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.

Sources of International Humanitarian Law and International Criminal Law

2018 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
The Impact

This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.

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 Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Military Necessity

<p>The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.</p>

scholarly journals Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Military Necessity

<p>The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.</p>

scholarly journals Critique of the International Legal Regime Applicable to Terrorism

2016 ◽  
Vol 2 (1) ◽  
pp. 21-36
Author(s):  
Nabil Mokaya Orina
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Critical Analysis ◽  
International Criminal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Regime ◽  
Public International Law ◽  
Refugee Law

Terrorism is a global phenomenon that permeates state borders and predominantly causes immeasurable suffering to civilians. The need for international cooperation and concerted efforts in combating terrorism cannot be gainsaid. Already, sectoral instruments have been passed to regulate certain aspects of terrorism. However, without a single terrorism specific instrument, acts of terrorism generally classified will fall under spheres of international law which include; public international law, international criminal law, international humanitarian law, human rights and refugee law. This paper makes a critical analysis of these spheres of international law and how they apply to states’ counter-terrorism efforts.

13. International criminal law

2021 ◽  
pp. 178-190
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Humanitarian Law ◽  
International Crimes ◽  
International Criminal Tribunals

This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).

s.I Actors, Ch.5 Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law

2020 ◽  
Author(s):  
Jain Neha
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Critical Role ◽  
Criminal Court ◽  
International Criminal Law ◽  
Highly Qualified ◽  
Criminal Enterprise ◽  
Public International Law

This chapter asks what the outsized role ‘publicists’ have played at the International Criminal Court (ICC) says about the methodological coherence of the field and, more generally, about public international law’s formal relegation of the ‘teachings of the most highly qualified publicists’ to a subsidiary status. It explores that question through the lens of the Court’s decision to reject joint criminal enterprise as a mode of liability in favour of indirect perpetration and co-perpetration. Here, the ICC’s overt reliance on German criminal law scholarship indicates that the Court has been much more willing to go beyond the formal sources of international law than the ICTY and ICTR, which adhered closely to classical public international law sources. This chapter suggests that—at least in practice—the work of publicists has been one of the most important legal sources in the development of specific aspects of the ICC’s jurisprudence. The valorization of scholarship is best explained sociologically instead of doctrinally—as reflecting the critical role publicists played in drafting the Rome Statute and continue to play as key members of international criminal law’s ‘new professional elite’.

scholarly journals Self-Referring to the International Criminal Court: A Continuation of War by Other Means

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 260-265 ◽  
Author(s):  
Parvathi Menon
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Sub Saharan ◽  
Internal Armed Conflicts

Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).

scholarly journals Daring Diversity – Why There Is Nothing Wrong with ‘Fragmentation’ in International Criminal Procedures

2013 ◽  
Vol 26 (4) ◽  
pp. 777-781 ◽  
Author(s):  
VOLKER NERLICH
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Armed Forces ◽  
Criminal Court ◽  
International Criminal Law ◽  
Effective Control ◽  
Control Test ◽  
Public International Law ◽  
International Criminal Tribunals

International criminal law has made impressive strides over the past twenty years. The 1990s and 2000s saw the establishment of ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), the coming into being of the permanent International Criminal Court (ICC), and the birth of several internationalized ‘hybrid’ jurisdictions, notably the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). However, the dynamic development of international criminal law into a new branch of public international law has also led to some problems and confusion. The rules and principles developed by the newly founded international criminal tribunals have sometimes seemed at odds with accepted views on public international law more generally – raising fears about the ‘fragmentation’ of the law. Perhaps the best-known example of this is the controversy over the ‘overall-control’ test developed by the ICTY Appeals Chamber in the Tadić case to determine under which circumstances armed forces may be considered to be acting on behalf of a third state, rendering an internal armed conflict international. The Tadić test differed from the ‘effective-control’ test developed by the International Court of Justice (ICJ) in the Nicaragua case and confirmed in the Bosnia Genocide case, where the ICJ specifically rejected the ICTY approach. Also more generally, the discussion on ‘fragmentation’ and international criminal law continues; recently, Elies van Sliedregt set out in these pages her vision of legal pluralism in international criminal law.

scholarly journals Nazi Crimes in Poland. A Never-Ending Search for Justice

2019 ◽  
pp. 142-160
Author(s):  
Hanna Kuczyńska
Keyword(s):  
World War Ii ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
National Courts ◽  
International Criminal Tribunals ◽  
Efficient Machine

This article deals with the model for prosecuting Nazi crimes committed in Poland in the light of the model presently used in international criminal law. It tries to answer the question: should the investigation of crimes of international law be handed over to transnational tribunals? Should they be hybrid tribunals involving a national factor, or completely supra-national tribunals like the International Criminal Court? Is it legitimate to transfer jurisdiction over these matters to national courts? The case of unpunished Nazi crimes in Poland may give a partial answer to this question. Certainly, various attempts made after World War II, including procedures brought before Polish courts, have contributed to understanding the function of international criminal law, and finding the answer to the question of the best model for prosecuting crimes of international law. At present, we also have the experience of international criminal tribunals, in particular the ICC, which is an efficient machine for prosecuting crimes of international law. Interesting conclusions can be drawn from its functioning that could improve the work of Institute of National Remembrance (IPN) prosecutors, and shed new light on the considerations regarding the prosecution of Nazi crimes in Poland after World War II.

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