The Legal Nature of War Crimes and the Problem of Superior Command

1944 ◽  
Vol 38 (6) ◽  
pp. 1203-1208
Author(s):  
Jacob Berger
Keyword(s):  
International Criminal ◽  
War Crimes ◽  
Court Decisions ◽  
Limited Extent ◽  
Knowing That ◽  
War Criminals ◽  
Legal Nature ◽  
The Subject ◽  
Anglo American ◽  
Illegal Action

One of the most crucial and controversial questions in the field of international criminal justice is that of whether “superior command” is a good defense in a war-crime trial. The answer is of cardinal importance, since trials of war criminals may prove entirely useless if accused persons are permitted simply to pass on the responsibility for their acts to their superiors. The line would lead straight to the omnipotent leader, who might choose to escape prosecution altogether by putting an end to his life. Opinions of writers on the subject are divided, and so are court decisions, war manuals, and legislative provisions. While the American and British war manuals, backed by Oppenheim's authority, recognize “superior command” as a full defense, Anglo-American practice, expressed in numerous decisions and supported by many authorities, refuses to ascribe to it any exculpating effect. Some theories recognize “superior command” as a defense to a limited extent only, dependent upon whether the subordinate actually knew, or had reasonable grounds for knowing, that a given command contemplated a punishable, or at least an illegal, action.What has not been tried up to now, and what seems a worth-while undertaking, is to analyze the general conception of war crimes and to try to reach a solution of the indicated problem out of a clearer understanding of that conception.

Strengthening States’ and the International Community’s Responsibility to Protect Civilians: Revisiting the Prosecution of War Crimes Committed in Africa by the International Criminal Court (ICC)

2018 ◽  
Vol 11 (1) ◽  
pp. 92-115
Author(s):  
Seun Bamidele
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Responsibility To Protect ◽  
International Criminal Justice ◽  
War Criminals ◽  
Intrastate War ◽  
New Thinking

AbstractThe silhouette of International Criminal Justice (ICJ) is fast changing across the globe. The change and transformation are connected to the criminalization of war, which has complicated the attraction of and engagement in the war for war-mongers. At least, the last few years had seen remarkable prosecution of war criminals in Africa. This is related to a relatively new thinking that informed the establishment of International Criminal Court (ICC) and global re-enforcement of war crime-related charges. Since the genocide in Rwanda, the establishment of the ICC has led to the prosecution of warlords. Also, the ICC has issued thirteen public warrants of arrest on war charges to actors and perpetrators in more than four African states. The case of President of Sudan, whose warrant of arrest had been issued regarding the crisis in Darfur, demonstrated that African leaders and war-mongers would be held responsible for their actions and atrocities they have committed. The lesson from the ICC is clear, war-mongers would be made to pay for their criminality. This article intends to examine the actions of the ICC on intra-state civil war crimes in Africa and assess whether ICC can act as deterrence on for intrastate war mongers in Africa.

‘Guilty of Having Been Obedient’

2021 ◽  
pp. 1-35
Author(s):  
Emmanuel Sarpong Owusu
Keyword(s):  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
War Crimes Trials ◽  
The Subject ◽  
Individual Criminal Responsibility

Abstract One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.

United Nations Member States' Obligations Towards the ICTY: Arresting and Transferring Lukic, Gotovina, and Zelenovic

2008 ◽  
Vol 8 (4) ◽  
pp. 627-653 ◽  
Author(s):  
Alejandra Vicente ◽  
Yolanda Gamarra
Keyword(s):  
United Nations ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Member States ◽  
War Criminals ◽  
Domestic Legislation ◽  
Key Factor ◽  
International Obligations ◽  
Legal Difficulties

AbstractFull and expedient cooperation of UN member States in the arrest and transfer of war criminals constitutes a key factor in addressing war crimes and providing redress to the victims. Through the analysis of three recent cases of arrests and transfers to the International Criminal Tribunal for the former Yugoslavia, the authors show the legal difficulties and political considerations that some States face when implementing their international obligations to arrest and transfer. The three cases analyzed demonstrate that the arrest and transfer of war criminals is more likely to take place when State authorities are truly committed to cooperate, and act on that commitment by adopting specific domestic legislation to make the process of arresting and transferring smooth and transparent.

scholarly journals Croatian and Serbian War Crimes, the International Criminal Tribunal for the Former Yugoslavia, and the Judicial Systems of Serbia and Croatia

2020 ◽  
Author(s):  
Wiktor Hebda
Keyword(s):  
Social Relations ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Negative Influence ◽  
Former Yugoslavia ◽  
Political Relations ◽  
War Criminals ◽  
The Republic ◽  
Judicial Systems

Croatian and Serbian War Crimes, the International Criminal Tribunal for the Former Yugoslavia, and the Judicial Systems of Serbia and CroatiaThe war in former Yugoslavia (1991–1995) was marked by war crimes which still affect Serbian–Croatian political relations. The International Criminal Tribunal for the former Yugoslavia (ICTY), which operated between 1993–2017, was supposed to pass fair verdicts on those responsible for war crimes, but its verdicts have been surrounded by controversy in Post-Yugoslav states. The article analyzes Serbian and Croatian war crimes in Croatian territory between 1991–1995 as well as the verdicts passed by the ICTY against the most prominent war criminals. The actions taken by the Serbian and Croatian judicial systems are also discussed. The analysis presented in the article indicates that the verdicts delivered by the ICTY were selective and difficult to accept for both sides of the conflict. Unfortunately, Serbo-Croatian cooperation on war crimes has been developing for only a few years and has not produced the expected results. For these reasons, war crimes and war criminals still have a negative influence on political and social relations between the Republic of Croatia and the Republic of Serbia. Chorwackie i serbskie zbrodnie wojenne, Międzynarodowy Trybunał Karny da Byłej Jugosławii oraz serbski i chorwacki wymiar sprawiedliwościKwestia zbrodni wojennych i obiektywnego osądzenia zbrodniarzy wojennych jest wysoce problematyczna. Bezspornie wojna w byłej Jugosławii z lat 1991-1995 była tragiczna w skutkach i naznaczona wydarzeniami, którym można nadać miano zbrodni wojennych. Międzynarodowy Trybunał Karny dla Byłej Jugosławii (MTKJ) funkcjonujący w latach 1993-2017 miał w założeniu sprawiedliwie osądzić osoby odpowiedzialne za zbrodnie wojenne. Niemniej jego działalność (orzeczone kary) wzbudza pewne kontrowersje, a co za tym idzie może być i jest krytycznie oceniana. W artykule przedstawiono syntetyczną analizę serbskich oraz chorwackich zbrodni wojennych mających miejsce na terytorium Chorwacji w latach 1991-1995. Następnie odniesiono się do kar orzeczonych przez MTKJ wobec najważniejszych zbrodniarzy wojennych. W tym też aspekcie zwrócono uwagę na aktywność serbskiego i chorwackiego wymiaru sprawiedliwości. Analiza zawarta w artykule potwierdza tezę że wydawane wyroki przez MTKJ odznaczały się selektywnością, dlatego też w niektórych przypadkach były one trudne do zaakceptowania przez obie strony konfliktu. Niestety serbsko-chorwacka współpraca w zakresie zbrodni wojennych rozwija się dopiero od kilku lat i nie przyniosła oczekiwanych rezultatów. Z tych też powodów zbrodnie wojenne i zbrodniarze wojenni nadal mają negatywny wpływ na stosunki polityczne i społeczne między Republiką Chorwacji a Republiką Serbii.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.8 War crimes/Crimes de guerre

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Subject Matter ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Child Soldiers ◽  
Criminal Court ◽  
Applicable Law ◽  
The Subject

This chapter comments on Article 8 of the Rome Statute of the International Criminal Court. Article 8 defines war crimes, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. Much more than a codification of earlier law and practice, the Rome Statute's provisions on war crimes provide a relatively comprehensive codification of war crimes committed in non-international armed conflict. They also recognize new crimes, such as the recruitment of child soldiers and attacks on peacekeepers. However, they also fall short in some important respects, failing to provide adequate criminalization of prohibited weapons, the result of a nuclear impasse.

Specific Reparation for Specific Victimization: A Case for Suitable Reparation Strategies for War Crimes Victims in the DRC

2013 ◽  
Vol 13 (5) ◽  
pp. 977-1012 ◽  
Author(s):  
Amissi M. Manirabona ◽  
Jo-Anne Wemmers
Keyword(s):  
International Criminal Court ◽  
Armed Conflict ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Trust Fund ◽  
Vast Number ◽  
War Criminals ◽  
War Victims ◽  
International Instruments

The vast number of victims as well as their tremendous needs have to be taken into consideration by the International Criminal Court (ICC) that is dealing with some of the war criminals from the DRC. However, while many international instruments provide war victims with rights to reparation, the ICC is limited in terms of who it considers a victim and what it can offer in terms of reparation. The Trust Fund for victims, however, does not suffer these same limitations. Nevertheless, the Trust Fund is grossly underfunded. Thus, it should be supplemented by a national compensation fund for war victims financed by the international community, the DRC as well as States involved in Congolese armed conflict. As we will see later on, although this research is focused to victims of the DRC armed conflict, many of its lessons might have broader implications and apply to other situations involving war-induced victimization.

Judicial Dialogue after the Genocide in Rwanda

2019 ◽  
Vol 21 (5) ◽  
pp. 421-431
Author(s):  
Katarzyna Trzpis-Szysz
Keyword(s):  
Legal System ◽  
International Criminal ◽  
Historical Context ◽  
International Criminal Tribunal ◽  
Armed Conflicts ◽  
Contemporary History ◽  
War Criminals ◽  
History Of ◽  
Judicial Proceedings ◽  
The Subject

Abstract In this study, the author describes the dialogue between the International Criminal Tribunal for Rwanda and the Gacaca courts after one of the bloodiest conflicts in the contemporary history of Africa – the 1994 genocide in Rwanda. The purpose of this work is to show how international and internal cooperation can influence the solving of armed conflicts, especially in the process seeking justice for the civilian casualties. By recalling the historical context, the author emphasizes the importance of the juridical basics, which are established immediately after the armed conflicts. Furthermore, this study also shows how Gacaca courts were a new dimension of judicial proceedings in the Rwandan legal system. It analyzes how these courts were able to contribute to successfully prosecuting war criminals. This subject is not widely discussed in the literature and the size limitations necessarily imposed on an article of this nature do not allow for a detailed exploration of the subject here so it is vital that this subject is studied further.

scholarly journals Claiming for recovery of funds and (or) property of others: search for legislative compromise and review of law enforcement practice

2021 ◽  
Author(s):  
O. I. Uhrynovska
Keyword(s):  
Law Enforcement ◽  
Burden Of Proof ◽  
Case Law ◽  
Legal Regulation ◽  
Court Decisions ◽  
Discretionary Power ◽  
Legal Nature ◽  
The Subject ◽  
Court Of Appeal ◽  
Recovery Procedure

In the light of extremely low level of enforcement of court decisions in Ukraine, the formation of effective legal instruments of coercive judgment enforcement measures is getting particularly important. One of the most effective ways to protect the interests of the claimant, which increases the effectiveness of execution of a court decision of a property nature and expands the possibilities of enforcement proceedings, is to claim for recovery of money and (or) property of others. This legal institution allows the enforcement of money and (or) property of another person who is not a party to the enforcement proceedings, but either holds the property or has a debt to the debtor. The article describes the issue of legislative uncertainty of the procedural status of another person whose property and (or) funds are being recovered and formulates ways to resolve it. A number of collisions between the Civil and Commercial Procedural Codes and the Law of Ukraine “On Enforcement Proceedings” were revealed in terms of legal regulation of the institution of claim for recovery of property of others, in particular in terms of seizure of funds of a person in debt to the debtor. It is proposed to resolve the identified collisions in favor of procedural codes. The legal nature of the arrest, which is imposed on the money of another person in the recovery procedure, is determined. On the example of case law, the discretionary power of the court in considering claims for recovery of funds of a person who owes money to the debtor are analyzed, and the incompleteness of the legislative list of grounds for refusal to satisfy the application for recovery is stated. Attention is drawn to the imperfection of the procedural codes in terms of regulating the possibility to appeal to Court of Appeal and Court of Cassation judgements issued as a result of consideration of claims for recovery of funds of a person who has debts to the debtor. Through the prism of law enforcement practice, the subject of proof in the consideration of applications for recovery of funds of persons who have debts to the debtor and clarifies the distribution of the burden of proof in this category of cases.

scholarly journals Expanding Criminal Responsibility in Transnational and International Organised Crime

2016 ◽  
Vol 4 (1) ◽  
pp. 1 ◽  
Author(s):  
Harmen Van der Wilt
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Subject Matter ◽  
International Criminal ◽  
War Crimes ◽  
Organised Crime ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Crimes ◽  
The Subject

In international criminal law theory, a conceptual divide is made between international crimes stricto sensu (genocide, crimes against humanity, war crimes, aggression) and transnational organised crime. This differentiation sustains the direct, respectively indirect enforcement mechanism: the so called ‘core crimes’ belong to the subject matter jurisdiction of international criminal tribunals and the International Criminal Court, whereas national jurisdictions aim to counter transnational crimes, by concluding ‘suppression conventions’ and seeking international cooperation on the basis of the aut dedere, aut judicare principle. Nevertheless, the division is questioned for being too rigid and simplistic, as the boundaries between the categories are increasingly blurred. On the one hand, political rebel groups and organised crime often unite to challenge the power monopoly of the state, while corrupt governments and private business conspire to exploit the local population (by pillage, deportation from their lands or pollution of the environment). On the other hand, there is an ongoing debate, triggered by the ICC Kenya Decision of March 2010, whether the commission of crimes against humanity is the ‘privilege’ of states and state-like groups, or whether the category should be expanded to cover larger organisations that are capable of committing such atrocities. In other words, there is a proliferation of state and non-state actors that engage in both ‘classic’ international crimes (war crimes, crimes against humanity) and transnational crime. These developments have fuelled the plea for supranational law enforcement in respect of transnational (organised) crime, exceeding the realm of inter-state cooperation on a horizontal basis. This essay will pay a modest contribution to this discussion by arguing that the quest for more effective law enforcement is bedeviled by the perplexity of fitting new patterns of crime and new perpetrators of international crimes into the classic mould of international criminal law. These two aspects are obviously intimately related and should not be considered in isolation. Any initiative to invigorate international criminal law enforcement - by for instance establishing new (international or regional) courts or by expanding the subject matter jurisdiction of existing courts – should therefore pay attention to both the elements of crimes and the modes of criminal liability.

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