6 Underlying Offences

2020 ◽  
Author(s):  
Mettraux Guénaël
Keyword(s):  
International Law ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
Contextual Element ◽  
War Criminals ◽  
Form Part ◽  
Core Elements

This chapter explores the underlying offences which can constitute crimes against humanity. Crimes against humanity are composed of two core elements: a chapeau or contextual element and an underlying crime committed in and sufficiently linked to the chapeau. The list of underlying crimes that could, in theory, qualify as crimes against humanity is limited in nature and has not significantly evolved since Nuremberg. The Nuremberg Charter provided for six categories of crimes against humanity: murder; extermination; enslavement; deportation; other inhumane acts; and persecutions on political, racial, or religious grounds. Control Council Law No. 10, which regulated the subsequent prosecution of Nazi war criminals in occupied Germany, provided for the same six categories and added three other crimes to the list: imprisonment, rape, and torture. The chapter then assesses which crimes against humanity form part of customary international law.

5 Chapeau or Contextual Elements

2020 ◽  
Author(s):  
Mettraux Guénaël
Keyword(s):  
International Law ◽  
Crimes Against Humanity ◽  
Civilian Population ◽  
Customary International Law ◽  
International Crimes ◽  
The Core ◽  
Contextual Element ◽  
Contextual Elements ◽  
Between The Acts ◽  
Formed Part

This chapter addresses the chapeau or contextual elements of crimes against humanity. To constitute a crime against humanity, a crime must be committed in the context of and as part of a widespread or systematic attack against a civilian population. This contextual element is the core distinguishing feature of crimes against humanity. It highlights their collective character and excludes isolated or random criminal acts. It also distinguishes crimes against humanity from ordinary crimes and other categories of international crimes. As a matter of customary international law, the chapeau element of crimes against humanity may be divided into five sub-elements: (i) there must be an ‘attack’; (ii) the attack must be ‘directed against any civilian population’; (iii) the attack must be ‘widespread or systematic’; (iv) there must be a sufficient link or ‘nexus’ between the acts of the accused and the attack; and (v) the accused must have known that there was a widespread or systematic attack directed against a civilian population, and he must have known that his acts formed part of that attack.

To Prosecute or Not to Prosecute: Civil War Mediation and International Criminal Justice

2014 ◽  
Vol 19 (2) ◽  
pp. 257-284 ◽  
Author(s):  
J. Michael Greig ◽  
James D. Meernik
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Military Leaders ◽  
Conflict Situations ◽  
War Criminals ◽  
The Hague ◽  
Potential Impact ◽  
The Impact

The International Criminal Court (icc) came into force in July 2002 with the potential to drastically alter both the war fighting and peacemaking behavior of states. Theiccis designed to try and subsequently punish those found guilty of war crimes, crimes against humanity, and genocide. Supporters of theicchave argued that its establishment will erode the norm of impunity that state and military leaders have historically enjoyed. Yet, another logic suggests that the initiation of aniccinvestigation or the issuance of an arrest warrant for individuals embroiled in an ongoing dispute may make matters worse. Such individuals may see little reason to stop fighting and reach a settlement if conflict resolution results in their detention in The Hague. Indeed, suspected war criminals and their patrons may wish to escalate their violence in order to avoid showing any sign of weakness or possibility of capitulation lest their enemies press the fight or their rivals seek to undermine their authority. In this article, we explore the potential impact of theiccon the likelihood of peace by examining the impact of actions by theicc– the initiation of investigations into conflict situations and the issuance of arrest warrants for those suspected of committing violations of international law – on the likelihood of mediation. Our findings suggest that whileiccarrest warrants can encourage mediation, the initiation of investigations by theicccan actually undermine the occurrence of mediation.

3 The Scope and Content of Obligations Regarding Transit of Energy

2015 ◽  
Author(s):  
Azaria Danae
Keyword(s):  
International Law ◽  
Customary International Law ◽  
Form Part ◽  
Special Circumstances

Chapter 3 analyses the scope and content of treaty obligations regarding transit, revealing a variety of primary rules. The exercise in this chapter assists in the determination of when and how a breach of transit obligations takes place, thus providing the framework for the discussion in all the following chapters. Treaty obligations regarding transit are classified as obligations of conduct or of result. Finally, security exceptions in the GATT, the ECT and other language in bespoke pipeline agreements and the Model Inter-Governmental Pipeline Agreement prepared by the Energy Charter Secretariat, is examined with a view to establishing whether they constitute special circumstances precluding wrongfulness displacing countermeasures under customary international law or whether they form part of primary obligations incumbent on treaty parties.

scholarly journals Due Diligence and the Obligation to Prevent Genocide and Crimes Against Humanity

2020 ◽  
pp. 200-216
Author(s):  
Larissa van den Herik ◽  
Emma Irving
Keyword(s):  
International Law ◽  
New Technologies ◽  
Crimes Against Humanity ◽  
Due Diligence ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Media Companies ◽  
International Court ◽  
International Law Commission ◽  
Oriented Approach

This chapter analyses the due diligence component of the duty to prevent genocide and crimes against humanity. It examines the International Court of Justice (ICJ) judgment in the Bosnia Genocide case of 2007 and outlines the system of differentiated obligations based on a state’s ‘capacity to influence’ events in another state set out in the judgment. Furthermore, the chapter argues that developments under customary international law, which are buttressed and specified by the International Law Commission (ILC), support the existence of an obligation to prevent crimes against humanity of an equivalent character to the obligation to prevent genocide. The chapter examines the role that due diligence plays in delimiting the nature and scope, the content, and the temporal elements of the obligations to prevent genocide and crimes against humanity. Taking a future-oriented approach, the chapter enquires how new technologies inform state’s due diligence and whether non-state actors (including social media companies) can have the necessary ‘capacity to influence’, thus extending the preventive obligation’s potential reach.

Part III Security Governance Tools, Ch.41 Criminal Prosecution

2021 ◽  
Author(s):  
Pocar Fausto
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Domestic Courts ◽  
Governance Tools ◽  
Domestic Law

This chapter focuses on criminal prosecution. Traditionally, in domestic law, criminal prosecution has been regarded as a tool capable of contributing to peaceful and secure governance. Under international law, however, recourse to criminal prosecution as a safeguard for maintaining international peace and security is very recent and still limited, and in many respects disputed. This is the case both when international rules are applied by international jurisdictions and when they are directed at soliciting the exercise of criminal prosecution by domestic courts. The chapter looks at the Rome Statute of the International Criminal Court (ICC Statute), which expressly provides that the jurisdiction of the Court ‘shall be limited to the most serious crimes of concern to the international community as a whole’, and identifies these crimes as the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Given that the ICC Statute does not merely codify customary international law, but also partially develops or restricts it, its adoption has produced some degree of fragmentation of international criminal law, which further impacts on the existing international case law.

scholarly journals Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission

2016 ◽  
Vol 110 (4) ◽  
pp. 718-745 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
United Nations General ◽  
Insufficient Time ◽  
Limitations And Exceptions ◽  
Jus Cogens ◽  
International Law Commission ◽  
Law Commission

The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completedonsecond reading a full set of eighteen draft articles with commentaries on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentaries, for two topics: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. As such, both topics might be completed by the Commission on second reading in 2018.Progress was also made in developing draft articles on crimes against humanity; draft guidelines on protection of the atmosphere; draft conclusions on jus cogens; and draft principles on protection of the environment in relation to armed conflicts. The Commission commenced a debate on a proposed draft article on “limitations and exceptions” to the immunity of state officials from foreign criminal jurisdiction, but, due to insufficient time, the debate will continue in 2017. Furthermore, an additional proposed guideline on the provisional application of treaties was sent to the drafting committee. The Commission decided to add two new topics to its long-term work program: the settlement of international disputes to which international organizations are parties; and succession of states in respect of state responsibility.

scholarly journals Soldiers as Victims at the ECCC: Exploring the Concept of ‘Civilian’ in Crimes against Humanity

2017 ◽  
Vol 30 (3) ◽  
pp. 685-705 ◽  
Author(s):  
RACHEL KILLEAN ◽  
EITHNE DOWDS ◽  
AMANDA KRAMER
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Armed Forces ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
Broad Interpretation ◽  
Or Organization ◽  
Article 5

AbstractThe inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The call sought guidance on: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. We argue that customary international law justifies a finding that an attack on members of the armed forces can constitute crimes against humanity. In particular, the article focuses on the importance placed on the persecution element of crimes against humanity in the post-Second World War jurisprudence, and the broad interpretation of the term ‘civilian’. The article also examines the jurisprudence of contemporary international courts, finding that in some cases the courts have interpreted the term ‘civilian’ as incorporating hors de combat. However, the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Court (ICC) have moved towards a more restrictive interpretation of the term ‘civilian’, potentially excluding members of the armed forces. We argue that this move is regressive, and against the spirit in which the offence of crimes against humanity was created. The ECCC has an opportunity to counter this restrictive approach, thereby narrowing the protection gap which crimes against humanity were initially created to close.

How to Limit Immunity of State Officials from Foreign Criminal Jurisdiction

2019 ◽  
pp. 146-170
Author(s):  
Pavel Šturma
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Crimes Against Humanity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
Head Of State ◽  
International Court ◽  
State Practice ◽  
Head Of Government

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities under international law but will focus only on immunity of state officials. Immunity of state officials from foreign criminal jurisdiction is governed by customary international law whose exact scope is often debatable both in theory and in practice, particularly in connection with the international effort to end impunity for the most serious crimes under international law, such as genocide, war crimes, and crimes against humanity, including torture and enforced disappearances. Although state practice and case law of the International Court of Justice supports the absolute immunity ratione personae of the highest officials, such as head of state, head of government, and minister of foreign affairs, as long as they are in office, the situation of immunity ratione materiae that protects the official acts of other state officials seems to be less clear. There are good arguments in favour of exceptions to such immunity, at least in respect of crimes under international law.

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