The ‘Soul of an Army’: A Defence of Military Court Trials for Violations of the Law of Armed Conflict

2020 ◽  
pp. 1-33
Author(s):  
Conor Donohue
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Large Body ◽  
International Criminal Law ◽  
Service Members ◽  
Legal Basis ◽  
International Forum ◽  
Military Justice ◽  
Law Of Armed Conflict

Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.

Complaint Regarding the Israeli Actions Against the Maritime Flotilla for the Gaza Strip

2019 ◽  
Vol 181 ◽  
pp. 488-567
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Humanitarian Assistance ◽  
Sufficient Reason ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Investigation ◽  
Naval Blockade ◽  
Law Of Armed Conflict

War and armed conflict — International armed conflict — Non-international armed conflict — Status of armed conflict — Law of armed conflict — Armed conflict at sea — Whether armed conflict between non-State organization and Israel — Terrorism — Use of terrorist methods — Relevance — Prerequisites for determining existence of armed conflict — Whether necessary to determine whether armed conflict international or non-international in character — Distinction between war crime and ordinary crime — War crimes — Nexus requirement — Attack in law governing conduct of hostilities — Military objective — Law governing armed conflict at sea — Right to a naval blockade — Status of merchant vessel breaching naval blockade — Status of goods on merchant vessel breaching naval blockade — Contraband — Enforcement of naval blockade on high seas — Naval blockade in law of international armed conflict — Non-international armed conflict — Whether power to impose a naval blockade applicable — Distinction between members of non-State organized armed groups and civilians — Journalists and war correspondents — Civilian taking a direct part in hostilities — Proportionality — International criminal law — Humanitarian assistance and peacekeeping missions — Wilfully causing great suffering and serious injury to body or health — Deportation and forcible transfer — Humiliating and degrading treatment — Unjustifiably delaying return home of a person detained after enforcement of naval blockade — Pillaging and unlawfully destroying, appropriating or seizing property — Crimes against humanity — Contextual element of widespread or systematic attack against any civilian population — Person hors de combat in law of armed conflict and international criminal law — Whether criminal investigation to be instigated — Whether sufficient reason to believe crime committed to detriment of German and non-German nationalsInternational criminal law — War crimes — Crimes against humanity — Law of armed conflict — Armed conflict at sea — Humanitarian assistance and peacekeeping missions — Wilfully causing great suffering and serious injury to body or health — Deportation and forcible transfer — Humiliating and degrading treatment — Unjustifiably delaying return home of a person detained after enforcement of naval blockade — Pillaging and unlawfully destroying, appropriating or seizing property — Crimes against humanity — Contextual element of widespread or systematic attack against any civilian population — Person hors de 489combat — Whether criminal investigation to be instigated — Whether sufficient reason to believe crime committed to detriment of German and non-German nationalsSea — Armed conflict at sea — Treaties — Customary international law — Right to a naval blockade — Legal prerequisites — Status of merchant vessel breaching naval blockade — Status of goods on merchant vessel breaching naval blockade — Contraband — Enforcement of naval blockade on high seas — Naval blockade in law of armed conflict — Whether power to impose a naval blockade applicable — Whether criminal investigation to be instigated — Whether sufficient reason to believe crime committed to detriment of German and non-German nationalsJurisdiction — Universal jurisdiction — Extraterritorial jurisdiction in case of attack on marine traffic — Passive personality principle — Law of Germany including discretion not to exercise universal jurisdiction — Immunity from foreign criminal jurisdiction — The law of Germany

The “Kouwenhoven” Case

2019 ◽  
Vol 181 ◽  
pp. 568-704
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Liability ◽  
Criminal Activity ◽  
War Crimes ◽  
International Criminal Law ◽  
Post Conflict ◽  
Arms Embargo ◽  
Witness Statements

Economics, trade and finance — Economic sanctions — Liberia — UN Security Council Resolutions 1343 (2001) and 1408 (2002) — Implementation of arms embargo under Dutch law — Whether sanctions regime violatedInternational criminal law — Difference between perpetrator and accomplice liability — Complicity in war crimes — Requirement that defendant promoted or facilitated the commission of war crimes — Conditional intent — Whether defendant consciously accepted the probability that war crimes would be committed in connection with his material support — Risk of doing business with a government engaged in international criminal activityInternational criminal law — Evidence — Admissibility and weight of witness statements — Factors relevant to assessing witness statements obtained in post-conflict environment — Coercion of witnesses — Whether inconsistencies in witness statements requiring acquittalInternational criminal law — Circumstances excusing unlawful conduct — National emergency — Whether violations of arms embargo and laws and customs of war justified by right to self-defence under international lawJurisdiction — Universal jurisdiction — War crimes — Prosecution of a Dutch national for offences committed abroad — Whether conduct of investigation by Dutch authorities making prosecution inadmissible — Whether amnesty scheme in Liberia barrier to prosecution — No violation of fair trial rightsWar and armed conflict — Existence of armed conflict — Whether armed conflict international or internal — Limited gap between norms applicable to international versus non-international armed conflict — Whether violations of laws and customs of war giving rise to individual criminal liability under Dutch law — The law of the Netherlands

The First Trial of Former Members of the Kosovo Liberation Army: Prosecutor v. Fatmir Limaj, Haradin Bala, and Isak Musliu

2006 ◽  
Vol 19 (2) ◽  
pp. 459-476
Author(s):  
PASCALE CHIFFLET
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
Eyewitness Identification ◽  
International Criminal ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Criminal Enterprise ◽  
Civilian Population ◽  
Joint Criminal Enterprise

In its Judgement issued on 30 November 2005 in Prosecutor v. Limaj et al., Trial Chamber II of the ICTY found that an armed conflict existed in Kosovo between the Kosovo Liberation Army and the Serbian forces as of the end of May 1998. It held, however, that the evidence did not establish that there was a widespread or systematic attack by the KLA directed against a civilian population at the relevant time. The first trial of former members of the Kosovo Liberation Army also gave rise to a number of significant developments in the ICTY's jurisprudence relating to issues of international criminal law and procedure, such as the treatment of hostile witnesses and of eyewitness identification evidence, as well as the proof of the existence of a joint criminal enterprise.

Removing or Reincarnating the Policy Requirement of Crimes against Humanity: Introductory Note

2010 ◽  
Vol 23 (4) ◽  
pp. 825-826
Author(s):  
LARISSA VAN DEN HERIK ◽  
ELIES VAN SLIEDREGT
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Introductory Note ◽  
Contextual Elements ◽  
Over Time

Of the three existing core crimes in international criminal law, crimes against humanity is the most elusive one, a chameleonic crime that can change colour over time, since it does not possess an unambiguous conceptual character. The characterizing element of genocide obviously is the specific intent to destroy. War crimes must have a nexus with an armed conflict. The identifying element of crimes against humanity is more difficult to pin down as the contextual elements have changed over time.

Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting

2021 ◽  
Vol 54 (1) ◽  
Author(s):  
Laura Ausserladscheider Jonas ◽  
Dire Tladi
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
War Crimes ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Legal Basis ◽  
International Courts ◽  
Individual Criminal Responsibility

War crimes, crimes against humanity, genocide and the crime of aggression could not be perpetrated without those who finance them. This article examines the basis for criminal liability in international criminal law (ICL) for persons who finance entities that perpetrate core crimes. Despite the need for clear rules, neither international courts nor scholars agree upon (i) whether liability exists for individuals who finance entities that perpetrate core crimes; and (ii) if so, the circumstances under which such liability exists. This article argues that an individual who finances an entity that perpetrates a core crime should be held criminally liable under customary international criminal law as an aider and abettor. The objective of this article is to clarify the rules that would enable international courts and tribunals to identify the extent to which individual criminal liability attaches to the financing of core crimes, as well as the legal basis for such liability. By clarifying the criminal accountability of individuals who finance entities that perpetrate core crimes, this article also seeks to clarify the mental elements of the mode of liability of aiding and abetting.

Part II Substantive Aspects, Ch.5 International Criminal Law and the Protection of Cultural Heritage

2020 ◽  
Author(s):  
Frulli Micaela
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Cultural Property ◽  
International Criminal Law ◽  
Strong Impact ◽  
International Criminal Tribunals ◽  
Protection Of Cultural Heritage

This chapter looks at how international criminal law has become a crucial tool to foster the protection of cultural heritage. On the normative level, the main developments consisted in the introduction of rules criminalizing acts against cultural property in binding treaties dealing with the protection of cultural property in times of armed conflict. Then, international criminal tribunals (ICTs) paved the way for implementing individual criminal responsibility. Three different and partially divergent approaches have characterized the criminalization of acts against cultural property. The first two—civilian use and cultural value—emerged in different moments and had a strong impact on the drafting of rules criminalizing acts against cultural property in times of armed conflict. The third one, the human dimension approach, developed from the jurisprudence of ICTs and characterizes both the qualification of acts against cultural property as crimes against humanity and their role in proving the mental element of genocide.

The ictr and Its Contribution to the Revivification of International Criminal Law

2020 ◽  
Vol 22 (1-4) ◽  
pp. 231-246
Author(s):  
Emily Crawford
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Armed Conflict ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Legal Responses ◽  
The Law

In this article, Emily Crawford explores one set of key institutional and legal responses to, and consequences of, the Rwanda genocide – the ictr and the revival of icl that the ictr and the icty heralded. Tracing the development of the concept and institutions of icl, Crawford observes how the case law of the [ad hoc] tribunals, and the ictr in particular, were pivotal in progressively developing the international law of genocide, and the law of non-international armed conflict’.

Commentary: The Čelebići Case: A Comment on the Main Legal Issues in the ICTY's Trial Chamber Judgment

2000 ◽  
Vol 13 (1) ◽  
pp. 105-138
Author(s):  
Lyal S. Sunga
Keyword(s):  
Criminal Law ◽  
Future Development ◽  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Legal Issues ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
The Status

The Čelebići Trial Judgment, rendered by the International Criminal Tribunal for the Former Yugoslavia – the first ever to involve the joint trial of more than one accused – considers numerous important issues, from the method of interpreting international criminal law, the meaning and interrelationship between Articles 2 and 3 of the Statute, the character of the armed conflict and the status of “protected persons”, to many difficult questions surrounding the heinous acts perpetrated in Čelebići Camp. This comment analyzes the reasoning of the Trial Chambers to critically evaluate the significance of this fascinating case for the future development of international criminal law doctrine.

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