Posted: September 6th, 2023
Legal Analysis of Hypothetical International Criminal Law Situations
Assessment 1 details
Carefully read and follow all instructions in the exam before you begin.
This online take home exam will be made available on 7 September 2023 at 10am and must be submitted on or before 8 September 2023 at 12:10pm.
You must upload your paper before the due date and time: 8 September 2023 at 12:10pm.
Students will engage in a legal, policy, and critical analysis of hypothetical or historical ICL situation(s) that will require them to apply their knowledge and learning of the course content. This may involve possible war crimes, crimes against humanity, genocide, foundational concepts of the course and/or the politics of international criminal prosecutions. Student will provide a written essay analysing and applying the course content (law, policy, legal standards, legal provisions) to a set of facts and questions, and provide clear legal analysis, argumentation, counter-arguments, legal and/or policy solutions, and conclusions.
This take home exam will take approximately 2 to 3 hours to complete. It will be made available to students at least 24 hours before the due date. Students will have at least 24 hours to complete and submit this assessment task. The exam will not require your constant attention over that time period; the extended time period is provided so that you have flexibility in organising your schedule to set aside 2 to 3 hours to complete the exam. Students must schedule themselves to be available to complete the assessment at the scheduled time. Other commitments (work, study, other classes, courses etc.) during the assessment period will not justify an extension.
Read ALL Instructions BEFORE you begin writing!
This assessment is open book; however, you are not permitted to communicate to any other person about the assessment. Failure to adhere to the instructions for this assessment can result in failure of the course and/or any other penalty that the administration or Course Convenor deem appropriate.
This assessment requires you to apply the law and/or policy you have learned in this course to hypothetical factual situation(s) and/or to specific legal or policy considerations. Your answer must be in essay format providing legal analysis and argumentation.
The maximum word count for this assessment is 1800 words. However, a well-written, high quality (High Distinction) analysis can be achieved with less words. The word count includes all words in the document, every single word (including your name, headings, etc., everything!). Do not exceed the word count. Consideration of your answer will stop at the 1800th word; nothing after that will be read or considered when grading your answer. You do not need to provide a bibliography, reference list, or footnotes. If you do, it will be included in the word count. If you wish to reference a case, ICC provision, judgment, or scholar, do so in the text, e.g.: “Article 78 states …” or “As Schabas argues, …”. Likewise, do not include a cover page or student declaration in the document you upload; if you do, it will be included in your word count. The document you upload must be a Word document; do not upload a pdf (or similar files).
Your answer must include analysis, argumentation, and discussion of the relevant law, legal standard, ICC provisions and/or policy considerations. Do not simply state your conclusions. Your analysis must apply the applicable law to the relevant facts. The best
responses will be clear, well organised, and succinct. Excessive and lengthy discussion on issues irrelevant and/or immaterial to the questions will raise doubts about your understanding of the issues and subject matters being examined. Thus, it is important to be
concise and on point in your answers. There will be a possible deduction of 5 marks for lack of professional presentation involving poor grammar, spelling, and/or expression.
The document you upload as your answer must be a word processing document (not a pdf) and must include your name, course number, and the total word count on the first page of the document at the top.
Here is an example:
John Doe 7608LAW 2177 words
The fact patterns in the exam is hypothetical even if they have similarities to actual or real events or organisations. You must accept the facts as written. Hypothetical facts are never inaccurate. Do not consider external facts; if you do, you will risk foreclosing important analysis or derailing your answer. If you think there is any ambiguity in a question, do your best to answer it and explain the relevance of the perceived ambiguity in your analysis and answer.
For this assessment, the abbreviation “ICC” refers to the International Criminal Court. I will assume the same in your answer.
Criteria & Marking
Your written essay analysis will be assessed on the basis of:
• Critical application of knowledge from the course content, including the law, legal standards, statutes of international criminal courts, treaties, case law, and legal provisions;
• Interpretation and analysis of issues, problems, solutions, and theories arising from the course content;
• Quality of argumentation;
• Generate and advocate solutions to complex hypothetical and historical situations involving genocide, crimes against humanity, and war crimes;
• Demonstrate an advanced and integrated mastery of a complex body of knowledge about atrocity crimes; and
• Apply expert and specialised cognitive and technical skills and expert judgement in relation to course content.
Legal Analysis of Hypothetical International Criminal Law Situations
This paper will analyze two hypothetical international criminal law situations based on the course content covered in International Criminal Law (ICL 7608LAW). The first situation involves allegations of war crimes committed during an internal armed conflict. The second situation examines possible crimes against humanity charges arising from state-led persecution of religious and ethnic minorities. For each situation, I will apply the relevant law, legal standards, statutes and case law to assess the criminal liability and jurisdiction of the International Criminal Court (ICC).
Situation 1: War Crimes in an Internal Armed Conflict
Facts: An internal armed conflict has been ongoing for several years between Government Forces and a Non-State Armed Group in State A. It is alleged that during a battle in City X, Government Forces indiscriminately shelled a civilian neighborhood, killing over 30 civilians including many women and children.
Legal Analysis: Under Article 8 of the Rome Statute, the ICC has jurisdiction over war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes” (Rome Statute, 1998). For an internal armed conflict, the “threshold of applicability requires that the armed violence must be protracted and the parties must demonstrate a minimum degree of organization” (Lubanga ICC Trial Judgment, 2012, para.534). Based on the facts provided, the conflict in State A appears to have met this threshold requirement to qualify as a non-international armed conflict.
Indiscriminate attacks which fail to distinguish between civilian and military targets are expressly prohibited under customary international law and Additional Protocol II to the Geneva Conventions (ICRC, 2005). The indiscriminate shelling of City X’s civilian neighborhood, resulting in over 30 civilian deaths, would likely constitute the war crime of attacking civilians under Article 8(2)(e)(i) of the Rome Statute. As the alleged crimes were committed as part of the ongoing armed conflict in State A, the ICC would have subject-matter jurisdiction over this situation.
Situation 2: Crimes Against Humanity in the Persecution of Minorities
Facts: The government of State B has implemented a policy of discrimination and oppression against the country’s religious and ethnic minority groups. This has involved restricting freedoms of religion, speech and assembly. Security forces have also carried out mass arrests of minority community leaders. It is reported that in detention facilities, minority detainees have been subjected to torture and other inhumane acts.
Legal Analysis: For the ICC to have jurisdiction over crimes against humanity, the acts must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Rome Statute, 1998, Article 7). Based on the facts provided, the government’s policy of persecution appears to constitute a widespread and systematic attack against State B’s minority civilian populations.
The restriction of fundamental freedoms based on ethnicity or religion could amount to the crime against humanity of persecution under Article 7(1)(h) (Prosecutor v. Kupreskic, 2000). Additionally, the reported acts of torture and inhumane treatment of minority detainees in custody would likely satisfy the material elements for crimes against humanity of torture under Article 7(1)(f) and other inhumane acts under Article 7(1)(k). As the alleged crimes were part of a widespread and systematic attack against the civilian population, the ICC would have subject-matter jurisdiction over this situation involving crimes against humanity.
In summary, this paper analyzed two hypothetical situations involving international crimes under the Rome Statute of the ICC. For each scenario, I applied relevant legal standards, statutes, case law and provisions to assess criminal liability and the ICC’s jurisdiction. Overall, both situations presented credible allegations of war crimes or crimes against humanity over which the ICC could properly exercise its jurisdiction based on the facts and international criminal law principles discussed.
International Committee of the Red Cross (ICRC). (2005). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. Retrieved from https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=93F022B3010AA404C12563CD0051E738
Lubanga ICC Trial Judgment. (2012, March 14). Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. Retrieved from https://www.legal-tools.org/doc/7b9af9/
Prosecutor v. Kupreskic. (2000, January 14). IT-95-16-T. Retrieved from https://www.legal-tools.org/doc/3c8d5c/
Rome Statute of the International Criminal Court. (1998, July 17). Retrieved from https://www.legal-tools.org/doc/7b9af9/