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International Criminal Law: course introduction

Historical background and an overview of the further topics covered

Douglas Guilfoyle

on 28 August 2015

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Transcript of International Criminal Law: course introduction

Introduction to International Criminal Law
Dr Douglas Guilfoyle
Course structure
The Tokyo IMT & other prosecutions
ICL: principles, objectives, alternatives
Introduction to the theory of ICL
Nuremberg: origins and significance
History, institutions & objectives (weeks 1- 5)
Core crimes (weeks 6-10)
Transnational crimes:
torture, terrorism
The "general part" of ICL: principles of liability, defences
ICC Simulation
National courts: jurisdiction and immunity
Term One
Term Two
The Nuremberg revolution?
International law
National criminal law
The State
International law
The State
National criminal law
The Nuremberg International Military Tribunal
Before 1945
After 1945
Key issues:
legally established?
crimes of individual responisbility?
novelty of aggression and crimes against humanity.
crimes against peace
war crimes
crimes against humanity
NOT genocide.
“As a body of international law [ICL] requires an understanding of the sources and interpretation of international law. But it is also criminal law and as such needs substantive provisions that are clear and exact rather than the often more imprecise formulations of international law.” (Cryer et al, 2010, 14.)
Complementarity: international law designed primarily for enforcement by national courts.
Defining ICL:
broad approach - any crime defined by international law
narrow - crimes within the jurisdiction of an international court
“Transnational criminal law”: crimes against national public order involving an international element, e.g. drug smuggling, migrant smuggling / sex trafficking, money laundering.
What are the objectives of ICL?
Sources of International Law:
customary international law,
general principles of law and
the writings of eminent publicists.
Jus cogens?
Treaties and custom:
codify custom
crystalise custom
subsequently become custom

ICC Statute: codification or progressive development?
In civil law, the principle has four elements (see Cassese, 2010, 36 ff).

Two are now part of international law -
The prohibition on retroactivity (see now Art 7, ECHR; Art 15, ICCPR; Art 22, ICC Statute)

Two are not part of general ICL -
the requirement of written form (nullem crimen sine lege scripta); and
crimes may not be extended or applied by analogy (NB Art 22 ICC Statute).
Nullem crimen sine lege: the principle of strict legality.
Nullem poena sine lege
A separate principle?
Criminal sanctions must be envisaged.
Not every breach of IL attracts criminal sanction.
Amnesties: created at national law.
Truth Commissions
Civil claims
Traditional law
Control Council Law No. 10
UK Royal Warrant of 1945
US Military Commissions
Trials in other theatres, including:
British Military Tribunals in Italy;
US Army prosecution of Class B and C War Criminals in Yokahama (190 trials);
British Trials of Japanese War Criminals in Singapore (45 cases);
U.S. Army Trials of Japanese War Criminals Conducted in the Philippines (7 trials);
Dutch Courts Martial in Indonesia.
The (wrong) lessons learned?
Critiques of ICL.
practical, viable, good.
establish an historical record?
vast expense.
viable outside occupation?
impossible without cooperation?
Idealist critique: Philip Allott, Health of Nations

The law may be seen to condone what it does not condemn.
By punishing individuals after the fact, ICL does nothing to correct either structures of power generally or abuses of power in individual cases.
Criminal law can only have a morally valid claim to enforce social values within a unitary society.
Practical critique: David Kennedy, The Dark Side of Virtue

International institutions are not cost free.
A distraction from, or an excuse for not, taking more effective action?
Unintended consequences?
Emerging issues
Bentham House Room 307
Tokyo IMT or IMTFE:
12 judges
28 defendants
1,781 page judgment
Full transcript