International Law Flashcards

International Criminal Law, Humanitarian Law & Human Rights Law

Review

  • Completed discussion on peaceful dispute settlement methods.
  • Outlined the options for enforcing compliance: countermeasures, sanctions, and the use of force.

Objectives

  1. Discuss the nature of international criminal law & identify the 4 international crimes
  2. Identify the courts of international criminal law & principles of international criminal liability
  3. Discuss dynamics of international humanitarian law
  4. Outline human rights law and the international human rights regime

A Critical Distinction: Three Legal Regimes

  • International Criminal Law
  • International Humanitarian Law
  • International Human Rights Law

International Criminal Law

  • Defined as: "The branch of public international law that deals with the direct criminal responsibility of individuals" (Cryer, 2018).
  • Four core crimes:
    • Genocide
    • Crimes Against Humanity
    • War Crimes
    • Aggression
  • Emanate from custom
  • Prescribe universal jurisdiction

Genocide

  • Defined by the 1948 Genocide Convention as: "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".
    • Killing members of the group.
    • Causing serious bodily or mental harm to members of the group.
    • Deliberately inflicting conditions of life calculated to bring about physical destruction.
    • Imposing measures intended to prevent births within the group.
    • Forcibly transferring children of the group to another group.
  • The International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case (1995) accepted systematic rape & sexual violence as an act of genocide.
  • Consists of the mental element of ‘intent’ and proof of direct intention is necessary.

Crimes Against Humanity

  • No universally shared definition.
  • ICC Statute defines it as: "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population".
    • Murder
    • Extermination
    • Enslavement
    • Deportation or forcible transfer
    • Imprisonment in violation of fundamental rules of international law
    • Torture
    • Rape/sexual slavery
    • Enforced prostitution
    • Enforced pregnancy/sterilization
    • Persecutions against any identifiable group
    • Enforced disappearances
    • Crimes of apartheid
    • Other inhumane acts of similar character
  • Examples:
    • The Holocaust (1933-1945)
    • Apartheid South Africa (1948-1994)
    • Former Yugoslavia (1993)
    • Sierra Leone (1993)

War Crimes

  • ICC Statute defines it as: "any of the following acts against persons or property protected under the provision of the relevant Geneva Convention".
    • Willful killing.
    • Torture or inhumane treatments.
    • Causing great suffering or serious bodily harm.
    • Extensive destruction and appropriation of property.
    • Compelling a PoW to serve in the forces of a hostile power.
    • Deprivation of the rights to a fair trial.
    • Unlawful deportation.
    • Taking of hostages.

The Crime of Aggression

  • ICC Statute defines it as: "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN".
  • The ICC has sole jurisdiction, which was activated in 2018.

International Criminal Courts

  • Nuremberg Tribunals
  • Tokyo Trials
  • International Criminal Tribunal for the Former Yugoslavia (ICTY)
  • International Criminal Tribunal for Rwanda (ICTR)
  • Special Court for Sierra Leone

The International Criminal Court (ICC)

  • Established by the 1998 Rome Statute (came into force in 2002).
  • 123 state parties.
  • Jurisdiction includes: genocide, crimes against humanity, war crimes, and aggression.
  • Three approaches to ICC involvement:
    • Referred by a state party.
    • Initiated by the prosecutor.
    • Referred by the UNSC.
  • Complementary jurisdiction

Principles of Liability

  • Direct perpetrators
  • Accessory liability
  • Joint criminal enterprise
  • Co-perpetration
  • Command & superior responsibility

International Humanitarian Law

  • Also known as the international law of armed conflict.
  • Seeks to limit human suffering in conflict.
  • Applies to all parties in all armed conflicts.
  • Emanates from custom

International Humanitarian Law Conventions and Protocols

  • Geneva Conventions: four conventions from 1864-1949.
  • Hague Conventions: 1899, 1907.
  • 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict.
  • 1972 Convention on Biological Weapons.
  • 1980 Conventional Weapons Convention.
  • 1993 Chemical Weapons Convention.
  • 1997 Ottawa Land Mines Convention.

The Scope of Humanitarian Law

  • Applies to all ‘armed conflicts’
  • ICTY (1993) definition: ‘an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between government authorities and organized armed groups or between such groups within a state … and extends beyond the cessation of hostilities until a general conclusion of peace is reached’
  • Geneva Convention (1949): includes times of territorial occupation
  • Two types of armed conflicts:
    • International
    • Non-international
      • Internal
      • Transnational
  • 1977 Additional Protocol extended scope to anti-colonial struggles and against racist regimes.
  • Application to participants in armed conflicts is universal.

Objects of Humanitarian Law

  • Distinguishes between combatants and civilians.
    • Combatants include PoWs, militia and volunteer corps, resistance movements, war correspondents, and supply contractors.
    • Does not include mercenaries.
  • Distinguishes between three categories of victims: the wounded and sick, PoWs, and civilians.
  • 1864 Geneva Convention for the Amelioration of the Conditions of the Wounded in Armies in the Field.
  • Geneva Convention II (1929) and III (1949).

The Conduct of Hostilities

  • 1907 Hague Regulations & 1977 Additional Protocol of the Geneva Convention define methods and means of warfare.
  • Include:
    • Prohibition of some weaponry
    • Distinction between civilian and military objects
    • Prohibition on terrorist tactics
  • Recognize doctrine of ‘collateral damage’.
    • Must be proportionate.
    • Must bring direct military advantage.

The Use of Weapons

  • Two customary rules laid out in the Hague Regulations:
    1. Avoid unnecessary suffering.
    2. Avoid indiscriminate weaponry.
  • Treaty provisions restrict:
    • Explosive/expanding bullets
    • Poisoned weapons
    • Poison gases
    • Chemical weapons
    • Anti-personnel landmines
    • Incendiary weapons, etc.

Categories of Human Rights

  1. Civil & Political Rights: 'First generation rights'
  2. Economic & Social Rights: 'Second generation rights'
  3. Collective Rights: 'Third generation rights'
  • 1993 Vienna Declaration: human rights are ‘indivisible, interdependent & interrelated’

International Human Rights Law (IHRL)

  • A unique area of international law that involves intra-state matters.
  • Based on natural rights.
  • Constitutes horizontal and vertical obligations on states.

Development of International Human Rights Law

  • 19th century: Anti-slavery movement - the first precursor.
  • 20th century:
    • Creation of the ILO (1919)
    • Creation of the League of Nations (1920)
  • 1945: UN Charter
  • 1948: Universal Declaration of Human Rights (UDHR)
  • 1966: International Covenant on Civil & Political Rights (ICCPR), International Covenant on Economic & Social Rights (ICESR)

The Sources of International Human Rights Law

  • Treaties: ICCPR, ICESR, Refugee Convention, etc.
  • Soft Law: UDHR, UNDRIP, Right to Development, etc.
  • Customary Law: Civil/Political Rights
  • Jus Cogens Norms: Torture, International Criminal Law, Slavery, etc.

Core Human Rights Treaties

  • Convention Relating to the Status of Refugees (1951)
  • ICCPR, ICESR (1966)
  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1969)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979)
  • UN Convention Against Torture (CAT) (1987)
  • Convention on the Rights of the Child (CAR) (1989)
  • International Convention on the Rights of Persons with Disabilities (CPRD) (2006)
  • International Convention for the Protection of All Persons from Enforced Disappearance (ICED) (2007)

UN Institutions in IHRL

  • UNGA, UNSC
  • UN Commission on Human Rights (1946)
  • UN Office of the High Commissioner for Human Rights (OHCHR) (1992)
  • UN Human Rights Council (UNHRC) (2006)
  • Special Procedures
  • Treaty Bodies

Regional Human Rights Bodies

  • Europe: European Convention on Human Rights (ECHR), European Court of Human Rights, EU
  • The Americas: American Convention on Human Rights, Inter-American Commission on Human Rights
  • Africa: African Charter on Human and Peoples’ Rights
  • The Middle East: Arab Charter on Human Rights