Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

2018 ◽  
Vol 31 (2) ◽  
pp. 403-429 ◽  
Author(s):  
ALEXANDRE SKANDER GALAND
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Conflict Avoidance ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Internal Conflicts

AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

scholarly journals International Law Issues Raised by the Transfer of Detainees by Canadian Forces in Afghanistan

2011 ◽  
Vol 56 (4) ◽  
pp. 959-1010
Author(s):  
Marco Sassòli ◽  
Marie-Louise Tougas
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal ◽  
Standard Of Care ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Canadian Forces ◽  
International Criminal Tribunals

The transfer of Afghan detainees to Afghan authorities by Canadian forces raised concerns in public opinion, in Parliament, and was the object of court proceedings and other enquiries in Canada. This article aims to explore the rules of international law applicable to such transfers. The most relevant rule of international humanitarian law (IHL) applies to prisoners of war in international armed conflicts. However, the conflict in Afghanistan, it is argued, is not of an international character. The relevant provision could nevertheless apply based upon agreements between Canada and Afghanistan and upon unilateral declarations by Canada. In addition, international human rights law (IHRL) and the very extensive jurisprudence of its mechanisms of implementation on the obligations of a state transferring a person to the custody of another state where that person is likely to be tortured or treated inhumanely will be discussed, including the standard of care to be applied when there is an alleged risk of torture. While IHL contains the rules specifically designed for armed conflicts, IHRL may in this respect also clarify as lex specialis the interpretation of concepts of IHL. Finally, the conduct of Canadian leaders and members of the Canadian forces is governed by international criminal law (ICL). This article thus demonstrates how IHL, IHRL, and ICL are intimately interrelated in contemporary armed conflicts and how the jurisprudence of human rights bodies and of international criminal tribunals informs the understanding of IHL rules.

Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law

2012 ◽  
Vol 81 (4) ◽  
pp. 537-584 ◽  
Author(s):  
Jeremy Sarkin
Keyword(s):  
International Law ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
International Convention ◽  
Historical Developments ◽  
Jus Cogens

This article examines the question whether jus cogens includes the prohibition of enforced disappearances, and why this is important. It surveys the meaning, context, development, status and position of jus cogens as well as enforced disappearance in international law, including their relationship to each other. It surveys the status of enforced disappearance in international law in general, as well as in international human rights law, international humanitarian law and international criminal law. The article scans the historical developments of international law, including developments over the last few decades, to indicate that the prohibition against enforced disappearance has attained jus cogens status. The legal framework is examined, including the jurisprudence that has emanated from a variety of sources. Specific treaties that deal with enforced disappearance are reviewed including the Declaration on the Protection of All Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court (ICC) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICED). What jus cogens is, what the controversies are that surround it, the different ways that it is understood within different schools of thought, and how these issues impact on whether the prohibition of enforced disappearance has attained jus cogens status are studied. The historical developments around enforced disappearances are examined in some detail to determine what its status is, particularly in relation to state practice, so as to determine whether it is jus cogens.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

Unmasking the Challenges

2020 ◽  
pp. 359-392
Author(s):  
Gloria Gaggioli ◽  
Pavle Kilibarda
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Criminal Courts ◽  
Law Enforcement Officials ◽  
The Individual ◽  
Mitigating Circumstances

International human rights law and international humanitarian law absolutely prohibit all forms of torture and cruel, inhuman, or degrading treatment (CIDT) at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other—less visible and insufficiently discussed—challenges concern laws and practices that may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called exclusionary rule) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present chapter will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts and tribunals.

The Crime of Indiscriminate Attack and Unlawful Conventional Weapons: The Legacy of the icty Jurisprudence

2015 ◽  
Vol 6 (1) ◽  
pp. 118-146 ◽  
Author(s):  
Christian Ponti
Keyword(s):  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Conventional Weapons ◽  
The Individual ◽  
Individual Criminal Responsibility

The prohibition of indiscriminate attacks, which encompasses either ‘indiscriminate attacks’ stricto sensu and the so-called ‘disproportionate attacks’, is at the heart of the law governing the conduct of hostilities, as it aims to implement two cardinal principles of international humanitarian law (ihl), distinction and proportionality. This contribution examines the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty) establishing the individual criminal responsibility for indiscriminate attack. The author considers the possible rationale to illustrate why the icty has never adjudicated neither indiscriminate attacks nor disproportionate attacks per se, as separate, autonomous offences under customary international law. It is submitted that a possible reason to explain the prudency of the icty judges when dealing with the crime of indiscriminate attack is that from an international criminal law perspective it is more than a challenge to apply these ihl principles of distinction and proportionality. The author contends that the icty jurisprudence that practically examined the principle of prohibiting indiscriminate attacks by means of unlawful conventional weapons confirm such difficulties. In particular, because the icty failed to fully clarify to what extent an attack by means of indiscriminate and/or inaccurate weapons violating fundamental principles of the conduct of hostilities, such as distinction and proportionality, may amount to the crime of indiscriminate attack.

scholarly journals SHOULD INTERNATIONAL LAW RECOGNIZE A RIGHT OF HUMANITARIAN INTERVENTION?

2017 ◽  
Vol 66 (2) ◽  
pp. 441-466 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Syrian Civil War ◽  
The Right

AbstractThe ongoing Syrian civil war calls for a re-evaluation of using force to protect human rights. This article does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.

The impact of international criminal law and the ICC on national constitutional arrangements

2015 ◽  
Vol 4 (2) ◽  
pp. 227-253
Author(s):  
RUPERT ELDERKIN
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
National Sovereignty ◽  
Public International Law ◽  
The Impact

AbstractInternational criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

The Eritrea-Ethiopia Claims Commission and Customary International Humanitarian Law

2013 ◽  
Vol 4 (2) ◽  
pp. 296-314 ◽  
Author(s):  
Agnieszka Szpak
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Prisoners Of War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Geneva Conventions ◽  
The Status ◽  
Key Issues

The aim of the article is to highlight several issues concerning the customary international law status of a number of international humanitarian law (IHL) treaty provisions that arose during the proceedings of the Eritrea-Ethiopia Claims Commission. Specifically, two key issues will be analyzed, namely the Commission's findings that the Geneva Conventions and some provisions of Additional Protocol I reflected customary international law and that international landmine conventions create only treaty obligations and do not yet reflect customary international law. Also, some more detailed conclusions relating to particular problems, such as the issue of the customary nature of the ICRC’s right to visit prisoners of war and its binding character for non-parties to the Geneva Conventions, will be discussed. The 2005 ICRC Study on Customary International Humanitarian Law and the International Criminal Tribunal for the former Yugoslavia’s jurisprudence will also be included as a point of reference to identify the customary character of certain provisions. The main conclusion is that the Commission has significantly contributed to the emerging consensus regarding the status of certain norms of international humanitarian law as customary norms. Furthermore, it has identified lacunae in the existing standards of humanitarian law and suggested the development of new norms to fill those gaps.

scholarly journals Protected Groups in Refugee Law and International Law

Laws ◽  
2019 ◽  
Vol 8 (4) ◽  
pp. 25
Author(s):  
Joseph Rikhof ◽  
Ashley Geerts
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Refugee Convention ◽  
International Human

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law.

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