EVOLUTION Make-up Class in NCDH 101 from 7:00-8:30 pm)

a. Cassese, International Criminal Law: Introduction, pp. 253–27

b. Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future

Atrocities?” 95 Am. J. Int'l L. 7 2001 [WebCT]

c. Payam Akhavan, “The Rise, and Fall, and Rise, of International Criminal Justice” Journal of

International Criminal Justice11 (2013), 527-536 [WebCT]

6. Jan. 23rd: JURISDICTION: INTERNATIONAL v. NATIONAL JURISDICTION (CONT'D)

a. Payam Akhavan, “Whither National Courts? The Rome Statute's Missing Half” Journal of International Criminal Justice 8(2010), 1245-1266 [WebCT]

b. Payam Akhavan, “Self Referrals Before the International Criminal Court. Are States the Villains or Victims of Atrocities?”Criminal Law Forum (2010) 21:103–120 [WebCT]

January 28th & 30th re-scheduled to double-session on February 3rd

7. Feb. 3rd: JURISDICTION: THE “COMPLEMENTARITY” PRINCIPLE (Make-up class in NCDH 201 from 5:30-8:30 pm)

a. Kenya Admissibility Judgement, ICC Appeals Chamber, paras. 1-3, 57-69 & 95-99 [WebCT]

b. Libya Admissibility Decision, ICC Pre-Trial Chamber, paras. 24-30 & 199-312 [WebCT]

  1. Feb. 3rd: JURISDICTION: LEGAL IMPEDIMENTS (Make-up Class in NCDH 201 from 5:30-8:30 pm)

a. Cassese, International Criminal Law, pp. 309–325

Feb. 4th: THE NULLEM CRIME SINE LEGE PRINCIPLE

a. Cassese, International Criminal Law, pp. 22–36

Feb. 6th: THE ELEMENTS OF INTERNATIONAL CRIMES

a. Cassese, International Criminal Law, pp. 37– 58

  1. Feb. 11th: INTERNATIONAL CRIMES:WAR CRIMES
  • (Writing assignment posted on WebCT)

a. Cassese, International Criminal Law, pp. 63–83

  1. Feb. 13th: INTERNATIONAL CRIMES: WAR CRIMES (CONT`D)

a. Gotovina Judgment, ICTY Appeals Chamber, paras 23–98

  1. Feb. 18th:INTERNATIONAL CRIMES: CRIMES AGAINST HUMANITY
  • (Writing assignment due at SAO)

a. Cassese, International Criminal Law, pp. 84–108

  1. Feb. 18th: INTERNATIONAL CRIMES: GENOCIDEMake-up Class in NCDH 202 from 5:30-7:00 pm)

a. Cassese, International Criminal Law, pp. 109–130

b. Suggested Reading: P. Akhavan, Reducing Genocide to Law, “Contesting Genocide in Jurisprudence”(pp. 141 – 168) [WebCT]

  1. Feb. 20th: INTERNATIONAL CRIMES: TORTURE

a. Cassese, International Criminal Law, pp.131–135

b. Henry Steiner, Phillipe Alstin and Ryan Goodman, International Human Rights in Context, (3rd, Ed) pp. 234 – 250 [WebCT]

  1. Feb. 20th: INTERNATIONAL CRIMES: AGGRESSION(Make-up Class in NCDH 202 from 5:30 -7:00 pm)

a. Cassese, International Criminal Law, pp. 136–145

b. Suggested Reading: Noah Weisbord, Judging Aggression, (Columbia Journal of Transnational Law.) 50 Colum. J. Transnat'L. 82 (2011) [WebCT]

February 25th & 27th classes re-scheduled as double sessions on February 18th and 20th

  1. March 11th: INTERNATIONAL CRIMES: TERRORISM (non lu)

a. Cassese, International Criminal Law, pp.146–158

  1. March 13th:ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY: JOINT AND INDIRECT PERPETRATION

a. Cassese, International Criminal Law, pp.161–179

  1. March 18th:ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY: OMISSION LIABILITY AND "SUPERIOR RESPONSIBILITY"

a. Cassese, International Criminal Law, pp. 180–192

  1. March 20th: ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY: OTHER MODES OF CRIMINAL LIABILITY AND INCHOATE CRIMES

a. Cassese, International Criminal Law, pp. 193–203

  1. March 25th: GROUNDS FOR THE EXCLUSION OF CRIMINAL RESPONSIBILITY: JUSTIFICATIONS AND EXCUSES
  1. Cassese, International Criminal Law, pp. 209–227
  1. March 27th: OBEDIENCE TO SUPERIOR ORDERS AND OFFICIAL CAPACITY

a. Cassese, International Criminal Law, pp. 228–248

23. April 1st:INTERNATIONAL CRIMINAL TRIALS AND THE ADVERSARIAL SYSTEM

a. Cassese, International Criminal Law, pp.329–346

  1. April 3rd: ALTERNATIVES TO INTERNATIONAL CRIMINAL JUSTICE

a. Film screening: The Iran People's Tribunal (42 minutes)

  1. April 8th:REFLECTIONS ON RADICAL EVIL

a. Film screening: Genocide: The Great Challenge (38 minutes)

  1. April 10th: EXAM REVIEW

COURS 3: SOURCES OF ICL

Crimes in conflicts not of international matter

Art. 147 Geneva Convention (civilians): definition of "grave breaches":

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The violations under art 147 are considered "grave" breaches, which are considered to be the most important. These ones are particularly important, so we'll call them "grave breaches".

Art. 146 Geneva Convention: "responsibility for grave breaches":

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ' prima facie ' case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.

The Geneva Convention was conceived under the assumption that breaches are committed by a member of a state to a member of another state. The state will be liable for the acts of its perpetrator. The state is seen as a "parent" of its perpetrators. This convention is about state responsibility. When we think about international law in a classic sense, we think of the responsibilty of the state. Here, we have a merger of responsibility between state and individuals.

What about non-international armed conflicts, where members of a state aren't attacking members of another state? This is a different situation because state members are attacking members of the same state.

Art. 3 Geneva Convention: "conflicts not of international character"

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) 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, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Among the 200 provisions of this convention, there is only one applying to non-international conflicts. And it is a minimum standard. Both art. 3 and 147 focus on minimum standards of human rights. However, for article 3, there is no basic minimum in terms of prosecution. There is no obligation to prosecute war crimes in domestic conflict in terms of international treaty law, contrarily to grave breaches in international conflicts. That is left to the national judicial system.

Sources of ICL: customary international law

The Secretary General, who drafted the ICTY Statute, decided only to include crimes contained in customary international law. Why? The legality principle ("nullum crimen sin lege") is what the secretary general had in mind. The body of treaties do not truly form international crimes, for the crimes enshrined in the statute of the ICTY and the ICTR are only valid before these tribunals. The only truly universal body of international crimes is contained in customary international law.

Custom is more universal than treaties, unless treaties are internationally ratified. This is why it's interesting to base the statute on international custom. General principles of law aren't as emprirical as customary law, which needs a repetition of practice. General principles are less objective and are less evident than custom.

Treaties and customs are not mutually exclusive. Many treaties are codifications of custom. This easiens its revelation and use. And vice versa-- certain treaties can become international customary law. This means certain states which did not ratify the treaty will feel bound by it and so an international custom will see the light of day.

Customary international law is not based on expressed state consent, contrarily to treaty law. Some may say that this violates the "legality principle".

Art. 15 International Covenant on Civil and Political Rights: "Legality principle" and "general principles of international law":

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Why does article 15(2) exist since "international law" (in art. 15(1)) already includes the general principles of law?

If we go back to the charter of the Nuremberg Tribunal, there are three categories of crimes: war crimes (these were already well recognised by international customary law), crimes against peace (today known as a "crime of agression": the unlawful use of war) and crimes against humanity (refers to a sclare of gravity of acts of a state against its own citizen and says that only where you have such a level of gravity that it shocks the conscience of mankind). This last crime was not part of customary law nor of treaty law. It was from general principles.

General principles: for instance, we know that all countries in the world criminalized murder. So it only makes sense to criminalize mass murder. General principles go against two principles: (1) state sovereignty-- the state never really consented to this being a crime; (2) nulle crimen sine legem-- in the perpetrator state's laws, these killings usually were legal. General principles are the most ill-defined components of international criminal law.

Unlawful use of war: ius ad bellum vs ius in bellum: the right to initiate war vs behaviour during war.

Art. 5 of the ICTY Statute is crimes against humanity. Art. 4 is genocide and is the least uncontroversial. Art. 3 is a very important provision. It relates to the laws and customs of war. ICTY Statute.

Article 3 of the ICTY:

Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages,

or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means,

of undefended towns, villages, dwellings, or

buildings;

(d) seizure of, destruction or wilful damage done

to institutions dedicated to religion, charity and

education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

This article relates to other issues than the physical integrity protection, which usually is what it was all about. Article 3 deals with more complex issues. This provision is linked to the Hague Convention of 1907. The most important of article 3 is "shall include but not be limited to". This isn't the kind of language that we should have in a criminal code. It is unthinkable because of the principle of legality.

Fourth source of ICL: judicial opinions

It is a subsidiary source. Unless a judgment is not followed subsequently, it is law.

READING ON: SOURCES OF ICL

Intro to ICL

At the international level, the criminalization of individual conducts is a recent phenomenon that mainly occurred around the early 1990s. In the 1940s, with regard to crimes perpetrated within the context of state violence, the international community reacted by resorting to the traditional institutional framework by imposing on states a duty to criminalize the prohibited conducts, and organizing judicial cooperation for their repression. This system did not work well.

Art. 21 Rome Statute (RS)

ICL is but a branch of public international law and the sources of law from which one may derive the relevant rules are those proper to international law. The order in which one may use these sources is the following. One should at first look for treaty rules or secondary rules, if applicable. When such rules are lacking or contain gaps, one should resort to customary international law. When even this set of rules is of no avail, one should apply general principles of international law, particularly those related to the relevant branches of international law (ICL, HRL, IHL). If a rule contains a gap, one may have resort to general principles common to national jurisdiction, such as the ban on denial of justice, the doctrine of res judicata, ie of the binding force of a judicial decision, and so on. It is important to clarify that these sources create international rules that must be applied by national courts.

Many may be tempted to see the Rome Statute as an "international code of criminal law" but it is not one. It only dictates part of the rules the ICC should obey to. This treaty, in and of itself, has no influence on other international criminal tribunals or on national jurisdictions ruling on international crimes.

Article 21

1. La Cour applique :

a) En premier lieu, le présent Statut, les éléments des crimeset le Règlement de procédure et de preuve ;

b) En second lieu, selon qu’il convient, les traités applicableset les principes et règles du droit international, y compris les principes établis du droit international des conflits armés ;

c) À défaut, les principes généraux du droit dégagés par la Cour à partir des lois nationales représentant les différents systèmes juridiques du monde, y compris, selon qu’il convient, les lois nationales des États sous la juridiction desquels tomberait normalement le crime, si ces principes ne sont pas incompatibles avec le présent Statut ni avec le droit international et les règles et normes internationales reconnues.

2. La Cour peut appliquer les principes et règles de droit tels qu’elle les a interprétés dans ses décisions antérieures.

3. L’application et l’interprétation du droit prévues au présent article doivent être compatibles avec les droits de l’homme internationalement reconnus et exemptes de toute discrimination fondée sur des considérations telles que l’appartenance à l’un ou l’autre sexe tel que défini à l’article 7, paragraphe 3, l’âge, la race, la couleur, la langue, la religion ou la conviction, les opinions politiques ou autres, l’origine nationale, ethnique ou sociale, la fortune, la naissance ou toute autre qualité.

1. ICL legislation

While statutes in ICL usually do not spell out in detail all the legal ingredients of the crimes, the Rome Statute does so. The ICC is assisted by the so-called "Elements of Crimes", containing additional clarification as regards the objective and subjective elements of interpretation of the relevant provisions of the Statute (Article (9(1)).