Kinds of Int'l Crim Law Transnational Criminal Law - national laws transcending national borders International Crimes - internationally

ly formulated criminal laws enforceable by international, hybrid, and domestic tribunals Treaty Based Domestic Crimes - Declared criminal by treaty and enforced by domestic laws; a hybrid of both Transational and International Purposes of Crim Law Utilitarianism v. retributivism Forward looking (general and special deterrence, incapacitation, rehabilitation) backward looking (retribution) and positive (encouraging respect for the law) (ICTY) PROSECUTOR v BLASKIC o Individual and general deterrence, affirmative prevention and reassurance of legal process, retribution, public reprobation/stigmatisation, and rehabilitation Safeguards in Crim Law Principle of Legality o Nulla crimen sine lege (no crime without law) o Nulla poea sine lege (no punishment without law) Principle of Fair Notice Principle of Non-Retroactivity Principle of Lenity - non-ambiguity and if ambuous, in the most lenient way Presumption of innocence Guilt beyond reasonable doubt Basic procedural rights Principle of Personal Responsibility PROSECUTOR v EICHMANN pg 18 Educational/political goals legitimate? Trial was guided and crafted. Defenders discouraged. Attempted to reframe war as atrocity against Jews not simply humanity. But justice was being sought of Eichmann personally as well. Mark Osial - guilt in mass atrocities involves questions beyond personal involvement and actions Hannah Arendt - Criminal justice is the sole aim Did court owe duty to every witness of the horrors to testify or would a stipulation have been the right procedure? Balance of justice and public need Int'l Law Principle Consensualism v. Prescriptivism?
Nuremburg Charter of the Int'l Military Tribunal (London Agreement // Nuremberg

Charter)
o o o o

Pg 73 Crimes Against Peace War Crimes Crimes Against Humanity Victors' justice? Allies committed similar crimes but not tried. Why?

Crim Pro - 1

Conspiracy was used here (Pinkerton liability) but subsequently dropped by most int'l tribunals Inquisitorial system v. adversarial (pg 76) Nuremburg Opening Statement - ustice Jackson (pg 77) o Int'l Crim Law as outgrowth not reliant on precedent? LUBAN - LEGACIES OF NUREMBURG o Nuremberg Charter 6a makes state sovereignty supreme but is in tension with remainder of Nuremberg Charter and ability of states to intervene in human rights violations Other cases o Doctor Cases - established Nuremberg Code modern medical and experimental ethics o Industrialists o Lawyers and Judges Radbruch Formula - Judges and lawyers must uphold unjust law until conflict of law and morality reaches a point where it's intolerable, at which point judges are at fault for upholding the bad laws Tokyo Tribunal Int'l Mil Tribunal for the Far East Clash of cultures Dominated by Americans, criticised as victors' justice ICTY (est 1993) Milosevic - self represented, delayed, made political speeches, died in custody Karadzic - doing much the same since 2008 Ratko Mladic - captured 2011 Substantive Crim Law o Derived from Allied Control Council Law no 10 (used in 2nd half of Nuremburg by Germany) o No Crimes Against Peace o Added imprisonment, rape, and torture committed in armed conflict whether international OR INTERNAL o CONCURRENT jurisdiction with PRIMACY over nat'l courts (unlike ICC) Prosecutor v Tadic (establishes legitimacy of court) (pg 102) o UN Charter VII art 39, 41, 42 Plea Bargaining o Efficiency, civil v common law concerns, establishing that crimes were committed Bosnian War Crimes Chamber (2002) o Part of domestic Bosnian court system o Hybrid court (like Spec Court for Sierra Leone and Cambodian Extraordinary Chamber) o ICTY is transferring low and mid-level cases to WCC as an exit strategy as mandate runs out. o Has many int'l hallmarks (int'l judges, prosecutors, mixed adverse/inquisit system, etc. Rwanda Background

Crim Pro - 2

Hutu (farmer majority) [Pres. Habyarimana] v Tutsi (pastoralists minority) o Tutsi refugees from Uganda form RPF and invade Rwanda 1992 o Hutu youth form interahamwe militia w/ Rwandan gov't o Burundi is opposite - Tutsi govt slaughters Hutu - refugees to Rwanda o Arusha Accord makes Rwanda multipartite democracy but Hutu Power and Habyarimana supporters dislike o Habyarimana and Burundi pres assassinated - genocide begins o RTMC (radio/tv) assists in genocide via messages and directions o French (pro Habyarimana) intervention as RPF fights back and takes over the country (Hutu genocidaires escape to Congo) but RPF welcomes Hutus back in general o UNAMIR (under Dallaire) was hampered by US inaction (b/c Yugoslav and Somalia) ICTR o Was it invasion of sovereignty since it wasn't really "international?" was it necessary to develop consistant doctrine on mass killing? Was it belated reaction to UNAMIR failure? o Rwanda wanted court in Rwanda and wanted death penalty Formation of GACACA system later 2007 Rwanda abolished DP in order to receive cases from ICTR as ICTR loses mandate o Statute puts genocide first and names humanitarian crimes as any that occur in relation to the conflict - eliminated "war nexus" - and requires discriminatory intent (race, politics, etc.) o Jurisdiction began in 1994 but many say too late, should start 92 o Slow because of various uncooperative elements but also because salary and because trying to develop detailed narrative o Is ICTR for Rwanda or for int'l audience? No translation, few Tutsis, Rwanda itself opposed, Sierra Leone Blood diamonds conflict - CDF (govt), AFRC, RUF (supported by Liberia's Taylor) Hybrid court, nat'l jurisdiction w/ int'l features - declared Taylor's nonimmunity, but no power of compulsion of other states, loc'd in SL Operates jointly with TRC Child Soldiers Problem o Immuity under 15, 15-18 prosecutable but protected and unlikely o Recruiting child soldiers is not ex post facto b/c customary int'l law by 1996 (declared on appeal in 2004) Lome peace accord o Gave immunity to RUF from gov't but SCSL overrules b/c RUF not a gov't entity capable of treaties and because one jurisdiction (SL) cannot rob another jurisdiction (int'l community) Charles Taylor o SCSL had no jur'n in liberia, afraid to keep Taylor in SL b/c liberian invasion, asked Netherlands to host at Hague - refused until Britain promised to jail Taylor
o

Crim Pro - 3

 East Timor 1975 Indonesia attacks Portuguese colony of Timor-Leste, Timor

guerrilla war, brutal crackdown 1999 UN referendum says Timor independence, Indonesian crackdown, Australian intervention leads to UNTransitionalAuthorityET Serious Crimes Unit investigated war crimes and crimes against humanity at hybrid Special Panels tribunals - largely a failure b/c couldn't reach Indonesian defendants - closed on 2005 TRC (Truth and Friendship) shared info with SCU so people were less willing to testify - was less successful Plea bargains occurred often b/c of certain cultural beliefs, often without any sentencing concessions but later defense attorneys forced sentencing concessions - positive or negative? Cambodia Kher Rouge auto-genocide 75-79 2004 Extraordinary Chambers in the Courts of Cambodia (ECCC) hybrid system Majority national judges but decisions require supermajority (so at least 1 int'l judge's vote) Lots of corruption/scandal, least int'l of courts and based off weak domestic system, amnesty issues can't be overcome like in SCSL Lebanon Special Tribunal in Netherlands purely to try the one crime of assassination based entirely on domestic law b/c politically too sensitive and local gov't too weak to properly prosecute
Sexual Crimes Not in Nuremburg Tape is separately enumerated in ICTY and ICTR Art 4 includes forced

prostitution, indecent assault. - see Akayesu(holding that rape can be a form of genocide) Sierra Leone Art 2g 3e include sex slaves, forced prost, forced pregnancy - 2004 added forced marriage E Timor - sex slavery, forced pregnancy, sterilizations, etc Rome Statute of ICC - rape, sex slavery, enforced prostitution, forced pregnancy, sterilization, etc. Corporate Criminal Liability - pg 131

JURISDICTION Restatement 3d of Foreign Relations Law of US - SS401 pg 170 Prescription - authority to reach conduct in other nation o Territorial Principle - within the territory (and property) of the

state

Subjective - perp is in state's territory

Crim Pro - 4

Objective - (effects jurisdiction) effect is in state's territory SS Lotus (France v Turkey) PCIJ pg 179
Boat crash in high seas. Turkey has right to prosecute and

jail french officer b.c no int'l law forbids it - is logical Convention of the High Seas 30 years later established the opposite laws - flag state or person's nationality LOTUS PRINCIPLE - states have freedom to do anything not internationally prescribed US v Ricardo 1980 (US 5th Cir) - pg 185 Drug smugglers caught in boat in high-seas. In conspiracy cases, US attaches jurisdiction even without an overt act so long as intent would have effect in US Principle used in Noriega

Nationality - (active personality) - perp is state national R.3d FRLUS pg 193 - national jurisdiction applies everywhere Pg 194 - reasons for nationality principle Pg 196 - explicitly extraterritorial laws based on nationality principle

US v Clark 2006 - pg 196

PROTECT Act (18 USC 2423) Nationality principle is clearly within 5th Amend.

Passive personality - effect is against national R3d FRLUS 402 = 402 pg 201 18 USC 2332 - pg 202 - murder of US abroad Dual criminality - crime in both states Protective - limited set of crimes against vital nat'l interests R3d FRLUS 402(3) - pg 204 Prosecutor v Eichmann (pg 205) Kinda ex post facto - jewish state did not exist a time of Eichmann's crime but court says "masciturus pro jam nato habetur" (an unborn child is considered born) Universality historically, disregards all rinciples as long as has custody of offender. Modern definition is special crime of universally accepted body of particular crimes R3d FRLUS 404 - pg 208 Aut dedere, aut prosequi Hostis generis humani Geneva Convention (GC1art49, GC2art50, GC3art129, GC4art146) - positive obligation to seek out enemies of humanity Subsidiary Universal Jurisdiction - pg 211 Domestic criminalization, agreements for primacy, extradite or prosecute, establish jur. to prosecute,

Crim Pro - 5

DRC v Belgium ICJ 2002 - pg 212

Yerodia - Ugandan minister who incited Tutsi-killing Belgians issued warrant but Congo had it cancelled b/c

ministerial immunity - separate opinions for UJ Guillaume No UJ here b/c foreigner v foreigner in a foreign land and no controlling subsidiary UJ treaties, LOTUS does not grant such broad powers Higgins, Kooijmans, Buergenthal just because a state doesn't make law to full extent possible doesn't mean exercise of power beyond the law is unlawful. Geneva convention and extradite/prosecute treaties are evidence of growing body of jurisdiction separate from territorial concerns. So, plausible, so long as safeguarded Bula-Bula Belgium has political agenda, must be stopped Van de Wyngaert The purpose of int'l law is to combat impunity in such grave crimes and LOTUS is foundation for Belgium's jurisdiction since Congo is unable/unwilling Belgium's UJ law fell apart b/c of overuse and overreach, NATO, EU, and US opposition, thus Belgium enacted new law with overrides, controls, and auto immunity for key allies R.3d. Foreign Rel Law of US - pg 172 Cannot prescribe unreasonably See pg 172 for factors determining reasonableness Adjudication - authority to decide cases based in other nations Enforcement - When/how can state investigate/make arrests
o

Extraterritorial Application of US Crim Stats - pg 231 o Three factors Constitutional power for extraterritorial legislating Venue Clause Art 3 "crimes not committed within any State" Define and Punish clause (art 18, cl 10) - piracy on high sease, offenses against the Law of Nations Foreign Commerce - (art 18 cl 3) Necc and Proper
US v Clark 2007 - pg 235 Sex tourism case US v Bowman 1922 (pg 2412) Inducing navy desertion Analysis of when fed laws apply extraterritorially Territorial Presumption - laws are presumed limited

to territory

Crim Pro - 6

Charming Betsy Canon - never construe law in a way contrary to law of nations unless there is no other possible construction FLOWCHART - pg 249
Military Extrajudicial Jurisdiction Act = pg 253 Personal jur over all persons accompanying

employed by or accompanying military in crimes with 1yr punishments, but is 2dary jurisdiction to others Special Military/Maritime Territorial Jurisdiction pg 251 9a-b expands jurisdiction to anything related to US missions abroad

Congress intended statute to be extraterritorial Int'l law permits assertion of jur.

Immunities o Current and Former Heads of State and Officials Includes family and personal staff Ratione personae Personal immunity b/c of position (ie current presidents get total immunity) RationeMateriae Immunity b/c of the function of a position (ie ex-presidents only get immunity for official acts) o PINOCHET - pg 266 Chile 1999 Pinochet given immunity from Chile for war crimes Browne-Wilkinson opinion Double criminiality must be in place at the time the act was committed, not merely the day extradition is attempted - UK rule, not int'l rule Torture prohibition is jus cogens (though UK says not itself enough to establish univ jur) Lord Goff opinion Torture as a gov't minister is a gov't act and thus immune via ratione materiae and waiver of such immunity must be express in treaty and convention Lord Hope opinion Convention on Torture destroys ratione materiae but not by waiver or implied term; the gravity of the crime and the agreement simply override any possible claim of immunity Lord Hutton Convention overrides immunity b/c under Convention torture can never be an act of state and even a single instance of torture is enough (cf Lord Hope) Lord Saville Convention creates exception to ratione materiae by virtue of logic of express terms and is, itsef, unequivca and express agreement to waive immunity

Crim Pro - 7

o o

Lord Millett Torture is still an official act and to be prosecuted despite immunity, need to be violation of just cogens and so serious/of so great a scale that it is an attack on int'l order and in such case immunity cannot apply Lord Phillips Int'l criminal law automatically overrides ratione materiae and creates obligation erga omnes ICJ Arrest Warrant (Congo v Belgium) Ratione personae always exists and, so far, no int'l exception for war crims prosecutions SCSL Specifically chartered to not consider position for immunity Charles Taylor brought HoS immunity but lost b/c SCSL found itself to be an international court and, via Arrest Warrant, could ignore immunity Maybe b/c non-state actor - thus avoiding "one state does not adjudicate the conduct of another" Diplomatic Immunity Vienna Convention on Diplomantic Relations is basis for immunity Applies to person, residence, family, staff, papers, correspondence, and some property (diplomatic cases) Not waivable by diplomat, only the sending state US v GUINAND 1988 - pg 260 Immunity ends with termination, except for official acts Consular Immunity - g 261 Based in Vienna Convention but limited - immunity for officials acts but can be tried for grave crimes STATE v KILLEEN 1979 - pg 262 Local courts could try consulars for crimes outside of official capacities, unlike fed courts Specifically interpretted by DoS that tickets are not service and state's can give tickets even to ambassadors and ministers Int'l Org Immunity Some immunity for certain NGOs - in US via Int'l Org Immunities Act

Terrorism Definitions vary ----------- UN Security Council o Can make binding resos under Chapter VII o Made binding anti-terror resos requiring states to enact anti-terror

laws - ie 1373 - PG 695 o CTC oversees enaction of reso amongst states - has taken no action against politically motivated or overbroad definitions of terrorism o Terrorism Assets - CTC is often asking states to circumvent national, constitutional safeguard in order to sieze or freeze assets

Crim Pro - 8

Increasing surveillance and infosharing may be tied to harsh practices/torture.repression o Refugee crackdown in order to hunt/prevent "terrorists"
o

UNSC Reso 1456 - tries to reduce negative affects by saying that anti-terror laws must still comport to international law and int'l hum rts law o UNSC Reso 1535 - reorganizes CTC o UNSC Reso 1624 - "calls upon" states to prevent incitement (free speech concerns?) Terrorism and US Law
o

Crimes Against Humanity Definition o Nuremberg - pg 956 Against any civilian population Murder type crimes and persecution type crimes Completely international (later statutes) connected to war - a war nexus o Allied Control Council - CCL 10- pg 956 Adds imprisonment, rape, and torture Removes war nexus and "before/after war" language o ICTY - pg 958 Identical crimes as CCL 10 War nexus becomes conflict nexus, both int'l and internal o

(b/c uncertain classification of Balkan wars as int'l or internal) ICTR Drops war nexus entirely (first int'l definition w/o war nexus) Adds a discriminatory basis requisite (is the only treaty w/ such a requirement) ICC - Rome Statute - pg 960 Rome Statute Art 7 Any civilian population, list with extra emphasis on sex crimes and detailed persecution statute No war nexus, simply widespread/systematic, no conflict nexus Chapeau requires mens rea - knowledge that is was widespread/systematic against a civilian pop. Art 7(2) there has to be some organizational policy (what about Rwanda, though?)

Prosecutor v Kupreskic - 2000 - pg 963 o Persecution requires mens rea of intent, not necessarily motive o Persecution can take many forms not enumerated o Acts must be looked at in context o Acts must be of as grave a violation as other enumerated crimes

Crim Pro - 9

Persecution is the gross or blatant denial of a fundamental right pg 970

o

Luban - Theory of Crimes Against Humanity o Are crimes against humanity crimes against "humanness" of the individual victims or against human-kind as a victim? Whose interests are more important?

War Crimes Just ad Bellum o What is war of aggression? It's in ICC Rome Statute but not being

enforced yet b/c unclear what that means Jus in bello o Principles Non-combatant immunity - must never intentionally harm civilians Proportionality - collateral damage, while understood to be inevitable, must be in proportion to military objective of attack Necessity - no violence that does not contribute to overcoming the enemy No unnecessary suffering o Belligerent privilege/immunity - warriors within JIB cannot be tried for what would normally be crimes Geneva Conventions o 1929 - PoW provisions o 1949 - four GCs - completely universal GC 1 & 2 - wick and wound soldiers and sailors GC 3 - PoWs Article 4 - definition of PoW - pg 1045
o

GC 4 - civilians captured/interned 1977 - Additional protocols AP I - Int'l Armed Conflict AP II - Non-Int'l Conflict ICRC Interpretations are almost regarded as official interps

Common Article 2 (in all 4 GCs) - applies GC to all conflicts and occupations ICRC interprets armed conflict as all differences between two states that leads to intervention by armed forces regardless of if a party denies that it is a conflict, regardless of size of armies, length, etc. But if a party is a non-state actor? Complicated o Common Article 3 - the only article that applies to non-int'l conflict But AP II is entirely non-int'l conflict No requirement to prsecute breaches of CA3
o

Crim Pro - 10

"Grave breaches" is GC terminology for war-crimes All GCs have a Penal Sanctions provision requiring states to enact domestic laws to prosecute grave breaches
o o

War Crimes and Rome Statute o Article 8 Chapeau limits jurisdiction to large-scale (maybe) Largely itemized (all GC, AP I, some CA 3 Expands CA 3 and protects UN Int'l v Non-Int'l o Prosecutor v Tadic - pg 1054 Analyzes what to do with quasi-internal conflicts and defining int'l Overall control is standard for determining if a military type group is part of a state, thus making it int'l - no longer "effective control" More than aiding/supplying, but not necessarily to the point of giving orders Humanitarian laws must be interpreted broadly in order to have maximum effect o Prosecutor v Tadic - when is internal violence an "armed conflict" (pg1058) Armed Conflict = Armed force between states Protracted armed violence btwn groups Covers whole territory, not just actua location of fighting John Yoo Memo - pg 1060 Hamdan v Rumsfeld - pg 1062 - GWOT is within non-int'l armed conflict because GC is to be read widely as possible (eg in Tadic)
o o o

Targeted Killings o GC IV doesn't distinguish civilians with military leadership roles o AP I art 51 makes civilians who are participants into legit targets o Public Com't against torture in Israel v Israel - 2007 Not AP I party but CIL provisions of AP I are part of Israeli law Terrorists are civilians taking part in hostilities, so civilians but not with the same protection - unlawful combatants may make sense but isn't a firmly established category ICRC says DPHs are legit targets of attack - 51(3) of AP I DPH - weapons, intel, prepping for hostilities - pg 1071 *those who sent the attacker and planners are DPH! One-offs in the past do not lose protection but civilians who join a terror group and make it their "home" lose protection even between DPH activities *****if any way to capture DPH, then should not targeted kill o ICRC - Notion on DPH - 1 causal step from harm is DPH, maintaining capacity to harm does not count Humiliating Captives o Trial of Lt. Gen Kurt Maelzer - mil comm 1946

Crim Pro - 11

No parading prisoners Details of detainee abuse in guantanamo - 1076

US Prosecution of Terrorists by Mil Commissions o Ex Parte Milligan - civil war conspiracy (anti mil comm but strong dissent for mill comm) o Ex Parte Quirin - saboteurs o Johnson v Eisentrager - confusing. Germans in china o Rasul v Bush - habeas for prisoners o Boumediene - habeas rights for prisoners o Hamdan v Rumsfeld - 2006 - pg 734 Then mil comms insufficient and conspiracy is not offense Mil Comm insufficient because: Defendants can't see lots of evidence against them Evidence standards are too lax - "any probative value" according to the presiding judge 2/3s vote is sufficient to sentence Appeal panel is only 1 judge and 2 officers who are instructed to disregard variance of proceedings that would not have "materially affected" outcome of commission **Though not a signatory of AP I, US had no objection to Art 75 which guarantees CIL trial safeguards which MilComm don'y have b/c deviates too much from normal courts mrtial (only by plurailty) o Post Hamdan - Military Commissions Act Congressional authority and rules for MCs Prohibit any US court's jur except DC Circuit (pro gov't) and SCOTUS Decriminalize humiliation and degrading treatment Bar invoking the GCs Bar all foreign and int'l law in the MCs Torture evidence excluded but "disputed: torture evidence is ok (so baically anything the gov't says it's torture) o 2010 NDAA Expands ban on torture evidence Reduced ban on invoking GC to only limiting private actions

Genocide Genocide Convention - pg 990 5 enumerated crimes 3 modes of participation US Interpretation - law in 1988 w/ several reservations and changed

language (pg 993) o Consent for ICJ o No obligation to act against Const. o Mental harm = permanent impairment o Requirement of specific intent o US nexus and centric

Crim Pro - 12

Amended in 2007 to include genocide committed abroad by non-US nationals Expanding deifnition of protected groups - pg 1006 Prosecutor v Krstic 2004 - 1006 o Substantial Part analysis - pg 1009 Inquiry into Darfur - pg 1012 o Tribes are not in themselves a protected group in genocide o Janjaweed were guilty of war crimes but not genocide o Many elements but not the dolus specialis or specific intent of genocide Prosecutor v Bashir

After

Genocide ICC - reasons it's good pg 1191 Transitional Justice Gacaca Lustration TRC o characteristics Focusses on past Ivestigates abuses over time Temporary body Ends with a report Officially sanctioned No adjudicatory power o Often tied or supplemental to courts - helps ease overflow, etc o Victime centered - victims more active; victim services/reparations o Naming names? o Amnesties? - pg 1196 o Context is important to success Goals of crim transitional justice o Desert/retribution/justice o Detterence o Rehabilitation o Restorative justice Compensation, conflict resolution (often preceded by retribution) See grading chart on 1226

The ICC - July 2002 Determining Jurisdication and Admissability - pg 779 (complementarity) Territorial jurisdiction - pg 791 Opportunistic referrals - pg 792 Triggers

Crim Pro - 13

SC, self-ref, proprio motu

MENS REA How do you rank culpability who pull the triggers vs. the one who orders them to pull the triggers vs. the ones who encourage to pull triggers vs. just working for camps vs. people who shut their eyes. How blameworthy are the members of the society who put their heads down? Downfall: Hitlers secretary? How do you think about the bosses? (Hitler, Milosevic etc.) remote from the actual crime. 18 USC par. 2 Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Abettor: someone who encourages Rome Statute Article 25 Every states statute has its own version of Mens Rea. ALI Model Penal Code par. 2.02 Purposely: the act or result is perps conscious object Knowingly: the perp is aware of the nature of his/her act or aware that the result is practically certain Recklessly: the perp consciously disregards a substantial and unjustifiable risk Negligently: the perp should be aware of substantial unjustifiable risk. Example Purposely: blow up building strategically: you dont want to kill people but there are going to be people in the building and you know that. Purpose or not: even if it didnt have this outcome: yes purposely. Example Negligence: I didnt train my troops for this: didnt give them rules of engagement, didnt tell them not to shoot civilians. Not give them clear instructions who counts as a civilian. My troops committed warcrimes and I didnt punish/do anything about it. Willful blindness/ignorance: I didnt know but I shouldve known. (in the U.S. this counts as knowingly. Sometimes more than 1 analysis in mens rea: Crime against humanity of murder: Rome Statutes elements: 1. Aware there was an attack on a civilian population knowledge as to the attack of the civilian population 2. Perpetrator killed people intentionally it was his purpose to kill people Accomplice: more mens rea to prove: prove that they are aware that the person who committed the crime was aware ... etc. German scheme of mens rea, why? Much of jurisprudence in international tribunals uses german scheme: German scheme distinguishes: 1. Intentional

Crim Pro - 14

a. Dolus directus dolus directus in the first degree: the wrongful act or result is the perps conscious purpose b. Dolus indirectus dolus directus in the second degree: the perp is aware of the nature of his/her act or aware that the result is practicually certain c. Dolus eventualis conditional intention: the perp is aware of a risk, and accepts or is reconciled to the adverse outcome (Sounds like Reckless) not just aware but reconciled (attitudinal element) 2. Negligent Article 30 is the basic Mens Rea in the Rome Statute: some crimes have their own mens rea attached and thats the one that counts. If a crime doesnt have mens rea than you go to article 30. What are intent and knowledge: Article 30: 2 (a) Intent in relation to conduct, means to engage in the conduct 2 (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3 Knowledge: awareness that a circumstance exists or a consequence will occur in the ordinary course of events. know and knowingly shall be construed accordingly. P. 871 Lubanga: The court imports dolus eventualis, (recklessness) Reckless complicity. If you can prove this form of recklessness than you satisfied the mens rea of intent and knowledge. Lubanga may not have know that he enlisted 14 year olds, but he certainly was aware of the risks. He wasnt objecting or reviewing troops. JOINT CRIMINAL ETERPRISE LIABILITY He was transporting men. We dont know who killed the victims. ICTY Statute, Article 7 (1) A person who planned, instigated, ordered, commited or otherwise aided and abetted in the planning, preparation or execution of a crime, shall be individually responsible for the crime. Common purpose liability JCE liability. P. 875, par. 192 JCE1. All acting pursuant to a common design, possess the same criminal intention. JCE2. Par. 202: Concentration camp cases JCE3. Par. 204: common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence o the effecting of that common purpose. Argument is that it is too easy for prosecutors (JCE3). Lazy investigation, overcharging etc. 2

Discussion of Command Responsibility The final piece for the way int'l law will deal with commanders Command Responsibility does not necessarily mean only military commanders; civilians can be charged through it too Can charge commanders who did not participate in an active was but did fail to prevent or punish the crime Is it vicarious liability? Is it ok to punish person A for an act of person B when A didn't actually do anything illegal?

Crim Pro - 15

See dictum in Nuremburg judgement that says that criminal guilt is personal In cases of command responsibility, it would be illegitimate to punish commander for subordinate's conduct. So it must be the case that the commander is being punished for commander's conduct. So what is the conduct at fault? Old British military doctrine was that if a commander's troops were pillaging and the commander was not doing anything to prevent it, the commander would be shot and killed. In US military, failure to prevent or punish might be self-standing crime of Dereliction of Duty. This is not command responsibility - separate crime. A commander who covers up his troop's wrongdoing is also a separate crime. Command responsibility is important b/c it's conceptually difficult to charge a command for an ommission under the other systems. CR provides a charge for culpable omissions. 1 Superior/subordinate relation 2 knew or had reason to know or should have known (mens rea) 3 Failed to take necessary and reasonable steps to prevent/punish Celebici says it's not necessarily formal chain of command but the de-facto chain of command. Can apply to civilians but only insofar as they exhibit a degree of control over subordinates similar to military Mens Rea Difficult to figure out what the mens rea is for command responsibility If command _knew_ that troops were about to, in the process of, or did in fact commit war crimes, then definitely mens rea But Yugoslav statute "knew or had reason to known" while Rome statute says "knew, or owing to the circumstances at the time, should have known" - looks more like negligence standard See 903 Celebici indicates actual knowledge or specific willful blindness Rome Statute 28A military - knew or should have known Looks like general negligence but "owing to the circumstances at the time" makes it more specific

Crim Pro - 16

28Bi civilian - knew or consciously disregarded information which clearly indicated the the subordinates were committing or about to commit crimes Prosecuting civilian is harder b/c must show that the commander "consciously disregarded" which is harder to show that "owing to the circumstances at the time, should have known" "As a result of" = controversial b/c means that prosecutor must show that in civilian case the commander's action/inaction was the cause of the subordinates' crimes. Very high demand for prosecutor. - controversial b/c almost impossible to prove causation In Hamashita case, the Japanese General was convicted because he had failed to adequately train his troops beforehand when, after an American attack, his troops went crazy and ran rampant, killing everything in sight. Hamashita's defense was that the American attack had been so effective it destroyed his ability to assert command but was still convicted on the theory of prior failure to train.

Crim Pro - 17