Crimes against Humanity

Criminal Court ◽

Crimes Against Humanity ◽

Criminal Proceedings ◽

Civilian Population

Crimes against humanity have both a colloquial and a legal existence. In daily parlance, the term is employed to condemn any number of atrocities that violate international human rights. As a legal construct, crimes against humanity encompass a constellation of acts made criminal under international law when they are committed within the context of a widespread and systematic attack against a civilian population. In the domain of international criminal law, crimes against humanity are an increasingly useful component of any international prosecutor’s toolbox, because they can be charged in connection with acts of violence that do not implicate other international criminal prohibitions, such as the prohibitions against war crimes (which require a nexus to an armed conflict) and genocide (which protects only certain human groups and requires proof of a specific intent to destroy such a group). Although the concept of crimes against humanity has deep roots, crimes against humanity were first adjudicated—albeit with some controversy—in the criminal proceedings following the World War II period. The central challenge to defining crimes against humanity under international criminal law since then has been to come up with a formulation of the offense that reconciles the principle of sovereignty—which envisions an exclusive territorial domain in which states are free from outside scrutiny—with the idea that international law can, and indeed should, regulate certain acts committed entirely within the borders of a single state. Because many enumerated crimes against humanity are also crimes under domestic law (e.g., murder, assault, and rape), it was necessary to define crimes against humanity in a way that did not elevate every domestic crime to the status of an international crime, subject to international jurisdiction. Over the years, legal drafters have experimented with various elements in an effort to arrive at a workable penal definition. The definitional confusion plaguing the crime over its life span generated a considerable amount of legal scholarship. It was not until the UN Security Council promulgated the statutes of the two ad hoc international criminal tribunals—the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda—that a modern definition of the crime emerged. These definitions were further refined by the case law of the two tribunals and their progeny, such as the Special Court for Sierra Leone. All these doctrinal developments were codified, with some additional modifications, in a consensus definition in Article 7 of the Statute of the International Criminal Court (ICC). It is now clear that the offense constitutes three essential elements: (1) the existence of a widespread or systematic attack against a civilian population and (2) the intentional commission of an enumerated act (such as an act of murder or torture) (3) by an individual with knowledge that his or her act would contribute to the larger attack. A renewed effort is now afoot to promulgate a multilateral treaty devoted to crimes against humanity based on the ICC definition and these central elements. Through this dynamic process of codification and interpretation, many—but not all—definitional issues left open in the postwar period have finally been resolved. Although their origins were somewhat shaky, crimes against humanity now have a firm place in the canon of international criminal law.

Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

International Theory ◽

10.1017/s1752971919000150 ◽

2019 ◽

Vol 12 (1) ◽

pp. 33-58 ◽

Cited By ~ 1

Author(s):

Nora Stappert

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Criminal Courts ◽

International Courts ◽

Interpretive Practices ◽

Legal Meaning

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

Netherlands International Law Review ◽

10.1007/s40802-019-00143-5 ◽

2019 ◽

Vol 66 (2) ◽

pp. 287-311

Author(s):

Eki Yemisi Omorogbe

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

War Crimes ◽

Criminal Court ◽

Armed Conflicts ◽

Crimes Against Humanity ◽

International Crimes

Abstract This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It places that within the AU’s rejection of the International Criminal Court’s (ICC) arrest warrants for African Heads of States that are not party to the Rome Statute and a more general protection of incumbents. It argues that the enthusiasm for establishing a regional criminal court, which lacks jurisdiction to prosecute incumbents, has not been sustained and African states remain committed to the ICC. It shows that nevertheless the Protocol’s provisions on genocide, crimes against humanity and war crimes, although imperfect, better address the specific character of armed conflicts in Africa than current international law, including the Rome Statute of the ICC. It concludes that the regional court for international crimes is unlikely to be established unless the ICC takes further action against incumbent leaders but that the Protocol’s provisions could be used in the development of a more Africa-centric international law.

The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation

The American Journal of International Law ◽

10.2307/2555295 ◽

2000 ◽

Vol 94 (2) ◽

pp. 317-335 ◽

Cited By ~ 5

Author(s):

Peter Krug

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Crimes Against Humanity ◽

Humanitarian Law ◽

Explicit Recognition ◽

Affirmative Defenses ◽

A Charge

The norms and mechanisms for international prosecution of humanitarian law and mass human rights violations have been refined in the 1990s to include affirmation of the principle that separate (or “affirmative”) defenses to individual liability are admissible in international criminal law. Explicit recognition of the availability and nature of separate defenses is found in the statute of the international criminal court (ICC). Indirect application is found to a very limited extent in the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), but not in the Statute of the International Criminal Tribunal for Rwanda (ICTR). Moreover, although the Appeals Chamber of the ICTY has rejected the argument that duress is a complete defense under customary international law or general principles of law to a charge of crimes against humanity involving the taking of innocent lives, it has implicidy accepted that duress could be available in other circumstances.

Witness Proofing in International Criminal Law: Introduction to a Debate

Leiden Journal of International Law ◽

10.1017/s0922156508005244 ◽

2008 ◽

Vol 21 (3) ◽

pp. 681-681

Author(s):

ELIES VAN SLIEDREGT

Keyword(s):

International Law ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Rules Of Procedure

The editorial board of the Leiden Journal of International Law is pleased to announce a debate on a very important but underexposed topic in international criminal law: witness proofing. Witness proofing is an accepted and well-established practice at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). It entails setting up a meeting between a party to the proceedings and a witness, usually shortly before the witness is to testify in court, the purpose of which is to prepare and familiarize the witness with courtroom procedure and to review the witness's evidence. Recently a trial chamber of the International Criminal Court (ICC) prohibited witness proofing. On 30 November 2007, Trial Chamber I held in the Lubanga case that the possibility of witness proofing is not expressly provided for in the ICC Statute and its Rules of Procedure and Evidence, and that no general principle exists in national or international criminal law that would require the ICC to adhere to such a practice. Moreover, and this is the most interesting argument, the trial chamber held that the ICC Statute ‘moves away from the procedural regime of the ad hoc tribunals’ and that as a result witness proofing is not easily transferable to the ICC.

On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision

Leiden Journal of International Law ◽

10.1017/s0922156510000415 ◽

2010 ◽

Vol 23 (4) ◽

pp. 855-873 ◽

Cited By ~ 21

Author(s):

CLAUS KRESS

Keyword(s):

Criminal Law ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Crimes Against Humanity ◽

Customary International Law ◽

The Law ◽

The Republic

AbstractAt the beginning of the renaissance of international criminal law in the 1990s, the law on crimes against humanity was in a fragile state. The International Criminal Tribunal for the former Yugoslavia (ICTY) decisively contributed to the consolidation of customary international law on crimes against humanity and paved the way for its first comprehensive codification in Article 7 of the Statute of the International Criminal Court (ICC). At the same time, the ICTY in its early decisions already showed a certain inclination to broaden the scope of the application of the crime by downgrading its contextual requirement. More recently, this tendency culminated in the complete abandonment of the policy requirement. While this ‘progressive’ facet of the ICTY's jurisprudence largely took the form of obiter dicta, the Situation in the Republic of Kenya has confronted the ICC with the need to ‘get serious’ about the present state of the law. This has led to a controversy in Pre-Trial Chamber II about the concept of organization in Article 7(2)(a) of the Statute. While the majority essentially follows the path of the more recent case law of the ICTY, the ICTR, and the Special Tribunal for Sierra Leone and supports a liberal interpretation, Judge Kaul prefers to confine the term to state-like organizations and generally calls for caution against too hasty an expansion of the realm of international criminal law stricto sensu. This comment agrees with the main thrust of the Dissenting Opinion and hopes that it will provoke a thorough debate.

A Prosecution too far? Reflections on the Accountability of Heads of State under International Criminal Law

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v41i2.5232 ◽

2010 ◽

Vol 41 (2) ◽

pp. 179

Author(s):

Steven Freeland

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Crimes Against Humanity ◽

Head Of State ◽

Key Issues ◽

Heads Of State

The recent issue by the International Criminal Court (ICC) of an arrest warrant against Omar Al Bashir, the President of Sudan, for alleged war crimes and crimes against humanity, represents the first time that the ICC has acted in such a way against an incumbent Head of State. It has renewed the debate about the potential international criminal responsibility of Heads of State and has led to strong opinions both for and against such actions. Yet, the prosecution of Heads of State is by no means a new phenomenon, and its continued use represents an important element in the internationalisation of justice that has gained renewed emphasis over the past two decades. This article offers some thoughts and reflections on several key issues associated with this debate, focusing particularly on the political, legal and historical dimensions that have combined to allow for the prosecution under international criminal law of any person, irrespective of their official capacity. It also examines the important role in this regard for the ICC, the world's first permanent international criminal tribunal, as well as the increasing range of prosecutions now taking place within national jurisdictions, as the period of impunity in relation to the commission of international crimes that had existed for several decades up to the 1990s has come to an end.

THE EXPANDING PROTECTION OF MEMBERS OF A PARTY'S OWN ARMED FORCES UNDER INTERNATIONAL CRIMINAL LAW

International and Comparative Law Quarterly ◽

10.1017/s002058931900040x ◽

2019 ◽

Vol 68 (04) ◽

pp. 943-976

Author(s):

Cóman Kenny ◽

Yvonne McDermott

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Law ◽

International Criminal ◽

Armed Forces ◽

War Crimes ◽

Criminal Court ◽

Crimes Against Humanity ◽

Human Rights Law

AbstractDoes international law govern how States and armed groups treat their own forces? Do serious violations of the laws of war and human rights law that would otherwise constitute war crimes or crimes against humanity fall squarely outside the scope of international criminal law when committed against fellow members of the same armed forces? Orthodoxy considered that such forces were protected only under relevant domestic criminal law and/or human rights law. However, landmark decisions issued by the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) suggest that crimes committed against members of the same armed forces are not automatically excluded from the scope of international criminal law. This article argues that, while there are some anomalies and gaps in the reasoning of both courts, there is a common overarching approach under which crimes by a member of an armed group against a person from the same forces can be prosecuted under international law. Starting from an assessment of the specific situation of the victim, this article conducts an in-depth analysis of the concepts of ‘hors de combat’ and ‘allegiance’ for war crimes and that of the ‘lawful target’ for crimes against humanity, providing an interpretative framework for the future prosecution of such crimes.

Nuremberg Revisited in Burma? An Assessment of the Potential Liability of Transnational Corporations and Their Officials in Burma under International Criminal Law

10.26686/wgtn.16984981.v1 ◽

2021 ◽

Author(s):

◽

Mary Ann Johnson Navis

Keyword(s):

Criminal Law ◽

International Criminal ◽

Transnational Corporations ◽

War Crimes ◽

Criminal Court ◽

Crimes Against Humanity ◽

Legal Personality ◽

Actus Reus

<p>This dissertation focuses on the role played by officials of transnational corporations and transnational corporations themselves in the situation in Burma. The main aim of this dissertation is to assess the liability of officials of transnational corporations in Burma and transnational corporations in Burma for crimes against humanity such as slave labour and for war crimes such as plunder under International Criminal Law. However at present transnational corporations cannot be prosecuted under International Criminal Law as the International Criminal Court only has jurisdiction to try natural persons and not legal persons. In doing this analysis the theory of complicity, actus reus of aiding and abetting and the mens rea of aiding and abetting in relation to officials of transnational corporations will be explored and analysed to assess the liability of these officials in Burma. In doing this analysis the jurisprudence of inter alia the Nuremberg cases, the cases decided by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) will be used. This dissertation also examines the problems associated with suing or prosecuting transnational corporations due to the legal personality of transnational corporations and the structure of transnational corporations. At the end of the dissertation some recommendations are made so as to enable transnational corporations to be more transparent and accountable under the law.</p>

The jurisdiction of the International Criminal Court for the crime of aggression

Law Review of Kyiv University of Law ◽

10.36695/2219-5521.3.2020.69 ◽

2020 ◽

pp. 374-378

Author(s):

Nataliia Plakhotniuk ◽

Maryna Irzhova

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

International Crime ◽

Criminal Court ◽

Criminal Prosecution ◽

International Crimes

The article emphasizes that the crime of aggression is considered the most serious crime against peace since the Nuremberg Tribunal,which is recognized by both domestic and Western doctrine. Amendments to the Rome Statute in 2010 defined signs of aggressionas an international crime and clarified the rules for exercising the jurisdiction of the International criminal court. Optimistic expectationsfor establishing effective jurisdiction of the court over this international crime have been dashed. As a result, it is concluded thateffective international criminal prosecution of the crime of aggression is possible only if the norms of the Rome Charter that cause themost negative reaction from the leading States are reviewed.It should be noted that in respect of a state that is not a party to the Rome Statute, the Court will not exercise its jurisdiction overthe crime of aggression committed by nationals of that state or on its territory.The International criminal court should serve as a symbol of international justice, which makes just decisions related to violationsof international law. As for the procedure for implementing the proceedings of the International criminal court, it is worth noting thatsuch a procedure for executing the decision of the ISS is double. The dual procedure for the enforcement of decisions of the InternationalCriminal Court is the Foundation of the Rome Charter and represents a new system in the history of public international law inthe field of international responsibility.Thus, it is possible to see that although at first glance the long process of formulating and adopting a unified definition of thecrime of aggression at the international level to succeed, thorough the consideration allows you to comprehend the profound incompletenessof this process. Features of the crime of aggression provided for in the draft edits the Rome Statute, as well as the amendmentmechanism itself, illustrate the real lack of a mechanism for holding individuals internationally responsible for its Commission, as wellas the rather disappointing prospect of positive changes in the near future.Despite the conflicts that arise between the norms of national criminal law and the provisions of the ISS Charter, the procedureitself is an effective legal instrument aimed at maintaining international peace and security. The joint work of the International CriminalCourt and the UN Security Council makes it possible to try cases of international crimes and take effective measures to counter suchcrimes. As a key component of the International criminal justice system, the International criminal Court is one of the most significantinstitutions of international criminal law, which is constantly developing and to a certain extent affects the patterns in the developmentof mechanisms for the investigation of international crimes and the protection of human rights at the international and national levels.