scholarly journals Defining Hate Speech

2020 ◽  
Vol 18 (1) ◽  
pp. 31-57
Author(s):  
Audrey Fino
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Hate Speech ◽  
International Crime ◽  
International Criminal Law ◽  
Causal Connection ◽  
International Human Rights Law ◽  
International Criminal Tribunals ◽  
Military Tribunal ◽  
Violent Acts

Abstract This article looks at the international criminal law on hate speech that falls short of direct and public incitement to commit genocide. Using the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide — as a baseline, the author analyses the legal parameters of hate speech as persecution (a crime against humanity) and hate speech as instigation (a mode of liability). In so doing, the author critically reviews the International Residual Mechanism for the International Criminal Tribunals’ (IRMCT) appeal judgment in the Šešelj case (Šešelj Appeal Judgment) in the light of prior case law of the International Military Tribunal of Nuremberg (IMT) and the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY respectively). The author submits that a plain reading of the Šešelj Appeal Judgment supports the view that it is only the more extreme form of incitement to violence, incitement to commit crimes, followed by actual violent acts, that may constitute hate speech amounting to the crime of persecution: incitement to discrimination or incitement to hatred as such do not qualify. Whether ‘incitement to violence’ absent the commission of crimes could qualify as persecution (a crime against humanity) remains an unsettled point. With regard to hate speech as instigation, the Šešelj Appeal Judgment’s restatement and application of the law causes less controversy: the substantial causal connection required for instigation was found to be direct in the circumstances of that case — even though directness is not a legal requirement for instigation. The author concludes that both these interpretations of hate speech are consistent with the earlier ad hoc tribunals’ jurisprudence and, more generally, with international human rights law which, with some controversial exceptions, allows criminalization only of the most extreme forms of incitement to violence.

The Birth of Atrocity Speech Law Part 1

2017 ◽  
Author(s):  
Gregory S. Gordon
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Hate Speech ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Genocide Convention ◽  
International Military Tribunal ◽  
Military Tribunal ◽  
Comparable Control

Chapter 3 considers the initial choices made by the newly formed body of international criminal law vis-à-vis atrocity speech. The framers of the Nuremberg International Military Tribunal (IMT) recognized that Nazi barbarities were rooted in propaganda. Article 6(c) of the IMT Charter”(and a comparable Control Council Law No. 10 provision) permitted prosecutors to charge “crimes against humanity” against Nazi defendants, including Julius Streicher and Hans Fritzsche (before the IMT) and Otto Dietrich (before an American tribunal). This novel offense criminalized certain heinous acts committed against civilians that were outside the ambit of war crimes, including hate speech as persecution. The chapter then considers the origins of the Genocide Convention and its pioneering formulation of the incitement crime. Finally, it examines the ad hoc tribunal statutes and the Rome Statue of the International Criminal Court, each of which criminalizes incitement to genocide, persecution as a crime against humanity, instigation, and ordering.

scholarly journals Nuremberg modification of international crime and criminal responsibility of individuals

2020 ◽  
pp. 414-422
Author(s):  
Vadym Popko
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Crime ◽  
International Criminal Law ◽  
Peace Treaty ◽  
International Criminal Tribunals ◽  
Military Tribunal ◽  
Anglo American ◽  
Nuremberg Trials

The article analyses the formation of the Nuremberg model of international crime, its origins and preconditions, the role of theVersailles Peace Treaty of 1919 and other factors. The author states that the inability to ignore the expansion of international crimemakes criminal responsibility unavoidable, and thus the experience of the Nuremberg and Tokyo tribunals bear the fundamental meaning.Examined are the legal bases of the Nuremberg trial, the main problematic issues of discussion, in particular, the recognition ofcertain acts as criminal, procedural security of the accused, harmonisation of procedural rules of different legal systems (continental,Anglo-American, Soviet legal system), immunity of officials and especially the importance of the Nuremberg Trials for the furtherdevelopment of international criminal law. The author argues that individual international criminal responsibility, which should be consideredthe first most important feature of international criminal law, was formed during the Nuremberg Trials on the basis of customarylaw, general principles of law and normative sources: the London Agreement of 1945 “On Prosecution and Punishment of the majorwar criminals of the European Axis countries” and the Statute of the International Military Tribunal. The Nuremberg Trials of1945–1946 and the Tokyo Trials of 1946–1948 were the first effective international criminal tribunals in which individuals with fullprocedural rights and acting on their own behalf were indicted. The precedents of these tribunals have proven the ability to criminalisecrimes under international law that are not crimes under national law and serve as a basis for developing a concept of international crimein a new sense that is closely linked to international justice.The author also concludes by drawing the attention to the fact that due to internationalisation of crime, two different characte -ristics and dimensions have formed: criminal responsibility stricto sensu, and criminal responsibility within the frames of a newlyformed autonomous subbranch of international criminal law – transnational criminal law.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court

2000 ◽  
Vol 13 (4) ◽  
pp. 949-984 ◽  
Author(s):  
Stuart Beresford ◽  
Hafida Lahiouel
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Legal Assistance ◽  
Human Rights Law ◽  
International Criminal Tribunals ◽  
International Obligations ◽  
The Right

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.

Cognitive Bias, Privacy Rights, and Digital Evidence in International Criminal Proceedings: Demystifying the Double-Edged ai Revolution

2021 ◽  
pp. 1-38
Author(s):  
Riccardo Vecellio Segate
Keyword(s):  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Digital Evidence ◽  
International Human Rights Law ◽  
Privacy Rights ◽  
Criminal Proceedings ◽  
High Profile ◽  
International Criminal Tribunals ◽  
Domestic Law

Abstract International criminal tribunals (ict s) have found, almost consistently, that unlawfully and/or secretly obtained evidence is admissible. De facto, defendants in international criminal law (icl) enjoy no privacy-related procedural safeguards under either the applicable domestic law or international human rights law (ihrl). Privacy violations are not confined to those impairing defendants’ rights; they might result in premature acquittals or in misconducts vis-à-vis the victims, too. While this is practically unescapable a compromise due to the ‘high profile’ of the accused and the complexity, length, momentousness, and ‘political charge’ of these trials, over-relaxed admissibility rules become unsustainable as far as digital evidence is concerned, in that they add to the latter’s inherently low reliability and heavy cognitive impact. Facing this issue, it is legit to wonder whether artificial intelligence (ai) might mitigate privacy violations or render them no longer necessary, thus improving the fairness record of the International Criminal Court (icc) and other ict s.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

2021 ◽  
pp. 1-29
Author(s):  
Cristina Fernández-Pacheco Estrada
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Law ◽  
Early Release ◽  
International Criminal Tribunals ◽  
The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals

2010 ◽  
Vol 10 (2) ◽  
pp. 209-241 ◽  
Author(s):  
Harmen van der Wilt
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Customary Law ◽  
International Criminal Law ◽  
Criminal Proceedings ◽  
National Legislation ◽  
Territorial State ◽  
International Criminal Tribunals

AbstractThis article explores to what extent the ad hoc tribunals have made use of the national law of the state where the crimes have allegedly been committed in their quest for elements of crimes, concepts of criminal responsibility, grounds for excluding criminal responsibility and guidelines for sentencing. At first sight, one would expect the legislation of the territorial state to feature only as an indication of 'general principles of law' or 'international customary law'. However, the investigation of case law reveals that the law of the territorial state holds a far more prominent place. In search for rationales, the author suggests that, initially, national legislation has been used to plug the legal gaps in international criminal law. However, more recently the ad hoc tribunals have canvassed the national legislation of the territorial state, in order to find out whether this state would qualify to take over criminal proceedings against mid-level perpetrators. The author suggests that the International Criminal Court might follow suit, in order to give shape to its policy of 'positive complementarity'.

scholarly journals GENDER: INTEGRATING CRIMES AGAINST WOMEN INTO INTERNATIONAL CRIMINAL LAW

2018 ◽  
Vol 5 (1) ◽  
pp. 104
Author(s):  
Mohammad Irfan
Keyword(s):  
Sexual Violence ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Gender Violence ◽  
International Criminal Law ◽  
International Criminal Tribunals ◽  
Non Governmental Organizations ◽  
Significant Measure ◽  
Crimes Against Women

The author identifies the major goals and achievements in the area of recognizing women as full subjects of human rights and eliminating impunity for gender crimes, highlighting the role of non-governmental organizations ("NGO's"). Until the 1990s sexual violence in war was largely invisible, a point illustrated by examples of the "comfort women" in Japan during the 1930s and 1940s and the initial failure to prosecute rape and sexual violence in the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. Due in a significant measure to the interventions by NGOs, the ad hoc international criminal tribunals have brought gender into mainstream international jurisprudence. For example, the Yugoslavia tribunal has devoted substantial resources to the prosecution of rape and explicitly recognized rape as torture, while the Rwanda tribunal has recognized rape as an act of genocide. Elsewhere, the Statute of the International Criminal Court is a landmark in codifying not only crimes of sexual and gender violence as part of the ICC's jurisdiction, but also in establishing procedures to ensure that these crimes and their victims are properly treated. Working towards this end the Women's Caucus for Gender Justice met with significant opposition. It persisted because of the imperative that sexual violence be seen as part of already recognized forms of violence, such as torture and genocide.

scholarly journals International criminal judiciary as a means to keep and protect peace and international security

2005 ◽  
Vol 57 (1-2) ◽  
pp. 31-57
Author(s):  
Dragan Jovasevic
Keyword(s):  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
General Notion ◽  
Narrow Sense ◽  
Military Tribunal ◽  
The Law ◽  
Theory Of Law

After a long historical development, the second half of the 20th century has inaugurated the new, latest branch of the punitive law - international criminal law. By its legal nature and characteristics it is somewhere between the national criminal law and international public law, maintaining its peculiarity and independence. The basic and most important notion and institute of this branch of law is certainly the international criminal act. In the theory of law (domestic and foreign), there are several views on the notion and contents of the international criminal act. However, it can be concluded that this notion implies a socially dangerous, illegal act committed by the perpetrator and defined as a criminal act whose perpetrator is to be punished as prescribed by the law. Such a defined notion of the international criminal act includes its basic elements, and these are as follows: 1) the act of a man (including the act of an adult person that can be committed in three forms: acting, non-acting, failure to provide proper supervision, effect and casualty; 2) social danger; 3) unlawfulness; 4) definition of an act by rules, and 5) guilt of the perpetrator. There are two kinds of international criminal acts: international criminal acts in a narrow sense and international criminal acts in a broad sense. The most significant are certainly the international criminal acts in a narrow sense that are directed towards violation or endangering of the universal, general civilisation values - international law and humanity - what is actually the subject of protection from these criminal acts. Apart from the international criminal act, the theory of law also includes a foreign criminal act (any criminal act with a foreign element). By all this, these two notions coincide largely, but are also considerably different from each other. Apart from the general notion of the international criminal act, the theory of law also includes a special being or a special notion of the international criminal act by whose characteristics and specific forms and shapes of manifestation some international criminal acts or responsibility of their perpetrators actually differ from each other. As a matter of fact, all international legal documents in this field (and then national criminal legislation as well) deal with the whole system of various incriminations punished by various kinds and sorts of penalties (as basic sorts of criminal sanctions). The following documents deal with some international criminal acts in their specific forms and shapes of manifestation: The Statute of the International Military Tribunal (that served to reach the Nuremberg and then the Tokyo verdicts), the Law No. 10 of the Control Council for Germany, the Statute of the Hague Tribunal for the Former Yugoslavia as well as the statutes of some other ad hoc tribunals such as: Tribunals for Rwanda, Eastern Timor and Sierra Leone, then the Statute of the Iraqi Special Tribunal and finally the Permanent International Criminal Court Statute (the so-called Rome Statute).

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.

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