Thursday, November 10, 2011

International Criminal Law Outline, how to make a good law school outline

HOW TO MAKE A GOOD LAW SCHOOL OUTLINE.

Are you wondering how to make a good law school outline, a great law school outline, or the perfect law school outline?  Do you want to know how to get an A on your law school exam?  Do you want to transfer law schools?  Are you interested in improving your law school outlines?  If so, here's a great example of an exceptional law school outline that I have made.  

Before you read it, however, I would like to outline some tips for you to make a great outline, an outline that may help you score an A.


1.  MEMORIZE your outline before the test.  Honestly, you don't want to have to flip through it and find stuff during the test.
2.  Make it clear, rewrite it over and over like you would an essay.  Doing this helps to reinforce what you are trying to remember as well as helps you understand the law, which cases it applies to, etc.
3.  If your professor teaches policy, put some policy into your outline.  Print out a copy and take it to class, to review sessions, write in things that are said, then put in what you wrote on your outline into the final outline.  Don't be afraid to keep editing and finding out what is wrong with your outline.
4.  Have an e-reader?  Put your outline on it and study it wherever you go, whenever you have time!  You can do the same with cases (I will write an article later about e-readers such as Kindle for law school). 


AN EXAMPLE OF A GREAT LAW SCHOOL OUTLINE.

International Criminal Law

International crimes impose liability directly on individuals.
-Generally are grave acts that implicate the interests or values of the international community as a whole.
1.  Nuremberg and Individual Criminal Responsibility.
Judgment of the International Military Tribunal (1137)
-Defendants argue:  There can be no punishment of crime without a pre-existing law (ex post facto punishment is abhorrent to the law of civilized nations)
-No sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, no statute defined aggressive war, no penalty fixed for its commission, no court had been created to try/punish offenders.
-Court states that this is not a limitation of sovereignty, but in general a principle of justice.  Attacker knew what he did was wrong, would be unjust if his wrong were to go unpunished.
-Attackers knew that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression.
Pact of Paris: binding on 63 nations, including Germany, Italy, and Japan at outbreak of war in 1939.  
After signing the pact, any nation resorting to war as an instrument of national policy breaks the Pact.
Hague Convention of 1907: prohibited resort to certain methods of waging war.  
-Includes inhumane treatment of prisoners, the employment of poisoned weapons, improper use of flags of truce, etc.  
The law of war is found in: 1. treaties, 2. customs and practices of states which gradually obtained universal recognition, and 3. general principles of justice applied by jurists and practised by military courts.
Law is not static: continually adapted, following the needs of a changing world.
-Court states that treaties do no more than express and define for more accurate reference the principles that law which already exist.  
Assembly of the League of Nations, 24 September 1927
Delegations present (including Ds) unanimously adopted a declaration concerning wars of aggression.  
Pan-American (Havana) Conference:  
“war of aggression constitutes an international crime against the human species.”
-D’s argue that int’l law is concerned with acts of the states, provides no punishment for individuals, and where the act is an act of a state, those who carry it out are not responsible, instead are protected under doctrine of sovereignty of the State.
Court denies:  International law imposes duties and liabilities upon individuals as well as upon States.
Crimes against international law are committed by men, not by abstract entities, and international law provisions can be enforced only by punishing individuals who commit such crimes.
-Can’t shelter self behind official position in order to be freed from punishment.
The official position of Ds, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.
HOLDING
Resort to a war of aggression is not merely illegal, but is criminal
2.  Additional Individual Responsibility Issues.
a.  Immunity.
Arrest Warrant of 11 april 2000 (Democratic Republic of the Congo v. Belgium) (1142)
FACTS
-In 2000, Belgian investing magistrate issued an arrest warrant against minister of Foreign Affairs of Congo (DROC), seeking his extradition to Belgium for prosecution of violations of int’l criminal law.
-DROC claimed that arrest warrant violated “absolute inviolability and immunity from criminal process of incumbent foreign ministers.  
-ICJ concluded that, under customary international law, foreign ministers while in office generally enjoy full immunity from criminal jurisdiction and inviolability.
Belgium argues:  Immunity from criminal jurisdiction does not apply with respect to the commission of war crimes or crimes against humanity under international law.
Court holds:  Immunity from criminal jurisdiction does apply, rejects Belgium’s argument.
REASONING
-Court looks at State Practice, unable to deduce that there exists under customary int’l law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent ministers where they are suspected of having committed war crimes/crimes against humanity.
-Court also looks to legal instruments creating international criminal tribunals.
Rules do not enable conclusion that an exception exists in customary int’l law in regard to national courts.
APPLICATION
-The court states immunity from jurisdiction does not mean that they enjoy impunity in respect of any crimes they may have committed, irrespective of the gravity of those crimes.
-Individual criminal responsibility is a separate concept than jurisdictional immunity.
-Jurisdictional immunity = procedural.
-Criminal responsibility = substantive law.
-No immunity under international law in their own country, can be tried in DROC court in accordance with the relevant rules of DROC law.
-D will case to enjoy immunity from foreign jurisdiction if the State which they represent waives immunity.
-After individual ceases to hold position, they will no longer enjoy all the immunities granted by international law in other States.
-Incumbent or former Minister may be subject to criminal proceedings before certain international criminal courts where they have jurisdiction.
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-A head of state has absolute immunity from the jurisdiction of foreign courts while in office.
-A former head of state is more limited, applies only to official acts, which are acts done in performance of his public functions while in office.
“After Chile became a party of the Torture Convention, torture could not be deemed an official or public act for which Pinochet could claim immunity.”
-Because Chile was obligated to outlaw torture, torture could not be deemed an official act for which Chile could claim immunity on behalf of former president Pinochet.
b. Command Responsibility.
-International criminal law sometimes imposes legal liability on political and military leaders even where they have not specifically ordered the commission of crimes.
-Both military and civilian leaders may be held responsible for crimes committed by subordinates on the theory of Command Responsibility.
The leader must have exercised de facto or de jure control over the subordinates, especially in cases involving civilians.
-Substantial influence by itself is not indicative of a sufficient degree of control for liability.
-Must have a material authority to prevent the crimes and punish the perpetrators of those crimes.  
A superior is responsible for the criminal acts of his subordinates if he know or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators.
In re Yamashita (1145)
FACTS
After World War II, Japanese General Tomoyuki Yamashita was tried before a U.S. military tribunal in Manilla for war crimes committed by troops under his command.  
-U.S. claimed that D failed to discharge his duty as a commander to control the operations of the members of his command, allowing them to commit brutal atrocities and other high crimes against the U.S. and allies and was in violation of laws of war.
ISSUE
Does the law of war impose upon an army commander to take appropriate measures to control his troops for prevention of violations of the law of war which are likely to attend occupation of hostile territory, and whether he may be charged with personal responsibility for the failure to take such measures when violations result?
HOLDING
There is an affirmative duty to take such measures as were in his power and appropriate in the circumstances to protect prisoners of war and civilians.
DISCUSSION
Purpose of the law is to protect civilians and prisoners of war from brutality.  
Fourth Hague Convention of 1907:  Armed force must be commanded by a person responsible for his subordinates.
c. Vicarious Responsibility.
Individuals may also be responsible for int’l crimes on a vicarious/derivative liability basis if they are complicit in or assist the commission of international crimes.
Prosecutor v. Furundzija (1149)
FACTS
Soldier charged with aiding and abetting perpetration of outrages upon personal dignity, including rape.  D was present when another member of his unit raped the victim.  D did not personally rape the victim himself.
ISSUE:
Is D liable under a theory of vicarious liability?
HOLDING
Yes, he had the actus reus and mens rea.  It is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed.  If he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime and is guilty as an aider and abettor.
ANALYSIS
-The court looks at actus reus, states that cases suggest that the assistance given by an accomplice need not be tangible and can consist of moral support in some circumstances.
-Acts of the accomplice need not bear a causal relational to those of the principal.
-For mens rea, the court states that it is not necessary that the D shares and identifies with the principal’s criminal will and purpose, provided that his own conduct was with knowledge.
RULES
-The actus reus of aiding and abetting in int’l criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.
-Accomplice must have knowledge that his actions will assist the perpetrator in the commission of the crime.
d.  Following Orders and Duress
-The fact that a D acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.
Court will look to see if moral choice was possible, not at the existence of an order.
-Duress does not afford a complete defense to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.
3.  International Crimes.
-International crimes are breaches of international rules entailing the personal criminal liability of the individuals concerned.
1.  Violations of international customary rules (also look to treaty provisions which spell out or codify customer law or have contributed to its formation).
2.  Rules intended to protect values considered important by the whole international community and consequently bind all States and individuals.
3.  There is a universal interest in repressing these crimes.
-May be prosecuted and punished by any state, regardless of territorial or nationality link with the perpetrator or victim.
-Crimes include:  war crimes, crimes against humanity, genocide, torture, aggression, extreme terrorism.
a. Genocide.
Rule (1153)
Prosecutor v. Krstic (1154)
FACTS
1995 Massacre by Bosnian Serb forces of up to 10k Muslim men in the town of Srebrenica.  D was a general in the VRS which carried out the massacres.  D was charged with genocide for his role in the killings and tried before the International Criminal Tribunal for the former Yugoslavia.  
ISSUE
1. Did the killing of Bosnian Muslim men satisfy the requirement of the Genocide Convention that the offender act with “intent to destroy, in whole or in part, a national, ethnic, racial or religious group?
2.  Did D act with the requisite intent?
HOLDING
1.  Yes.
2.  No,  he was aware at most that executions were taking place.  D’s knowledge of executions is insufficient to support an inference that he shared the intent to commit genocide.
Genocide is one of the worst crimes known to humankind, must be specific intent.  
He is more of an aider and abettor to genocide and not a perpetrator.  May only be held responsible of a specific intent offense if he assists the commission of the crime knowing the intent behind the crime.
RULES
-Where an conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group.
-The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups.  The part targeted must be significant enough to have an impact on the group as a whole.
-Determination of whether group is substantial enough:  numeric size, in relation to overall size of entire group, prominence within the group, if a specific part of the group is emblematic of the entire group or essential to its survival.  
ANALYSIS
-Complaint alleges that targeted group was “Bosnian Muslims.”
-Most of the Muslim inhabitants sought refuge within the enclave, the elimination of it would have accomplished the goal of purifying the entire region of its Muslim population.
-The fate of Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.
-Physical destruction of men (1/5th of overall community) had severe procreative implications for the community, potentially causing extinction.
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Duty to prevent genocide
-To establish a state’s breach of its obligation of prevention, it does not need to be proven that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them.
-The duty to prevent genocide obligates states to employ all means reasonably available to them, so as to prevent genocide as far as possible.

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