International Criminal Law Professor Mohamed Spring 2015 FIRST ASSIGNMENT Welcome to International Criminal Law! We’ll meet for our first class on Monday, Jan. 12 at 10am in room 141. In the first class, we’ll discuss (1) the idea and history of international criminal law and (2) the basics of international law, and we’ll also cover course requirements and structure. The readings for the first class are listed below. Unless otherwise noted, all readings are from the Luban casebook, which is available in the bookstore. For anyone who hasn’t purchased the casebook yet, copies of the assigned pages are included in this packet. For anyone not yet on bCourses, the bCourses reading is included as the last page of this packet. In addition to the readings, please print out, fill out, and bring to class the student information sheet on the next page of this packet. I look forward to seeing you on Monday! * * * Class 1 – Introduction (pt. 1) • What is International Criminal Law? o pp. 3-7; note 1 on p. 7; note 3 on p. 8 • Safeguards in the Criminal Law o pp. 15-16 • The Aims of International Criminal Law o p. 13 (excerpt from Blaškič only) • Introductory Case Study on the Eichmann Trial o pp. 17-22 and notes 1 & 2 on pp. 22-26 • Background on International Law o pp. 27-29; 33-43 (start at subsection d on p. 33 and skip notes on p. 43); Rome Statute art. 21.1 (bCourses); 43-49 (start at subsection 1 on p. 43) In addition to these readings, please print out, fill out, and bring to class the attached student information sheet. International Criminal Law Prof. Mohamed Spring 2015 1. Name __________________________________ (first & last) 2. Any tips about how to pronounce your name? 3. Where did you grow up? 4. Where did you go to college? 5. What was your undergraduate major? 6. What did you do between finishing college and coming to Berkeley? 7. Do you have any background in international criminal law? 8. Tell me one thing you want me to know about you (this can be anything—favorite movie, your kids’ names, areas of the law that interest you, etc.) INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW ASPEN CASEBOOK SERIES INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW Second Edition David Luban University Professor Georgetown University Law Center Julie R. O’Sullivan Professor of Law Georgetown University Law Center David P. Stewart Professor from Practice Georgetown University Law Center Copyright # 2014 CCH Incorporated. Published by Wolters Kluwer Law & Business in New York. Wolters Kluwer Law & Business serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.wolterskluwerlb.com) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.wolterskluwerlb.com, or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Law & Business Attn: Order Department PO Box 990 Frederick, MD 21705 Printed in the United States of America. 1234567890 ISBN 978-1-4548-2834-1 (Casebound) ISBN 978-1-4548-4827-1 (Loose-Leaf) Library of Congress Cataloging-in-Publication Data Luban, David, 1949- author. International and transnational criminal law / David Luban, University Professor, Georgetown University Law Center, Julie R. O’Sullivan, Professor of Law, Georgetown University Law Center, David P. Stewart, Visiting Professor of Law, Georgetown University Law Center. — Second edition. p. cm. — (Aspen Casebook Series) Includes bibliographical references and index. ISBN 978-1-4548-2834-1 (alk. paper) 1. Criminal law. 2. Criminal jurisdiction. 3. International crimes. 4. International criminal courts. I. O’Sullivan, Julie R., 1959- author. II. Stewart, David P. author. III. Title. K5015.4.L83 2014 345 — dc23 2014017677 CHAPTER 1 The Idea of International Criminal Law This chapter has a simple and straightforward goal: to introduce the subject of the book and to sketch the background you need to make sense of the materials that follow. First, we explain what the study of international criminal law encompasses. Second, we provide a preliminary sketch of what gives criminal law its unique char- acteristics. In the next chapter, we offer a second preliminary sketch, this one of the basics of international law. Each of these subjects is a large one, and the materials in these two chapters offer no more than the ABCs of the subject. As the book proceeds, we flesh out each of these sketches with more detail. A. WHAT IS INTERNATIONAL CRIMINAL LAW? At bottom, international criminal law is just what the name suggests: It consists of criminal law applied across national borders. But this encompasses several different legal regimes. 1. Transnational Criminal Law The first category of international criminal law, which we call transnational criminal law, consists of the part of any nation’s domestic criminal law that ‘‘regulates actions or events that transcend national frontiers.’’1 The concept is very simple. A state2 such as the United States has laws against crimes such as bank fraud. If a U.S. national, in the United States, commits bank fraud against a U.S. bank, no transnational issue arises, and ordinary domestic criminal law applies. But what if a Canadian, in Canada, commits fraud against a U.S. bank, perhaps by hacking into its computers? In that case, the perpetrator has presumably violated Canadian law — but what of U.S. law? 1. Phillip C. Jessup, Transnational Law 2 (1956). 2. As explained in more detail in the next chapter, the word state in international law refers to nations or countries. 3 4 1. The Idea of International Criminal Law Can the U.S. legal system reach the Canadian’s conduct in Canada? That is a question of transnational criminal law. We will study many such questions. For example: 1. Where was the crime ‘‘committed’’ — where the hacker did his keyboard work (Canada) or where the compromised computer system was (the United States)? 2. If the crime is deemed to have been committed in Canada, does the U.S. bank fraud statute regulate conduct committed in Canada? Do U.S. courts have juris- diction over such conduct? 3. What, if anything, can U.S. police do to arrest the Canadian suspect? 4. If Canadian police arrest the suspect, can he be extradited to the United States? 5. Do U.S. constitutional rights (such as the right against compelled self-incrimination) apply to the Canadian in Canada? 6. Does it matter whether his conduct is also a crime under Canadian law, and, if it does, which nation’s legal system gets priority? 7. What are the mechanics of evidence gathering in a foreign country? 8. What should Canada do if the punishment the suspect faces in the United States would be grossly excessive (or, in the case of the death penalty, outlawed) under Canadian law? These are only some of the questions that arise. In an era of globalization, transnational crimes — that is, crimes committed across borders — have proliferated. Organized crime operates with the sophistication and cosmopolitanism of vast multinational corporations — and some multinational cor- porations engage in crime. Vast underworld networks exist for trafficking in narcotics, human beings, weapons, stolen goods, diamonds, nuclear contraband, international terror, and laundered money. Identity theft, within a matter of minutes, can put your credit card information in the hands of a hacker half a world away. Much of trans- national criminal law has evolved from the decades of efforts by national governments to secure international cooperation and assistance in law enforcement against crimes committed by foreigners. States are jealous of their own borders, prerogatives, and jurisdictions. But, step by step and agreement by agreement, an infrastructure of international legal assistance has developed, and these institutions have spurred states’ efforts to ‘‘globalize’’ their own criminal law. 2. International Crimes The second great division of international criminal law might be called international criminal law in the strict sense — henceforth, we will simply say ‘‘international criminal law’’ for short, as distinguished from transnational criminal law. International criminal law refers to wrongs that are criminalized under international law, whether or not they are also criminalized in states’ domestic laws. This category of crimes is small and to date consists only of the ‘‘core crimes’’: crimes against humanity, geno- cide, war crimes, and (as defined in 2010) the crime of aggression. These are the ‘‘core crimes’’ because they generally consist of mass atrocities that show up, glowing in infamy, on the radar of world politics. Often, these crimes cannot effectively be prosecuted or repressed by the territorial state where they are committed, either because the state itself has perpetrated them or because its government has collapsed in civil war, in anarchy, or through foreign conquest. These crimes may be tried either by international tribunals or, under some jurisdictional theories, by hybrid (mixed international and domestic) or purely domestic tribunals. B. What is Criminal Law? 5 3. Treaty-Based Domestic Crimes A third category of international criminal law, overlapping with the first two, consists of activity declared criminal by international treaties but enforced under the domestic law of states that join the treaties. Treaties sometimes criminalize conduct because states recognize that it is international in character and can be attacked only through international cooperation. Such conduct includes air piracy and hijacking, counter- feiting, terrorism, human trafficking, and narcotics trafficking.