Unmasking the Challenges

2020 ◽  
pp. 359-392
Author(s):  
Gloria Gaggioli ◽  
Pavle Kilibarda
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Responsibility ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Criminal Courts ◽  
Law Enforcement Officials ◽  
The Individual ◽  
Mitigating Circumstances

International human rights law and international humanitarian law absolutely prohibit all forms of torture and cruel, inhuman, or degrading treatment (CIDT) at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other—less visible and insufficiently discussed—challenges concern laws and practices that may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so-called exclusionary rule) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present chapter will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts and tribunals.

scholarly journals International criminal law: Between law and politics

2013 ◽  
Vol 65 (1) ◽  
pp. 42-67
Author(s):  
Dragan Jovasevic
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Humanitarian Law ◽  
Criminal Courts ◽  
Law And Politics

Crimes against international law are committed by violating the rules of international humanitarian law during wars or armed conflicts. The perpetrators of these crimes are under the jurisdiction of international criminal courts (military or civil, permanent or ad hoc). The process of the commission of crimes against international law may comprise several different phases or stadiums. Moreover, such criminal offences rarely appear as the results of only one person?s activities. On the contrary, in numerous cases of these criminal offences, accomplice appears as a form of collective participation of several persons in the commission of one or more crimes against international law. All these facts represent grounds for the specific type of criminal responsibility of the perpetrators of crimes against international law. It is a object of regulation international criminal law about whose characteristics converse this article.

scholarly journals SHOULD INTERNATIONAL LAW RECOGNIZE A RIGHT OF HUMANITARIAN INTERVENTION?

2017 ◽  
Vol 66 (2) ◽  
pp. 441-466 ◽  
Author(s):  
Chris O'Meara
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Syrian Civil War ◽  
The Right

AbstractThe ongoing Syrian civil war calls for a re-evaluation of using force to protect human rights. This article does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.

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.

Part V Global and Regional Security Mechanisms, Ch.56 Non-Governmental Organizations: Their Relevance and Impact in the International Law of Global Security

2021 ◽  
Author(s):  
Binder Christina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Security ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Global Security ◽  
Complex Concept ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
The Individual

This chapter highlights the relevance and impact of non-governmental organizations (NGOs) in the international law of global security. Security is a complex concept in today’s ever-complicated world. The traditional State-centric approach to security has been complemented, albeit not replaced, by a more human-oriented aspect. Today, NGOs may participate in the security discourse as increasingly relevant stakeholders, ensuring that a focus on human rights and the common interests of humankind is maintained in security debates. The chapter considers the role of NGOs in global and regional security arrangements. It then looks at their contribution in the field of global security in terms of standard-setting, norm application, and interpretation, as well as with regard to compliance and enforcement, in areas where the individual is centre stage: international humanitarian law, international criminal law, and international human rights law. Finally, the chapter examines the applicable international legal framework regulating engagement by NGOs and assesses whether NGO practice has been influenced by the ever-changing global security landscape.

scholarly journals Sexual violence in armed conflicts: A violation of international humanitarian law and human rights law

2014 ◽  
Vol 96 (894) ◽  
pp. 503-538 ◽  
Author(s):  
Gloria Gaggioli
Keyword(s):  
Human Rights ◽  
Sexual Violence ◽  
Criminal Responsibility ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Sexual Crimes ◽  
The Individual

AbstractSexual violence is prevalent in contemporary armed conflicts. International humanitarian law and human rights law absolutely prohibit all forms of sexual violence at all times and against anyone; international criminal law moreover provides for the individual criminal responsibility of sexual crimes' perpetrators. These three bodies of law importantly reinforce each other in this field. The discrepancy between the facts on the ground and the law is a matter of concern that cannot be explained by potential legal gaps or uncertainties. What is needed is to find new ways of improving implementation for existing laws at the domestic and international levels.

Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

2018 ◽  
Vol 31 (2) ◽  
pp. 403-429 ◽  
Author(s):  
ALEXANDRE SKANDER GALAND
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Conflict Avoidance ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Internal Conflicts

AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

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 Humanity and Human Rights: The Contours of International Law

2017 ◽  
Vol 12 (2) ◽  
Author(s):  
Eyassu Gayim
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
Human Rights Law ◽  
International Human Rights ◽  
Law Of Nations ◽  
International Human

Laws regulate conducts by responding to social and political requirements. This holds true for the law of nations as well. Contemporary international law follows two separate tracks when it comes to regulating human rights and humanitarian questions. If international human rights law and international humanitarian law are intended to protect the dignity and worth of human beings, as it is often said, why follow separate tracks? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct, where do they converge? This article highlights these questions by revisiting the contours of international law.

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