Military Criminal Responsibilities for Targeting Suspected Terrorists within (International) Armed Conflicts: Towards a Uniform Framework

2008 ◽  
Vol 8 (1-2) ◽  
pp. 141-159
Author(s):  
Geert-Jan Alexander Knoops
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Main Question ◽  
Geneva Conventions ◽  
Underlying Principle ◽  
New Form ◽  
Israeli Supreme Court

AbstractThis article examines a new form of counterterrorism measures exercised by states namely preventative targeting of alleged terrorists. The analysis conducted in this article is based on a judgment of the Israeli Supreme court of 13 December 2006 where this issue was addressed in the context of an international armed conflict. The author critically assesses the various aspects of this judgment in view of contemporary principles of contemporary international (criminal) law. In particular, it focuses on the main question whether this form of counter terrorism complies with the underlying principle of Common Article 3 of the Geneva conventions, namely the requirement of "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Eco-Struggles

2017 ◽  
Author(s):  
Matthew Gillett
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Environmental Harm ◽  
Jus Post Bellum

This chapter examines the provisions of international criminal law applicable to serious environmental harm, particularly during non-international armed conflicts ('NIAC'). After describing incidents of serious environmental harm arising in armed conflicts, the analysis surveys the provisions of international criminal law applicable to environmental harm during NIACs, including war crimes, crimes against humanity, genocide, and aggression. It then examines the basis for extending to NIACs the protection against military attacks causing excessive environmental harm (set out in Art. 8(2)(b)(iv) of the Rome Statute), which is currently only applicable in IACs. The examination of this possible amendment of the Rome Statute covers a broad range of instruments and laws forming part of international and national legal codes, all addressing grave environmental harm. Finally, the analysis turns to accountability for environmental harm as a facet of jus post bellum, emphasizing the interconnected nature of environmental harm and cycles of violence and atrocities.

The ‘Soul of an Army’: A Defence of Military Court Trials for Violations of the Law of Armed Conflict

2020 ◽  
pp. 1-33
Author(s):  
Conor Donohue
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Large Body ◽  
International Criminal Law ◽  
Service Members ◽  
Legal Basis ◽  
International Forum ◽  
Military Justice ◽  
Law Of Armed Conflict

Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.

The “Kouwenhoven” Case

2019 ◽  
Vol 181 ◽  
pp. 568-704
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Liability ◽  
Criminal Activity ◽  
War Crimes ◽  
International Criminal Law ◽  
Post Conflict ◽  
Arms Embargo ◽  
Witness Statements

Economics, trade and finance — Economic sanctions — Liberia — UN Security Council Resolutions 1343 (2001) and 1408 (2002) — Implementation of arms embargo under Dutch law — Whether sanctions regime violatedInternational criminal law — Difference between perpetrator and accomplice liability — Complicity in war crimes — Requirement that defendant promoted or facilitated the commission of war crimes — Conditional intent — Whether defendant consciously accepted the probability that war crimes would be committed in connection with his material support — Risk of doing business with a government engaged in international criminal activityInternational criminal law — Evidence — Admissibility and weight of witness statements — Factors relevant to assessing witness statements obtained in post-conflict environment — Coercion of witnesses — Whether inconsistencies in witness statements requiring acquittalInternational criminal law — Circumstances excusing unlawful conduct — National emergency — Whether violations of arms embargo and laws and customs of war justified by right to self-defence under international lawJurisdiction — Universal jurisdiction — War crimes — Prosecution of a Dutch national for offences committed abroad — Whether conduct of investigation by Dutch authorities making prosecution inadmissible — Whether amnesty scheme in Liberia barrier to prosecution — No violation of fair trial rightsWar and armed conflict — Existence of armed conflict — Whether armed conflict international or internal — Limited gap between norms applicable to international versus non-international armed conflict — Whether violations of laws and customs of war giving rise to individual criminal liability under Dutch law — The law of the Netherlands

Specifying the Proportionality Test and the Standard of Due Precaution: Problems of Prognostic Assessment in Determining the Meaning of “May Be Expected” and “Anticipated”

2020 ◽  
pp. 343-366
Author(s):  
Stefan Oeter
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Collateral Damage ◽  
Additional Protocol ◽  
Prognostic Assessment ◽  
Geneva Conventions ◽  
Proportionality Test ◽  
Operational Issues ◽  
The Military

This chapter addresses the challenging legal and operational issues raised by the proportionality requirement to assess the legality of collateral damage. Specifically, the chapter engages closely with the relevant text of Articles 51(5)(b) and 57(2)(b) of the First Additional Protocol to the Geneva Conventions. The chapter first asks what makes an attack that unavoidably includes incidental loss of civilian lives or civilian property an “indiscriminate attack” under Article 51(5)(b). In more concrete terms, it asks how the formula for collateral damage—“excessive in relation to the concrete and direct military advantage anticipated”—may be operationalized. The chapter then moves to an analysis of the rule of precautions in Article 57(2)(b), with special emphasis on understanding how the military operator should navigate this rule in light of battlefield realities. The chapter then poses how these rules may be best understood under the regime of international criminal law.

Part V Procedural and Technological Challenges for the Investigation of TOC—Policing, Technological Aspects, Efficiency, Exchange of Information, Abuse of Power, and Tactics for Conducting Investigations, 22 Policing TOC—The National Perspective: Challenges, Strategies, Tactics

2016 ◽  
Author(s):  
Brady Sheelagh
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Organised Crime ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Military Leaders ◽  
Abuse Of Power ◽  
International Crimes ◽  
National Perspective

At first sight, transnational organised crime (TOC) and international criminal law (ICL) are completely separate: the four ICL core crimes constitute the most heinous crimes, committed by political and military leaders of armed conflicts, whereas TOC as lower-level deviance being committed by private individuals falls short of that. This chapter takes a closer look at this relationship and discovers the lines between these two areas to be blurred: because, as international crimes, they have already been discussed in that context (e.g. while drafting the Rome Statute), and nowadays TOC can even amount to one of the four core crimes de lege lata in individual cases. Apart from that, TOC can also evolve into international crimes de lege ferenda once universal jurisdiction can be established. The chapter concludes that although TOC typically characterizes crime that is different to the four core ICL crimes, both areas approximate greatly in different ways.

Crimes against Humanity

2018 ◽  
Author(s):  
Beth Van Schaack
Keyword(s):  
United States ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
The United States ◽  
Penal Code ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Geneva Conventions ◽  
Superior Responsibility

This chapter identifies three unfortunate gaps in the United States’ federal penal code: The United States lacks a crimes against humanity statute, the war crimes statute has a limited jurisdictional reach and does not conform to US obligations under the Geneva Conventions, and the code lacks express mention of superior responsibility. These gaps significantly hinder the reach of the United States’ prosecutorial authorities and have led to instances of impunity, and incomplete accountability, where perpetrators within US jurisdiction cannot be prosecuted for their substantive crimes and must be dealt with through immigration and other remedies. The chapter then evaluates various proposed amendments to Title 18, drawing upon previous bills, international criminal law, and other federal statutes. It closes by arguing that discrete statutory amendments would enable the United States to exercise leadership in atrocities prevention and response without increasing the risk that US personnel will be subjected to litigation overseas.

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.

Sign in / Sign up

Export Citation Format

Share Document