scholarly journals The Close Relationship Between Serious Human Rights Violations and Crimes Against Humanity: International Criminalization of Serious Abuses

2017 ◽  
Vol 1 (17) ◽  
pp. 145 ◽  
Author(s):  
Juan Pablo Pérez-León Acevedo
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
Crimes Against Humanity ◽  
Human Rights Violations ◽  
Criminal Courts ◽  
Legal Concept ◽  
Human Rights Abuses ◽  
Close Relationship ◽  
The Relationship

This article aims to evidence both the existence of a close relationship between the notions of serious human rights violations and crimes against humanity, and how this works in international law. To do so, international legal sources such as the United Nations practice, case-law of international and hybrid criminal courts and tribunals, and case-law of the Inter-American Court of Human Rights and other human rights bodies are taken into account. Thus, this article analyses how these and other international sources have examined the above-mentioned relationship, i.e., inter alia the similarities and differences between serious human rights abuses and the legal objective and subjective elements of crimes against humanity. Accordingly, it is found that, although some differences exist, the notion of serious human rights violations underlies the legal concept of crimes against humanity. In turn, this is linked to the relationship between those two categories of international law.

The Puzzle of Atrocity Criminalization

2020 ◽  
pp. 1-24
Author(s):  
Mark S. Berlin
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Courts ◽  
Qualitative Case Studies ◽  
National Courts ◽  
Domestic Courts ◽  
Quantitative Analyses

Why do governments take atrocity offenses, like genocide, war crimes, and crimes against humanity, from international law and legislate them into domestic criminal law, empowering national courts to prosecute their own, and sometimes other states’, government and military officials? The question is important, because the international community has constructed an international legal regime to prosecute the most serious human rights violations, but that regime is designed to rely primarily on domestic criminal courts to try offenders. To fulfill this role, domestic courts often require specific legislation that defines and criminalizes these offenses in national law. Yet, the adoption of national atrocity laws is puzzling, since in a number of ways, these laws appear to threaten states’ interests. This introductory chapter highlights the puzzle of atrocity criminalization and discusses its importance for the functioning of the international atrocity regime. It then situates this study in existing literatures and highlights the book’s contributions to research on atrocity justice, human rights, and international law. Next, it summarizes the book’s main arguments and details the study’s multi-method research design, which combines quantitative analyses of new, original datasets with in-depth qualitative case studies of Guatemala, Colombia, Poland, and the Maldives.

2 Crimes Against Humanity Under General International Law

2020 ◽  
Author(s):  
Mettraux Guénaël
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Core Values ◽  
Crimes Against Humanity ◽  
Human Beings ◽  
International Crimes ◽  
The Relationship

This chapter discusses crimes against humanity under international law. Crimes against humanity were first introduced at Nuremberg as a means of criminalizing three sorts of criminality that so far had evaded the sanction of international law: atrocities committed outside the context of an armed conflict or independent of it; crimes committed against fellow nationals or nationals of allied nations; and institutionalized discriminatory violence that resulted in individuals being targeted and mistreated by a state because of their identity. Crimes against humanity seek to protect core attributes of all human beings: their dignity; their humanity; and their fundamental human rights. The notion of crimes against humanity reflects the fact that the protection of those interests and the punishment of serious violations of these interests is a matter of universal concern. It also makes it clear that the protection arising from international law does not depend on the nationality of the victim or his membership in a group, nor on his or relationship to the perpetrator. Instead, it is the sheer humanity of the victim that warrants and justifies the criminalization of such acts. And whilst the notion of genocide and crimes against humanity overlap in part in their efforts to protect these core values, unlike genocide, crimes against humanity seek to protect individuals as such, rather than groups of individuals. The chapter then looks at the relationship between crimes against humanity and other international crimes as well as the process of defining crimes against humanity.

scholarly journals Can positive obligations of States serve as a remedy for human rights violations committed by juristic persons?

2018 ◽  
Vol 19 (1) ◽  
pp. 45-60
Author(s):  
Pavel Ondrejek
Keyword(s):  
Human Rights ◽  
Major Change ◽  
Case Law ◽  
The State ◽  
Fundamental Rights ◽  
Human Rights Violations ◽  
Legal Doctrine ◽  
Role Of The State ◽  
The Relationship

Abstract: Positive obligations of States to protect and implement human rights are considered a part of various effects of human rights in legislations. In this article, it is argued that a crucial problem arises from the inconsistent practice of addressing violations of human rights committed by juristic persons together with a lack of underlying general theory of liability for human rights violations committed by private entities. Without a major change in the legal doctrine and case-law, we will need to remain focused on the role of the State as a guarantor of human rights, rather than on the imposition of human rights obligations on private-law entities. In this article, it is argued that the nature of the relationship between a juristic person and the State is not the only relevant aspect, as we should also examine the activity of the juristic person in question.Keywords: Positive obligations of States. Juristic persons. State-juristic person nexus. Fundamental rights. Horizontal effect.Resumo: Obrigações estatais positivas de proteger e de implementar direitos humanos são parte dos vários efeitos dos direitos humanos nas legislações nacionais. Neste artigo, argumenta-se que um problema crucial decorre da prática de abordar violações de direitos humanos cometidas por pessoas jurídicas sem uma teoria geral da responsabilidade por violações de direitos humanos cometidas por entidades privadas. Sem uma mudança importante na doutrina e na jurisprudência será preciso permanecer olhando apenas para o papel do Estado como garantidor de direitos humanos. Neste artigo argumenta-se que a natureza da relação entre uma pessoa jurídica e o Estado não é o único aspecto relevante. É preciso examinar também a atividade da pessoa jurídica em questão.Palavras-chave: Obrigações positivas dos Estados. Pessoas jurídicas.

Extracurricular International Criminal Law

2016 ◽  
Vol 16 (3) ◽  
pp. 412-447
Author(s):  
Mark A. Drumbl
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
The United States ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Limited Capacity ◽  
Criminal Courts ◽  
Human Rights Abuses ◽  
Corporate Liability

This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of us courts of general jurisdiction as receivers of international criminal law instruct upon broader patterns of transnational legal migration and reveal an unanticipated extracurricular legacy of international criminal courts and tribunals.

scholarly journals Pelanggaran Berat HAM dalam RUU KUHP: Tinjauan dari Hukum Internasional (Gross Violations of Human Rights in the Criminal Code Bill: an Overview from International Law)

2020 ◽  
Vol 11 (2) ◽  
pp. 125-144
Author(s):  
Bernhard Ruben Fritz Sumigar
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Framework ◽  
Criminal Code ◽  
Crimes Against Humanity ◽  
Human Rights Violations ◽  
Legal Challenges ◽  
International Obligations

The spirit of the drafter of the Criminal Code Bill (CCB) to fully codify all criminal provisions, including those relating to the gross violations of human rights, into a single legally binding instrument is marked with the inconsistency of its formula with the standard provided in numerous instruments under international law. In light of this situation, this article is presence to discuss legal challenges arising from the stipulation of gross violations of human rights under CCB. By using qualitative and descriptive normative methods, this article finds three fundamental problems between the provisions of CCB and the international legal framework. The problems in question are related to (i) the inaccuracy of the use of the term “Serious Crimes against Human Rights” in CCB, as well as misregulation of (ii) crimes of genocide and (iii) crimes against humanity in CCB with international law. On this basis, this article concludes that the provisions of gross human rights violations in CCB are contrary to the provisions of international law which are binding and applicable to Indonesia, and therefore, this article is prepared to provide recommendations for policymakers to reconsider the formulation of the provisions of gross human rights violations in CCB in order to be compatible with Indonesia’s international obligations to comply with the provisions of international law. AbstrakSemangat perumus Rancangan Undang-Undang KUHP (RUU KUHP) untuk melakukan kodifikasi total semua ketentuan pidana, termasuk yang berkaitan dengan pelanggaran berat HAM, ditandai dengan ketidak-konsistenan antara rumusan yang diatur dengan standar dalam sejumlah instrumen hukum internasional. Berdasarkan hal tersebut, artikel ini disusun untuk mendiskusikan tantangan hukum yang akan timbul dari pengaturan tentang pelanggaran berat HAM dalam RUU KUHP. Dengan menggunakan metode kualitatif dan deskriptif normatif, artikel ini menemukan 3 (tiga) permasalahan antara ketentuan RUU KUHP dan kerangka hukum internasional, yaitu (i) istilah “Tindak Pidana Berat terhadap HAM” yang tidak tepat (ii) kejahatan genosida, dan (iii) kejahatan terhadap kemanusiaan. Berdasarkan 6pembahasan, artikel ini menyimpulkan bahwa ketentuan pelanggaran berat HAM dalam RUU KUHP bertentangan dengan ketentuan hukum internasional yang mengikat dan berlaku bagi Indonesia. Oleh karena itu, artikel ini memberikan rekomendasi bagi pembuat kebijakan untuk merumuskan kembali ketentuan pelanggaran berat HAM dalam RUU KUHP agar sepadan dengan ketentuan hukum internasional.

Jus CogensafterGermanyv.Italy: Substantive and Procedural Rules Distinguished

2012 ◽  
Vol 25 (4) ◽  
pp. 979-1002 ◽  
Author(s):  
STEFAN TALMON
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Limited Effect ◽  
State Immunity ◽  
The Icj ◽  
Jus Cogens ◽  
The Relationship

AbstractIn the case concerningJurisdictional Immunities of the State, the ICJ held that rules ofjus cogensdid not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of ajus cogenscharacter generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules ofjus cogensand procedural rules of immunity are involved.

scholarly journals Human dignity: an illusory limit for the evolutive interpretation of the ECHR?

Amicus Curiae ◽  
2019 ◽  
pp. 20-28
Author(s):  
Pavel Bureš
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Case Law ◽  
Senior Lecturer ◽  
Public International Law ◽  
European Court ◽  
The Subject ◽  
The Relationship

In this article Pavel Bureš (Senior Lecturer in Public International Law in the Faculty of Law at Palacky University, Czech Republic) aims to portray some basic elements of the relationship between the concepy of human dignity and the evolutive interpretation, setting out key elements, notions and considerations for further thoughts. The article presents some basic issues related to the subject matter, then focuses on the evolutive interpretation, and finally outlines the role of human dignity in the case law related to the evolutive interpretation. Index keywords: Human rights, human dignity, European Court of Human Rights

scholarly journals The State Duty to Protect against Human Rights Violations through Transnational Business Activities

2018 ◽  
Vol 23 ◽  
pp. 13-40 ◽  
Author(s):  
Markus Krajewski
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Due Diligence ◽  
Environmental Laws ◽  
Human Rights Abuses ◽  
State Practice ◽  
Duty To Protect ◽  
Respective State

Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

2020 ◽  
Vol 53 (2) ◽  
Author(s):  
Atilla Kisla
Keyword(s):  
Human Rights ◽  
International Law ◽  
Truth And Reconciliation Commission ◽  
International Standards ◽  
Crimes Against Humanity ◽  
Human Rights Violations ◽  
Political Rights ◽  
Truth And Reconciliation ◽  
International Crimes ◽  
Before And After

Amnesty laws issued by Administrator General Pienaar in 1989 and 1990 still show their effect by preventing prosecutions and investigations of situations that occurred before Namibia’s independence. Unlike South Africa, Namibia did not establish a truth-finding body such as the Truth and Reconciliation Commission. The result is a situation of silence, oblivion and impunity without any kind of accountability. On this basis, crimes such as international crimes or serious human rights violations have never been prosecuted or even investigated. As this article argues, the amnesty laws from 1989 and 1990 qualify as blanket amnesties. Up until today, Namibians as well as the members of the South African Defence Force benefit from those amnesties. Against this backdrop, the question of whether the Namibian blanket amnesties apply in relation to international crimes and grave human rights violations will be addressed. This article argues that based on international law, the application of the Namibian blanket amnesties can be challenged in a potential criminal case that deals with international crimes or grave human rights violations in the Namibian courts. Therefore, this article illustrates how international law applies in the Namibian legal system. In this context, Namibia follows a monist approach which makes it quite receptive of international law and international standards. On this basis, this article points out binding international law at the time before and after Namibia’s independence as well as examining Namibia’s binding treaty obligations which arise under the Geneva Conventions, Torture Convention and the International Covenant on Civil and Political Rights. In the next section, an examination of domestic and international jurisprudence lays the foundation for the argument that the Namibian blanket amnesties can be challenged in a Namibian court when the crimes in question constitute international crimes, such as crimes against humanity or war crimes.

scholarly journals IMPLEMENTING HUMAN RIGHTS DUE DILIGENCE THROUGH CORPORATE CIVIL LIABILITY

2020 ◽  
Vol 69 (4) ◽  
pp. 789-818 ◽  
Author(s):  
Nicolas Bueno ◽  
Claire Bright
Keyword(s):  
Human Rights ◽  
Civil Liability ◽  
Case Law ◽  
Court Decisions ◽  
Due Diligence ◽  
Human Rights Abuses ◽  
Business And Human Rights ◽  
Corporate Liability ◽  
The Relationship ◽  
Human Rights Due Diligence

AbstractSince the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

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