12. Human rights, international criminal and humanitarian law

2019 ◽  
pp. 160-174
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Crimes Against Humanity ◽  
Humanitarian Law ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
Scope Of Application ◽  
Key Aspects

This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative as well as its positive dimension. The chapter examines the role of derogations and reservations to human rights treaties as well as cardinal principles in such treaties, namely the margin of appreciation and the scope of application. The chapter examines the concept of international criminal responsibility and looks at the four core international crimes, namely grave breaches (war crimes), crimes against humanity, genocide, and the crime of aggression. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.

12. Human rights and humanitarian law

2021 ◽  
pp. 165-177
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Positive Dimension ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
Scope Of Application ◽  
Key Aspects ◽  
Legal Consequences

This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative, as well as its positive, dimension. The chapter examines the role of derogations and reservations to human rights treaties, as well as cardinal principles in such treaties, namely, the margin of appreciation and the scope of application. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.

12. Human rights and international humanitarian law

2017 ◽  
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
Human Rights ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Periodic Review ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
Scope Of Application ◽  
Key Aspects

This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, inter-dependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative as well as its positive dimension. The chapter examines the role of derogations and reservations to human rights treaties as well as cardinal principles in such treaties, namely the margin of appreciation and the scope of application. The chapter examines briefly regional human rights institutions, particularly the European Court of Human Rights, as well as the African system, in addition to the UN Charter and treaty-based bodies with an emphasis on the universal periodic review. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.

scholarly journals Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal

2014 ◽  
Vol 1 ◽  
pp. 51-69
Author(s):  
Saud Hassan
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
National Courts ◽  
The World

In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69

The International Criminal Court and Non-International Armed Conflicts

2000 ◽  
Vol 13 (2) ◽  
pp. 395-425 ◽  
Author(s):  
Heike Spieker
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Conflicts

Non-international armed conflicts are more numerous, more brutal and entail more blood-shed today than international ones. The Statute of the International Criminal Court explicitly upholds the traditional distinction between international and non-international conflicts, and armed conflicts will have to be characterized accordingly. But the tendency to adapt the international humanitarian law (IHL) regime for non-international conflicts to the rules for international ones emerges. Article 7 on Crimes Against Humanity and Article 8(2)(c) and (e) on War Crimes amount to real progress in this respect. Yet, the regulation on war crimes in particular does not provide for comprehensive criminal responsibility of individual perpetrators in non-international conflicts.

Principles of National Constitutionalism limiting Individual Claims in Human Rights Law

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Paul De Hert ◽  
Stefan Somers
Keyword(s):  
Human Rights ◽  
Church And State ◽  
Freedom Of Religion ◽  
Proper Function ◽  
Religious Conflicts ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
The Relationship

AbstractThe scope of the fundamental right to freedom of religion has been broadly dis­cussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in inter­national human rights treaties. Does this mean that they are irrelevant in human rights adjudication?This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national consti­tutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.

Trying Violations of Human Rights in International Criminal Tribunals

2021 ◽  
pp. 103-115
Author(s):  
Theodor Meron
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
War Crimes ◽  
The Other ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Criminal Tribunals ◽  
Geneva Conventions

This chapter details the ways in which international criminal tribunals such as the ICTY have contributed to human rights law and protections. In construing the material elements of crimes under international humanitarian law, international criminal tribunals have had recourse to human rights law and jurisprudence, thereby strengthening human rights law and opening new avenues for its penal enforcement. The beginnings of these developments can be traced, first, to the drafting of crimes against humanity clauses in the Nuremberg Charter and, second, to the drafting of Common Article 3 of the Geneva Conventions. The tribunals have also made immense contributions to strengthening the proscriptions of rape as war crimes, crimes against humanity, and genocidal acts. With respect to persecution, the ICTY held that persecution is the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited as crimes against humanity.

Pandora's box? Drone strikes underjus ad bellum, jus in bello, and international human rights law

2012 ◽  
Vol 94 (886) ◽  
pp. 597-625 ◽  
Author(s):  
Stuart Casey-Maslen
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Legal Regime ◽  
Drone Strikes

AbstractArmed drones pose a major threat to the general prohibition on the inter-state use of force and to respect for human rights. On the battlefield, in a situation of armed conflict, the use of armed drones may be able to satisfy the fundamental international humanitarian law rules of distinction and proportionality (although attributing international criminal responsibility for their unlawful use may prove a significant challenge). Away from the battlefield, the use of drone strikes will often amount to a violation of fundamental human rights. Greater clarity on the applicable legal regime along with restraints to prevent the further proliferation of drone technology are urgently needed.

Can Criminal Prosecution be the Answer to massive Human Rights Violations?

2004 ◽  
Vol 5 (12) ◽  
pp. 1469-1488 ◽  
Author(s):  
Christoph J.M. Safferling
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Criminal Prosecution ◽  
Short Time

Almost 60 years after the surviving Nazi-leaders were tried in the first ever international criminal tribunal for mass atrocities during World War II in Nuremberg, criminal responsibility for genocide, crimes against humanity, and war crimes is perceived of as somewhat normal. Even if it is not yet an everyday event that human rights abusers are tried on an international level, the reality of the possibility of such a trial is present in the minds of the attentive public. This change was achieved over the last ten years. The establishing of the Yugoslavia-tribunal in 1993 was the turning point. Since then a number of both national and international trials held against human rights criminals has given the topic high priority. Finally the International Criminal Court (ICC) was founded and after a comparatively short time actually established and put in a position to operate. Sierra Leone relies on criminal prosecution in order to rebuild its society after a distracted and bloody civil war and a trial against Saddam Hussein seems a necessity. Many expectations are connected to criminal law and the working of the ICC. The dream of a world-wide justice, i.e. to attribute “just desert” to the offenders and to do justice to the victims, seems to have become reality. At the same time the establishing of an international criminal court is understood as a signal that will deter future offenders from committing human rights atrocities. The paper of Alexandra Kemmerer gives proof of how optimistically the EU promotes the idea of international criminal justice.

International Criminal Law and UN Treaties

2019 ◽  
pp. 450-466
Author(s):  
Salvatore Zappalà
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Genocide Convention ◽  
Social Council ◽  
Historical Developments

The United Nations has been very closely linked to the development of international criminal law (ICL), including in the area of multilateral treaty-making. The UN General Assembly has been the forum for negotiations or preparation of most ICL treaties: from the Genocide Convention to the International Criminal Court Statute, and many other UN bodies (from the Secretariat to the Security Council, as well as the Economic and Social Council and the entire human rights machinery) have significantly contributed to the establishment and evolution of ICL. Moreover, the values protected through ICL enhance and reinforce some of the basic tenets of the UN Charter, including the prohibition of the use of armed force (reflected in the criminalization of aggression), as well as the protection and promotion of human rights (linked to the notion of crimes against humanity and war crimes). This chapter illustrates the historical developments of ICL and emphasizes the pivotal role of the UN in the implementation and further improvement of ICL.

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