Moving from Nuremberg to The Hague

2021 ◽  
pp. 39-66
Author(s):  
Theodor Meron
Keyword(s):  
World War Ii ◽  
Criminal Law ◽  
International Criminal ◽  
Far East ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
The Hague

This chapter examines how, appalled by the glaring impunity for gross violations of international humanitarian law committed in the course of the Yugoslavia fragmentation wars in the early 1990s, the author was among those who called for the establishment of a war crimes tribunal for the former Yugoslavia. A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The chapter then looks at the inadequacy of international humanitarian and criminal law recognized as applicable to non-international armed conflicts, focusing on the case of rape. It considers the establishment of the modern international criminal tribunals at The Hague and Arusha. The chapter also studies the ICTY, the ICTR and the International Criminal Court (ICC).

scholarly journals Nazi Crimes in Poland. A Never-Ending Search for Justice

2019 ◽  
pp. 142-160
Author(s):  
Hanna Kuczyńska
Keyword(s):  
World War Ii ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
National Courts ◽  
International Criminal Tribunals ◽  
Efficient Machine

This article deals with the model for prosecuting Nazi crimes committed in Poland in the light of the model presently used in international criminal law. It tries to answer the question: should the investigation of crimes of international law be handed over to transnational tribunals? Should they be hybrid tribunals involving a national factor, or completely supra-national tribunals like the International Criminal Court? Is it legitimate to transfer jurisdiction over these matters to national courts? The case of unpunished Nazi crimes in Poland may give a partial answer to this question. Certainly, various attempts made after World War II, including procedures brought before Polish courts, have contributed to understanding the function of international criminal law, and finding the answer to the question of the best model for prosecuting crimes of international law. At present, we also have the experience of international criminal tribunals, in particular the ICC, which is an efficient machine for prosecuting crimes of international law. Interesting conclusions can be drawn from its functioning that could improve the work of Institute of National Remembrance (IPN) prosecutors, and shed new light on the considerations regarding the prosecution of Nazi crimes in Poland after World War II.

Part 1 Introduction, 1 Criminal Responsibility in International Law

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Humanitarian Law ◽  
Laws Of War ◽  
The Cold War ◽  
Modern Warfare

The reality of warfare has changed considerably over time. While most, if not all, armed conflicts were once fought between states, many are now fought within states. Particularly since the end of the Cold War the world has witnessed an outbreak of non-international armed conflicts, often of an ethnic nature. Since the laws of war are for the most part still premised on the concept of classic international armed conflict, it proved difficult to fit this law into ‘modern’ war crimes trials dealing with crimes committed during non-international armed conflicts. The criminal law process has therefore ‘updated’ the laws of war. The international criminal judge has brought the realities of modern warfare into line with the purpose of the laws of war (the prevention of unnecessary suffering and the enforcement of ‘fair play’). It is in war crimes law that international humanitarian law has been further developed. This chapter discusses the shift from war crimes law to international criminal law, the concept of state responsibility for individual liability for international crimes, and the nature and sources of international criminal law.

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.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

2008 ◽  
Vol 8 (1-2) ◽  
pp. 319-329 ◽  
Author(s):  
Gauthier de Beco
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948

2013 ◽  
Vol 15 (2) ◽  
pp. 203-223 ◽  
Author(s):  
Dan Plesch ◽  
Shanti Sattler
Keyword(s):  
World War Ii ◽  
United Nations ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Trials ◽  
The United Nations

Abstract More than 2,000 international criminal trials were conducted at the end of World War II in addition to those held by the International Military Tribunals (IMTs) at Nuremburg and Tokyo. Fifteen national tribunals conducted these trials in conjunction with an international war crimes commission established by these same states in October 1943 under the name, The United Nations Commission for the Investigation of War Crimes, that soon became the United Nations War Crimes Commission (UNWCC). The extensive work of the UNWCC and these tribunals serves as a source of customary international criminal law that relates directly to the current work of the International Criminal Court and the ad hoc tribunals in operation since the 1990s.

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

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 ◽  
International Criminal Law ◽  
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.

War Crimes in Non-international Armed Conflicts under the Statute of the International Criminal Court

1999 ◽  
Vol 2 ◽  
pp. 177-192 ◽  
Author(s):  
Djamchid Momtaz
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Draft Statute ◽  
International Law Commission

International humanitarian law applicable in non-international armed conflicts has long been characterized by the absence of universal competence to suppress serious violations of its provisions. This failure has been due to the reluctance of states – which are naturally prone to consider any limitation of their exclusive competence in this field as a threat to their sovereignty – to criminalize such acts under international law.The first attempt at remedying such a situation was seen in the Draft Statute of an International Criminal Court (ICC), which was prepared by the International Law Commission (ILC) in 1994, and inspired by the draft articles of the Code of Crimes against the Peace and International Security of Mankind, provisionally adopted by the ILC in 1991 at first reading. Under the Draft Statute of the ICC, serious violations of the laws and customs applicable in armed conflicts would be under the jurisdiction of the Court. The ILC had in mind exceptionally serious war crimes, such as those described in the pertinent article of the draft code referred to by the Commission, constituting an extremely grave violation of the principles and laws of international law applicable in armed conflicts. In the commentary on this article, the ILC took care to specify that the expression ‘armed conflict’ covered the non-international armed conflicts that are the focus of common Article 3 of the Geneva Conventions of 12 August 1949, as well as international armed conflicts.This first step was of very limited scope. In fact, according to the ILC, in order to be criminalized, the laws and customs of war had to find their origin in general customary international law.

The Vukovar Hospital case from the perspective of a national investigative judge

2013 ◽  
Vol 95 (890) ◽  
pp. 267-286
Author(s):  
Miroslav Alimpić
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Armed Conflicts ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Hague ◽  
Court Proceedings ◽  
Special Protection

AbstractAmong the increasingly frequent acts of non-compliance with, and grievous violations of, international humanitarian law around the world, especially in non-international armed conflicts, attacks on objects and persons enjoying special protection, and their abuse, as well as the misuse of the distinctive emblems of the Red Cross and Red Crescent, come as no surprise. Although a repressive approach to the problem – through the prosecution and punishment of perpetrators – cannot completely prevent such occurrences, an effective and appropriate judicial stigmatisation can significantly contribute to making them as rare as possible. In this regard, the court proceedings held before the War Crimes Chamber in Belgrade and the International Criminal Tribunal for the former Yugoslavia in The Hague in connection with the events in and around the Vukovar Hospital and Ovčara farm have provided an appropriate judicial response. This is notwithstanding the fact that, at least for now, not all perpetrators have been prosecuted for their acts (or failure to act) at the time of the commission of these grave crimes.

Criminal Proceedings before the International Criminal Tribunals for the Former Yugoslavia and Rwanda

2006 ◽  
Vol 5 (1) ◽  
pp. 89-102 ◽  
Author(s):  
Fausto Pocar
Keyword(s):  
World War Ii ◽  
Due Process ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Humanitarian Law ◽  
Entire Body ◽  
Humanitarian Law ◽  
Criminal Proceedings ◽  
International Criminal Tribunals

AbstractThe ad hoc Criminal Tribunals have shown, by their case law, how practically to go about judicial enforcement of international humanitarian law at the international level and have guided the formation of other international and mixed criminal courts. Following the precedent set at the Nuremberg trials, the most important legacy of the ad hoc Tribunals has been the development and effective enforcement of the entire body of international humanitarian law put into place since the end of World War II, which seeks to maintain a proper balance between prosecuting individuals for grave breaches of international humanitarian law and upholding due process norms including protection of the rights of the accused. The path paved by the ad hoc Tribunals is crucial for the future regulation of the behaviour of States and individuals in times of conflict and has triggered increased attention to and enforcement of international humanitarian law in various other jurisdictions, including, in the first place, in the International Criminal Court. These are some of the author's conclusions following an analysis of the challenges faced by the ad hoc Tribunals.

Prosecuting Starvation under International Criminal Law

2019 ◽  
Vol 17 (4) ◽  
pp. 781-814
Author(s):  
Manuel J Ventura
Keyword(s):  
Present Article ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Legal Documents ◽  
International Criminal Tribunals ◽  
Explicit Reference

Abstract Historically, international criminal tribunals have not included a specific provision criminalizing the use of starvation within their respective statutes or founding legal documents. In light of this, and after clarifying what material/objective and mental/subjective elements characterize starvation, the present article seeks to explore whether it can be adjudicated as a crime against humanity or as an act of genocide and how this could be accomplished within the existing framework of international criminal law. In this respect, it is submitted that the general absence of an explicit reference to a crime of starvation in the statutes of international criminal tribunals is not a legal bar to the prosecution of the corresponding behaviour. Furthermore, this article briefly considers starvation as a war crime, particularly pursuant to Article 8(2)(b)(xxv) of the International Criminal Court (ICC) Statute — which criminalizes starvation in international armed conflicts at the ICC — and the conspicuous absence of a corresponding and parallel provision that would criminalize starvation as a war crime in non-international armed conflicts.

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