‘We Demand Dignity for the Victims’ – Reflections on the Legal Qualification of the Indecent Disposal of Corpses

2015 ◽  
Vol 15 (5) ◽  
pp. 896-925 ◽  
Author(s):  
Caroline Fournet ◽  
Nicole Siller
Keyword(s):  
Case Studies ◽  
Criminal Law ◽  
International Criminal ◽  
Foreign Affairs ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
International Crimes ◽  
Trafficking In Human Beings

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

The Dangers of the Obvious but Often Disregarded Details in the International Criminal Law Demarcation Debate: Norm-Integration and the Triple-Thesis ‘Argument’

2019 ◽  
Vol 20 (5) ◽  
pp. 759-783
Author(s):  
Anja Matwijkiw
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Crimes ◽  
Post Conflict

When responses to international crimes are managed in terms of post-conflict justice, this event may end ‘the demarcation debate’ before it has begun, thereby rendering it superfluous among legal scholars. This is to say that the transition from theory to reality arguably has the effect of cancelling any sharp distinction between international criminal law, international human rights law and international humanitarian law, as well as extending international criminal justice into the moral territory. Certainly, this is a premise for the dual-aspect defense of those rights that help to explain the non-separation. However, to the extent that the defense discords with traditional assumptions, relevant aspects of pro-separation reasoning must be considered. These are accommodated under the triple-thesis whereby the unequal status of different (rights-)categories limit norm-integration. The author’s account of the competing programs shows a series of flaws in the case of the triple-thesis doctrine, amounting to a vicious circle ‘argument’.

International Humanitarian Law and International Criminal Law

2019 ◽  
pp. 141-169 ◽  
Author(s):  
Suzannah Linton
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
International Criminal Law ◽  
Asia Pacific ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
External Threats ◽  
Regional Trends

This chapter assesses the approaches of Asia-Pacific states to international humanitarian law (IHL) and international criminal law (ICL), within the context of the international legal framework. It first addresses influential approaches in the region, including how states present themselves in relation to IHL and ICL issues. Next, it considers how regional states engage with the issue of responsibility in international law, with an emphasis on IHL and ICL. The chapter then examines acceptance of these two bodies of law, arguing that there is no hostility to the basic norms of IHL, but a more unsettled approach to ICL. There is a definite chill in respect of aspects that potentially encroach on independence, sovereignty, and territorial integrity, or that smack of Western neo-colonialism. These are of course subjectively evaluated by each state. In practical terms, this frostiness can be seen in the responses to external threats of accountability against political leaders, the exercise of universal jurisdiction, Security Council referrals to the International Criminal Court, Pillar Three of the R2P doctrine, the crime of aggression, and certain formulations of other international crimes (for example, war crimes in non-international armed conflict). However, even within these broad regional trends, there is no uniformity. There is decidedly no collective ‘Asia-Pacific approach’ that emerges from the present chapter.

Sources of International Humanitarian Law and International Criminal Law

2018 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
The Impact

This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.

(Re)Considering Gender Jurisprudence

2017 ◽  
Author(s):  
Patricia Viseur Sellers
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
Analytical Tool ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Panoramic View ◽  
Panoramic Views

The chapter reviews gender jurisprudence in international humanitarian law and international criminal law, and urges a reconsideration of this jurisprudence. It examines aspects of the crime of genocide to illustrate the “narrow” strand of gender jurisprudence focused on sexual violence, as well as a more “panoramic” view that has emerged in recent years. The chapter concludes by moving beyond the binary of the narrow and panoramic views of gender jurisprudence. It argues that gender jurisprudence acts as an independent measure of genocide, war crimes, and crimes against humanity. Such a comprehensive reading of gender jurisprudence provides an analytical tool for practitioners to reconceptualize redress under international criminal law.

“Revolution is glorious! Revolution is no crime!” International Crimes and Chinese Domestic Law, and the Gang of Four Trial

2016 ◽  
Vol 19 (3) ◽  
pp. 313-343 ◽  
Author(s):  
Melanie O’Brien
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Modern China ◽  
Crimes Against Humanity ◽  
Humanitarian Law ◽  
Glorious Revolution ◽  
International Crimes ◽  
Domestic Law

China was active in the drafting of the Rome Statute of the International Criminal Court, but has not become a state party, and the Chinese relationship with international criminal law is not strong. Given this, an examination of China’s own abilities and actions with regard to accountability for international crimes is warranted. China does not have any legislation proscribing violations of international humanitarian law, or war crimes, genocide, or crimes against humanity. This article will examine some of the options under current Chinese Criminal Law of 1997 that could be used to prosecute international crimes in lieu of express provisions. The second part of the article undertakes an international criminal law and human rights analysis of the Gang of Four trial, as the only trial of leaders linked to the mass crimes of the Cultural Revolution and thus the only real example of an attempt at accountability for mass crimes in modern China. These two parts of the article combine together to provide an analysis of China’s ability to enact and attempts at accountability for international crimes committed in China.

The Criminalization of War Crimes in Italy and the Shortcomings of the Domestic Legal Framework

2021 ◽  
Vol 21 (4) ◽  
pp. 679-697
Author(s):  
Giulio Bartolini
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
Legal Framework ◽  
Criminal Code ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations

Abstract The Italian domestic legal framework related to war crimes is characterised by several shortcomings. It is still largely centred on the provisions present in the 1941 wartime military criminal code, which have not been subjected to substantial legal restyling, regardless of the explicit and implicit obligations of domestic criminalization inferred from treaties ratified by Italy. Only in 2001–2002, at the time of Italian military operations in Afghanistan, were certain amendments to this code introduced, in order to partly adapt its content to current rules of international humanitarian law and international criminal law. However, such solutions have not brought about effective harmonization and were drafted within an incoherent legal framework, made even more complex by subsequent reforms addressing military missions abroad, thus resulting in the current unsatisfactory scenario which would require substantive reforms.

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