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Lecture 11

LAWS 2601 Lecture Notes - Lecture 11: Subsequent Nuremberg Trials, Rome Statute Of The International Criminal Court, Special Tribunal For Lebanon

Course Code
LAWS 2601
Tiffany A Mac Lellan

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Public International Law March 29th 2016
Shaw- Individual Criminal Responsibility in IL
i) Modern International Criminal Law (ICL) was established after WWII
(1) International Military Tribunal (1 trial, 1945-1946)
(2) Nuremberg Military Tribunal (12 trials, 1946-1959)
ii) These trials established the precedent for ‘individual’ responsibility for crimes against
peace, war crimes and crimes against humanity
iii) In the 1990s, the popularity of international criminal tribunals grew
(1) International Tribunal for the Former Yugoslavia (ICFY) (1991)
(2) International Criminal Tribunal for Rwanda (ICTR) (1994)
(3) Extraordinary Chambers in the Courts of Cambodia (ECCC) (1997)
(4) Special Court for Sierra Leone (SCSL) (2002)
(5) Special Tribunal for Lebanon (2009)
iv) 2 different types of ad-hoc criminal tribunals
(1) International- judges, prosecution, and defence counsel are members of the
international legal community, the tribunal may not be in the state where the
offences took place, funded by the international community (ex- ICFY)
(a) Fallback- possibility of ignorance of culture
(2) Hybrid- judges, prosecution and defence counsel are a blend of citizens of the
state where the crimes took place and the international community, the tribunal is
located where the offences took place, the tribunal is co-funded by the state and
the international community (ex- ECCC)
(a) Fallback- possibility of it being a successor trial, funding issues
v) Jurisdiction of ad-hoc trials
(1) The jurisdiction or competence of ad-hoc tribunals are provided for in their
establishing statute, and is limited to:
(a) Location
(b) Time frame
(i) These can narrow the scope of the tribunal drastically
(2) Jurisdiction over crimes
(a) Each statute will also indicate the specific crimes the tribunal has the power to
(b) By and large, tribunals cover these crimes (can have different definitions per
(i) Genocide
(ii) War crimes
(iii) Crimes against humanity
(iv)Crime of aggression
vi) International Criminal Court
(1) Established by the Rome Statute of the International Criminal Court
(2) It is different from ad-hoc tribunals because:
(a) The court is permanent
(b) It’s jurisdiction isn’t triggered by time and place
(3) 3 possible mechanisms the jurisdiction of the ICC can be triggered by (art. 13)
(a) Complaint by a state party
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(i) State party can lodge a complaint with the prosecutor and ask them to
investigate the situation
(ii) State bringing complaint must be: state of territory where the act was
committed, custodial state where the accused officer is present, state of
nationality of the suspect, or state of the nationality of the victims
(b) Referral by the Security Council (despite the ICC being separate from the UN)
(i) The UN’s Security Council can refer a specific matter to the court for an
(c) Trigger by the prosecutor
(i) The prosecutor may bring a matter before the court in accordance with art.
15 (on approval by the pre-trial chamber)
(4) Crime the ICC has jurisdiction over
(a) Genocide (art. 6 of the Rome Statute)
(i) Intent to destroy, whole or in part, a national, ethnical, racial, or religious
group (intent aspect separates it from other crimes)
(b) Crimes against humanity (art. 7 of the Rome Statute)
(i) When committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack
(c) War Crimes (art. 8.2 of the Rome Statute)
(i) Committed against soldiers of the opposition
Clarke- Refiguring the Perpetrator: Culpability, History, and International Criminal Law’s
Impunity Gap
i) Argument: international criminal courts, like the ICC, base culpability for current
violence in a narrow, ahistorical time frame which reduces responsibility to those who
gave orders or encouraged violence
ii) However, this approach to determining responsibility doesn’t take into account the
long history of colonial and post-colonial injustice
iii) Longue Duree- a longer view of time, places atrocities which took place in a short
time frame in the context of colonial oppression or violence
iv) Culpability- the degree to which one can be held responsible for a particular act or set
of rules; prime objective of criminal law
v) These different assessment for assigning and comprehending guilt result in an ‘ICL
impunity gap’
(1) Going beyond the individual analyses of guilt allows us to consider how and why
collective and continuing crimes may trump new individualized conceptions of
guilt in certain situations
(2) The legacy of colonialism may partly be to blame for the inclination of violence,
not solely on an individual
Simpson- War Crimes Trials and Political Trials
i) Argument- war crimes trials are always political because concepts of the political
remain perpetually in play
ii) War crimes law is a distinctive, sometimes legitimating, sometimes dissenting, often
ambiguous, pressure in international political life
iii) War crimes trials are best understood as a form of legalistic politics, a law in the
midst of politics and not detached from them
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