Hardly theTadićof Targeting: Missed Opportunities in the ICTY'sGotovinaJudgments

2015 ◽  
Vol 48 (3) ◽  
pp. 329-355 ◽  
Author(s):  
Roee Ariav
Keyword(s):  
International Criminal ◽  
Legal Reasoning ◽  
International Criminal Tribunal ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Missed Opportunities ◽  
The Law ◽  
The Relationship

TheGotovinacase presented the International Criminal Tribunal for the former Yugoslavia (ICTY) with a unique opportunity to adjudicate on issues connected with the law of targeting and international humanitarian law (IHL) in a criminal context. This opportunity was especially important given the fact that legal issues arising out of complex, intense combat situations have only rarely been adjudicated. Although Gotovina was not formally charged with carrying out unlawful attacks on civilians, attacks by Croatia on four towns over the course of ‘Operation Storm’ were the focus of the proceedings. This led both Trial and Appeal Chambers to deal with issues related to the law of targeting such as classification of military objectives, proportionality, and the intent behind an attack. This article argues that the judges failed to take full advantage of the opportunity to discuss these issues. They failed consistently to articulate the legal reasoning behind their findings; they failed to explain the branch of law on which any of their substantive determinations were based; and, perhaps most importantly, they did not explain the relationship between IHL and criminal law and how IHL is to be applied in a courtroom.

The Oxford Guide to International Humanitarian Law

2020 ◽  
Keyword(s):  
International Humanitarian Law ◽  
Criminal Prosecution ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Advanced Students ◽  
One Stop ◽  
Scope Of Application ◽  
The Law ◽  
The Relationship

International humanitarian law is the law that governs the conduct of participants during armed conflict. This branch of law aims to regulate the means and methods of warfare as well as to provide protections to those who do not, or who no longer, take part in the hostilities. It is one of the oldest branches of international law and one of enduring relevance today. This book provides an authoritative and practical overview of this important area of law. The book covers the foundations of international humanitarian law, including its sources, scope of application, and provides an overview of the classification of conflicts and domains of warfare. Chapters then deal with traditional issues that arise in the application of this body of law, such as the basic principles of the conduct of hostilities, the fundamental guarantees provided by this body of law, as well the law relating to weapons, detention, and specifically protected persons. The book also considers the implementation of this body of law, including through criminal prosecution for war crimes. Finally, it addresses the relationship between international humanitarian law and modern challenges relating to protection of the environment, human rights, and terrorism. The book targets professionals, as well as advanced students, with information and analysis of sufficient depth to enable them to perform their tasks with understanding and confidence. It also serves as a first port of call, a one stop shop, and a regular reference work for those interested in international humanitarian law.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

scholarly journals The redirection of attacks by defending forces

2021 ◽  
pp. 1-18
Author(s):  
Tsvetelina van Benthem
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Prima Facie ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Definition Of ◽  
The Relationship

Abstract This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.

scholarly journals Le tribunal pénal international pour le Rwanda - La justice trahie (Note)

2005 ◽  
Vol 27 (4) ◽  
pp. 827-840
Author(s):  
John Philpot
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Military Intervention ◽  
International Criminal Tribunal ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Requirements ◽  
Real Issue ◽  
Set Up

On November 8,1994, the Security Council of the United Nations adopted Resolution 955 creating an ad hoc international criminal tribunal to judge individuals responsible for violations of international humanitarian law committed in Rwanda between January 1, 1994 and December 31, 1994. In its form and structure, the Tribunal does not respect basic legal requirements required of a tribunal set up in international law. Us mandate - limited in time, in scope of potential indictment, and in jurisdiction to violations of international humanitarian law - mil prevent any light from being shed on the real issue raised by the Rwandan conflict, namely that of armed military intervention in Rwanda from Uganda. It will likely lead to the reinforcement of a one-sided view of the crisis in Rwanda and legitimate further unilateral interventionist policies in Africa and elsewhere. The Tribunal will institutionalize the de facto impunity for the members and supporters of the present government of Rwanda who undoubtedly committed many serious crimes between October 1, 1990 and the present.

18 The Law of Neutrality

2021 ◽  
Author(s):  
Bothe Michael
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
The Other ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Neutral State ◽  
The Will ◽  
The Law ◽  
The Right ◽  
The Relationship

This chapter focuses on rules of the law of neutrality concerning the protection of the victims of armed conflicts, which must be considered as part of international humanitarian law. ‘Neutrality’ describes the particular status, as defined by international law, of a state not party to an armed conflict. This status entails specific rights and duties in the relationship between the neutral and the belligerent states. On one hand, there is the right of the neutral state to remain apart from, and not to be adversely affected by, the conflict. On the other hand, there is the duty of non-participation and impartiality. The right not to be adversely affected means that the relationship between the neutral and belligerent States is governed by the law of peace, which is modified only in certain respects by the law of neutrality. In particular, the neutral State must tolerate certain controls in the area of maritime commerce. The duty of non-participation means, above all, that the state must abstain from supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to allow one party to the conflict to use the resources of the neutral state against the will of the opponent.

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.

Assistance, direction and control: Untangling international judicial opinion on individual and State responsibility for war crimes by non-State actors

2014 ◽  
Vol 96 (893) ◽  
pp. 243-273 ◽  
Author(s):  
Shane Darcy
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
Specific Direction ◽  
Significant Disagreement ◽  
State Actors

AbstractDespite the general consistency in the treatment of international humanitarian law by international courts and tribunals, recent decisions have seen significant disagreement regarding the scope of indirect responsibility for individuals and States for the provision of aid or assistance to non-State actors that perpetrate war crimes. The divisions at the international criminal tribunals with regard to the “specific direction” element of aiding and abetting are reminiscent of the divergence between the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia on the question of State responsibility for supporting or assisting non-State actors that engage in violations of international law. This article analyzes this jurisprudence on individual and State responsibility for the provision of support to non-State actors that breach international humanitarian law, and considers the interaction and interrelationship between these related but distinct forms of responsibility.

New Mechanisms for the Enforcement of International Humanitarian Law

2001 ◽  
Vol 95 (4) ◽  
pp. 934-952 ◽  
Author(s):  
Daryl A. Mundis
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Community ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
Domestic Courts

The international criminal court (ICC) will serve as a permanent institution dedicated to the enforcement of international humanitarian law sixty days after the sixtieth state has deposited its instrument of ratification, acceptance, approval, or accession to the Treaty of Rome with the Secretary-General of the United Nations.1 Pursuant to Article 11 of the ICC Statute, however, the ICC will have jurisdiction only with respect to crimes committed after the treaty comes into force.2 Consequently, when faced with allegations of violations of international humanitarian law in the period prior to the establishment of the ICC, the international community has five options if criminal prosecutions are desired.3 First, additional ad hoc international tribunals, similar to those established for the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia, ICTY) and Rwanda (International Criminal Tribunal for Rwanda, ICTR) could be established.4 Second, "mixed" international criminal tribunals, which would share certain attributes with the ad hoc Tribunals, could be created.5 Third, the international community could leave the prosecution of alleged offenders to national authorities, provided that the domestic courts are functioning and able to conduct such trials. Fourth, in those instances where the national infrastructure has collapsed, international resources could be made available to assist with the prosecution of the alleged offenders in domestic courts. Finally, the international community could simply do nothing in the face of alleged violations of international humanitarian law.

scholarly journals International Legal Problems of Qualification of Armed Conflicts

2021 ◽  
Vol 39 (68) ◽  
pp. 735-757
Author(s):  
Mykhaylo Buromenskiy ◽  
Vitalii Gutnyk
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Treaties ◽  
Legal Doctrine ◽  
International Agencies

The article addresses the qualification problems of armed conflicts. The study was conducted through the analysis of international legal doctrine, international treaties, decisions of international organizations. Attention is paid to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. It is noted that International Humanitarian Law has been in place since the beginning of the armed conflict. Therefore, the application of International Humanitarian Law does not require any recognition of the existence of armed conflict (international or non-international); this conflict exists because of armed clashes. It is emphasized that the need to classify the conflict arises in view of domestic and international legal factors (to bring to international criminal justice those who have committed war crimes; state responsibility for internationally wrongful acts, etc.). Attention was paid to the non-existence of a single body, which was empowered to determine the existence of an armed conflict. Different international agencies may have different qualifications for the same armed conflict. It is concluded that it is necessary to establish a Committee of Experts under the UN Secretary-General, to avoid different qualifications from the same armed conflict.

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