ULUSLARARASI KAMU HUKUKU I

1945

After the Second World War, revolutionary changes came in this area. The Allied powers set up two International Military Tribunals (Nuremberg Tribunal in 1945 and Tokyo Tribunal in 1946) to try the criminals who committed war crimes, crimes against humanity, crimes against peace, and conspiracy to commit these crimes.

I.  Aircraft hijacking

II. Unlawful acts against the safety of civil aviation

III. Trafficking in women and children

IV.  ID fraught

Mens rea;

Mens rea is the mental element, i.e. a person’s awareness of the fact that his or her conduct is criminal.

1998

Code of Crimes against the Peace and Security of Mankind

Death penalty and imprisonment were imposed in both tribunals and few were acquitted.

The ICC consists of 18 judges.

I.   The Presidency
II.  An Appeals Division, a Trial Division, and a Pre-Trial Division
III. The Office of the Prosecutor

The principle of complementarity

The act must have private motives

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. Therefore, the correct option is E.

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 C.

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 E.

The Charter of these tribunals had four counts of offences: • Crimes against peace, • War crimes, • Crimes against humanity, • Conspiracy to commit these crimes. Therefore, the correct option is C.

The Nuremberg and Tokyo trials held at the end of the Second World War (1945-48) focused on the war-related crimes. They helped in enunciating clear principles on the law of war crimes. Therefore, the correct option is B

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 ICTY has also been criticized, among others, for the following reasons:

• The Tribunal manifests the failure of the UN Security Council and the great powers to find a swift and viable solution to the conflict, reflecting the failure of diplomacy and politics. It is alleged to have been created with a specialized political campaign to destabilize the multi-ethnic state of Yugoslavia, with the aim of bringing about ‘régime change’ in Serbia.

• The Tribunal has awarded very mild sentences.

• Some of the defendants claimed that the Tribunal had no legal authority because it was established by the UN Security Council instead of the UN General Assembly, therefore it had not been created on a broad international basis. The Tribunal was established on the basis of Chapter VII of the United Nations Charter; the relevant portion of which reads “the Security Council can take measures to maintain or restore international peace and security”, whereas the dispute here was internal; in other words, it was ultra vires of the Charter.

• The Tribunal has been claimed to be antidemocratic and in violation of national sovereignty and formed part of coercive order created by the Security Council.

• There has also been failure to provide a complete separation of the prosecutorial and judicial work. 

Therefore, the correct option is C.

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. Therefore, the correct option is E.

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 C.

Judges shall hold office for a term of nine years and shall not be eligible for re-election. Therefore, the correct option is C.