This course provides an opportunity to better understand the contemporary legal frameworks for the prosecution of the most serious crimes, such as war crimes, crimes against humanity, and genocide, for which a person today may be directly responsible under international law.
International criminal law (ICL) is a sub-discipline of public international law, historically rooted in the international and national transitional justice cases (including the famous Nuremberg Judgment) effected in the aftermath of World War II. The Charter of the United Nations (1945), the Nuremberg Principles (1946), and the Universal Declaration of Human Rights (1948), jointly created a new paradigm of international law. In particular, the individual person was now seen as a possible subject for legal rights and criminal liability directly under international law. Apart from the Genocide Convention (1948), further ICL-developments were for several decades subdued by the Cold War. Since the establishment of the Yugoslavia and Rwanda tribunals in 1993 and 1994 respectively, and the International Criminal Court (ICC) in 1998, ICL has developed immensely. Yet there are important methodological, institutional and political constraints on the functioning and further developments of ICL.
The course revisits the history of international criminal courts, before discussing the institutional, normative and political context and the special nature of the crimes in question. This includes their sometimes uncertain identification or legal basis. Do these crimes have any common features? How do they differ from other crimes? Is ICL basically a response to mass crimes committed by and through organized power structures like states, military organizations, and other especially powerful entities? Should terrorism, piracy, torture and certain other crimes also part of ICL, or does ICL only concern the so-called «core crimes», such as war crimes, crimes against humanity and genocide? What is the role of the legality principle in this field of law?
After introducing such broader issues and perspectives the course moves on to a more detailed analysis of the substantive crime elements. It focuses specifically on the objective structures and the required mental element of the core universal crime categories: «war crimes», «crimes against humanity» and «genocide». The course will also discuss different ways of perpetrating and participating in universal crimes, and hence the need for extended criminal liability through various legal `modes of participation¿. Personal and structural circumstances excluding liability will also be covered, as will the basic principles of fair international criminal trials.
Since enforcement of criminal liability may also take place in domestic jurisdictions, the course will discuss the legal principles of domestic jurisdiction applicable to universal crimes prosecution (the territorial principle, etc.), as well as the duty of a state to prosecute such crimes, and possible limitations on domestic prosecution and trials (amnesties, statute of limitations, and immunities). The course includes an assessment of the impact of domestic prosecutions on impunity for participants in universal crimes. It concludes on the potential and limitations of international criminal justice.
The course should enable students to understand the mechanism of international criminal law (ICL) and its key concepts. It should make students aware of important legal issues and current challenges pertaining to contemporary ICL.
The course should furthermore enable students to acquire an independent knowledge-base for analyzing, discussing, and eventually pursue further advanced studies or do practical work within this field - internationally or domestically. In particular, the course should enable students to solve concrete legal problems relating to the interpretation and application of core substantive law and related principles, by presenting legal arguments in a balanced and reasoned way.
READING LIST:
- Antonio Cassese, Cassese's International Criminal Law,
Third Edition, Oxford University Press, 2013 (Revised by: A. Cassese et. al.), pp. 3-45, 63-130, 161-290, 309-315, 318-322, 347-362. [Altogether 265 pages].
- Terje Einarsen, The Concept of Universal Crimes in International Law,
TOAEP Oslo, 2012, pp. 19-86, 209-217, 266-274, 306-313. [Altogether 90 pages].
- Terje Einarsen, New Frontiers of International Criminal Law: Towards a Concept of Universal Crimes,
In Bergen Journal of Criminal Law and Criminal Justice, Volume 1, Issue 1, 2013, pp. 1-21.
- Joseph Rikhof, Fewer Places to Hide? The Impact of Domestic War Crimes Prosecution on International Impunity, in Morten Bergsmo (ed.), Complementarity and the Exercise of Universal Jurisdiction for CoreInternational Crimes, TOAEP Oslo, 2010, pp. 7-21 and 65-80 [30 pages].
Three years of university studies, including criminal law.
Good command of English; written and spoken.
Four hours school exam each semester.
Graded scale with 5 levels from A to E for passes and F for fail, see Section 3-1 no. 2, first sentence of Studieplanen for masterstudiet I rettsvitenskap ved UiB.
Support materials allowed during school exam
Special regulations about dictionaries
In case a student has a special need for any other combination than the above mentioned, such combination has to be clarified with/approved by the course coordinator minimum two weeks before the exam. Students who have not been granted permission to have a special combination minimum two weeks before the exam will be subject to the usual regulations (Section 3-5) about examination support materials.
No overlap with courses at the Law Faculty.
The course combines successfully with JUS276-2-A Human Rights Law: Special Focus on Economic, Social and Cultural Rights. (JUS275-2-A) (Any public international law course).
Professor Terje Einarsen
Contact information: elective-courses@jurfa.uib.no