INTERNATIONAL CRIM LAW

• 1.     Safeguards:
• (1) You need an independent magistrate/prosecutor. (2) You need special
• circumstances, i.e. a crime/harm that gives rise to universal jurisdiction. (3)
• The arrest warrant should not violate immunity principles. (4) UJ should not
• violate the laws of the country where the individual resides.

• The power of a state to bring any matter within the cognizance of its
• national law. (To legislate)

Jurisdiction to adjudicate and compel compliance

• 1.     Lotus court
• held that the “first and foremost restriction imposed by international law upon
• a state is that—failing the existence of a permissive rule to the
• contrary—it may not exercise its power in any form in the territory of another
• state.” Dictum: The jurisdiction
• to prescribe has no limits.      
• Basically, it discussed the creation of jurisdiction to enforce:  The first and foremost restriction imposed by international
• law upon a state is that- failing the existence of a permissive rule to the
• contrary, it may not exercise its power in any form in the territory of another
• state.  In other words, unless
• expressly permitted, State A may not exercise jurisdiction in the territory of
• State B

Prevents requesting nations from prosecuting extradited individual for any offense OTHER THAN THAT for what the surrendering state AGREED TO extradite.

• -      
• Prohibits
• detentions, judgments, or sanctions for crimes other than the ones the relator
• had been extradited for.  Because
• of its broad and consistent application, it has acquired the hierarchy of
• international customary law.  The 9th
• Circuit interprets this rule to mean that relators have third party beneficiary
• rights and may claim the benefit of specialty principle without the need for
• the requested state to protest. 
• Thus, the specialty principle exists both for the requesting state and
• the relator.  This allows the
• relator to fight back governmental abuses in the extradition process, as he or
• she may demand a certain quantum of evidence proving participation in the facts
• upon which the unambiguous indictment was based, in order to defeat the
• presumption of his or her innocence.

• Accused person can be extradited ONLY IF CONDUCT complained of is considered CRIMINAL under the laws of BOTH REQUESTING AND SURRENDERING NATIONS ( THE SURRENDERING AND REQUESTING NATIONS BOTH CRIMINALIZE THE SAME BEHAVIOR AT ISSUE).
•     
• An accused person can only be extradited if the
• conduct complained of is considered criminal by the jurisprudence or under the
• laws of both the requesting and requested nations.  The name of the crime must not be the same, nor the scope of
• its liability, but it is enough that the particular act charged is criminal in
• both jurisdictions.

•                                                ·     Universal: Certain crimes are regarded as so
• destructive of the international order that any State may excercise
• jurisdiction in respect to them (e.g. Piracy).

Depends on nature of offense but can be reached by using the following principles

• Protects Vital National interests.
•      a State may assert its authority over matters which
• produce a deleterious effect on “the State”, irrespective of where those acts
• took place or by whom they are committed.

• Objective Territorial: The offense committed in another jurisdiction and the offense has a adverse impact on the country exercising jurisdiction. A State will have jurisdiction over offenses that are completed in its territory, even though some element constituting the
• offense/wrong took place abroad.

SUBJECTIVE TERRITORIAL: Crime was commenced inside the country. A state has jurisdiction over offenses that are completed in its territory even if some elements or the offense/wrong took place abroad.

Nation exercises jurisdiction based on the nationality of the victim. A state would have jurisdiction over all crimes where the victim was a national, irrespective of the place where the crime was committed or nationality of offender.

Exercise jurisdiction based on the nationality of the perpetuator. Permits but does not require a State to exercise jurisdiction over its nationals, wherever they may be when the offense or wrong was committed.

• Right to be tried by judges of their nations
• Right to live in their homeland
• Duty of state to protect welfare of it's citizens, including their protection against unfair trials and proceedings.
• Main argument revolves around idea that extraditions of a country's own nationals would violate sovereignty

• The non extradition of Nationals may generate an immunity o jurisdiction for nationals and in certain cases create in their favor a real asylum. In actuality, it reinforces
• national sovereignty. 

• resistance to extradition leads to the utilization of informal methods such as luring,
• abduction, and the use of immigration laws.

• -      
• “evidence
• sufficient to cause a person of ordinary prudence and caution to
• conscientiously entertain a reasonable belief of the accused guilt.”

• The burden of the government is to offer evidence that would support a
• reasonable belief that the defendant was guilty of the crime charged 

• The judicial officer determines the perpetrator’s identity, whether
• there is enough evidence to sustain the charge, and that the offense is located
• in the treaty. The Secretary of State determines whether extradition is
• appropriate

You can not take into account the correctional system/ the criminal justice system of the other  country. Courts refrain from investigating the fairness of requesting nations' justice systems and refrain from inquiry into procedures or treatment that await a surrendered fugitive in a requesting nation.

• -      
• The rule of
• non-inquiry tightly limits the appropriate scope of judicial analysis in an
• extradition proceeding. Under this rule, courts refrain from “investigating the
• fairness of a requesting nations justice system,” and from “inquiring into the
• procedures or treatment which await a surrendered fugitive in the requesting
• country.  
• The rule is shaped by concerns about institutional competence and by notions of separation
• of powers.

Applicable US law provides for 5 year SOL but statute may be TOLLED however if accused is a fugitive fleeing from justice. Court concluded that "fleeing from justice" requires Gov to prove by preponderance of evidence that accused acted with intent to avoid arrest or prosecution. Court agreed with distric court's finding that the D was intentionally fleeing from justice when he mved to US.

•  
• The French “objective” test
•  Consideres an offense non-extraditable only if it directly injured the rights of the state. (motives of the accused not
• considered)

• -      
• The swiss “proportionality” or “predominance” test
•   This test examines the political motivation of the offender, but also requires:  
• A consideration of the circumstances surrounding the commission of the crime and

• o Either a proportionality between the means and the political ends, or a predominance of
• the political elements, over the common criminal elements. 

• -      
• The Anglo American “incidence” test
• Two fold requirement:

• o  
• The occurrence of an uprising or other violent political disturbance at the time of the
• charged offense and

• o  
• A charged offence that is “incidental to,” “in the course of,” or “in furtherance of” the
• uprising”.

• -      
• Because the US
• condemns all international terrorism.

• -      
• No need to
• change current incident test as it will meet both goals of 1) extraditing
• terrorists, 2) continuing to cover the type of domestic revolutionary conduct
• that it was created to do.

• Answer depends on 2 questions:
• 1. Whether statute should be read as having extraterritorial effect and

2. Whether international law permits US to apply its law to particular conduct. 

In some instances, explicit congressional language allows for an easy resolution on favor of extraterritorial application. In other situations, courts are left to determine whether statute and conduct warrant extraterritorial application. To assist in deciding these situations the courts examine precedent, accepted jurisdiction bases, launguage from restatement and treaties.

• 1.     “An
• act of Congress ought never to be construed to violate the law of nations
• if any other possible construction remains…” 

• 1.     When
• the statute is not logically dependent on its locality, limiting its locus to
• the strictly territorial jurisdiction would greatly curtail the scope and
• usefulness of the statute.

• When a statute describes a
• crime that is not logically dependent on the locality and injures the
• government where the crime occurs

• -      
• For civil
• cases- when congress expressly states it in the statute.

• -      
• For criminal
• cases- it is inferred from the nature of the offense. Some offenses are not
• logically dependant on their locality for the government’s jurisdiction, so for
• those cases the government has the right to defend itself against obstruction
• or fraud wherever perpetrated, and therefore the court has extraterritorial
• reach.

• Where the
• language of a criminal statute does not indicate whether the statute is to be
• applied to extraterritorial conduct, resolution of the question depends upon
• the purpose of Congress as evinced by the description and nature of the crime.
• When a statute describes a crime which is not logically dependent on its
• locality but which, instead, injures the government wherever the the crime
• occurs, the statute will be applied to US citizens who violate its provisions
• -  even though there is no express
• declaration to that effect.

• -      
• The act
• proscribed by 351(a), the killing of a member of Congress, is directly
• injurious to the government, and is capable of perpetration without regard to
• particular locality. Since Layton is a national of the United States, and since
• Congressman Dwyer was an internationally protected person by virtue of the functions
• he exercised on behalf of The united states, the district court has
• jurisdiction to try Layton for the substantive offenses of murdering or
• attempting to murder Dwyer, even if those acts had occurred outside the
• territory of the United States.

• -      
• Protective
• Jurisdiction.

• the mere intent to commit a crime within the United States as sufficient to have
• jurisdiction over the defendant.

•                                                ·     In
• Chau example a person conspiring to commit marijuana smuggling into the United
• States from Malaysia, where Chau was located, was subject to US court
• jurisdiction based on territorial principle. The court found the mere intent to
• commit an act within the territorial jurisdiction of the United States is
• sufficient to have subject matter jurisdiction in cases of conspiracy – even
• though the statute itself did not provide for extraterritorial application.

• -      
• The court said
• that when the statute itself does not require proof of an overt act,
• jurisdiction attaches upon a mere showing of intended territorial effects. The
• fact that appellants intended the conspiracy to be consummated within the
• territorial boundaries satisfies jurisdictional requisites.

• -      
• While no overt
• act was committed within the United States, the government did prove that the
• boat intended to rendezvous with another vessel off the coast of Texas in order
• to unload their cargo. Given this proof, along with the proximity of the United
• States coast and the general heading of the ship, the court was convinced that
• the object of appellants plan had consequences within the United States.

• -      
• United States
• v. Walczak: Walzack, a United States citizen, was charged with making false
• statements on a US customs form when attempting to enter the country from
• Vancouver Canada. The defendant argues that a false statement made outside the
• borders is not punishable by a court of the United States. The court disagreed,
• finding that the law states that whoever in any matter within the jurisdiction
• of any department or agency of the United States knowingly and willfully
• falsifies conceals or covers up or makes false statements shall be fined not
• more than $10,000 or imprisoned not more than 5 years or both.

• -      
• Universality
• Principle: Under the universality principle, states may prescribe and prosecute
• certain offenses recognized by the community of nations as of universal
• concern, such as piracy, slave trade, attacks on or hijacking of aircraft,
• genocide, war crimes, and perhaps certain acts of terrorism – EVEN ABSENT ANY
• SPECIAL CONNECTION BETWEEN THE STATE AND THE OFFENSE

• -      
• In Yunis, the
• court found that under the Universality Principle, even though the defendant
• was seized in international waters, International Law does not restrict this
• statutory jurisdiction to try Yunis on air piracy.

-

• -      
• The European
• Court of Human decided Soaring on the basis of Articles 2 and 3 of the European
• Convention On Human Rights.

• -      
• Article 2:
• Everyone’s right to life shall be protected by law. No one shall be deprived of
• his life intentionally save in the execution of a sentence of a court following
• his conviction of a crime for which this penalty is provided by law. (states
• that capital punishment is permitted under the Convention in certain instances)

• -      
• Article 3: No
• one shall be subjected to toruture or to inhuman or degrading treatment or
• punishment.

No one shall be subjected to toruture or to inhuman or degrading treatment or punishment.

• -      
• It took into
• account the domestic law and practice of the United Kingdom, Domestic law of
• the commonwealth of Virginia, and relevant law and practice of the Federal
• Republic of Germany.

• The court found that while
• the death penalty itself did not violate Article 3, the court ruled that the
• “death row phenomenon” did violate Article 3. It noted  the very long period of time spent on
• death row in such extreme conditions, with ever present and mounting anguish of
• waiting execution of the death penalty, and to the personal circumstances of
• the applicant, especially his age and mental state at the time of the offense,
• thus concluded the applicants extradition to the United States would expose him
• to a real risk of treatment going beyond the threshold set by Article

• The court
• found that while the death penalty itself did not violate Article 3, the court
• ruled that the “death row phenomenon” did violate Article 3. It noted  the very long period of time spent on
• death row in such extreme conditions, with ever present and mounting anguish of
• waiting execution of the death penalty, and to the personal circumstances of
• the applicant, especially his age and mental state at the time of the offense,
• thus concluded the applicants extradition to the United States would expose him
• to a real risk of treatment going beyond the threshold set by Article 3

• “US military authorities asked the Netherlands to surrender,
• under the NATO Status of Forces Agreement, an American soldier accused of
• murdering his wife, but refused to give assurances that the death penalty would
• not be imposed. The Netherlands was a party to Protocol 6, so there was a
• direct conflict between the obligation not to subject individuals to the death
• penalty and the obligations imposed by the Status of Forces Agreement. The
• Dutch Supreme Court was not prepared to find that Protocol 6 necessarily
• prevailed over the obligation to surrender the accused. But, balancing the
• competing interests, it did hold that Short’s interest in not being surrendered
• was entitled to priority. He was surrendered when US authorities agreed not to
• charge him with a capital crime.”

Lisa:

•  US military authorities asked the Netherlands to
• surrender an American soldier accused of murdering his wife, but refused to
• give assurances that the death penalty would not be imposed.

• The Netherlands was a
• party to protocol No. 6, so there was a direct conflict between the obligation
• not to subject individuals to the death penalty and the obligations imposed by
• the status of forces agreement.

• The Dutch supreme court
• was not prepared to find that protocol no. 6 necessarily prevailed over the
• obligation to surrender the accused, but held that D’s interest in not being
• surrendered was priority. They ultimately surrendered him when they received
• assurance that he would not be charged with a capital crime.

• Grave breaches
• of the Geneva conventions of 1949
•      
• Violations of
• the laws and customs of war
•    
• Genocide
•     
• Crimes against humanity. 

• The International Tribunal for the Prosecution of Persons
• Responsible for Serious Violations of International Humanitarian Law Committed
• in the Territory of the Former Yugoslavia since 1991, more commonly
• referred to as the International Criminal Tribunal for the former Yugoslavia
• or ICTY, is a body of the United Nations established to prosecute
• serious crimes committed during the wars in the former Yugoslavia, and to try
• their perpetrators. The tribunal is an ad hoc court which is located in The
• Hague, the Netherlands.

• The
• Court was established by Resolution 827 of the United Nations Security Council,
• which was passed on 25 May 1993. It has jurisdiction over four clusters of
• crime committed on the territory of the former Yugoslavia since 1991: grave
• breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. The maximum
• sentence it can impose is life imprisonment.

• Obligations
• “erga omnes” are obligations of a
• state towards the international community as a whole, allowing any state to
• complain about the nonperformance of such obligations. Some of those
• obligations include not committing certain acts in transgression of “jus cogens” norms, such as acts of
• aggression, genocide, and promoting slavery or race discrimination. States are
• also obliged to criminalize such behaviors and this is particularly relevant
• from the viewpoint of international criminal law. This obligation to
• criminalize and prosecute such crimes may itself be an obligation “erga omnes.”

• Obligations erga omnes in general international
• law comprise a complex series of situations that are not the subject of
• international criminal law. I would therefore define “erga omnes obligations” from the viewpoint of international
• criminal law, as obligations flowing from the commission of core international
• crimes that violate of preemptive norms of international law (jus cogens norms). The typical example
• is the obligation to prosecute or extradite.

• The task of the IMT was to try and punish perpetrators of
• any of the following crimes:

• A.   
• Crimes against peace:  namely, 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.

• B.   
• War crimes:  namely, violations of the laws or customs of war.  Such violations shall include, but not
• be limited to, murder, ill treatment or deportation to slave labor or for any
• other purpose of civilian population of or in occupied territory, murder or ill
• treatment of prisoners of war or persons on the seas, killing of hostages,
• plunder of public or private property, wanton destruction of cities, towns or
• villages, or devastations not justified by military necessity.  

• C.    
• Crimes against humanity:  namely, murder, extermination, enslavement,
• deportation, and other inhumane acts committed against any civilian population,
• before or during the war, or persecutions on political, racial, or religious
• grounds in execution of or in connection with any crime within the jurisdiction
• of the tribunal whether or not in violation of the domestic law of the country
• where perpetrated.

• Leaders,
• organizers, instigators, and accomplices, participating in the formulation or
• execution of a common plan or conspiracy to commit any of the foregoing crimes
• are responsible for all acts performed by any persons in execution of such
• plan.

 

Lisa:

• -      
• Crimes against
• peace

• -      
• War crimes

• -      
• Crimes against
• humanity

• -      
• Leaders,
• organizers, instigators and accomplices participating in the formulation or
• execution of a common plan or conspiracy to commit any of the foregoing crimes
• are responsible for all acts performed by any person in execution of such plan.

• 1) Power of the
• Security Council to Invoke Chapter VII

• Article 39 provides that the Security Council shall determine
• the existence of any threat or breach of the peace and decide what measure
• should be taken to maintain or restore international peace and security.

• It is unnecessary to examine the limits of the discretion of
• the Security Council in determining the existence of a threat to the peace
• because 1) an armed conflict has been taking place  long before the Security Council decided to establish the
• I.T (there is obviously either a “breach of the peace” or a “threat to the
• peace”); and 2) Appellant neither contests the Security Council’s power to
• determine whether the situation in former Yugoslavia constitutes a threat, nor
• the determination itself. He simply contests the legality and appropriateness
• of the measures chosen by the Security Council to that end.

 

• 3) Lawful
• Establishment of the I.T. as a Measure Under Chapter VII

• The I.T. matches perfectly the description in Article
• 41 of “measures not involving the use of force”: “The Security Council may
• decide what measure not involving the use of armed force are to be employed to
• give effect to its decisions...” (The enumerated measures are illustrative
• and do not exclude other measures.) Therefore, establishing the I.T. falls
• squarely within the powers of the Security Council under Article 41

• and the Appeals Chamber considers the I.T. to be lawfully
• established.

• The Security Council is not a judicial organ and it is not
• provided with judicial powers. Its principal function is the maintenance of international peace and security, wherein it
• exercises both decision-making (legislative) and executive powers.

• Establishing the I.T. did not mean the Security Council
• delegated some of its own functions or powers away. Nor does it mean
• that the Security Council was usurping for itself part of a judicial function
• over which it has no power. Rather, the Security Council resorted to
• establishing a judicial organ in the form of the I.T. as an instrument for
• the exercise of its own principal function of maintaining peace and security.

• Article 39 leaves
• the choice of means and their evaluation to the Security Council, which enjoys
• wide discretionary powers. This decision cannot be double-guessed on
• account of the success or failure of these results (here, the restoration of
• peace in former Yugoslavia).

• The following requirements must be met for an office to be
• subject to prosecution before the International Tribunal under Article 3:

 

• 1.    
• The violation must constitute an infringement of
• a rule of international humanitarian law

• 2.    
• The rule must be customary in nature or, if it
• belongs to treaty law, the required conditions must be met

• 3.    
• The violation must be “serious,” that is to say,
• it must constitute a breach of a rule protecting important values, and the
• breach must involve grave consequences for the victim. Thus, for instance, the
• fact of a combatant simply appropriating a loaf of bread in an occupied village
• would not amount to a “serious violation of international humanitarian law” although
• it may be regarded as falling foul of the basic principle laid down in Article
• 46, paragraph 1, of the Hauge Regulations (and the corresponding rule of
• customary international law) whereby “private property must be respected” by
• any army occupying an enemy territory

• 4.    
• The violation of the rule must entail, under
• customary or conventional law, the individual criminal responsibility of the
• person breaching the rule

 

• It follows that it does not matter whether the “serious
• violation” has occurred within the context of an international or an internal
• armed conflict, as long as the requirements set out above
• are met.

• -      
• An armed
• conflict exists where there is a resort to armed force between states or
• protracted armed violence within a state between governmental authorities and
• organized armed groups or between such groups.

• -      
• When
• there is an armed conflict, international humanitarian law applies to
• the whole territory of the belligerents in international conflict or in internal
• conflict, the territory under the control of the parties, whether or not actual
• combat takes place there. The Appeals Chamber affirmed that the temporal and geographical scope of an
• armed conflict extends beyond the exact
• time and place of the hostilities.

• -      
• Even if
• substantial clashes were not occurring in the region at the time and place the
• crimes allegedly were committed they are considered to be committed in the
• context of armed conflict, and international humanitarian law still applies.

• -      
• Here –
• the Security Council declined to classify the conflict as internal or
• international, because it could feasibly be either: international because the
• Croatian Army and Yugoslavian National Army were involved; and internal because
• some conflicts were limited to those between the Bosnian Government and the
• Bosnian Serb Rebel forces

a.     Non bis in idem = double jeopardy.

• b.     On the basis of national and international
• law and jurisprudence, the Chamber concluded that it is acceptable to convict the accused of two offenses in
• relation to the same set of facts in the following circumstances:

•                                              
• i.     1) Where the crimes have different elements;
• or 2) where the provisions creating the crimes protect different interests;
• or 3) where it is necessary to record a conviction for both crimes to
• adequately show what the accused did.

• c.     However, it is not justifiable to convict an accused of two crimes on
• the same set of facts where:

•                                              
• i.     1) one crime is a lesser included offense of
• the other (i.e. murder and grievous bodily harm); or 2) where one crime
• charges accomplice liability and the other crime charges principal liability (i.e.
• genocide and complicity in genocide).

• d.     Here - Under the Statute, the Chamber
• believes the crimes in this case have different elements and protect
• different interests, and are not lesser included offenses of each other.

• a.     Article 6(3) is an exception to Article 6(1)
• insofar as it derives from military law (specifically from the commander’s
• liability for the acts of his subordinates).

•                                               
• i.     Article 6(1) states: “A person, who planned,
• instigated, ordered, committed, or otherwise aided and abetted in the planning,
• preparation, or execution of a crime…shall be individually responsible for the
• crime.” Thus Akayesu can be responsible as a principal actor in the crime as
• well as one who ordered or aided those acts (Article 6(1) requires to act
• knowingly).

•                                             
• ii.     On the contrary, Article 6(3) does not
• necessarily require that the superior acted knowingly to render him criminally
• liable; it suffices that he had reason to know that his subordinate were
• about to commit or had committed a crime and he failed to take the necessary or
• reasonable measures to prevent such act or punish the perpetrators thereof.
• In a way, this is liability by omission.

• b.     Article 6(3) states: “The fact that any of
• the acts [in Articles 2-4] were committed by a subordinate does not relieve
• his superior of criminal responsibility if he knew or had reason to know
• that the subordinate was about to commit such acts or had done so and the
• superior failed to take the necessary and reasonable measures to prevent such
• acts or to punish the perpetrators thereof.”

• a.    
• Complicity generally means a form of participation in a
• crime – someone who associates himself in an offense committed by another. In
• order for someone to be found guilty of complicity in genocide, you must first
• prove that genocide has been committed beyond a reasonable doubt. The mens
• rea/intent element of complicity is that at the moment he acted, the accomplice
• knew of the assistance he was providing in the commission of the principal
• offense (genocide). The intent of the accomplice must be to knowingly aid or
• abet one or more persons to commit the crime of genocide. The accomplice need
• not necessarily possess the “dolus specialis” of genocide – namely, the
• specific intent to destroy, in whole or in part, a national ethnic racial or
• religious group.

• b.    
• For example – if the person knowingly helps someone to
• commit murder, but didn't know that the plan of the murder was to destroy an
• entire group of people, then the person can only be tried for complicity in
• murder. However, if the person helps commit a murder, knowing that the
• murderer’s intent is to destroy an entire group of people, then the assistant
• can be tried for complicity in genocide.

• a.    
• Incitement – encouraging or persuading another
• to commit an offense.

•                                               
• i.     Common
• law also says that this could include threats
• or other forms of pressure.

•                                             
• ii.     Civil
• law systems punish direct and public incitement assuming the form of
• provocation. Provocation is defined as an act intended to directly provoke
• another to commit a crime or a misdemeanor through speeches, shouting or
• threats, or any other means of audiovisual communication.

• b.    
• Public – the place where the incitement occurred
• and whether or not attendance was selective or limited.

•                                               
• i.     Civil
• law says words are public if they are spoken aloud in a place  that were public by definition.

•                                             
• ii.     According
• to Int’l Law Commission, public incitement is characterized by a call for
• criminal action to a number of individuals in a public place, or to members of
• the general public at large using mass media like radio or television.

• c.    
• Direct – implies that the incitement assume a
• direct form and specifically provoke another to engage in a criminal act, and
• that more than mere vague or indirect
• suggestion goes to constitute direct incitement.

•                                               
• i.     Civil
• law systems define provocation (the equivalent of incitement) as direct where
• it is aimed at causing a specific offense to be committed. The prosecutor must
• prove a definite causation between
• the act characterized as incitement and a specific offense.

•                                             
• ii.     The
• direct element of incitement should be viewed in light of its cultural and
• linguistic content – some speech may be direct in one country but not in
• another depending on the audience. Incitement may be direct, but nonetheless
• implicit.

• d.    
• Final definition – directly provoking the
• perpetrators to commit genocide, whether through speeches, shouting or threats
• uttered in public places or at public gatherings, or through the sale or
• dissemination, offer for sale or display of written material or printed matter
• in public places or at public gatherings, or through the public display of
• placards or posters, or through any other means of audiovisual communication.

• a.     Article 3 of the Statute of the Tribunal
• grants the Chamber jurisdiction to prosecute individuals for C.A.H., which
• crimes can be broken down into four elements:

•                                               
• i.     1) the act must be inhumane in nature and
• character, causing suffering or serious injury to mental or physical health

•                                             
• ii.     2) the act must be committed as part of a
• widespread or systematic attack

•                                            
• iii.     3) the act must be committed against members
• of the civilian population

•                                            
• iv.     4) the act must be committed on discriminatory
• grounds—namely national, political, ethnic, racial, or religious grounds.

• Article 3 sets out a list
• of acts that constitute C.A.H. but the list is not exhaustive. Any act
• that is inhumane in character or nature may be a C.A.H., so long as the other
• elements are met.

• a.    
• McDonald and Vorah concluded that duress cannot be a
• complete defense.

• b.    
• 1. First looked at Article 38 of the Statute of the
• ICJ, which contains generally accepted sources of international law. They
• didn't find any international treaty or convention on point.

• c.    
• 2. Second, they decided to analyze international
• customary law. They looked at the British military case Jepson, and the Einsatzgruppen
• case decided by the United States Military Tribunal.

•                                               
• i.     Jepson
• was overruled by subsequent caselaw.

•                                             
• ii.     Einsatzgruppen
• was discounted by the McDonald and Vorah because the case did not cite any
• precedent for the proposition that duress affords a complete defense.

•                                            
• iii.     The
• notion that duress affords a complete defense is also contradicted by the U.S.
• Manual for Courts-Martial.

•                                            
• iv.     The
• Einsatzgruppen case was regarded as applying national law and not international
• customary principles, even though it was decided by an international court (it
• was created by the London Charter in 1945).

• d.    
• 3. Third, they inquired
• into the general principles of law, surveying a large number of countries, some
• belonging to the civil law system and others to the common law, and concluded
• that the divergent solutions do not authorize the inference of a general principle
• of law on this matter.

• e.    
• 4. They tried
• to justify the rejection of duress as a complete defense, taking into account the
• particular context within which the ICTY was created and the social, economic
• and political purposes of the founding Statute.

•                                               
• i.     The policy
• behind the rejection, is the
• protection of the weak and vulnerable, and the need to deter horrendous crimes
• (such as the ones against humanity), which were distinct in magnitude from
• ordinary murder; and the reasons for the common law tradition rejecting duress
• as a complete defense were here even more valid that in ordinary murder.

• f.      5. The opinion then examined situations in
• which the victims would have been shot anyway, such as the Italian Masetti case, in which the duress defense was accepted.

•                                              
• i.     McDonald and Vohrah rejected this approach
• because it embodied a utilitarian
• logic.

•                                            
• ii.     They contended that in these types of cases,
• because of their gravity, it is necessary to send a clear message that the
• defense is not available, as an absolute moral postulate.

• g.     6. However the judges then recognized that
• duress operates as a mitigation of
• punishment under the ICTY Statute.

• h.    Then their argument took an extraordinary
• turn, as they accepted that, in the way of mitigating punishment, it was
• possible in some situations that there could be no punishment at all, thus
• undermining their high moral tone (in that they reject duress as a complete
• defense, but then conclude by saying duress can be a complete defense).

• a.     Cassese and Stephen concluded that duress could
• operate as a complete defense.

• b.     1. He pointed out that McDonald did not find
• any international legal rule applicable to duress. He said that they should have applied the general rule,
• that made duress applicable under certain conditions, even in murder cases.

•                                              
• i.     He criticized the plurality opinion for
• adopting the common law interpretation of the issue without accepting the overwhelming civil law jurisprudence and
• legislation.

• c.     He then undertook the task of examining the idea of duress and the conditions
• required for its applicability.

• d.     Next, he distinguished
• duress involving threats or compulsion by a third party, from necessity—which
• involves a broader concept—including duress from causes other than third
• parties such as extreme hunger where
• life is threatened by lack of food.

•                                              
• i.     Duress, he thought, required four conditions:

• 1.     a) the act charged should have been carried
• out under an immediate threat of severe and irreparable harm to life or limb;

2.     b) no adequate means existed to avert such evil;

• 3.     c) there was proportionality
• in the means to avoid the threat; and

• 4.     d) the situation of duress should not have
• been self-induced (voluntarily brought about by the person coerced). If the
• accused had a duty to protect the victim,
• the defense would not be available.

• e.     Cassese did not believe that customary int’l
• law precluded duress as a defense to murder. He went through the British cases
• that the Plurality cited, and concluded that they did not support the
• proposition that duress is unavailable to an accused charged with unlawful
• killing.

•                                              
• i.     There is only one Canadian case and the
• British and U.S. military manuals that accept duress as a complete
• defense to murder. He considered that this
• was hardly a sufficient basis upon which to ground a customary rule.

•                                            
• ii.     Cassese analyzed numerous cases where courts
• assumed that duress was a complete defense. Even in the Eichmann case, the Israeli Supreme Court considered that under
• different circumstances from the case at bar, duress could have been used as a
• complete defense.  He included in
• his survey a number of cases where the defense of duress was successfully
• argued in cases of unlawful killings, including Masetti, and other cases
• involving crimes against humanity.

•                                          
• iii.     Consequently, he concluded that there was
• no specific customary int’l law on whether or not duress can be admitted as a
• defense in cases of  crimes
• involving the killing of persons. He understood that the majority of the appeals chamber had reached the same conclusion,
• although through different arguments.

•                                            
• iv.     However, despite the absence of a customary
• international rule concerning duress, Cassesse determined that a rule allowing
• duress must apply on a case-by-case basis, to all categories of crimes, whether
• or not they involve killings. An int’l criminal court must apply as a minimum
• the four above-mentioned, universal criteria that must be met for duress to be
• upheld as a defense. These four stringent requirements are difficult to meet,
• but the defense should still have been available.

• f.      He criticized
• the majority for their detailed policy considerations, affirming that such
• examination is extraneous to the task of the tribunal. He pointed out that the ICTY is called upon to apply int’l law
• (int’l humanitarian law and int’l criminal law, in this case). As a court of
• law, he believed that it should refrain
• from engaging in meta-legal analysis.

•                                              
• i.     Further, he denounced that a policy-oriented approach in the area of
• criminal law runs contrary to the fundamental principle nullum crimen sine lege, especially when these
• “policy-considerations” of Judges MacDonald and Vohrah are substantially based
• on English law.

•                                            
• ii.     Nullum crimin sine lege = (according to
• Wikipedia) “The maxim states that there can be no crime committed, and no
• punishment meted out, without a violation of penal law as it existed at the
• time. Another consequence of this principle is that only those penalties that
• had already been established for the offence in the time when it was committed
• can be imposed.”