ULUSLARARASI KAMU HUKUKU I

The conclusion of numerous other treaties have made the following acts international crimes: aircraft hijacking, unlawful acts against the safety of civil aviation, trafficking in women and children, trafficking in narcotic drugs, counterfeiting of currency, kidnapping of diplomats and taking of hostages. The most recent addition to this list of international crimes is international terrorism. The absence of any judicial tribunal to try the perpetrators of these crimes left the matter to the states concerned to prosecute and punish them. As a result, there is no uniformity in the substantive and procedural rules in this regard.

Mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea is the mental element, i.e. a person’s awareness of the fact that his or her conduct is criminal, and actus reus is the physical element, i.e., the act itself.

Following on the judgments of the Nuremberg and Tokyo International Military Tribunals, in 1951 the International Law Commission (ILC), in pursuance of the General Assembly resolution, formulated a Draft Code of Offences Against the Peace and Security of Mankind. The Code embodied the principles of the Nuremberg trial.
The Code made reference to “persons” as guilty of crimes against the peace and security of mankind in an attempt to prevent them from sheltering behind the abstract entity of state.

The legality of these trials and the judgments were widely criticized on the following
grounds: the trials were in violation of the principle of nullum poena sine lege (no punishment without law), trials were an imposition of ex post facto law, giving retrospective operation to a crime that was not punishable at the time of its commission, the tribunals were constituted by the victorious powers, whose impartiality in delivering the judgments was doubtful, consisting mainly of judges from the victorious States was in violation of the principle of nemo judex in causa sua (no one can be a judge in his own case), the plea of superior orders has great relevance in the discipline of the armed forces, and it was rejected by the Tribunals without any concrete reason.

Alarmed at the scale of violations of international humanitarian law and to ensure that these atrocities against civilians are halted and effectively redressed, in May 1993 the Security Council, acting under Chapter VII of the Charter, established the first International Criminal Tribunal for the Former Yugoslavia (ICTY).

The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase. The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties. Judges shall hold office for a term of nine years and shall not be eligible for re-election.

The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registrar is elected by the judges by an absolute majority through secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises, in the same manner the judges can elect a Deputy Registrar upon the recommendation of the Registrar.

An “act of aggression” has been defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations” (Art. 8bis (2)), i.e., without the justification of self-defense or authorization by the Security Council. The definition contains a list of seven acts of aggression (for example, invasion by
armed forces, military occupation, annexation by the use of force, bombardment and blockade of ports) that are identical/influenced by the UN General Assembly resolution 3314 (XXIX) of 14 December 1974 on the definition of Aggression.

The important aspect in the exercise of jurisdiction by the ICC is that it is complementary to the national criminal justice systems. The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. The ICC does not replace the national courts. On the contrary, national courts enjoy priority over the ICC.

One can conclude that terrorism as an international crime has the following elements:
the act must constitute a criminal offence under most national legal systems, such
as murder, kidnapping, hostage-taking,bombing, torture, etc.; the act must be aimed at compelling a state, an international organization, or a nonstate entity to do or to abstain from doing any act, either by spreading terror or by means of violent action or threat; the act must be motivated by political, religious, or otherwise ideological reasons and not by private motives. Besides all the elements stated above it should have an international element, which means that the act should not be confined to the territory of one state,

actus reus (guilty act): action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused. Therefore, the correct option is B

mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused. Therefore, the correct option is A.

The end of the Second World War heralded the constitution of international military tribunals to try war-related crimes. With the end of the Cold War in the early 1990s, the world also witnessed the establishment of international criminal tribunals that would deal with crimes resulted mainly from internal armed conflicts. Therefore, the correct option is B.

At the Nuremberg Tribunal, 22 leaders of the Third Reich were tried. The Tokyo trials were conducted against 28 persons. The Charter of these tribunals had four counts of offences:
• Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907, the Treaty of Versailles, violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland, and the 1928 Kellogg-Briand Pact.
• War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.
• Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.
• Conspiracy to commit these crimes. 

Therefore, the correct option is C.

The Nuremberg Tribunal imposed death penalty and imprisonment from 10 to 20 years. Out of 22 persons, 12 were given the death sentence, three were given the life imprisonment, four were given imprisonment of various terms, and three were acquitted. The Tokyo Tribunal found all the defendants, except two, guilty of conspiracy to wage a war of aggression. It also awarded death penalty and imprisonment. The legality and propriety of these trials and the judgments were widely criticized on the following grounds:

• The trials were in violation of the principle of nullum poena sine lege (no punishment without law). There were no rules of international law declaring such acts as illegal prior to the Second World War, they were not defined or made punishable and were also considered the acts of state.
• Trials were an imposition of ex post facto law,  giving retrospective operation to a crime that was not punishable at the time of its commission.
• The tribunals were constituted by the victorious powers, whose impartiality in delivering the judgments was doubtful.
• Consisting mainly of judges from the victorious States was in violation of the principle of nemo judex in causa sua (no one can be a judge in his own case).
• The plea of superior orders has great relevance in the discipline of the armed forces, and it was rejected by the Tribunals without any concrete reason.
• One of the arguments of the defendants was that war is waged by states and not by individuals, who are not the subjects of international law. The Nuremberg Tribunal rejected it and pointed out that “international law imposes duties and liabilities upon individuals as well as upon States.

Therefore, the correct option is D.

The attempts to establish an international permanent criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. The League of Nations drafted a Convention for the Creation of an International Criminal Court in 1937 (along with the Convention on the Prevention and Punishment of Terrorism), consisting of five judges and five deputies to be elected by the Permanent Court of International Justice. Therefore, the correct option is A.

The attempts to establish an international permanent criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. The League of Nations drafted a Convention for the Creation of an International Criminal Court in 1937 (along with the Convention on the Prevention and Punishment of Terrorism), consisting of five judges and five deputies to be elected by the Permanent Court of International Justice. The Convention failed to come into force due to lack of ratifications. Therefore, the attempt to establish the Court also failed. Therefore, the correct option is B.

Article 36 of the Rome Statute outlines the qualifications and procedure of election of the judges of the Court. The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase. Therefore, the correct option is D.

The candidate should have an excellent knowledge of and be fluent in at least one of the Court’s working languages (which are English and French). Nominations of candidates for election to the Court may be made by any state party to the Statute. Therefore, the correct option is E.

Composition of the ICC The Court is composed of the following organs (Art.34):
• the Presidency;
• an Appeals Division, a Trial Division, and a Pre-Trial Division;
• the Office of the Prosecutor;
• the Registry.

Therefore, the correct option is A.