Critique of the Mrkšić Trial Chamber (ICTY) Judgment: A Re-evaluation on Whether Soldiers Hors de Combat Are Entitled to Recognition as Victims of Crimes Against Humanity

2009 ◽  
Vol 8 (2) ◽  
pp. 247-296 ◽  
Author(s):  
Hansdeep Singh
Keyword(s):  
Case Law ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Human Rights Law ◽  
Civilian Population ◽  
Foreign Countries ◽  
Definition Of ◽  
Article 5

AbstractOn 27 September 2007, the Mrkšić Trial Chamber held that the unlawful killing of soldiers hors de combat ("out of the battle") did not entitle them to recognition as victims of crimes against humanity under Article 5 of the ICTY Statute. This article critically analyses the Court's mischaracterization of precedent, revealing both historical and contemporary support for a broader definition of "civilian population" under Article 5. Moreover, by looking at case law and statutes from Nuremberg, foreign countries, and international courts, a continuous pattern that encompasses soldiers hors de combat within the definition of "civilian population" begins to emerge. Ultimately, to validate the increasing role of international humanitarian and human rights law, international criminal law must provide greater protections for those most vulnerable, in this case, soldiers hors de combat.

Prosecutor v.Gacumbitsi: The New Definition for Prosecuting Rape Under International Law

2008 ◽  
Vol 8 (1-2) ◽  
pp. 55-85 ◽  
Author(s):  
Alison Cole
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Linkage Evidence ◽  
Apparent Contradiction ◽  
Definition Of

AbstractThe Gacumbitsi judgement of the Appeals Chamber of the International Criminal Tribunal for Rwanda is the first appellate case to address the apparent contradiction in the prior jurisprudence of the ad hoc Tribunals on the definition of rape. The Trial Chamber in the Akayesu judgement defined rape as a physical invasion of a sexual nature under coercive circumstances, whereas the later Appeals Chamber judgment of Kunarac introduced the requirement of consent. As well as addressing the role of consent in defining and proving rape at trial, the Appeals Chamber in Gacumbitsi also considered appeals of fact on specific allegations of rape, providing guidance on establishing crime base and linkage evidence to hold superiors responsible for rape under individual and command responsibility theory. After setting out the developments in the case law on the definition of rape, the author considers the contribution of the Gacumbitsi judgement, and argues that the Akayesu approach is most consistent with the framework of international criminal law.

scholarly journals Crimes Against Humanity: Directing Attacks Against A Civilian Population

2008 ◽  
Vol 2 (2) ◽  
pp. 118-129 ◽  
Author(s):  
Chile Eboe-Osuji
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Reasonable Doubt ◽  
Crimes Against Humanity ◽  
Civilian Population ◽  
Primary Object ◽  
Classic Theory ◽  
A Charge

AbstractIn international criminal law, to sustain a charge of crimes against humanity, the Prosecution must prove, among other elements, that the perpetrator was involved in an attack directed against a civilian population. In Prosecutor v Fofana and Kondewa, the Special Court for Sierra Leone found that the Prosecution failed to prove, beyond a reasonable doubt, that the civilian population was the 'primary object' of the attack and acquitted the accused on the counts of murder and other inhumane acts as crimes against humanity. The Appeals Chamber accepted this view. However, it reversed Trial Chamber I on the ground that the Prosecution evidence did establish that the civilian population had been the primary, as opposed to incidental, target of the attack. The author suggests that this is an error resulting from the undue jurisprudential pre-occupation with the meaning of 'primary' in relation to the notion of attack against a civilian population. Instead, the inquiry should focus on whether the civilian population was 'intentionally' targeted in the attack, notwithstanding that it may not have been the primary object of the attack. He submits that this approach would be consistent with the classic theory of mens rea in criminal law.

scholarly journals Value and protection of geographical indications by the Japanese Wine Law

2019 ◽  
Vol 15 ◽  
pp. 03004
Author(s):  
K. Ebihara ◽  
M. Omura
Keyword(s):  
Internal Market ◽  
Agricultural Products ◽  
Geographical Indications ◽  
Geographical Indication ◽  
Foreign Countries ◽  
National Tax ◽  
Definition Of ◽  
The Eu

Recently, Japanese wine law has changed dramatically. In October 2015, the definition of “Japan wine” and the labelling rules were introduced, and the registration guidelines for the geographical indication (GI) were formulated. Up to now, the Commissioner of the National Tax Agency has designated two wine GIs: “Yamanashi” and “Hokkaido”. However, it is not easy for Japanese consumers to understand the value and the role of GI. The National Tax Agency, prefectures, municipal authorities and winery associations organise from time to time promotional events of GI wines to spread the notion of GI. Even though the majority of “Japan wine”, including GI wine, is consumed in the internal market, it is necessary to protect the Japanese GIs in foreign countries. Due to the EU-Japan EPA that ensures the mutual protection of GIs, it is quite probable that the GI will play an important role in the export of Japanese wine, liquor and agricultural products.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

Crimes against Humanity

2012 ◽  
Author(s):  
Beth van Schaack
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Crime ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights

2020 ◽  
Vol 38 (4) ◽  
pp. 283-301
Author(s):  
Marcin Szwed
Keyword(s):  
Mental Disorders ◽  
Mental Disorder ◽  
Criminal Responsibility ◽  
Case Law ◽  
Self Control ◽  
European Convention ◽  
Personal Liberty ◽  
The Past ◽  
Definition Of ◽  
Article 5

This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.

The First Trial of Former Members of the Kosovo Liberation Army: Prosecutor v. Fatmir Limaj, Haradin Bala, and Isak Musliu

2006 ◽  
Vol 19 (2) ◽  
pp. 459-476
Author(s):  
PASCALE CHIFFLET
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
Eyewitness Identification ◽  
International Criminal ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Criminal Enterprise ◽  
Civilian Population ◽  
Joint Criminal Enterprise

In its Judgement issued on 30 November 2005 in Prosecutor v. Limaj et al., Trial Chamber II of the ICTY found that an armed conflict existed in Kosovo between the Kosovo Liberation Army and the Serbian forces as of the end of May 1998. It held, however, that the evidence did not establish that there was a widespread or systematic attack by the KLA directed against a civilian population at the relevant time. The first trial of former members of the Kosovo Liberation Army also gave rise to a number of significant developments in the ICTY's jurisprudence relating to issues of international criminal law and procedure, such as the treatment of hostile witnesses and of eyewitness identification evidence, as well as the proof of the existence of a joint criminal enterprise.

Psychiatric commitment: over 50 years of case law from the European Court of Human Rights

2006 ◽  
Vol 21 (7) ◽  
pp. 427-435 ◽  
Author(s):  
G. Niveau ◽  
J. Materi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Time Frame ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
European Court ◽  
Right To Information ◽  
Definition Of ◽  
Respective Number

AbstractPurposeTo extensively review the European Court of Human Rights (ECHR) case law concerning psychiatric commitment, and to estimate the role of this supranational jurisprudence in the practice of contemporary psychiatry.MethodUsing keywords to search the ECHR computerized database “HUDOC”, we reviewed all cases concerning psychiatric commitment registered between September 1953 and December 31, 2004. Four groups were identified: applications declared inadmissible; applications accepted but not judged by the Court; pending cases; and cases judged by the Court.ResultsOf the almost 118,000 decisions taken by the ECHR in this time frame, we found 108 situations concerning psychiatric commitment. Forty-one of these applications were considered by the Court to be inadmissible. Twenty-four other cases were considered admissible but not judged by the ECHR. Three admissible cases were still pending at the end of 2004. The ECHR judged 40 cases, and found in 35 of them that one or several rights as guaranteed by the Convention had been violated.DiscussionThe ECHR protects the human rights of persons subjected to involuntary psychiatric commitment by creating supranational law in the following areas: definition of “unsoundness of mind”; conditions of lawfulness of detention; right to a review of detention by a Court; right to information; right to respect for private and family life; and conditions of confinement, which address inhuman and degrading treatment. The respective number of applications submitted to the ECHR did not depend on when the Convention had entered into force in that country.ConclusionThe possibility of an individual to access the ECHR depends on the degree of democracy in his country and on the access to legal assistance through non-governmental organizations or individual intervening parties.

13. Exclusion from asylum

2021 ◽  
pp. 496-516
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Host Country ◽  
Criminal Law ◽  
Case Law ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Refugee Status ◽  
Domestic Legislation ◽  
Immigration And Asylum ◽  
The Uk ◽  
The Relationship

This chapter considers the provisions whereby an individual can be excluded from refugee status because of their conduct. These are as laid down in the Refugee Convention and the EC Qualification Directive. These powers were little used in the twentieth century, but now are used increasingly often in the context of the escalation in international action against terrorism. Their interpretation and application are affected by domestic legislation, in the UK, the Nationality Immigration and Asylum Act 2002, the Immigration Asylum and Nationality Act 2006, and the Terrorism Acts of 2000 and 2006, and draw on international criminal law. The chapter discusses up-to-date case law on exclusion from refugee status based on crimes against humanity, serious non-political crimes, and acts against the purpose and principles of the United Nations. It deals with the issue of complicity and the relationship with the UK’s anti-terrorism legislation. It also deals with the situations in which refugees can be removed from the host country.

Psychiatric commitment: Over 50 years of case law from the European Court of Human Rights

2007 ◽  
Vol 22 (1) ◽  
pp. 59-67 ◽  
Author(s):  
G. Niveau ◽  
J. Materi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Time Frame ◽  
Legal Assistance ◽  
European Court ◽  
Degrading Treatment ◽  
Right To Information ◽  
Definition Of ◽  
Respective Number

AbstractPurposeTo extensively review the European Court of Human Rights (ECHR) case law concerning psychiatric commitment, and to estimate the role of this supranational jurisprudence in the practice of contemporary psychiatry.MethodUsing keywords to search the ECHR computerised database “HUDOC”, we reviewed all cases concerning psychiatric commitment registered between September 1953 and December 31, 2004. Four groups were identified: applications declared inadmissible; applications accepted but not judged by the Court; pending cases; and cases judged by the Court.ResultsOf the almost 118,000 decisions taken by the ECHR in this time frame, we found 108 situations concerning psychiatric commitment. 41 of these applications were considered by the Court to be inadmissible. 24 other cases were considered admissible but not judged by the ECHR. Three admissible cases were still pending at the end of 2004. The ECHR judged 40 cases, and found in 35 of them that one or several rights as guaranteed by the Convention had been violated.DiscussionThe ECHR protects the human rights of persons subjected to involuntary psychiatric commitment by creating supranational law in the following areas: definition of “unsoundness of mind”; conditions of lawfulness of detention; right to a review of detention by a Court; right to information; right to respect for private and family life; and conditions of confinement, which address inhuman and degrading treatment.The respective number of applications submitted to the ECHR did not depend on when the Convention had entered into force in that country.ConclusionThe possibility of an individual to access the ECHR depends on the degree of democracy in his country and on the access to legal assistance through non-governmental organisations or individual intervening parties.

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