Journal articles on the topic 'Customary law – Yugoslavia'
To see the other types of publications on this topic, follow the link: Customary law – Yugoslavia.
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 24 journal articles for your research on the topic 'Customary law – Yugoslavia.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
SALGADO, ELENA MARTÍN. "The Judgement of the International Criminal Tribunal for the former Yugoslavia in the Vasiljević Case." Leiden Journal of International Law 16, no. 2 (June 2003): 321–30. http://dx.doi.org/10.1017/s092215650300116x.
Full textAbstract:
This case note focuses on two key aspects of the Vasiljević Judgement. The first one is the accused's acquittal of the charge of ‘violence to life and person’ under common Article 3 for the reason that the trial chamber was not satisfied that it constituted a crime under customary international law. The second aspect is the trial chamber's analysis of state practice to identify the definition under customary law of extermination as a crime against humanity.
2
Bogdan, Attila. "Individual Criminal Responsibility in the Execution of a "Joint Criminal Enterprise" in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia." International Criminal Law Review 6, no. 1 (2006): 63–120. http://dx.doi.org/10.1163/157181206777066727.
Full textAbstract:
AbstractThis article explores the development of "joint criminal enterprise" form of responsibility in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (hereinafter "Yugoslav Tribunal"). Although "joint criminal enterprise" does not appear in the Yugoslav Tribunal Statute, this form of responsibility was read into the Statute by the tribunal judges and is repeatedly relied on in finding individuals guilty in cases before the tribunal. In particular, ever since the Appeals Chamber in Prosecutor v. Tadic held that "joint criminal enterprise", as a form of accomplice liability, is "firmly established in customary international law", other Trial and Appeals Chamber decisions continue to follow this holding. This article takes a critical look at some of the fundamental issues associated with the development of "joint criminal enterprise" at the Yugoslav Tribunal, in particular the methodology employed by the Appeals Chamber in Tadic. In addition, the article also examines the similarities between "joint criminal enterprise" and U.S. conspiracy law, and whether the use of "joint criminal enterprise" at the Yugoslav Tribunal violates the "principles of legality".
3
GALAND, ALEXANDRE SKANDER. "Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited." Leiden Journal of International Law 31, no. 2 (February 26, 2018): 403–29. http://dx.doi.org/10.1017/s0922156518000055.
Full textAbstract:
AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.
4
Doran, Kate. "Provisional Release in International Human Rights Law and International Criminal Law." International Criminal Law Review 11, no. 4 (2011): 707–43. http://dx.doi.org/10.1163/157181211x587175.
Full textAbstract:
AbstractThis article is a review of the jurisprudence on provisional release and an analysis of how such a mechanism operates under the Statute of the International Criminal Court. It examines how pretrial release is dealt with in international human rights law while focusing on the judgments of the European Court of Human Rights. It goes on to evaluate the position of the ad hoc tribunals regarding the issue of pre-trial release and seeks to articulate how and why the ad hoc tribunals have moved away from customary international law. It also seeks to evaluate the actual reach of the presumption of innocence in provisional release cases at the European Court of Human Rights and the International Criminal Tribunal for the Formen Yugoslavia. Finally, the article considers the recent jurisprudence of the ICC regarding interim release.
5
Wauters, Jasper M. "Case Analysis: Torture and Related Crimes – A Discussion of the Crimes Before the International Criminal Tribunal for the Former Yugoslavia." Leiden Journal of International Law 11, no. 1 (March 1998): 155–64. http://dx.doi.org/10.1017/s0922156598000132.
Full textAbstract:
The Statute of the International Criminal Tribunal for the former Yugoslavia lists certain offences that might constitute a war crime or a crime against humanity. It does not, however, define any of these offences, among which are torture, inhuman treatment and wilfully causing great suffering or serious bodily harm. Although their meaning is clear in plain language, their legal definition is not. This article attempts to find the customary international law definition of these crimes.
6
Díaz Galán, Elena C., and Harold Bertot Triana. "La protección de los derechos humanos en la justicia penal internacional: el caso particular del Tribunal Penal Internacional para la ex-Yugoslavia en relación con el derecho consuetudinario y el principio de legalidad = The protection of human rights in international Criminal Justice: the particular case of the international criminal tribunal for the Former Yugoslavia in relation to customary law and the principle of legality." UNIVERSITAS. Revista de Filosofía, Derecho y Política, no. 29 (December 13, 2018): 70. http://dx.doi.org/10.20318/universitas.2019.4510.
Full textAbstract:
RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de normas. No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom
7
Ćosić Dedović, Jasmina, and Sedin Idrizović. "The First Element of Command Responsibility - The Existence of the Relationship of Superior - Subordinate In the International Customary Law." Kriminalističke teme, no. 1 (July 23, 2021): 37–59. http://dx.doi.org/10.51235/kt.2021.21.1.37.
Full textAbstract:
Proper understanding of the constitutive elements of the command responsibility is the key to its proper application in practice, and the relationship between superior and subordinate as well as effective control is certainly one of the more complex issues that is insufficiently elaborated in the professional public and the public at large. The constitutive elements of the superior's command responsibility have their roots in the customary international law. One of these elements, without which there is no command responsibility of the superior, is the existence of a superior-subordinate relationship, which at its core implies existence of the effective control of the superior over the subordinate. The ad hoc tribunals of the former Yugoslavia and Rwanda paid particular attention to interpretation of this element of command responsibility in their jurisprudence. The goal of the authors is to show the context in which this first element of command responsibility gained "its place" in the international customary law and international conventional law as well as to show how the first element has been interpreted in jurisprudence. Therefore, in the context of this first element, the paper deals with the analysis of customary international law, international agreements and individual decisions of international ad hoc tribunals.
8
Jia, Bing Bing. "The Doctrine of Command Responsibility: Current Problems." Yearbook of International Humanitarian Law 3 (December 2000): 131–65. http://dx.doi.org/10.1017/s1389135900000611.
Full textAbstract:
This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.
9
Ranieri, Stephen. "Extended Joint Criminal Enterprise in International Criminal Law." Journal of Criminal Law 80, no. 6 (December 2016): 436–45. http://dx.doi.org/10.1177/0022018316675551.
Full textAbstract:
This article examines the doctrine of extended joint criminal enterprise (‘JCE’) as a mode of liability within international criminal law (‘ICL’). The article first provides an overview of extended JCE based on its current expression in international customary law by the International Criminal Tribunal for the Former Yugoslavia in the Tadić case. Consideration will then turn to the problems associated with the application of extended JCE. In particular, recent developments in the United Kingdom in the case of R v Jogee will be discussed, and the implications for the future of extended JCE in ICL as a matter of international custom. Next, the viability of the JCE doctrine will be considered for the purposes of proceedings before the International Criminal Court (‘ICC’). Ultimately, it is concluded that extended JCE has a limited jurisprudential basis before the ICC. However, it is suggested that extended JCE may live on through art 25(3)(d) of the Rome Statute.
10
Oxman, Bernard H., Juliane Kokott, and Frank Hoffmeister. "A. Racke GmbH & Co. v. Hauptzollamt Mainz." American Journal of International Law 93, no. 1 (January 1999): 205–9. http://dx.doi.org/10.2307/2997963.
Full textAbstract:
A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96.Court of Justice of the European Communities, June 16, 1998.The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.
11
Krug, Peter. "The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation." American Journal of International Law 94, no. 2 (April 2000): 317–35. http://dx.doi.org/10.2307/2555295.
Full textAbstract:
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.
12
Mejía-Lemos, Diego. "The Concept of ‘Essence’ and Its Uses in the Identification and Application of Customary International Law by International Criminal Courts and Tribunals." International Criminal Law Review 21, no. 6 (October 4, 2021): 1064–102. http://dx.doi.org/10.1163/15718123-bja10101.
Full textAbstract:
Abstract This paper seeks to provide an analysis of the uses of the concept of ‘essence’ by international criminal courts and tribunals. In particular, it is based on a survey of decisions of the International Criminal Tribunal for the former Yugoslavia (icty), whose Trial and Appeals chambers have used the concept on multiple occasions and with consequences which have been overlooked in the literature. By providing an analysis of the concept’s uses in connection with the icty’s identification and application of customary international law, the paper addresses some of the general international law and philosophical issues raised by the concept’s uses. The paper places the concept’s uses within their respective contexts, and discusses related international decisions and academic commentary. The paper concludes by suggesting potential avenues for elucidating the concept of ‘essence’ and its proper use, with a particular focus on the notions of ‘intension’, ‘extension’ and an intensional ‘extensional property’.
13
Morris, P. Sean. "Economic Genocide Under International Law." Journal of Criminal Law 82, no. 1 (February 2018): 18–34. http://dx.doi.org/10.1177/0022018317749698.
Full textAbstract:
The status of genocide in international law is well developed and forms part of customary international law and also treaty law. International tribunals such as the International Criminal Court and specialised chambers such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have addressed and made a number of convictions regarding genocide. This relative success in the international criminal justice system regarding genocide has given the appearance that perpetrators responsible for genocide will be brought to justice. Yet, there is a fundamental crack in international criminal law with regard to genocide as a crime and how to bring perpetrators to justice. That crack, is essentially, the narrow scope and definition of genocide, and also how to demonstrate that perpetrators had the intention of committing genocide. I contend in this article that the scope of genocide should be extended to include economic genocide and argue that spillover intent of aiders and abettors of genocide requires more clear and coherent rules to include economic genocide as part of how the crime of genocide is assessed in international law. The article first presents and discusses the notion of genocide, taking into consideration the Genocide Convention (1948) and then discusses the status of Article 2(c) of the Convention to define economic genocide. The article then posits the calculated economic measures that affect the conditions of life of peoples involve intent and that intention has a spillover effect.
14
Ponti, Christian. "The Crime of Indiscriminate Attack and Unlawful Conventional Weapons: The Legacy of the icty Jurisprudence." Journal of International Humanitarian Legal Studies 6, no. 1 (May 4, 2015): 118–46. http://dx.doi.org/10.1163/18781527-00601007.
Full textAbstract:
The prohibition of indiscriminate attacks, which encompasses either ‘indiscriminate attacks’ stricto sensu and the so-called ‘disproportionate attacks’, is at the heart of the law governing the conduct of hostilities, as it aims to implement two cardinal principles of international humanitarian law (ihl), distinction and proportionality. This contribution examines the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty) establishing the individual criminal responsibility for indiscriminate attack. The author considers the possible rationale to illustrate why the icty has never adjudicated neither indiscriminate attacks nor disproportionate attacks per se, as separate, autonomous offences under customary international law. It is submitted that a possible reason to explain the prudency of the icty judges when dealing with the crime of indiscriminate attack is that from an international criminal law perspective it is more than a challenge to apply these ihl principles of distinction and proportionality. The author contends that the icty jurisprudence that practically examined the principle of prohibiting indiscriminate attacks by means of unlawful conventional weapons confirm such difficulties. In particular, because the icty failed to fully clarify to what extent an attack by means of indiscriminate and/or inaccurate weapons violating fundamental principles of the conduct of hostilities, such as distinction and proportionality, may amount to the crime of indiscriminate attack.
15
KILLEAN, RACHEL, EITHNE DOWDS, and AMANDA KRAMER. "Soldiers as Victims at the ECCC: Exploring the Concept of ‘Civilian’ in Crimes against Humanity." Leiden Journal of International Law 30, no. 3 (February 23, 2017): 685–705. http://dx.doi.org/10.1017/s0922156517000048.
Full textAbstract:
AbstractThe inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The call sought guidance on: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. We argue that customary international law justifies a finding that an attack on members of the armed forces can constitute crimes against humanity. In particular, the article focuses on the importance placed on the persecution element of crimes against humanity in the post-Second World War jurisprudence, and the broad interpretation of the term ‘civilian’. The article also examines the jurisprudence of contemporary international courts, finding that in some cases the courts have interpreted the term ‘civilian’ as incorporating hors de combat. However, the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Court (ICC) have moved towards a more restrictive interpretation of the term ‘civilian’, potentially excluding members of the armed forces. We argue that this move is regressive, and against the spirit in which the offence of crimes against humanity was created. The ECCC has an opportunity to counter this restrictive approach, thereby narrowing the protection gap which crimes against humanity were initially created to close.
16
Momtaz, Djamchid. "« L'intervention d'humanité » de l'OTAN au Kosovo et la règle du non-recours à la force." International Review of the Red Cross 82, no. 837 (March 2000): 89–102. http://dx.doi.org/10.1017/s1560775500075416.
Full textAbstract:
After a careful analysis of the law regarding the use of force in international relations and the practice of States since 1945, the author concludes that the United Nations Charter leaves no room for a “humanitarian intervention” in the internal affairs of a State. In his opinion NATO's armed intervention in the Balkans in the spring of 1999 therefore has no legal basis under the UN Charter. He goes on to say, however, that the question whether NATO's action against the Federal Republic of Yugoslavia may not be justified by an existing or an emerging rule of customary law should be examined. Such a discussion should take into account, on the one hand, the magnitude of the humanitarian disaster to be averted, and on the other hand the absence of objections by the Security Council or (with rare exceptions) by States. The author concludes with an appeal to the permanent members of the Security Council not to use their veto when deciding on action to be taken in the event of humanitarian disasters.
17
Currie, John. "NATO’s Humanitarian Intervention in Kosovo: Making or Breaking International Law?" Canadian Yearbook of international Law/Annuaire canadien de droit international 36 (1999): 303–33. http://dx.doi.org/10.1017/s0069005800006949.
Full textAbstract:
SummaryNATO’s seventy-nine-day campaign of air strikes against the Federal Republic of Yugoslavia has sparked a wide-ranging debate as to the legality of such military action. NATO has consistently justified its intervention on humanitarian grounds, thus clearly resorting to the controversial doctrine of “humanitarian intervention.” The author argues that while a conventional analysis of the purported right of unilateral humanitarian intervention under international law and of NATO’s acts on the Kosovo issue might lead some individuals to the conclusion that such acts were illegal (or, at best, of dubious legality), this conclusion fails to take into account the fact that state actors, particularly when acting in concert, tend to influence the content of international law itself. The author suggests that the true significance of NATO’s forcible intervention in the Kosovo crisis is that it sets a clear precedent that may well crystallize an emergent norm of customary international law permitting forcible intervention by one or more states against another on humanitarian grounds, even without prior UN Security Council authorization. While such a norm may acquire universal status, it is also possible, in light of the regional concentration of the primary actors involved as well as of important objections from some quarters as to its legality, that it will acquire (at least in the first instance) a local or regional character, perhaps confined to the Euro-Atlantic area.
18
Dimitrijevic, Dusko. "The succession of international treaties in contemporary practice." Medjunarodni problemi 64, no. 2 (2012): 144–79. http://dx.doi.org/10.2298/medjp1202144d.
Full textAbstract:
Succession of states is a process of substitution of state subjects concerning responsibility of international legal relations of the territory to which the succession relates to. No general rules and unwillingness of states to apply particular rules on succession often caused extreme difficulties in the past in analyzing the succession of treaty rights and obligations. As a totally incomplete system that would serve to regulate all problems caused by the change of the state territorial sovereignty in time the law of succession has manifested a tendency towards ?adjustment? of customary rules to the factual situation. The contemporary examples of dissolution of the USSR, Czechoslovakia and SFR Yugoslavia, re-unification of Germany, as well gaining of independence by the Baltic States prove the assertion mentioned above. However, succession does not always prejudice legal substitution of states with regard to their rights and obligations. The study of the legal consequences of the process of succession of states presumes the application of a comparative method in the analysis of the state practice as well as the implementation of rules and principles of international law codificated in the 1978 Vienna Convention on Succession of States in Respect of Treaties.
19
KRESS, CLAUS. "On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision." Leiden Journal of International Law 23, no. 4 (November 22, 2010): 855–73. http://dx.doi.org/10.1017/s0922156510000415.
Full textAbstract:
AbstractAt the beginning of the renaissance of international criminal law in the 1990s, the law on crimes against humanity was in a fragile state. The International Criminal Tribunal for the former Yugoslavia (ICTY) decisively contributed to the consolidation of customary international law on crimes against humanity and paved the way for its first comprehensive codification in Article 7 of the Statute of the International Criminal Court (ICC). At the same time, the ICTY in its early decisions already showed a certain inclination to broaden the scope of the application of the crime by downgrading its contextual requirement. More recently, this tendency culminated in the complete abandonment of the policy requirement. While this ‘progressive’ facet of the ICTY's jurisprudence largely took the form of obiter dicta, the Situation in the Republic of Kenya has confronted the ICC with the need to ‘get serious’ about the present state of the law. This has led to a controversy in Pre-Trial Chamber II about the concept of organization in Article 7(2)(a) of the Statute. While the majority essentially follows the path of the more recent case law of the ICTY, the ICTR, and the Special Tribunal for Sierra Leone and supports a liberal interpretation, Judge Kaul prefers to confine the term to state-like organizations and generally calls for caution against too hasty an expansion of the realm of international criminal law stricto sensu. This comment agrees with the main thrust of the Dissenting Opinion and hopes that it will provoke a thorough debate.
20
Sharma, Dhruv. "Specific Direction: An Unspecific Threshold." Groningen Journal of International Law 6, no. 2 (March 4, 2019): 320. http://dx.doi.org/10.21827/5bf3ea247dfc8.
Full textAbstract:
Aiding and abetting has been recognised as a form of individual criminal responsibility since the 1940’s when the first international tribunals were created. The form of responsibility had a relatively simplistic history of application until it faced an unprecedented upheaval through the introduction of the threshold of specific direction in the Perišić appeals judgment. The judgment has since been rejected by the Special Court of Sierra Leone (SCSL) in the Charles Taylor judgment and by the International Criminal Tribunal for Former Yugoslavia (ICTY) in Sainović, Popović and Stanišić and Simatović judgment. The present paper focuses on the relevance of the standard of specific direction before the International Criminal Court (ICC). It argues that the standard is unjustifiable under international criminal law as, firstly, no convictions or acquittals have been affected on the standard and, secondly and more importantly, the text of the Rome Statute has rejected the standard. The standard of specific direction has not legal pedigree under customary law, is contrary to the text of the Rome Statute and counter-intuitive to the objectives of the ICC as it unreasonably increases evidentiary requirements at the Court and consequently makes the fight against impunity, an already challenging task, even more difficult.
21
Kretzmer, David, Aviad Ben-Yehuda, and Meirav Furth. "‘Thou Shall Not Kill’: The Use of Lethal Force in Non-International Armed Conflicts." Israel Law Review 47, no. 2 (June 6, 2014): 191–224. http://dx.doi.org/10.1017/s0021223714000065.
Full textAbstract:
The assumption of this article is that when a state is involved in an international armed conflict it may employ lethal force against combatants of the enemy unless they arehors de combat. Hence, even when it would be feasible to do so, it has no duty to apprehend enemy combatants rather than use force against them. Does this same norm apply in non-international armed conflicts occurring in the territory of a single state (internal conflicts)? The writers argue that the answer is in the negative. Despite the attempt in recent years to narrow the differences between the norms that apply in non-international armed conflicts (NIACs) and international armed conflicts (IACs), there are still significant differences between the two types of armed conflict, which justify the application of different norms in this context. Common Article 3 of the Geneva Conventions refers only to humanitarian norms and does not imply that the norms relating to the conduct of hostilities in IACs apply also in NIACs. While customary international law may allow states to use lethal force in a NIAC in the actual conduct of hostilities, there is no basis for assuming that the norm that ostensibly applies in IACs relating to use of such force outside the context of hostilities applies in NIACs too. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia, which is the main source for the arguments on closing the gap between IACs and NIACs, relates only to humanitarian norms and has never addressed extending the permissive IAC norms of the law of armed conflict (LOAC) to NIACs. Finally, in an internal armed conflict the state has a dual capacity: it must respect and ensure the human rights of all persons subject to its jurisdiction, and it is a party in an armed conflict with some of those persons. In such a situation, the only context in which the state may deviate from regular norms of law enforcement is the actual context of hostilities, in which application of such norms is not feasible. In other contexts, its human rights obligations prevail.
22
Szpak, Agnieszka. "The Eritrea-Ethiopia Claims Commission and Customary International Humanitarian Law." Journal of International Humanitarian Legal Studies 4, no. 2 (September 24, 2013): 296–314. http://dx.doi.org/10.1163/18781527-00402004.
Full textAbstract:
The aim of the article is to highlight several issues concerning the customary international law status of a number of international humanitarian law (IHL) treaty provisions that arose during the proceedings of the Eritrea-Ethiopia Claims Commission. Specifically, two key issues will be analyzed, namely the Commission's findings that the Geneva Conventions and some provisions of Additional Protocol I reflected customary international law and that international landmine conventions create only treaty obligations and do not yet reflect customary international law. Also, some more detailed conclusions relating to particular problems, such as the issue of the customary nature of the ICRC’s right to visit prisoners of war and its binding character for non-parties to the Geneva Conventions, will be discussed. The 2005 ICRC Study on Customary International Humanitarian Law and the International Criminal Tribunal for the former Yugoslavia’s jurisprudence will also be included as a point of reference to identify the customary character of certain provisions. The main conclusion is that the Commission has significantly contributed to the emerging consensus regarding the status of certain norms of international humanitarian law as customary norms. Furthermore, it has identified lacunae in the existing standards of humanitarian law and suggested the development of new norms to fill those gaps.
23
Глотова, Светлана, and Svetlana Glotova. "СRIMES AGAINST HUMANITY: GENESIS AND MODERN GENERAL INTERNATIONAL LAW." Journal of Foreign Legislation and Comparative Law, July 4, 2016, 0. http://dx.doi.org/10.12737/20583.
Full textAbstract:
The origin of the concept “Crimes against Humanity” (СaH) — one of most serious crimes of international concern — can be found in 1915 Allied Joint Declaration and Martens Clause. CaH were first defined in Art. 6(c) of the Nuremberg IMT Statute. CaH are included in the jurisdiction of International criminal tribunal for former Yugoslavia, Rwanda Tribunal, Special Court for Sierra Leone, Extraordinary Chambers in the courts of Cambodia, Special Panels for serious crimes in East Timor. The Rome Statute of the International Criminal Court (Art. 7) contains a broad definition of this crime that reflects the international customary law. Evolution of the CaH concept includes both the expansion of specific acts, forming this category, and its essential elements: attacks against civilian population; link with armed conflicts; large scale and regularity of attacks; and, probably, inclusion into the illegitimate policy conducted by states and other actors. In the absence of a uniform definition of CaH in the statutes of courts and the convention, the work of International Law Commission makes a considerable contribution to the modern development and understanding of the concept. The adoption by ILC of the CaH definition, based on the ICC Statute will confirm the generally recognized definition of the CaH concept; and a wide range of states’ obligations on suppression, prevention and cooperation proves, inter alia, the erga omnes nature of the CaH prohibition.
24
"The Dynamics of International Criminal Tribunals." Nordic Journal of International Law 67, no. 2 (1998): 139–63. http://dx.doi.org/10.1163/15718109820295534.
Full textAbstract:
AbstractWaging war appears to be a constant feature of human behaviour. Until World War II, violations of the Law of War were generally punishable before national tribunals; this practice, however, proved unsatisfactory. The Nuremberg and Tokyo International War Crimes Tribunals appeared as the first successful attempts to delocalise proceedings related thereto, bearing in mind the absolute primacy of inflicting exemplary punishment on the guilty. The International Criminal Tribunals for the Former Yugoslavia and Rwanda upheld an extended definition of punishable crimes under Conventional and/or Customary Law, while instituting more guarantees of fairness, i.e.: judges chosen from outside the warring parties, rejection of the death penalty, awarding compensation to victims and ensuring the protection of witnesses. Despite the application of ex posto facto law, it is worth recalling that human rights protection is clearly identified as an essential focus of the later ad hoc tribunals. However, only the institution of a permanent international criminal tribunal seems conductive to setting the seal on the determination of the international community to put in place an effective deterrent to resorting to war as a means of settling inter-societal disputes.