scholarly journals The Gravity of International Crimes as a Challenge to the (Full) Protection of Human Rights before International Criminal Tribunals? A Strasbourg Perspective

2017 ◽  
Vol 86 (4) ◽  
pp. 499-524
Author(s):  
Christophe Deprez
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
International Justice ◽  
International Crimes ◽  
International Criminal Tribunals ◽  
General Terms ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
Full Protection

While it goes undisputed that international criminal tribunals (icts) are, in general terms, bound to respect human rights standards, there is no consensus on whether their obligations should be identical in scope to those of national criminal tribunals. Most commentators seem to value the idea of equality in protection for international and domestic defendants alike. Yet, according to others, the human rights obligations of icts should be contextualised, that is, adapted to the specificities of international justice – and most critically to the gravity of international crimes. This article seeks to shed some light on this debate. It does so, in particular, by pointing out the intrinsic flexibility of human rights, and by drawing on the practice of the European Court of Human Rights with respect to gravity-based contextualism.

scholarly journals Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

2015 ◽  
Vol 84 (3) ◽  
pp. 515-531
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
International Crimes ◽  
European Court ◽  
Starting Point

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

scholarly journals Public Morality as a Legitimate Aim to Limit Rights and Freedoms in the National and International Legal Order

2019 ◽  
pp. 10-20
Author(s):  
Anna Młynarska-Sobaczewska ◽  
Katarzyna Kubuj ◽  
Aleksandra Mężykowska
Keyword(s):  
Human Rights ◽  
Moral Judgments ◽  
Moral Issues ◽  
National Courts ◽  
European Court ◽  
Starting Point ◽  
International Legal Order ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
The Impact

Domestic legislation and international instruments designed for the protection of human rights provide for general clauses allowing limitations of rights and freedoms, e.g. public morals. A preliminary analysis of the case-law leads to the observation that both national courts and the European Court of Human Rights, when dealing with cases concerning sensitive moral issues, introduce varied argumentation methods allowing them to avoid making direct moral judgments and relying on the legitimate aim of protecting morality. In the article the Authors analyse selected judicial rulings in which moral issues may have played an important role. The scrutiny is done in order to identify and briefly discuss some examples of ways of argumentation used in the area under discussion by domestic and international courts. The identification of the courts’ methods of reasoning enables us in turn to make a preliminary assessment of the real role that the morality plays in the interpretation of human rights standards. It also constitutes a starting point for further consideration of the impact of ideological and cultural connotations on moral judgments, and on the establishment of a common moral standard to be applied in cases in which restriction on human rights and freedoms are considered.

International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-fertilisation

2015 ◽  
Vol 84 (3) ◽  
pp. 371-403
Author(s):  
Sergey Vasiliev
Keyword(s):  
Human Rights ◽  
International Criminal ◽  
Human Rights Law ◽  
International Human Rights ◽  
Critical View ◽  
International Criminal Tribunals ◽  
European Court ◽  
International Human

This article takes a critical view on the debates around the phenomenon of jurisprudential cross-fertilisation between international criminal tribunals and human rights courts, in particular the European Court of Human Rights. Asymmetries of cross-citation and influence along this axis of cross-judicial communication can be explained by distinct judicial styles and uneven mutual relevance, rather than by any sort of hierarchy. However, the discourse surrounding the tribunal-oriented ‘cross-fertilisation’ has a normative pull that introduces an informal hierarchy, which is a means to ensure the tribunals’ conformity with human rights law. However valid its agenda may be, this approach is legally groundless and incompatible with the terms of transjudicial communication and it underestimates the pluralist nature of international human rights, among other discontents. Ultimately, it is also ineffective in serving its main ideological purpose.

scholarly journals Problematic aspects of the application of ECHR practice by the courts of Ukraine

2021 ◽  
pp. 19-23
Author(s):  
Oleksandr STOROZHENKO ◽  
Oksana PROHOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Original Text ◽  
Statistical Research ◽  
National Courts ◽  
Human Rights Practice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

scholarly journals International Criminal Justice and the Empowerment or Disempowerment of Victims

2020 ◽  
Author(s):  
Chris Tenove
Keyword(s):  
Criminal Justice ◽  
Focus Group ◽  
International Criminal ◽  
International Justice ◽  
International Criminal Justice ◽  
Focus Group Discussions ◽  
Group Discussions ◽  
International Crimes ◽  
International Criminal Tribunals ◽  
Victim Status

(NOTE: This is a pre-print of a chapter to be published in an edited volume tentativley titled Power in International Criminal Justice: Towards a Sociology of International Justice, from TOAEP). This chapter investigates victims' empowerment or disempowerment by international criminal justice processes Critical scholars often argue that these processes de-politicize, render passive, or otherwise disempower victims as agents of justice. Concerns about the powerlessness or disempowerment of victims are central to debates about whether international criminal justice does in fact advance ‘justice for victims.’ Based on focus group discussions and interviews with survivors of conflict and international crimes in Kenya and Uganda, I argue that neither the laudatory nor critical positions in this debate capture the very complex and variegated effects of international criminal justice processes on victims. Instead, tribunals are selective about who receives victim status, they channel people’s agency in particular ways, and their impact is highly context-dependent. As a result, victim status is not simply empowering or disempowering—it enhances the agency of some people in some contexts to pursue some justice aims, but it can also pose serious risks and constraints. This framework has implications for understanding the power of international criminal justice, and for evaluating the capacity of international criminal tribunals to advance justice for survivors of conflict and mass rights abuses.

scholarly journals THE JURISDICTIONAL BASIS OF THE INTERNATIONAL CRIMINAL COURT

1969 ◽  
Vol 1 (1) ◽  
Author(s):  
Sara Viau
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
International System ◽  
Criminal Court ◽  
Humanitarian Law ◽  
Human Rights Abuses ◽  
International Crimes ◽  
Protection Of Human Rights ◽  
The Individual

As Falk notes, the International Criminal Court represents an idealistic mentality, optimistic about the possibility of reforming the international system in order to prevent certain behaviour by establishing an international authority capable of punishment and deterrence. Growing support for the International Criminal Court can be directly related to the growth of legal regimes committed to the protection of human rights, and to the growth of international humanitarian law, which presupposes a conception of the individual as the bearer of rights and obligations, as well as an interest in protecting the individual from gross violations of human rights. Now that the International Criminal Court has received sufficient ratifications from Member States of the United Nations, it exists as a legal entity with jurisdiction over international crimes and a mandate to hold perpetrators of human rights abuses accountable for their actions. As such, the Court can be seen as a declaration that certain behaviour will not be tolerated by the international community, and that individuals will be held accountable for violating these standards.

The Principle of Legality at the Crossroads of Human Rights and International Criminal Law

2018 ◽  
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Law ◽  
International Criminal Tribunals ◽  
Ex Post ◽  
European Court ◽  
Ex Post Facto ◽  
Principle Of Legality

This chapter explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals. The chapter begins with a general discussion of the principle of legality under international law, before turning to a consideration of the treatment of the principle at Nuremberg and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The final section of the chapter turns to the European Court of Human Rights and examines how it has addressed the rule of non-retroactivity in the context of national prosecutions of international crimes, in particular in Kononov v. Latvia.

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