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