International Criminal Court

2L, International Human Rights

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The International Criminal Court (ICC):

• 104 Countries Have Ratified (139 have signed)
• 25 from Western Europe and Other
• 16 from Eastern Europe
• 22 from Latin America and the Caribbean
• 29 from Africa
• 12 from Asia & the Pacific
• Not the United States
  
• Court became effective July 1, 2002

How are cases initiated

• Referred by a state party
• Referred by the Security Council (Chapter VII of the UN Charter)
• Initiated by the Prosecutor and Approved by the “Pre-Trial Chamber”

US Concerns about ICC include:

• State sovereignty
  
• States, not international institutions, "are primarily responsible for ensuring justice in the international system"
• Undermines the Security Council (which should have the sole power to determine aggression)
• Creates a prosecutorial system that is “an unchecked power”
• Interferes with the right of self-defense by "chilling" the willingness of countries "to project power in defense of their moral and security interests"

Nuremberg Tribunal

2L, International Human Rights

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Justice Robert Jackson, prosecutor for US at Nuremberg:

• "[W]e are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

Nuremberg Charter - Article 6

• Crimes against peace (aggression)
• War crimes (mistreatment of civilians and prisoners, misuse of weapons)
• Crimes against humanity (massive killing of civilians)

Principles of Nuremberg

• Individuals are responsible if they commit "a crime under international law"
• Heads of State do not have immunity from prosecution
• The "defense of superior orders" will not relieve an individual of responsibility, "provided a moral choice was in fact possible to him"

Thoughts Regarding Nuremberg

• Did the Tribunal apply existing law to the actions of the defendants?
• Or did they create new law?
• Did this proceeding violate the principle prohibiting ex post facto prosecutions?
• Nuremberg prosecutor and the Court tried to say no—
• That judgment reaffirmed, applied existing law
• BUT, in reality, Nuremberg essentially created new law

Jurisdiction and War Crimes Courts (like the ICTY)

2L, International Human Rights

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International courts, such as the ICTY (International Criminal Tribunal for the former Yugoslavia), need the following kinds of jurisdiction to proceed (this is similar to, but distinct from, the jurisdictional issues faced by domestic American courts):

1. Subject matter jurisdiction (a nexus with an armed conflict)

• Articles 2 - 5 of ICTY Statute
• War crimes, grave breaches of Geneva, and crimes vs. humanity, genocide)

2. Personal jurisdiction (limitations in terms of who can be prosecuted)

• Persons responsible for serious violations of international humanitarian law

3. Temporal jurisdiction (war crimes tribunals are limited to specific times of investigation)

• Committed in the territory of the former Yugoslavia between 1 Jan 1992 and a date to be determined by Security Council upon the restoration of peace

What is Fraud?

2L, Professional Responsibility

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Torts
One may be liable in torts if one (1) intentionally made (2) a misrepresentation to the other of a fact, intention, or of a law (3) with the intention of inducing the other person to act or to refrain from action in reliance on the misrepresentation, if the other person can demonstrate (3) financial loss as a result of (5) having relied upon the misrepresentation.

Criminal Law
Generally, other than specific crimes like mail fraud, wire fraud, bank fraud, and more, state and federal law requires (1) intentional (knowing) (2) misrepresentation of (3) materials facts as identified in the statute. Criminal law does not require a showing of harm.

Contracts
A fraudulent (intentional) misrepresentation that induces one party to sign a contract may make that contract voidable. In addition, a contract can be voidable for a material misrepresentation even if it was not intentional. Unlike criminal law and tort law, contract law does not require a deliberate misrepresentation. Thus a contract can be rescinded even without an intent to deceive.

What Forms International Law?

2L, International Human Rights

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International Law consists of obligations resulting from:

• Treaties, bilateral and multilateral
• Customary international law
• From the practices of states undertaken in recognition of a legal obligation, must believe they are obliged to do something
• Can also be determined by examining authoritative statements made by countries
• For example of how it's determined, see Nuremberg Judgment (Lillich, p. 991)
• The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts.
  
• This law is not static, but by continual adaptation follows the needs of a changing world.
  

Current Jus Cogens ("Commanding Law")

2L, International Human Rights

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Jus Cogens ("Commanding Law")

• A norm from which no derogation is permitted
• See also 1969 Vienna Convention on the Law of Treaties, Article 53
• Slavery is bad
• Aggression is bad
• Genocide and crimes against humanity are bad
• Self-determination is good
• Racial equality is essential
• Right to be free from torture, extrajudicial murder, and prolonged, arbitrary detention
• Democracy is essential? – Controversial!

International Law as of 1900

2L, International Human Rights

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What was the content of international law as of 1900?

• Diplomatic immunity
• Follow treaties: pacta sunt servanda
• Protected rights of aliens in foreign countries
• Maritime law
• Rights in international rivers
• Laws regulating use of force (to protect noncombatants)
• Piracy and slavery prohibited

What do you do if you have an ethical dilemma?

2L, Professional Responsibility

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What do you do if you face an ethical dilemma?

• Be careful in speaking about dilemma so as not to violate duties of confidentiality
• The "Rules" allow certain approaches that make it OK.
• E.g., hypotheticals, posed so as not to identify any parties
• Can ask for a formal opinion from the ethics committee
• o Slow!
• o But can almost always rely on opinion and be safe (rarely changed, but sometimes is).
• Can call an "ethics hot line" from bar or similar
• Most large firms have ethics committees, written guidance documents, etc.
• Insurance providers often provide guidance on ethics too (as part of “loss prevention”)

Fiduciary Duty

2L, Professional Responsibility

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Fiduciary duty: a legal concept

• A fiduciary is someone who assumes a position of trust in relation to another.
• Examples include stockbrokers and financial advisers as well as lawyers.
  
• Fiduciaries owe special duties not to misuse property or information that has been entrusted to them, must place the interests of the other above their own interests, and must act in good faith on the other’s behalf.
• Rather like the "Rules," but enforced by courts, not by disciplinary committees
  
• The case law is similar, but not identical
• So ethics and fiduciary duties not the same thing.
• Must analyze seperately, even though the end result of both analyses is often identical.

Where do human rights come from?

2L, International Human Rights

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• Rationally derived?
  
• Religion?
• Social convention?

• The Declaration of Independence claims rights are "self-evident."

• Are they universal? Strands and beliefs come from many cultures.

• Are equality and freedom opposing forces?
• What about individual freedom vs. stability and prosperity?
• E.g., India vs. China (in gross terms)
  

Ethics

2L, Professional Responsibility

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Ethics

• Rules that regular the practice of law.
• Given by others.
• If we don’t follow “their” rules, “bad things” happen to us!
• Disbarment, reprimand, sanctions.
• Public standpoint: self-regulation of lawyers by lawyers (usually an arm of the state bar)
  
• In Hawaii it is the ODC: Office of Disability Counsel
• Other states are similar.
  
• American Bar Association “Model Rules,” which in themselves have no impact, but most state rules based on Model Rules
• Typically like “Hawaii Rules of Professional Conduct,” with a few local twists
• Two sides of ethics enforcement:
  
• The Regulatory Side:
  
• Worst that happens: can't practice law
• The Law Side:
  
• Malpractice: tort law, contract law...
• Money damages, possibly punitive
• Or disqualification from matter due to “conflict of interest”
• Typically brought by opposing counsel as late as possible...
• Don’t want to be disqualified
• Hurts client
• Could be step towards malpractice
• Judges make these decisions
• Also addresses conduct outside of courtroom, practice of law
• Honesty generally: do not lie!