Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials

2013 ◽  
Vol 46 (2) ◽  
pp. 271-315 ◽  
Author(s):  
Rogier Bartels
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Criminal Trials ◽  
Principle Of Proportionality ◽  
International Criminal Trials

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recentGotovinacase. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

2008 ◽  
Vol 8 (1-2) ◽  
pp. 319-329 ◽  
Author(s):  
Gauthier de Beco
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

Aspects of victim participation in the proceedings of the International Criminal Court

2008 ◽  
Vol 90 (870) ◽  
pp. 409-440 ◽  
Author(s):  
Elisabeth Baumgartner
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Criminal Proceedings ◽  
Criminal Trials ◽  
Effective Instrument ◽  
Victim Participation ◽  
International Criminal Trials

AbstractThe participation of victims in criminal proceedings is generally a rather new phenomenon. While there is a certain tradition of victim participation as “partie civile” in the criminal proceedings of some national jurisdictions, it is a novelty in international criminal trials. The drafters of the International Criminal Court (ICC) Statute chose to design a rather broad victim participation scheme. Although it is hailed as an important and effective instrument for giving victims of gross violations of human rights and international humanitarian law a voice, the procedural and substantive details are far from being settled. Some of the most significant issues are discussed in this article, including the question whether and how victim participation may influence sentencing and punishment.

scholarly journals Trial and (Potential) Error: Conflicting Visions on Reparations Within the ICC System

2018 ◽  
Vol 29 (3) ◽  
pp. 221-248 ◽  
Author(s):  
Alina Balta ◽  
Manon Bax ◽  
Rianne Letschert
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Justice ◽  
Court Decisions ◽  
Criminal Trials ◽  
Conflict Situations ◽  
International Criminal Trials

Twenty years ago, the International Criminal Court (hereinafter ICC or the Court) was established holding the aim of placing victims at the heart of international criminal justice proceedings and delivering justice to them through, among others, reparations. Article 75 of the Rome Statute lays out the reparations regime, and, in practice, court-ordered reparations are a means of delivering such justice. Focusing on Court decisions on reparations, our analysis takes stock of all developments before the ICC and attempts to highlight the mismatch between characteristics inherent to the objectives of international criminal trials such as providing accountability and punishment of the accused and delivering justice for victims of mass crimes—the so-called procedural challenges. We also submit that the Court is facing conceptual challenges, related to an apparent misunderstanding of the various concepts at stake: reparations as such and the various modalities and channels of enforcing them. We conclude that although the ICC’s reparation regime may not be the best reparative response to provide justice to victims in conflict situations affected by mass victimization, we suggest that improving the ICC’s approach includes, at a minimum, tackling these challenges.

scholarly journals Su kariavimo priemonėmis susiję karo nusikaltimai: tarptautinės humanitarinės teisės ir tarptautinės baudžiamosios teisės santykio problemos

Teisė ◽  
2010 ◽  
Vol 75 ◽  
pp. 111-125
Author(s):  
Dovydas Špokauskas
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law

Straipsnyje nagrinėjama, ar Tarptautinio baudžiamojo teismo Romos statuto nuostatos visiškai pertei­kia kariavimo priemonių pasirinkimą reglamentuojančias tarptautinės humanitarinės teisės sutartines ir paprotines nuostatas. The analysis assesses whether the provisions of the Rome Statute of the International Criminal Court do not fully reflect the customary and treaty norms of international humanitarian law related to the choice of means of warfare.

scholarly journals Dolus Eventualis and the Rome Statute Without It?

2009 ◽  
Vol 12 (3) ◽  
pp. 433-467 ◽  
Author(s):  
Mohamed Elewa Badar
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
General Definition ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Dolus Eventualis

Article 30 of the Rome Statute of the International Criminal Court provides a general definition for the mental element required to trigger the criminal responsibility of individuals for serious violations of international humanitarian law. At first sight, it appears that the explicit words of Article 30 are sufficient to put an end to a long-lasting debate regarding the mens rea enigma that has confronted the jurisprudence of the two ad hoc Tribunals for the last decade, but this is not true. Recent decisions rendered by the International Criminal Court evidence the discrepancy among the ICC Pre-Trial Chambers in interpreting the exact meaning of Article 30 of the ICC Statute. The paper challenges that dolus eventualis is one of the genuine and independent pillars of criminal responsibility that forms, on its own, the basis of intentional crimes, and suggests its inclusion in the legal standard of Article 30 of the ICC Statute.

Implementing Legislation for the Application of the Law on the International Criminal Tribunal for the Former Yugoslavia and Criteria for its Evaluation

1998 ◽  
Vol 1 ◽  
pp. 35-68
Author(s):  
Ivo Josipović
Keyword(s):  
World War Ii ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
History Of

The establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTY) and the adoption of its Statute heralded a new page in the history of international, particularly international criminal, law. For the first time since World War II, an international criminal court was established. The Tribunal was created in order to achieve important legal and political goals: to punish perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia since 1991; to prevent further crimes; to facilitate the peace process; and to serve as a test for a future permanent international criminal court.

An overview of the international criminal jurisdictions operating in Africa

2006 ◽  
Vol 88 (861) ◽  
pp. 111-131
Author(s):  
Jamie A. Williamson
Keyword(s):  
Sierra Leone ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Present Review ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
African Continent ◽  
International Crimes

Whilst the African continent has been beset with many of the modern- day conflicts, and with them violations of international humanitarian law, through the work of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court, African states have demonstrated their intent to hold accountable the perpetrators of the gravest international crimes. By the end of 2005, the International Criminal Tribunal for Rwanda celebrated its eleventh year, the Special Court for Sierra Leone will have completed its fourth year and the International Criminal Court will be more than three and a half years old. As the present review of their activities shows, the delivery of justice through international jurisdictions is a complex and often time-consuming process.

scholarly journals The International Committee of the Red Cross and the International Criminal Court: Turning international humanitarian law into a two-headed snake?

2021 ◽  
pp. 1-19
Author(s):  
Fernanda García Pinto
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Gender Based Violence ◽  
Critical Approach

Abstract The International Committee of the Red Cross and the International Criminal Court are two very different entities that simultaneously apply international humanitarian law but do so after their own perspectives. This article proposes a cautious yet critical approach to some of their divergent interpretations (conflict classification, the difference between direct and active participation in hostilities, intra-party sexual and gender-based violence, and the notion of attack) and examines how the broader legal system copes with these points of divergence. The analysis considers the institutional characteristics of these two organizations and the pluralistic nature of international humanitarian law as well as its dynamic rapport with international criminal law in order to highlight the versatility needed to face the challenges posed by contemporary armed conflicts.

The new International Criminal Court: A preliminary assessment

1998 ◽  
Vol 38 (325) ◽  
pp. 671-683 ◽  
Author(s):  
Marie-Claude Roberge
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Major Step ◽  
International Crimes ◽  
Set Up ◽  
New Institutions

After years of relentless effort and five weeks of intense and difficult negotiations, the Statute of the International Criminal Court (ICC) was adopted and opened for signature in Rome on 17 July 1998. This historic event represents a major step forward in the battle against impunity and towards better respect for international humanitarian law. For too long it has been possible to commit atrocities with total impunity, a situation which has given perpetrators carte blanche to continue such practices. The system of repression established by international law clearly has its shortcomings, and the time has come to adopt new rules and set up new institutions to ensure the effective prosecution of international crimes. A criminal court, whether at the national or international level, does not put a stop to crime, but it may serve as a deterrent and, consequently, may help reduce the number of victims. The results achieved in Rome should thus be welcomed, in the hope that the new Court will be able to discharge its mandate to the full.

Sign in / Sign up

Export Citation Format

Share Document