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KEY LEGAL CONCEPTS AND FEATURES OF THE LEGAL SYSTEM

By Mary Doolan Coonabarabran High School

Types of crime

Students should take care not to get confused between TYPES of crime and examples of specific offences, understanding the wording in the syllabus is crucial. For example, “offences against persons” is a TYPE OF CRIME, whereas “manslaughter” and “sexual assault” are examples of crimes that come under the type of crime “offences against persons”.

Students should aim to understand what each type of crime is and be able to correctly categorise specific offences to their appropriate type. An example is always an excellent way to support a definition of a concept and students should aim to do this in Legal Studies.

Creating a mnemonic can be an effective way for students to remember the TYPES of crimes.

The eight TYPES OF CRIME referred to in the syllabus are:

  1. Offences against persons: involve the intended causing of injury to a person e.g. assault, manslaughter.

  2. Economic offences: involve the infliction of economic loss upon the victim by for example:
    1. Loss or damage to the victims property e.g. robbery, larceny
    2. White collar crime like embezzlement (the taking of money by an employee from a business) or tax evasion.

  3. Offences against the State: involve criminal acts against the government. For example:
    1. Treason: involves the commission of acts aimed at bringing down the government/head of state.
    2. Sedition: involves the incitement of hatred and/or violence against the government/head of state. The federal government’s recent anti terrorism laws, contain sedition provisions. These provisions have attracted quite a deal of debate about the need to balance protection of society against freedom of speech in our post 9/11 world.

  4. Drug Offences: involve the use, supply and possession of prohibited drugs. Most offences are covered in the Drug Misuse & Trafficking Act 1985 (NSW). For example ‘possess or supply prohibited drug’ (the quantity of the drug will determine the severity of the offence).

  5. Public Order offences: involve acts which the ‘reasonable person’ would deem unacceptable behaviour. Such offences include using offensive language (in public), indecent behaviour (e.g. being nude in public) and prostitution. The existence of such offences demonstrates how moral and social views influence law.

  6. Traffic offences: involve breaches of traffic laws. Many traffic offences are strict liability offences such as speeding. With offences deemed ‘strict liability’ the prosecution has only to prove that an illegal act was performed (actus reus). It does not also have to prove that there was criminal intent (mens rea), negligence or fault. Other (non-strict liability) offences include dangerous driving occasioning death and driving in a manner dangerous to the public.

  7. Victimless Crimes: as their name suggests, involve criminal acts which do not seem to involve a victim e.g. self use of a prohibited drug.

  8. Preliminary crimes: involve attempting to or planning to commit a crime, both of which are criminal acts. For example:
    1. Attempt e.g. Attempted break enter and steal, loitering with intent.
    2. Conspiracy must involve two or more people agreeing to commit a crime e.g. planning to rob a bank.

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Sources

The sources of criminal law are:

  1. Statute law: law made by parliament e.g. Crimes Act 1900 (NSW).

  2. Common law: law made by judges e.g. R v Zecevic (1987) 162 CLR.

    Under the division of powers within the Australian Constitution “crime” is a residual power so the states have the bulk of law-making power. The Commonwealth can also make criminal law regarding areas of federal concern such as customs.

  3. The Constitutional separation of powers can be seen in the context of crime as follows:
    • Legislative: parliament enacts a criminal law.
    • Executive: that law is enforced by police.
    • Judiciary: that law is subject to judicial interpretation and breaches of the law are punished by the Courts.

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The court structure

An important point for students to note is that the NSW Court system is hierarchical and therefore provides opportunities for appeal. Further, most criminal cases (both summary and indictable) begin in the Local Court which deals with the vast majority of criminal cases in NSW. Students should understand that the majority of criminal prosecutions in NSW each year are for summary offences and less serious indictable matters, which, on election, can be dealt with in the Local Court. Students should also remember that (and depending on what the specific HSC question actually asks) a flow chart can be an effective way to demonstrate an understanding of the NSW Court structure. Students should know the role of each Court and where it fits into the hierarchy.

Local Court:

Children’s Court:

Coroners Court:

District Court:

Supreme Court:

Court of Criminal Appeal:

High Court:

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Information about some other courts that operate in NSW:

Drug Courts

The Drug Court of New South Wales (NSW)

The Youth Drug and Alcohol Court (YDAC) NSW

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Factors affecting a definition of crime and criminal behaviour

Students should note that this is a complex issue and that crimes are committed for many reasons and often a number of factors influence a persons’ decision to disobey the law. Some of the broad factors which influence a persons’ attitude toward crime include:

  1. Social: People, and in particular, their attitude to the law and the authority of the state, are shaped in part by the society they live in. Factors such as upbringing and personal networks can impact, often negatively, upon a persons’ view of the law and respect (or lack of) for it.

  2. Economic: People who suffer economic disadvantage can feel “disconnected” from main stream society and its value and hence may feel less respect for the law. Further poverty, in terms of need can also be a factor, particularly in property offences.

  3. Genetic: This is a controversial theory, originating in 19th century phrenology studies and more recently in DNA analysis. There is no conclusive evidence to support a genetic based theory explaining criminal behaviour.

  4. Political: Individuals and organisations may oppose certain criminal laws (or indeed the whole notion of the state in the case of anarchists) on political grounds. They therefore believe that the law is wrong or unjust and may not feel compelled to comply with the law. Political motives cover the spectrum of criminal behaviour from public order type offences through to violent criminal behaviour.

  5. Self interest: Self interest and greed can motivate people to commit crime. It can be seen as an easy road to power and/or wealth.

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Elements of crime

For the prosecution to prove that a crime has been committed, they must prove beyond a reasonable doubt the three elements of a crime i.e. mens rea, actus rea and causation. The exception is for strict liability offences where it is not necessary for the prosecution to prove mens rea. Most students know and understand mens rea (mental state of the offended) and actus rea (conduct of the offender of the act) but few understand the third element of crime – causation. The prosecution must show that there is a link between the act and the crime. That is, it is an act by which an effect is produced. For example, if you stabbed someone and they died on the operating table, it is the act of the stabbing that caused the person to die, rather than the fault of the doctor. A good case to examine on causation is R v Blaue (1975) 1 WLR 1411 CA.

Distinguishing Summary (minor) and Indictable (serious) Crimes

It is important to distinguish between these. Summary offences are minor offences (e.g. driving under the influence of alcohol, shoplifting) that are dealt with quickly, usually in a Local Court. Indictable offences are more serious and complex (e.g. murder or sexual assault) and are usually tried before a judge and jury in a District Court or higher. The latter normally go through a committal hearing in the Court first to determine if there is enough evidence to go to trial.

Parties

Criminals do not always act alone. Persons involved in a crime are referred to as parties to a crime. The punishment such persons receive from the court, (if convicted) will depend upon the extent to which they were involved in the crime (as well as other factors such as if they have a previous record). The more involved the party to the crime is, the greater their punishment.

The parties to a crime may be identified as:

  1. Principal in the first degree: the person(s) directly responsible for the criminal act e.g. robbed the bank.

  2. Principal in the second degree: the person(s) who assists the principal in the first degree to commit the crime e.g. drove the getaway car.

  3. Accessory before the fact: the person(s) who help to plan the crime e.g. stole the bank plans.

  4. Accessory after the fact: the person(s) who knowingly assists the offender after the crime has been committed e.g. helped hide the offender from police.

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Defences

Defences operate to justify the actions of the accused and therefore either remove or reduce (partial defence) their criminal culpability.

Specific defences if proven, operate to “remove” one of the essential elements of a crime - thus preventing the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence in effect “removes” the mens rea element. If it is proven that the intention of the accused was to defend themselves (or a third party) and NOT to commit the crime then clearly they did not have criminal intent.

Strict liability offences can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to this category of offence (e.g. speeding).

Crime is an act or omission that harms society and which is punishable by the state. It is just that if an accused has a reason that justifies their behaviour they should not be punished by the state. If a partial defence to murder is established then in the interests of justice they should receive a lesser sentence.

Defences are of two broad types:

  1. Complete - which if proven results in a not guilty verdict and acquittal
  2. Partial - which in NSW ONLY APPLY TO THE CRIME OF MURDER, and do not result in acquittal but result in the accused being convicted of the lesser charge of manslaughter

It is important to note that partial defences do not apply to lesser charges such as assault. For example if it found that an assault was provoked, the provocation will be a MITIGATING FACTOR for the Judge/Magistrate to consider when sentencing, but would not entitle the accused to an acquittal.

Examples of Complete Defences:

  1. Mental Illness:
    • onus of proving defence on the defendant on the balance of probability

    • key case is a 19th century English case of McNaughten (1843) which established the test for proving insanity. The defence must prove that the defendant did not understand “the nature” quality of their act due to their diseased mind. Accordingly the defence must prove that the defendant did not know what he/she was doing and/or that the defendant knew what they were doing but didn’t understand that it was wrong (it could be difficult for a defendant to prove the level of mental illness to satisfy this test and that this led to legislative reform in NSW in 1974 and the creation of the partial defence of diminished responsibility)

    • if the defence of mental illness is proven - it results in the accused being acquitted (because the law does not hold people who suffer severe mental illness, responsible for their actions) however they are not free to go. Instead they are held in a mental institution. The length of a defendants’ stay in the mental institution is indefinite.

  2. Self Defence:
    • onus of proving that the accused did not act in self defence (if the defence is raised) is on the prosecution (Crimes Act 1900 NSW Division 3)

    • the leading case is the decision of the High Court in Zecevic (1987). Defendant must prove that he/she believed (subjective) upon reasonable grounds (objective) that it was necessary in self defence to do what he/she did (either party) (now codified in the Crimes Act 1900 (NSW) Division 3

    • if proven, results in the accused being acquitted - because the law has been satisfied that the defendant’s actions were justified

  3. Necessity:
    • onus of proving defence on the defendant

    • the defendant must prove that the crime was committed only to prevent the commission or act of a more serious crime. The defendant must genuinely believe that their actions were necessary and they must not be out of proportion to the harm that they were trying to avoid.

    • only operates when other defences do not apply.

  4. Duress:
    • onus of proving defence on the defendant

    • the defendant must prove that they committed the crime against their own free will and did so because of a genuine threat or intimidation, for example, their own or someone else’s life was in peril
    • cannot apply to murder or manslaughter

  5. Consent:
    • onus of proving defence on the defendant.

    • a victim cannot consent to murder or the infliction of grievous bodily harm therefore this defence cannot be raised in relation to some offences such as murder
      .
    • is most commonly raised in sexual assault cases (the term assault implies an absence of consent).

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Partial Defences to Murder:

These operate to MITIGATE (although not excuse or justify) the defendant’s behaviour and hence, if proven result in the defendant being convicted by the lesser offence of manslaughter.

  1. Provocation:
    • onus of proving defence is on the defendant.

    • must prove that their actions were directly provoked by the victim on an objective test which is that the victim’s actions would have caused any reasonable person to act in a like manner.

  2. Substantial Impairment of Responsibility:
    • onus of proving defence on the defendant

    • also known as diminished responsibility

    • is a statutory defence, the defendant must prove that they were suffering from an “abnormality of the mind” at the time of the offence which “substantially impaired their mental responsibility”.

    • cannot be relied upon to excuse the accused’s voluntary use of alcohol or mind altering drugs

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The Criminal Process and the Role of Discretion

Students should read the 2005 address given by the Director of Public Prosecutions, Nicholas Cowdery entitled The Criminal Process and the Role of Discretion Selecting this link will take you to an external site., as it provides an excellent overview of how the exercise of discretion (Judgement) is integral to the functioning of the criminal justice system in NSW.

From reading the speech, students will note that the exercise of discretion operates from the beginning to the end of the criminal process, and without it, the wheels of justice in this state simply would not turn, nor would justice be served.

It might be useful for students to keep in the back of their mind, as a contrasting referral point, the debate about mandatory sentencing laws, as such laws operate to remove judicial discretion and many would argue remove also the ability of the law to serve the interests of justice.

  1. Reporting crime:

    Citizens have a discretion regarding whether to report a crime. There are numerous factors which impact upon whether a citizen (victim or not) reports a crime to police. For example, sexual assaults are offences which are under reported, as are domestic violence related offences. Students should consider the many reasons why crimes are reported and not reported. (e.g. Fear of retribution from the offender is often a relevant concern in relation to domestic violence offenders, apathy can also be a factor, perhaps a third party who witnessed the crime simply does not want to get involved in the process.)

  2. Investigation Arrest and Charge:

    Investigation:
    Once police are aware that a crime has allegedly occurred, they will commence the investigation process to establish whether in fact a crime has occurred and to gather evidence to support an arrest and if applicable to substantiate charges being proven in Court beyond a reasonable doubt.
    In many matters, police have discretion as to whether to proceed with an investigation. This Judgement will be informed by factors such as the severity (or otherwise) of the alleged crime, available resources and targeted priorities. Students should note that in some cases, such as domestic violence complaint, police have NO DISCRETION and must attend and investigate all domestic violence complaints. This has been a requirement since reforms were introduced in 1997.

    Arrest:
    Police do not have a general power to compel suspects to attend the police station. The only lawful means for police to insist upon a person attending the station is if that person is placed under arrest. Clearly police must exercise their judgement to consider whether they have a sufficient basis for a LAWFUL arrest. Students should note that there are strict rules which regulate when police can arrest someone and the manner of that arrest. A lawful arrest can only occur if:
    • the police inform the suspect that they are under arrest and why
    • the suspect is cautioned
    • the police have a warrant or
    • the police believe that the suspect is about to commit a crime or has just committed a crime or
    • the police witness the crime taking place

    Charge:
    • Charging of the offender is the formal process whereby the suspect is charged with the particular offence(s) and receives notification of their first Court date. They are fingerprinted at this time.
    • Police exercise their discretion (within guidelines) in determining which specific offence(s) the suspect will be charged with.
    • Students should note that the suspect is under no obligation to give a formal record of interview to police nor indeed to answer their questions (apart from providing a correct name and address). Suspects have the right to silence and are entitled to exercise this right throughout the criminal process.
    • Students should also note that not all criminal proceedings begin by way of arrest, charge and bail (discussed below). For more minor offences, police may exercise their discretion (within policing guidelines) to initiate proceedings via a Court attendance notice.

  3. Bail
    • Bail is conditional freedom prior to verdict, although, bail can in some circumstances be granted between conviction and sentencing. Bail requires that the person charged appear at court at a later date. Bail may be refused (in which case the accused is remanded in custody pending the court date), granted unconditionally or with conditions (such as reporting to police or provision of money by a third part to guarantee the accused’s appearance at court.
    • A police officer has the discretion (subject to the provisions of the Bail Act 1978 NSW to grant or refuse bail. If bail is refused the police have an obligation to bring the accused before a court as soon as is reasonably practicable.
    • Magistrates and Judges (again subject to the provisions of the Bail Act 1978 NSW) also have the authority to grant or refuse bail.

  4. Plea, Hearing

    1. Plea:
      • An accused must enter a plea of either guilty or not guilty. If they refuse to enter a plea then it will be taken by the court to be a plea of not guilty. If the charge is an indictable (serious) matter, then the accused will not be required to enter a plea until such time as the prosecution has served a brief of evidence (containing statements from prosecution witnesses and other documentary evidence such as drug analysis results) upon the accused and they have had adequate time to consider it and obtain legal advice.
      • If a plea of guilty is entered then the accused is sentenced, the accused may or may not be remanded in custody during that time, dependent upon the severity of the offence. The severity of the offence will determine which court, Local, District or Supreme, imposes the sentence.
      • If a plea of not guilty is entered then the matter proceeds to a defended hearing. This will be in the Local Court for summary matters and some less serious indictable matters which may, if elected, be heard in the Local Court. For serious indictable matters, a committal proceeding is held in the Local Court to establish not guilt or innocence but whether a prima facie case exists; whether there is a case to answer. If following the conclusion of the committal proceeding, the Magistrate does not find that a prima facie case exists then the accused is free to go. If a prima facie case is found to exist then the accused is committed to stand trial in either the District Court or Supreme Court (depending upon the severity of the offence) at a later date.
      • Students should also be familiar with Charge Negotiation (often still referred to as Plea Bargaining) which is where charges are reduced and/or some withdrawn in exchange for the offender agreeing to plead guilty.
        Following negotiations between the prosecution and defence, in some cases the accused may agree to plead guilty to a lesser charge (e.g. Assault occasioning actual bodily harm becomes assault) or to some but not all charges, on the basis that the remaining charge will not be proceeded with. It is important for students to consider fully the ramifications or problems associated with this process. How does it impact upon the victim, the accused and society generally (including the issue of resource efficiency)?

    2. Hearing:

      Local Court (Summary Hearing):
      • Magistrate is tribunal (makes the decisions) of fact and of law (no jury).
      • Magistrate considers evidence, rules on admissibility of evidence and oversees conduct of the hearing.
      • Magistrate either acquits or convicts.

      District Court, Supreme Court (Hearing on Indictment):
      • Judge is tribunal of fact (oversees conduct of trial, rules on admissibility of evidence and points of law. Instructs jury on their role and relevant law. If a verdict of guilty is returned by the jury then the judge determines the sentence - usually at a later date).
      • Jury: is tribunal of fact (determines guilt or innocence based upon the evidence presented at trial. The jury does NOT play a role in relation to sentencing)
      • Jurors are randomly selected from the electoral role in accordance with the provisions of the Jury Act 1979 (NSW).
      • The process of selecting a jury is known as EMPANELLING. The prosecution and defence may challenge a particular juror’s selection. There are two types of challenge:
        • Pre-emptory (limit of 3) no reason need be given
        • Cause (unlimited) must offer a reason.
          (e.g. suspected of bias or not qualified to serve)
      • Jurors are sworn in by oath or affirmation.
      • If a jury cannot reach a decision it is known as a HUNG JURY. A retrial may or may not occur.
      • From May 2006 in NSW, majority verdicts of 11:1 have applied – providing the court is satisfied that it is unlikely that the jury would reach a unanimous verdict and there has already been a reasonable time of deliberation (The time may not be less than eight hours) Prior to May 2006 a jury’s decision had to be unanimous.
      • Students should note that majority verdicts are not allowed in Queensland or the Australian Capital Territory. They are available in all other Australian states and in the Northern Territory. They are also not available anywhere in Australia for offences against Commonwealth laws (due to section 80 of the Constitution).
      • Students should be aware of the argument for and against majority verdicts and for and against the use of juries more generally.

      Evidence:
      • The prosecution have the BURDEN OF PROOF in a criminal hearing. Students should remember that a criminal hearing involves a prosecution by the State and that the accused is entitled to the presumption of innocence.
      • The STANDARD OF PROOF is beyond a reasonable doubt. This higher standard, when compared to civil matters. It reflects the fact that the accused has more at stake in a criminal trial.
      • An audio recording is made of all hearings. This is a record of proceedings that may be used in appeals.
      • The defendant has the right to silence.
      • Hearings are adversarial in nature. The prosecution and defence and not the judge have responsibility to investigate and argue the case.

  5. Appeals

    • Appeals are an essential aspect of the operation of the criminal justice system.
    • Appeals can be made from the Local Court, District Court and Supreme Court.
    • Appeals can be made to the District Court, Supreme Court, Court of Criminal Appeal and to the High Court (the final Court of appeal following the passing of the Australia Acts of 1986 (Cth and UK)(which removed the right to appeal from a state Supreme Court to the Privy Council in London
    • Appeals must be lodged within 28 days of a conviction and sentence.
    • Students should note that the right to appeal is NOT UNLIMITED.
    • Appeals fall into two categories:
      1. “ALL GROUNDS”: where the accused is appealing against the conviction (this must involve a question of law or mixed fact and law)
      2. “SEVERITY”: where the accused (and in some cases the prosecution) appeal against the severity (or leniency in the case of an appeal by the State) of the sentence imposed.
    • Local Court “severity” appeals are heard in the District Court. It is open for the judge to impose a higher penalty so the accused must consider very carefully whether an appeal should be lodged. All grounds appeals may be heard in the Supreme Court.
    • District Court and Supreme Court appeals are heard in the Court of Criminal Appeal before a panel of judges. Usually three judges hear the appeal unless there is no issue of principal in which case two judges may hear it. In cases dealing with important principles of law a full bench of 5 or more judges may sit. The Court of Criminal Appeal can review questions of law and overturn findings of fact. It can also reduce or increase penalties such as gaol sentences
    • “All grounds appeals” are conducted by way of a review, by the appellant court of the transcript of the original proceedings (transcripts are prepared from the sound recording of proceedings) together with written submissions from the prosecution and defence. Additional evidence may only be called on appeal with the leave of the appellant Court.

  6. Personnel

    1. Police: The role of police is to investigate alleged crimes and gather evidence to support the prosecution case. Evidence must be gathered legally otherwise there is a risk that a judge or magistrate will rule that the evidence is inadmissible. In summary matters police liaise with witnesses and arrange (via subpoena) for their attendance at court. Police also give evidence in court in support of the prosecution case.

    2. Prosecutors: Prosecutors act on behalf of the state to prosecute the crime in court. Students should remember that this is because a criminal act is one which HARMS SOCIETY. Accordingly, prosecutors DO NOT act on behalf of victims in the manner in which defence lawyers act on behalf of their client, the accused.

      Under the adversary system the role of the prosecutor is to raise a reasonable doubt in the mind of the magistrate or jury at to the guilt of the accused.

      In NSW indictable matters are prosecuted by the Director of Public Prosecutions (DPP). As a safeguard against political interference and corruption – the DPP is independent of the police and of the Government.

      The Office of the Director of Public Prosecutions (ODPP) conducts matters involving offences under the laws of New South Wales in every jurisdiction in the State and in the High Court. An overview of the role of the ODPP is available at: http://www.odpp.nsw.gov.au/overview/overview.html Selecting this link will take you to an external site.

    3. Defence Lawyers: Like prosecutors, defence lawyers (both solicitors and barristers) are officers of the court and owe a duty to the court to act in an ethical manner. They must also act in accordance with their client’s (the accused’s) instructions and maintain client confidentiality. The defence lawyer’s role is to present evidence and argument to the court in support of the defence case (both at first instance and on appeal). Usually solicitors appear primarily in Local Court proceedings (although barristers can and do) and barristers (specialist advocates) appear for the defence in more complex and serious criminal matters in the District Court, Supreme Court, Court of Criminal Appeal and High Court. It is also part of their role to conduct any relevant negotiations with the prosecution (e.g. charge negotiation).

    4. Magistrates/Judges: For an outline of the role of Magistrates and Judges see under Hearing (above).

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The role of legal aid

In NSW the Legal Aid Commission plays a vital role in facilitating access to justice. Defendants have a right to a fair trial and legal representation is integral to this. Legal aid is available to people who cannot afford legal representation. The role of legal aid is also to provide advice and education. Students should remember however, that defendants do not have an absolute right to legal representation. This was determined in the case of McInnis v R (1979) by the High Court. However, in Dietrich VR (1991) the High Court accepted that if a person could only receive a fair trial with legal representation then it should be provided as a right of Common Law.,

Legal aid is funded by the Government. As their budget is limited, it is necessary for Legal Aid to apply selection criteria to determine whether an applicant qualifies for Legal Aid. The selection criteria are:

So far as criminal law is concerned, the merit test does not apply to criminal matters at first instance. This perhaps reflects the defendant’s right to the presumption of innocence and a fair trial. The means test does not apply for matters in the Children’s Court. This is because the vulnerable position of children and young persons is recognised by the state.

A problematic aspect of the granting of legal aid is that if the means test applies - its low threshold rules out many people who still cannot afford to meet the costs of paying for private legal representation. Students should consider how this would impact upon the ability of such people to obtain access to justice.

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Types of international crime

Just as domestic crime can be categorised into different TYPES so too can international crime. The three TYPES of international crime are:

Sources of Law for International Crimes

There are a number of sources of law for international crimes. They reflect the variety of ways in which international law is made.

Sources of law for international crime are as follows:

  1. International Treaties and Conventions: e.g. Convention Against Torture (1984) and Convention on the Prevention and Punishment of Genocide (1948).

    International treaties and conventions are the principal sources of international law. Treaties are written agreements between states that are legally binding while conventions are agreements between many states that once ratified are legally binding on those signatory states.

  2. Custom: laws which evolve from widespread acceptance by the international community over a period of time. The Universal Declaration of Human Rights 1948 has become part of international law because of its widespread acceptance in the international community. Decisions of the United Nations or the International Court of Justice and the actions of states can contribute to international common law or customary international law. Over time certain actions can become binding internationally for example the outlawing of piracy and unprovoked state aggression.

  3. Judicial Decisions and Teachings of those Highly Qualified in International Law: e.g. Decisions of the International Court of Justice (ICJ) and the International Criminal Court (ICC).

    (The ICC issued its first indictment in August 2006 when it officially charged a war lord from the Republic of Congo for forcefully recruiting children as soldiers. The Republic of Congo’s civil war began in 1998 but the ICC could only indict Thomas Lubanga for crimes he committed after 2002 when the court was set up.)

  4. General Principles of Law: these are general principals recognised by the international community – and common to a majority of legal systems. Where there aren’t treaties that apply or consistent decisions on an international level by states to draw upon then courts may look to general principles of law made in various jurisdictions. A court could also draw on reports written about general legal principles or on the writings of scholars considered to have expertise in areas of international law.

  5. Agreements between nation states, both bilateral (signed by two nation states) and multi lateral (signed by many nation states)

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