INTERNATIONAL CRIMINAL LAWSPRING 2016 Georgetown University Law Center Professors W. Raabe, S. Koh, V. Prugh SOME QUESTIONS TO HELP YOU REVIEW 1. What would be the proper basis under international law for each of the following: Service of subpoena in a U.S. criminal prosecution upon a U.S. citizen living in France? U.S. prosecution of foreign nationals who kill a U.S. Congressman visiting their country? Foreign prosecution of a U.S. national for taking a deposition in that country? U.S. prosecution of a U.S. national for acts of genocide committed overseas? Indictment by the International Criminal Court of a head of state for aggression? Remember difference between ius ad bello and ius in bello U.S. prosecution of a U.S. national for killing another American in a foreign country with which we have no extradition treaty? U.S. prosecution of a foreign political leader for his/her role in a campaign of atrocities committed against the civilian population in his/her own country? Foreign prosecution of a U.S. national for advocating racial hatred over the internet? Foreign prosecution of a U.S. service member for committing war crimes in a third U.S. prosecution of a private contractor (U.S. national or third country national) for torture committed in a foreign country? 2. True/False: The United States never relies on nationality to assert criminal jurisdiction? 3. What standard(s) do U.S. courts use when deciding whether a particular U.S. criminal law should be (or can be properly) applied to extraterritorial acts? How should courts analyze the issue? 4. In the Georgescu case, what jurisdictional basis justified criminal prosecution of a foreign national in the U.S. for an incident that occurred on board an aircraft while it was over the high seas? 5. What is the difference between customary international law and jus cogens? 6. Who can be prosecuted for crimes within the jurisdiction of the International Criminal Court? 7. Can you articulate the difference (or dividing line) between international human rights law, international criminal law, international humanitarian law, and the international law of war? When, for example, does the one apply to the exclusion of the others? Why is it so difficult to arrive at a definition of “terrorism. Name the specific crimes which are recognized by international law. UNCAC. UNTOC (titles of classes can be used as guide) 17. did the House of Lords’ decision(s) in Pinochet make in the scope of head of state immunity? 12. 1988 convention.8. Name the principal international criminal conventions and treaties.with all the conventions there are out there you cn com up with 22 crimes. Under what circumstances does it make most sense to create a ‘hybrid’ criminal tribunal to prosecute serious crimes? Name some examples of different kinds of hybrids? what are the difference with ad hoc. What is a “letter rogatory”? When is (or should) it be used? What shortcomings does it entail? Look in extradition 10. strengths and weaknesses of ad hoc v hybrid 18. First reading has general description of crimes in international law. Genocide. In what ways. What change. Describe their common elements. if any. Why wasn’t Noriega protected by head of state immunity from criminal prosecution in the U. . you can talk about the four crimes in odern ICC. CAT. Define (and distinguish between) the following concepts as they apply to criminal prosecutions: Foreign Sovereign Immunity Head of State Immunity Diplomatic Immunity Consular Immunity 9.” particularly in a forum like the UN? 19. what are their strengths and weaknesses 20.? 13. 19 counterterrorism conventions. What are the main differences between a crime against humanity and genocide? Could you describe a situation in which rape could be the central element in a charge of genocide? 14. What was the holding in the PCIJ in the Lotus case? How would that case be decided today? 16. have the ad hoc tribunals for the Former Yugoslavia and Rwanda been successful/failures? What are their strengths and weaknesses? Would you advocate creating more tribunal like them? To deal with what kinds of situations? Another form of differences. What are the major elements of the crime of torture? What defenses does the Torture Convention permit? However torture can be a crime against humanity 15. What is the “principle of legality”? 11. or to what extent.S. drug convention. Is this still true? Look at the lotus case.S. 11 U. In 1812. of the fact that the obligations is in fact stated as “submit for” prosecution? 25. without a treaty? 29. Chief Justice Marshall wrote that “[j]urisdiction of the nation within its own territory is necessary and absolute. There are some 19 terrorist-related multilateral conventions or protocols. comply with that obligation? What is the significance for the U.S.S. to obtain bank records from a bank abroad to use as evidence in prosecuting a criminal case in the U. Around 193/194 It was talked about in class but not in reference to the cases.” The Schooner Exchange v. What is the definition of genocide under international law? Name its specific components. 26. What options are available for a lawyer in the U. or a convict. 23. counting the “Bombing Convention. Do you see any jurisdictional or other problems with trying to regulate or criminalize “virtual child pornography” across national boundaries? 24. Explain the meaning and legal relevance of the following key concepts in extradition from the United States? Dual criminality – definitely covered Specialty (or specialty) – definitely covered Political Offense Rule of Non-Inquiry Provisional Arrest 28. What principles of jurisdiction were determinative in Blackmer? Zehe? Bond of allegienac and why it matters. to a third country where torture is likely? 30. How does the U.S. national or not? 27. It is in the book why not? 22.S.S. Explain the principle of extradite or prosecute? (“aud dedere aut judicare”) typically found in international criminal law conventions. in entering into a treaty on mutual legal assistance in criminal matters? How can a foreign country get assistance from the U. (7 Cranch) 116. It is susceptible of no limitation not imposed by itself.S. What are the advantages for the U.S. What is meant by “male captus bene detenus”? “Nullum crimen sine lege”? “Hostes humani generis”? 32. if any. Under what circumstances can the United States extradite a fugitive to a foreign country? Does it matter whether the fugitive is a U. . exist on sending a suspect. 336.? 31.” Name three key obligations that States Parties to these conventions are required to undertake. What is ‘extraordinary rendition’? When is it permissible? What constraints. McFadden.21. In your view. Constitution) privilege against self-incrimination allow a non-U. How does it differ from an Interpol Red Notice? In the powerpoint I was mentioned as well as the readings. Define “crime against humanity” and give its most important characteristics or attributes. What important changes have occurred recently in the definition (especially its jurisdictional dimension)? 44. What is the principal difference in the substantive jurisdiction of the ad hoc International Criminal Tribunal for the Former Yugoslavia and its sister ad hoc tribunal for Rwanda? What is the reason for the difference? What is the latest ad hoc international criminal tribunal? 41. on what grounds can a request for assistance be denied? What provisions are made for dealing with testimonial privilege? 38. and to PIOCCA 46.33. Does international law support the establishment of national “military commissions” to prosecute foreign nationals accused of international crimes? Which crimes? Under what circumstances? 34. Describe the European arrest warrant. national to avoid testifying in U. Define and give examples of “universal” criminal jurisdiction. what are the major challenges to the success of the International Criminal Court? Do you think the United States will ever become a party to the Rome Statute? Should it? 43. What is the doctrine of “command responsibility” and when does it apply? Related to modes of liability.S. You should be familiar with it but not in huge detail. Which specific crimes does it cover? 36.S.S. how would you remedy the problem? . Under what circumstances can a convicted prisoners in the U. Some argue that amnesties (even the post-conflict. What’s your view? 42. Does the Fifth Amendment (U. Interpol is broader construct unlike European 40.S. court about actions which could potentially form the basis for his prosecution in a foreign court? What about an individual threatened with prosecution for crimes against humanity by the International Criminal Court? 35. pro-reconciliation kind) contravene the principle of accountability and are the handmaidens of impunity. How is the crime of aggression dealt with in the ICC Statute? What are – or should be – its principal elements? 37. Why is the criminalization or prevention of money laundering viewed as having an increasingly important role in fighting narcotics trafficking and other transnational crimes? What are the main elements of the UN convention against terrorist financing? 39. be transferred to another country to serve out the remainder of his or her sentence? 45. Do you see any contradiction between the principle of “complementarity” in the Statute of the ICC and the “ne bis in idem” provision? If so. Under a typical bilateral MLAT. 23 U. Chief Justice Marshall of the U. What specific challenges did Dusko Tadic make to the jurisdiction ratione materiae of the ICTY? What was the Tribunal’s response in its 1995 decision? 56. the District Court for the District of Colombia agreed with the principle underlying the Mexican prosecution of a U. True/False: “Every violation of the law of war is a war crime. 49. In international criminal proceedings.S. why? 60. What is a Ghidoni waiver? 55.S. in what ways? 63. 51. are there accepted minimum guarantees of due process for defendants? If so. for the most serious international crimes? If so. Supreme Court states that “the courts of no country execute the penal laws of another. are the exclusive means by which U. In 1825. Describe the main options for prosecuting international terrorists. Yunis.” The Antelope. True/False: Extradition treaties. which crimes? If not. (10 Wheat.S.S. v. or individual pardons. 53. ask this question in the context of UNTOC . if any. Describe the main differences in their jurisdictional provisions. True/False: In U. What is Justice Stevens’ principle objection to the majority’s analysis in Alvarez-Machain? 52. exceptions exist to the doctrine? Extradition slide on it 50. How does international criminal law address the dangers of group or organized criminality? Relates to UNTOC. What is the Ker-Frisbe doctrine? Is it still good law? What.47. What are the “core” offenses in the Convention against Transnational Organized Crime? 62. what are they? 61. national in the Cutting Case a hundred years earlier.” 59. 123 (1825. when? And what distinguishes it from statesponsored terrorism? Alvarez Machain. over which there is universal jurisdiction. 48. Does international law prohibit states from granting amnesties. The Genocide Convention was the first multilateral “international criminal law” treaty and the UN Convention against Corruption is one of the most recent. Is ‘transnational abduction’ lawful? If so. It may not be clear differentiation 54.S.) Is this still true and if not. where they exist. law enforcement may lawfully obtain custody of suspects and fugitives within foreign jurisdictions. Describe the substantive crimes articulated in the COE Convention on Cybercrime? 58. When does the political offense exception to extradition apply? Do you agree with the district court’s decision in Pitawanakwat? 57.) 66. S. How does ICJ get jurisdiction? 75. Why should the international community focus on transnational organized crime and not the underlying criminal offenses. The first one grants Mexican nationals certain . 70. What crime are “snakeheads” and “coyotes” associated with? 67.64. True/False: A treaty can grant Congress domestic regulatory power it would otherwise lack. specifically its article 94. What did Mexico do? 74. bribery. It is also important to note that there were three treaties being analyzed for this matter: The Vienna Convention on Consular Relations (VCCR). What are the three elements to combat the threats or organized crime identified by the textbook authors? 68. What‘s the problem with that under US domestic law? 76. (To see why read answers 78 and 79). and money laundering? 69.S. What would that obligation be based on? The answer depends on whether a treaty is of the self-executing kind or not. 71. subject to the constraints that the issue must be one that is properly the subject of negotiation with a foreign country. The textbook refers to Medellin as “the most important decision on foreign relations law in decades. and the treaty cannot transgress other limitations within the Constitution. What is a “pattern of racketeering activity”? Provide some examples. 78. such as murder. Bush do? 77. Racketeer Influenced and Corrupt Organizations (RICO) statute is a civil remedy to deal with the unlawful activities of criminal syndicates. The textbook identified 7 attributes of organized crime – what are they? 66. What‘s the issue before the Court? One question is whether Pres. True/ False: The U. What is the underlying dispute about? 73. on the other hand. 72. Why create a stand-alone crime related to the organized nature of criminal activity? Why not just pursue the criminals for the underlying crimes? 65. A self-executing treaty is the one that has automatic effect as domestic law without the aid of any legislative provision. But the main question for us is this: Does the US have a domestic law obligation to obey the ICJ decision? No. Bush had authority to issue the order. an Optional Protocol to the VCCR and the UN Charter. The ICJ decided that the U. What did Pres. a not self-executing treaty can only be enforced pursuant to legislation to carry them into effect. must review the Mexicans’ cases. it does not. 80. 79. in the form or affidavits or grand jury testimony (discouraged). Therefore. If the fugitive has been convicted. Extradition treaties general require what specific information to be included in the request? (see text pp. and because it is uncontested that no such legislation exists the ICJ decision is not automatically binding domestic law. the amount of time remaining. fingerprints. What’s the Court’s response? According to the Court. the second one specifies that the parties to a treaty would settle disputes over the treaty by going to the International Court of Justice (ICJ). and evidence concerning identity. but rather a commitment on the part of UN members to take future action through their political branches to comply with an ICJ decision. . the Court concludes that. Copies of the specific statutes alleged to be violated and the statute of limitations. a certified copy of the order of judgment and committal establishing the conviction. according to the Court evidence that ICJ judgements were not meant to be enforceable in domestic courts. Said article states that “Each member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party”. Evidence. certified copies of the arrest warrant and complaint or indictment. Article 94(2) provides as the sole remedy for noncompliance the “referral to the United Nations Security Council by an aggrieved state”. and the third one states that “Each member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party”.rights if they are arrested in the US. because none of the treaties create binding federal law in the absence of implementing legislation. The phrase “undertakes to comply” is not an acknowledgement that an ICJ decision will have immediate effects in the courts of UN members. it constitutes an international law obligation but that does not necessarily mean it constitutes binding federal law enforceable in the United States courts. at the moment. since the ICJ decision flows from the treaties from which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes. this is. establishing that the crime was committed and establishing the defendant‘s identity (photo. If the fugitive has not been convicted. and an affidavit stating that the sentence was not or was only partially served. a party to all of them. and their relation to the relevant treaty). The Court also states that the obligation on the part of signatory nations to comply with ICJ judgements derives from Article 94 of the UN Charter which addresses the effect of ICJ decisions. witness ID). The United States was. Also. the offense charged. 393-94): An affidavit from the prosecutor explaining the facts of the case (A summary of applicable law. What is the traditional justification for a criminalizing conspiracy quite apart from the crime that is its object? 84. Assignment for each of the questions will be fairly straightforward. What is the Pinkerton rule? 85. More analysis than issue spotting Some of the issue spotting may come in with subtleties that we tried to tease out in class Past exams for structure not necessarily for content May 11th at noon is deadline for questions 6 short answer questions pick 2 of the 6. What does doctrine of self-execution mean? If a treaty is non self-executing does this mean that the treaty gives rise to no individual causes of action? 83. What does that mean? 2 essay questions. For requests made to the United States for the extradition of person from the United States to foreign countries. evidence of ongoing organization. what limited role does a magistrate play in the extradition process? 82. UNTOC only applies to “serious crimes”. What is the mens rea requirement for federal conspiracy? 86. each 35% fact-pattern questions→ do these first - Issues are not hidden. what do you need to prove the existence of a RICO enterprise aside from the predicate racketeering acts? common purpose.S. 88. True/False: U. there may be some nuggets hidden. each 15% . formal or informal. Under the Turkette standard.” 87. the various associates function as a continuing unit. Supreme Court held that the definition of “enterprise” for RICO purposes does not include “associations in fact of persons who come together for totally illicit purposes.81.