International Law Final Exam

Universalism

human rights as inherent to mankind; do not vary across social contexts

Relativism

human rights must be understood within their social context

Individual petition

process that allows individuals to directly complain to an international organization if they believe that their rights have been violated by a state

Prohibition of refoulement

the forced return of migrants to states where they are likely to suffer severe human rights violations, like torture

Scorecard diplomacy

the public assessment and grading of states to influence behavior 

Genocide

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such:

• Killing members of the group;

• Causing serious bodily and mental harm to members of the group;

• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• Imposing measures intended to prevent births within groups;

• Forcibly transferring children of the group to another group

Ethnic Cleansing

The compelled removal of an ethnic group using intimidation or violence

Torture

• Nature: does the act impose “severe pain or suffering, whether physical or mental”?

• Intent: is the act "intentionally inflicted on a person”?

• Purpose: is the act performed to obtain “information or a confession”, to punish the victim, to intimidate or coerce the victim, or as an act of discrimination?

• Official capacity: is the "pain or suffering … inflicted by or at the instigation of or with the onset or acquiescence of a public official or other person acting in official capacity”?

Jus ad bellum

 international law that regulates the initiation of armed conflict. Governs when you can start a conflict.

Military Necessity

force is only lawful if it is necessary to achieve a legitimate military objective

Caroline Test

• “Instant” = immediate need to act

• “Overwhelming” = important state interest

  • Survival of state itself

• “No choice of means and no moment of deliberation” = can’t achieve objective in other ways

Proportionality

 force must be commensurate with a state’s objectives

Pact of Paris (1928)

• Also known as Kellogg-Briand Pact

• “Condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy”

• “The settlement or solution of all disputes … shall never be sought except by pacific means.”

UN Charter, Article 2(4)

• All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

  • This is legally binding on every state in UN

Gravity Threshold

• Use of force only qualifies as an “armed attack” (under the law of self-defense) if it is sufficiently severe

• Two: Full-scale attack on another state or annexation of territory

Negative Quality Doctrine

• States must remain neutral during civil war

• Can only offset outside assistance from other states

Jus in bello

international law that regulates behavior during armed conflicts

Humanitarian law

international laws that address suffering during war

Non-international armed conflict

the legal term for a civil war or other significant internal violence

Regulating Armed Conflict: Principles

Distinction, Humanity, Military Necessity, Proportionality

Distinction

separates combatants from civilians as conceptually distinct groups

Humanity

states must avoid unnecessary suffering during war

Who is a combatant?

• Armies

• Others who:

  • Have responsible command

  • Wear “fixed distinctive emblem”

  • Carry arms openly

  • Follow laws of war

Combatant: Special Cases

Protected Combatants: medical personnel, clergy

Legitimate Targets: Civilian political leaders directing war effort

indiscriminate attacks

No attacks on “object indispensable to the survival of” civilians

Combatant immunity

legal principle that combatants may not be criminally prosecuted for their legal acts during armed conflict

prisoners of war

combatants “who have fallen into the power of the enemy”, usually by surrendering or being captured during battle

military objectives

By their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage

Occupying power

a state whole military has authority over enemy territory

Principles: elements of a crime

• Material Element: the physical act prohibited by the law

  • Objective and observable

• Mental Element: individual knowledge of relevant facts and intent to commit a crime

  • Subjective and less observable

Material Element

the physical act prohibited by the law

Mental Element

individual knowledge of relevant facts and intent to commit a crime

Nullum crimen sine lege

(“no crime without law”). Don’t convict acts that were not illegal at the time that they were committed

Nulla poena sine lege

(“no punishment without law”). The principle that punishments cannot be applied retroactively 

Individual criminal responsibility

individuals have duties under international criminal law

• Intellectual separation of a state and leader(s)

• Individuals can be punished for breaking law

Core Crimes

Aggression, Crime Against Humanity, Genocide, War Crimes

Perpetrator

individual has control over crime

Accessory

individual provides material or moral assistance that has a substantial effect in the crime, even though he does not have control over the crime

Command Responsibility

military commanders are responsible if they fail to prevent or punish crimes committed by troops under their effective control

Superior Responsibility

civilian superiors are responsible if they fail to prevent or punish crimes committed by the subordinates under their effective control

Victor’s Justice

the idea that the victorious party in a conflict can impose punishments on the losers, and that these punishments are often excessive and unjustified.

Complementarity

can find a case admissible only when the state in question is either “unwilling or unable genuinely to carry out the investigation or prosecution” (Rome Statute Article 17(1)(a))

prosecutor propio motu

on their own initiative