Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

Humanitarian Law ◽

Legal Doctrine ◽

Military Necessity

<p>The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.</p>

Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

10.26686/wgtn.17009879 ◽

2021 ◽

Author(s):

◽

James Gallagher

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

International Committee ◽

Criminal Court ◽

Humanitarian Law ◽

Legal Doctrine ◽

Military Necessity

Sources of International Humanitarian Law and International Criminal Law

10.1093/law/9780198745365.003.0042 ◽

2018 ◽

Author(s):

Raphaël van Steenberghe

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

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.

Self-Referring to the International Criminal Court: A Continuation of War by Other Means

AJIL Unbound ◽

10.1017/s2398772300001562 ◽

2015 ◽

Vol 109 ◽

pp. 260-265 ◽

Cited By ~ 2

Author(s):

Parvathi Menon

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Armed Conflicts ◽

Humanitarian Law ◽

Sub Saharan ◽

Internal Armed Conflicts

Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).

The International Committee of the Red Cross and the International Criminal Court: Turning international humanitarian law into a two-headed snake?

International Review of the Red Cross ◽

10.1017/s1816383121000515 ◽

2021 ◽

pp. 1-19

Author(s):

Fernanda García Pinto

Keyword(s):

International Criminal Court ◽

International Criminal ◽

International Committee ◽

Criminal Court ◽

Red Cross ◽

Humanitarian Law ◽

Gender Based Violence ◽

Critical Approach

Abstract The International Committee of the Red Cross and the International Criminal Court are two very different entities that simultaneously apply international humanitarian law but do so after their own perspectives. This article proposes a cautious yet critical approach to some of their divergent interpretations (conflict classification, the difference between direct and active participation in hostilities, intra-party sexual and gender-based violence, and the notion of attack) and examines how the broader legal system copes with these points of divergence. The analysis considers the institutional characteristics of these two organizations and the pluralistic nature of international humanitarian law as well as its dynamic rapport with international criminal law in order to highlight the versatility needed to face the challenges posed by contemporary armed conflicts.

International Humanitarian Law and International Criminal Law

The Oxford Handbook of International Law in Asia and the Pacific ◽

10.1093/law/9780198793854.003.0007 ◽

2019 ◽

pp. 141-169 ◽

Cited By ~ 1

Author(s):

Suzannah Linton

Keyword(s):

Criminal Law ◽

International Criminal ◽

Legal Framework ◽

Criminal Court ◽

Asia Pacific ◽

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.

A Commander’s Motivations and Geographical Remoteness under Command Responsibility: An Analysis of Controversial Issues of the Bemba Appeal Judgment

International Criminal Law Review ◽

10.1163/15718123-bja10072 ◽

2021 ◽

pp. 1-31

Author(s):

Matteo Colorio

Keyword(s):

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Crime Scene ◽

Criminal Court ◽

Controversial Issues ◽

Humanitarian Law ◽

Principle Of Legality

Abstract The Bemba Appeal Judgment undermines confident prospects that the International Criminal Court could make a greater use of charges alleging command responsibility. This judgment introduces serious uncertainties in the law on command responsibility, in particular by reflecting long-lasting disputes concerning this doctrine on the ‘all necessary and reasonable measures’ element under Article 28 of the Rome Statute. The Bemba Appeal Judgment, indeed, includes a controversial evaluation of the relevance of a commander’s motivations in taking measures and of her geographical remoteness from the crime scene. This Article analyses these issues through the lenses of International Humanitarian Law and of fundamental principles of International Criminal Law, in particular the principle of legality and the principle of individual culpability.

The impact of international criminal law and the ICC on national constitutional arrangements

Global Constitutionalism ◽

10.1017/s2045381715000064 ◽

2015 ◽

Vol 4 (2) ◽

pp. 227-253

Author(s):

RUPERT ELDERKIN

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

International Human Rights Law ◽

Humanitarian Law ◽

National Sovereignty ◽

Public International Law ◽

The Impact

AbstractInternational criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

Critique of the International Legal Regime Applicable to Terrorism

Strathmore Law Journal ◽

10.52907/slj.v2i1.10 ◽

2016 ◽

Vol 2 (1) ◽

pp. 21-36

Author(s):

Nabil Mokaya Orina

Keyword(s):

International Law ◽

Criminal Law ◽

Critical Analysis ◽

International Criminal ◽

Humanitarian Law ◽

Legal Regime ◽

Public International Law ◽

Refugee Law

Terrorism is a global phenomenon that permeates state borders and predominantly causes immeasurable suffering to civilians. The need for international cooperation and concerted efforts in combating terrorism cannot be gainsaid. Already, sectoral instruments have been passed to regulate certain aspects of terrorism. However, without a single terrorism specific instrument, acts of terrorism generally classified will fall under spheres of international law which include; public international law, international criminal law, international humanitarian law, human rights and refugee law. This paper makes a critical analysis of these spheres of international law and how they apply to states’ counter-terrorism efforts.

Cosmopolitan Subjects: Critical Reflections on Dualism, International Criminal Law and Sovereignty

African Journal of Legal Studies ◽

10.1163/17087384-12342050 ◽

2014 ◽

Vol 7 (3) ◽

pp. 321-350 ◽

Cited By ~ 10

Author(s):

Ronald C. Jennings

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Great Majority ◽

Humanitarian Law ◽

International Courts ◽

Legal Subject ◽

The Individual

Is contemporary international criminal law (icl) compatible with sovereignty and traditional international law (il) as it is comprehended by the doctrine of Dualism, as understood by the great majority of international jurists, scholars, government representatives and those working at the tribunals? What the literature has entirely missed is that three most important figures in the initial creation and institutionalization of ilc for the Yugoslavia Tribunal in 1994 – Antonio Cassese, Cherif Bassiouni and Theodor Meron – all shared a commitment to a monistic view based on expansive and radical interpretation of icl in which international criminal jurisdiction (iicj) – because it makes individuals its sole legal subject – as radically legally, politically and even ontologically incompatible with – and inherently to superior – sovereignty, as well as all those institutions based on traditional sovereign il (e.g., international humanitarian law, the un Charter system, and human rights). Normatively, they call for “the humanization” or individualization of international law marked by direct and unmediated relationships between iicj institutions and the individual. Practically, they acknowledge icl’s basis in modern statist domestic criminal law and Security Council power means that it is necessarily a unitary, top-down and subjecting power, incompatible with the claims of both dualists and pluralists. If the monists are correct, the African Union (au) must be very careful not to presume that what one likes about international courts (African, treaty- or sovereignty based tribunals) can be easily separated from what one does not like (unsc power, icc), because it was icl itself, not the tribunals, which is fundamentally anti-sovereign. As a result, this article concludes that icl itself is now too closely ground in iicj to think that it could be separated in an African court.

13. International criminal law

10.1093/he/9780192895684.003.0013 ◽

2021 ◽

pp. 178-190

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Crimes Against Humanity ◽

Humanitarian Law ◽

International Crimes ◽

International Criminal Tribunals

This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).