scholarly journals As Condições para uma Paz Duradoura. Uma Leitura de "A Paz pelo Direito", de Hans Kelsen

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Arnaldo Bastos Santos Neto ◽  
Ricardo Martins Spindola Diniz
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Second World War ◽  
Criminal Court ◽  
World War ◽  
War Criminals ◽  
Lasting Peace ◽  
Hans Kelsen ◽  
Second World

AS CONDIÇÕES PARA UMA PAZ DURADOURA. UMA LEITURA DE "A PAZ PELO DIREITO", DE HANS KELSEN CONDITIONS FOR A LASTING PEACE. A READING OF HANS KELSEN’S “PEACE THROUGH LAW”                                                            Arnaldo Bastos Santos NetoRicardo Martins Spindola DinizRESUMO: O pensador central da Escola Vienense de Direito, Hans Kelsen, dedicou-se ao exame de questões fundamentais do Direito Internacional, especialmente, após a eclosão da Segunda Guerra Mundial. Entre os seus textos mais interessantes da nova fase internacionalista, destaca-se "A paz pelo Direito", cujas teses mais importantes, como a defesa de um Tribunal Penal Internacional, a punição dos criminosos de guerra tanto dos lados vencidos como dos vencedores e ainda o papel propugnado por ele para os princípios do Direito Internacional, analisamos no presente artigo. PALAVRAS-CHAVE: Tribunal Penal Internacional; Crimes de Guerra; Teoria Pura do Direito.  ABSTRACT: The central thinker of the Viennese School of Law, Hans Kelsen, devoted himself to the examination of the fundamental questions of International Law, especially after the break of the Second World War. Among his most interesting texts of this new internationalist phase, "Peace through Law" stands out, whose most important thesis, such as the defense of an International Criminal Court, the punishment of war criminals both for losers and winners, and also the role advocated by him to the principles of International Law, are analyzed in this article.KEYWORDS: International Criminal Court; War Crimes; Pure Theory of Law.SUMÁRIO: Introdução 1. O pacifismo jurídico kelseniano. 2. Além da soberania dos estados nacionais. 3. Por um tribunal penal internacional. 4. A questão da soberania. 5. O papel dos princípios. Considerações finais. Referências.

Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court

2002 ◽  
Vol 51 (1) ◽  
pp. 91-117 ◽  
Author(s):  
Jessica Gavron
Keyword(s):  
International Law ◽  
Second World War ◽  
Criminal Court ◽  
World War ◽  
Military Tribunal ◽  
War Criminals ◽  
The First World War ◽  
The Impact ◽  
Second World ◽  
First World

Amnesties presuppose a breach of law and provide immunity or protection from punishment. Historically amnesties were invoked in relation to breaches of the laws of war and were reciprocally implemented by opposing sides in an international armed conflict. The impact of the two world wars in the first half of the twentieth century, however, had considerable implications not only for the use of amnesties, but also for their legality under international law. The scale of the First World War precipitated a new phase of unilateral amnesty for the victors and prosecutions of war criminals for the defeated aggressor states.1 This precedent was followed after the Second World War,2 with the establishment of the first ‘international’3 criminal court, the International Military Tribunal at Nuremberg. However, the horrors perpetrated during the Second World War also prompted the development of a branch of international law aimed at recognising and protecting human rights in an attempt to prevent such atrocities being repeated.

Historical Introduction

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Cold War ◽  
Criminal Justice ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Second World War ◽  
Criminal Court ◽  
International Criminal Justice ◽  
World War ◽  
Second World

This chapter presents a historical introduction to the Rome Statute of the International Criminal Court. International criminal justice first became an issue of consequence at the Paris Peace Conference of 1919. Between the wars, both intergovernmental and professional bodies developed sophisticated proposals for an international criminal court. These efforts, however, stalled with the advent of the Second World War and Cold War, regained traction in the 1990s, and culminated with the adoption of the Rome Statute of the International Criminal Court on July 17, 1998. The Statute entered into force on July 1, 2002. Within a year, the Court was fully operational. In June 2005, its first arrest warrants were issued and, in January 2009, its first trial began.

Building a Case against the War Criminals

2017 ◽  
Author(s):  
Dean Aszkielowicz
Keyword(s):  
International Law ◽  
War Crimes ◽  
International Agreements ◽  
Second World War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
World War ◽  
War Criminals ◽  
Post War ◽  
Second World

Long before the Second World War ended, the Allies were planning to prosecute Axis war criminals, including both those in positions of leadership and the perpetrators of individual crimes. There was no standing war crimes court at the end of the Second World War, however, and the post-war trials were a watershed in international law. For the trials at Nuremberg and Tokyo, Allied planners drew on the development of international humanitarian law and international agreements signed by the combatants over the decades preceding the war. The vast majority of war criminals who were prosecuted did not face the court at Nuremberg or Tokyo: they appeared before national military tribunals which were conducted according to each prosecuting country’s war crimes law. The Australian War Crimes Act passed through the parliament in October 1945, shortly before trials began.

Part I Histories, Ch.10 Hans Kelsen and the Return of Universalism

2016 ◽  
Author(s):  
von Bernstorff Jochen
Keyword(s):  
International Law ◽  
Intellectual History ◽  
Deep Structure ◽  
Second World War ◽  
The Political ◽  
World War ◽  
Legal Scholarship ◽  
Critical Methodology ◽  
Hans Kelsen ◽  
Second World

This chapter illustrates the deep structure of the Kelsenian approach to international law from an intellectual history perspective. Hans Kelsen (1881–1973) was a Viennese law professor in between the two world wars, who is seen by many as one of the most outstanding, if not the most outstanding, jurist of the twentieth century. Therefore studying the Kelsenian approach includes the political, doctrinal, and philosophical context in which Kelsen developed his fundamental critique of the then-prevailing German international law theory. Furthermore, the chapter reveals the subversive and revolutionary force of Kelsen’s critical methodology with a couple of examples, concluding with a few words on how German international legal scholarship dealt with Kelsen’s legacy after the Second World War.

The Role of Victims in the International Criminal Tribunals of the Second World War

2012 ◽  
Vol 12 (2) ◽  
pp. 245-270 ◽  
Author(s):  
Luke Moffett
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Second World War ◽  
Criminal Court ◽  
Historical Research ◽  
International Criminal Justice ◽  
World War ◽  
International Criminal Tribunals ◽  
Second World

This article, drawing from historical research of the practice and judgements of the Nuremberg and Tokyo tribunals, analyses the role of victims within the founding international criminal tribunals of the Second World War. While some commentators have decried the absence of victims at Nuremberg and Tokyo, numerous victim-witnesses testified before these tribunals. However, the outcome of these tribunals has been disappointing to victims who still seek justice over sixty-five years later. This article considers the implications of the Nuremberg and Tokyo tribunals not providing justice to victims and how this has impacted on their legacy. Although these tribunals are neglected in contemporary discussions of victim provisions in modern international criminal justice mechanisms, they can still provide some important lessons for modern international criminal justice mechanisms, such as the International Criminal Court, to learn from.

The Development of International Criminal-Law Rules and Some Legal Problems of Bringing to Justice the War Criminals of the Second World War

2019 ◽  
pp. 48-54
Author(s):  
Ruslan Sednev ◽  
Evgeny Shatalov
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Legal Protection ◽  
Second World War ◽  
International Criminal Law ◽  
Criminal Prosecution ◽  
World War ◽  
War Criminals ◽  
Legitimate Interests ◽  
Second World

The authors highlight the problems of qualifying the wrongful acts of Nazi criminals through the lens of modern ideas of crimes and the principles of international law. The study used formal logical and comparative methods, the method of structural analysis. The subjects of analysis are statements, notes, directives, orders and other documents of the USSR, instructions of the German command, as well as some international documents. The authors state that the legislative technique of the documents under consideration was imperfect, but nevertheless they laid the foundation for development of international criminal law. It is indicated that the territorial principle of jurisdiction was in force for the war crimes of the Second World War. The quotations from declassified orders and directives are given, and a conclusion is drawn that it is possible to extend the approach to understanding the subject of international criminal prosecution, up to political and state institutions. Some legal peculiarities of the Nuremberg trial were also considered, concerning, in particular, the extradition of war criminals and the methods of their legal protection. It is noted that despite the significant doubts of German lawyers in the fairness of the trial, the rights and legitimate interests of the accused and suspects were fully respected.

International Criminal Court and Ad Hoc Tribunals

2018 ◽  
pp. 566-582
Author(s):  
Richard Goldstone
Keyword(s):  
World War Ii ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
East Timor ◽  
Criminal Courts ◽  
World War ◽  
International Criminal Tribunals ◽  
War Criminals

This chapter traces the growth of international criminal courts since World War II. The trials of Nazi war criminals at Nuremberg in 1944 led, after a lapse of almost half a century, to decisions by the UN Security Council to establish two ad hoc international criminal tribunals for the former Yugoslavia (1993) and for Rwanda (1994). UN-mandated courts followed in East Timor, Kosovo, and Bosnia and Herzegovina; and by state-requested courts, so-called ‘mixed’ or ‘hybrid’ criminal tribunals, in partnership with the UN, in Sierra Leone, Cambodia, and Lebanon. In terms of the Rome Statute of 1998, the International Criminal Court became effective in July 2002 and will likely become the only international criminal court.

The Law and Genocide

2012 ◽  
Author(s):  
William A. Schabas
Keyword(s):  
International Law ◽  
International Criminal ◽  
Second World War ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Genocide Convention ◽  
World War ◽  
Legal Concept ◽  
Definition Of ◽  
Second World

This article discusses genocide as a legal concept. The crime of genocide has been incorporated within the national legal systems of many countries, where national legislators have imposed their own views on the term, some of them varying slightly or even considerably from the established international definition. The term itself was invented by a lawyer, Raphael Lemkin. He intended to fill a gap in international law, as it then stood in the final days of the Second World War. Over the years, the limited definition of genocide in the 1948 Genocide Convention has provoked much criticism and many proposals for reform. But by the 1990s, when international criminal law went through a period of stunning developments, it was the atrophied concept of crimes against humanity that emerged as the best legal tool to address atrocities.

scholarly journals Is There any Blood on my Hands? Deportation as a Crime of International Law

2016 ◽  
Vol 29 (3) ◽  
pp. 917-943
Author(s):  
VINCENT CHETAIL
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Crime ◽  
International Criminal Tribunal ◽  
Second World War ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
Nuremberg Trials ◽  
Second World

AbstractThe present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.Against such a background, this article demonstrates that, in some circumstances, deportation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state's prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

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