No General Principles Cases Explanation

.
1. Nullum Crimen Nulla Poena Sine Lege Prosecutor v. Delalic A fundamental principle of all law is that there can be no punishment of crime
Prosecutor v. Milutinovic et al without a pre-existing law. Criminal Conviction.

A criminal conviction can only be based on a norm which existed at the time
the acts or omission with which the accuesed is charged were committed.

No Criminal Responsibility without There is no Criminal Responsibility Without Moral Choice

Moral Choice This principle is reflected under Article 8 of the IMT Charter. "...That a soldier
was ordered to kill or torture... has never been recognized as a defence to such
acts of brutality...the order may be urged in mitigation of the punishment.. The
true test.. is whether moral choice is possible". Until the Second World War,
superior orders always excluded the criminal responsibility of the subordinate
who acted under those orders. Article 8 constituted an innovation because it
stated that the orders alone do not amount to a ground excluding criminal
responsibility. The issue is whether the perpetrator acted as a free agent.
Therefore obeying orders can play a role only within the context of general
grounds for [mitigating] responsibility, in particular, duress and mistake of law.

2. Individual Responsibility Prosecutor v. Tadic, Individual responsibility: planned, instigated, ordered, commited, aided and
abetted the planning, preparation, or execution of a crime within the
jurisdiction of the ICTY is indvidually responsible.

3. Non bis in idem Prosecutor v. Tadic This principle protects a person from being tried twice or punished twice for
(Article 10 ICTY) Prosecutor v. Furundjiza the same acts. This principle has gained certain international status since it is
articulated in Article 14(7) of the ICCPR.

The trial of Tadic had already begun in Germany and then the accused were
transferred to ICTY. Is it possible to conduct such trial? Yes. According to the
Trial Chamber, this principle states that a person should ot be tried or
 punished twice for the same acts. However the principle does not prevent a
person being tried in more than one State for the same acts.

4. Right of the Accused Ubiquitous Rights to the accused (Article 21): equality before the law, fair trial and
presumption of innocence.

5. No Death Penalty The maximum sentences is imprisonment.

6. Duress, Superior Orders, State Necessity
as grounds mitigating criminal
responsibility
Prosecutor v. Erdemovic, The Appeals Chamber denied the existence of a principle whereby duress is a
Prosecutor v. Tadic complete defence to a charge of crimes against humanity or war crimes. On
the other hand, it identified the principle that an accused deserves less
punishment because he is less responsible when he performs a criminal act
under duress.

Under general principles of law diminished responsibility might be a mitigating

factor in sentencing but not a ground for excluding criminal responsibility.

7. Unus Testis, Nullus Testis Prosecutor v. Tadic In Tadic Case, the issue arose out of the fact that the RPE of the ICTY does not
Prosecutor v. Akayesu require corroboration of the victim’s testimony in cases of sexual assault. A
contrario sensu, does it mean that the evidence of a victim other than sexual
assault necessarily has to be corroborated? Does the legal principle of unus
testis nullus testis apply in such a situation?

An ICTY Trial Chamber had already held that unus testis, nulus testis is not a
general principle of law. ICTR has the power to decide a legal issue on the basis
of the evidence of a single witness it this is relevant and credible. It does not
bound to apply national rules of evidence. ICTRY is bound to apply only the
provisions of the Statue and the RPE.
Res Iudicata Prosecutor v. Delalic The decision of the Court is only binding to the parties of the case. Is the
Prosecutor allowed to postulate the existence of an international armed
conflict because the Trial Chamber had already adjudicated this in Tadic case?
The issue of the nature of the armed conflict is not res iudicata. Such principle
only applies under limitation in criminal cases.
8. The Burden of Proof Rests Upon the Prosecutor v. Delalic The person who has invoked its jurisdiction and desires the tribunal or court to
Prosecutor take action on his behalf must prove his case to its satisfaction. The principle
 that the burden of proof rests upon the prosecutor is one of the corollaries of
the presumpton of innocence, a basic human right.

9. Beyond Reasonable Doubt Standard

10. Consursum Delictorium (Cummulation Prosecutor v. Kupreskic et al Principles of law on the cummulation of offences. The issue of cummulation of
of Offences) offencese is relevant to both substantive and procedural international criminal
law. It concerns whether and on what conditions the same act or transaction
may violate more thatn one rule of international criminal law and, in the case
of double conviction for single action, how this should impact on sentencing. It
also touches upon the issue of the conditions on which the Prosecutor should
subnit alternatinve or cummulative charges.

The Trial Chamber set out four legal principles regarding the matter:
- Where the same act or transaction constitues a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offences or only one is whether each provision
requires proof of an additional fact which the other does not.
- One of the offences falls entirely within the ambit of the other offences
(lex specialis derogat legi generali)
- A conviction of a lesser offence than the one charged is permitted as
long as the definition of the greater offerce necessarily includes that of
the lesser offence. A more serious crime subsumes the less serious
(lex consumens deroga legi consumptae).
- If an act or transaction is simultaneously in breach of two criminal
provisions protecting different values, it may be held that act or
transaction infringes both criminal provisions.

The criminalization of aggresive war by the Charter cannot be applied retroactively. However, the IMT rejected this view. It was unnecessary to consider whether
aggresive war was a crime under internatinal law before the execution of the Agreement. The IMT held that nullum crimen nulla poena sine lege is not a limitation of
sovereignty but is in general a principle of justice. It would be unjust to leave unpunished those who in defiance of treaties and assurances have attacked neighbouring
states without warning. (Judgement of the International Military Tribunal for the Trial of German Major War Crimininals, Nuremberg, 30th September and 1st October,
1946, London, HMSO, 1946, p. 38)