scholarly journals Critique of the International Legal Regime Applicable to Terrorism

2016 ◽  
Vol 2 (1) ◽  
pp. 21-36
Author(s):  
Nabil Mokaya Orina
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Critical Analysis ◽  
International Criminal ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
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.

Sources of International Humanitarian Law and International Criminal Law

2018 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
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.

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

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian 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>

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

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian 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>

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

2015 ◽  
Vol 4 (2) ◽  
pp. 227-253
Author(s):  
RUPERT ELDERKIN
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
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.

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

2014 ◽  
Vol 7 (3) ◽  
pp. 321-350 ◽  
Author(s):  
Ronald C. Jennings
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Great Majority ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
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.

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.

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

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 260-265 ◽  
Author(s):  
Parvathi Menon
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
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).

‘We Demand Dignity for the Victims’ – Reflections on the Legal Qualification of the Indecent Disposal of Corpses

2015 ◽  
Vol 15 (5) ◽  
pp. 896-925 ◽  
Author(s):  
Caroline Fournet ◽  
Nicole Siller
Keyword(s):  
Case Studies ◽  
Criminal Law ◽  
International Criminal ◽  
Foreign Affairs ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
International Crimes ◽  
Trafficking In Human Beings

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

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