scholarly journals Penegakan Hukum Pidana Internasional dalam Kejahatan Perang terhadap Kemanusiaan

2020 ◽  
Vol 1 (2) ◽  
pp. 88-92
Author(s):  
Fadil Muhammad ◽  
Luh Putu Sudini ◽  
I Nyoman Sujana
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
State Responsibility ◽  
Humanitarian Law

War is a condition in which one party subdues its opponent to fulfill his will, a physical or non-physical act between two or more human groups to dominate. The formulation of the problem of this research is how the role of International Criminal Law on law enforcement in war crimes against humanity and how the state responsibility in war crimes against humanity in International Criminal Law. This research method uses the type of normative legal research by doing the assessment based on legal materials of the literature and is a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced. War crimes and crimes against humanity are two types of international crimes that exist in twenty international criminal types designed by ILC (International Law Commission) to design the establishment of an international criminal tribunal. The conclusion of this study is  the role of International Criminal Law in  war crimes against humanity can be concluded that is contained in conventions contained in International Humanitarian Law contains only command or prohibition only but international criminal law have role in giving criminal sanction against violation of command or prohibition that and the state's responsibility in international criminal law can be an obligation to prosecute international criminal offenders encountered in various instruments of International Law. The form of state responsibility under the Rome Statute is  that States Parties shall have two main obligations:  States  Parties  shall  bring  each  perpetrator  of  genocide,  crimes  against humanity, criminal acts of war and criminal acts of aggression before the courts and the participating States in imposing their jurisdiction in enforcement of International Criminal Law must cooperate fully in the enforcement of International Criminal Law.

Trials, Tribulations, and Triumphs: Major Developments in 1997 at the International Criminal Tribunal for the Former Yugoslavia

1998 ◽  
Vol 35 ◽  
pp. 179-213 ◽  
Author(s):  
Darryl Robinson
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law

SummaryNineteen ninety-seven was marked by several important developments at the International Criminal Tribunal for the former Yugoslavia. A series of arrests and voluntary surrenders have increased the Tribunal's workload and credibility. The landmark Tadic judgment has clarified international humanitarian law, particularly with respect to crimes against humanity. The Erdemovic decision considered the defence of duress with respect to the murder of civilians and the use ofguilty pleas in international criminal law. Finally, the Blaskic decision has considered the use of subpoenas in international law.

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.

(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.

The Good Deeds of International Criminal Defendants

2012 ◽  
Vol 25 (3) ◽  
pp. 799-813 ◽  
Author(s):  
JEAN GALBRAITH
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
The Other ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
Crimes Against Humanity ◽  
International Criminal Tribunals ◽  
Good Deeds

AbstractInternational criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

scholarly journals The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

2019 ◽  
Vol 66 (2) ◽  
pp. 287-311
Author(s):  
Eki Yemisi Omorogbe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Crimes

Abstract This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It places that within the AU’s rejection of the International Criminal Court’s (ICC) arrest warrants for African Heads of States that are not party to the Rome Statute and a more general protection of incumbents. It argues that the enthusiasm for establishing a regional criminal court, which lacks jurisdiction to prosecute incumbents, has not been sustained and African states remain committed to the ICC. It shows that nevertheless the Protocol’s provisions on genocide, crimes against humanity and war crimes, although imperfect, better address the specific character of armed conflicts in Africa than current international law, including the Rome Statute of the ICC. It concludes that the regional court for international crimes is unlikely to be established unless the ICC takes further action against incumbent leaders but that the Protocol’s provisions could be used in the development of a more Africa-centric international law.

The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation

2000 ◽  
Vol 94 (2) ◽  
pp. 317-335 ◽  
Author(s):  
Peter Krug
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Humanitarian Law ◽  
Explicit Recognition ◽  
Affirmative Defenses ◽  
A Charge

The norms and mechanisms for international prosecution of humanitarian law and mass human rights violations have been refined in the 1990s to include affirmation of the principle that separate (or “affirmative”) defenses to individual liability are admissible in international criminal law. Explicit recognition of the availability and nature of separate defenses is found in the statute of the international criminal court (ICC). Indirect application is found to a very limited extent in the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), but not in the Statute of the International Criminal Tribunal for Rwanda (ICTR). Moreover, although the Appeals Chamber of the ICTY has rejected the argument that duress is a complete defense under customary international law or general principles of law to a charge of crimes against humanity involving the taking of innocent lives, it has implicidy accepted that duress could be available in other circumstances.

scholarly journals La legítima defensa en Derecho Internacional Penal: análisis de sus elementos con particular referencia a los crímenes de guerra

2019 ◽  
Vol 5 (8) ◽  
pp. 230-275
Author(s):  
Christopher A. Servín Rodríguez
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Self Defense ◽  
Third Person

The present investigation analyzes the elements of self-defense in International Criminal Law with particular reference to war crimes. In that regard, article 31.1, subsection C, of the Rome Statute is examined to demonstrate that self-defense in relation with crimes against humanity, genocide and aggression protects the person who exercise it and a third person, but in relation with war crimes, its protection also covers, without precedent, property. Nevertheless, this could be contrary to International Humanitarian Law.

scholarly journals THE EXPANDING PROTECTION OF MEMBERS OF A PARTY'S OWN ARMED FORCES UNDER INTERNATIONAL CRIMINAL LAW

2019 ◽  
Vol 68 (04) ◽  
pp. 943-976
Author(s):  
Cóman Kenny ◽  
Yvonne McDermott
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Armed Forces ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Human Rights Law

AbstractDoes international law govern how States and armed groups treat their own forces? Do serious violations of the laws of war and human rights law that would otherwise constitute war crimes or crimes against humanity fall squarely outside the scope of international criminal law when committed against fellow members of the same armed forces? Orthodoxy considered that such forces were protected only under relevant domestic criminal law and/or human rights law. However, landmark decisions issued by the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) suggest that crimes committed against members of the same armed forces are not automatically excluded from the scope of international criminal law. This article argues that, while there are some anomalies and gaps in the reasoning of both courts, there is a common overarching approach under which crimes by a member of an armed group against a person from the same forces can be prosecuted under international law. Starting from an assessment of the specific situation of the victim, this article conducts an in-depth analysis of the concepts of ‘hors de combat’ and ‘allegiance’ for war crimes and that of the ‘lawful target’ for crimes against humanity, providing an interpretative framework for the future prosecution of such crimes.

scholarly journals Nuremberg Revisited in Burma? An Assessment of the Potential Liability of Transnational Corporations and Their Officials in Burma under International Criminal Law

2021 ◽  
Author(s):  
◽  
Mary Ann Johnson Navis
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Transnational Corporations ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Legal Personality ◽  
Actus Reus

<p>This dissertation focuses on the role played by officials of transnational corporations and transnational corporations themselves in the situation in Burma. The main aim of this dissertation is to assess the liability of officials of transnational corporations in Burma and transnational corporations in Burma for crimes against humanity such as slave labour and for war crimes such as plunder under International Criminal Law. However at present transnational corporations cannot be prosecuted under International Criminal Law as the International Criminal Court only has jurisdiction to try natural persons and not legal persons. In doing this analysis the theory of complicity, actus reus of aiding and abetting and the mens rea of aiding and abetting in relation to officials of transnational corporations will be explored and analysed to assess the liability of these officials in Burma. In doing this analysis the jurisprudence of inter alia the Nuremberg cases, the cases decided by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) will be used. This dissertation also examines the problems associated with suing or prosecuting transnational corporations due to the legal personality of transnational corporations and the structure of transnational corporations. At the end of the dissertation some recommendations are made so as to enable transnational corporations to be more transparent and accountable under the law.</p>

Sign in / Sign up

Export Citation Format

Share Document