LEC4: War, War Crimes and International Criminal Justice

Question 1

What is International Criminal Justice?

Answer 1

“is a field of international law that calls for the prosecution of the planners and organizers of the gravest war crimes and human rights abuses”

Question 2

What is Jus ad Bellum and Jus in Bello

Answer 2

Jus ad Bellum ‘Right to war’ The law that governs whether a state may resort to the use of armed force

Jus in Bello ‘Justice in War’ International Humanitarian Law (IHL) The law that governs the way in which war and warfare is conducte.

Question 3

What is the definition of war according to GOW?

Answer 3

“War is a social phenomenon involving specific, dedicated social organisations(armed forces) in the management of restrained coercive violence for political purpose, governed by rules and conventions.” James Gow

Question 4

What is International Law?

Answer 4

International law historically covers the body of rules that regulate the conduct of sovereign states in relation to each other. Aspects of international law concern the actions of individuals and their respective responsibilities.

There are various branches of international law, which are interlinked

Question 5

What is IHL?

Answer 5

International Humanitarian Law
“Is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict”

International humanitarian law (IHL), also referred to as the law of war or the law of armed conflict, is the set of rules which seek, for humanitarian reasons, to limit the effects of warfare. IHL is part of ICL; breaches of its rules constitute war crimes.

International humanitarian law applies specifically to armed conflicts. It protects persons who are not taking part in fighting, such as civilians or medical and religious personnel as well as those who are no longer fighting or are unable to fight, such as prisoners of war or the wounded and sick. It also restricts the means and methods of warfare, prohibiting the use of certain types of weapons, and attacks that fail to discriminate between those who are and those who are not taking part in fighting.

Question 6

What is ICL?

Answer 6

International criminal law
*ICL is a body of international rules designed both to proscribe certain categories of conduct (e.g. war crimes, crimes against humanity, genocide, aggression) and to make persons who engage in such conduct criminally liable.

*ICL either authorise states, or impose upon them the obligation, to prosecute and punish such criminal conduct. ICL also regulates proceedings before international criminal courts and tribunals, for prosecuting and trying persons accused of such crime

Question 7

In what way can someone be held responsible in ICL?

Answer 7

*“co-perpetrating” –meaning to commit a crime jointly based on joint control

*“aiding and abetting” –meaning assistance or encouragement, with knowledge of the commission of the crime

*“ordering” –meaning a person in a position of authority instructing to commit a crime

*“planning” –meaning preparing or arranging for the commission of a crime

*“attempting” –meaning to take action to commence the crime without it occurring for other reasons independent of the person’s intention

*“inciting” –relevant for genocide, meaning inciting others directly or publicly to commit genocide

*“omitting” –meaning failing to comply with a legal duty to a

Question 8

What is IHRL?

Answer 8

International human rights law

International human rights law is the body of rules that protect certain rights held by individuals and groups. Human rights derive from treaties or custom and bind States (and under certain circumstances non-state actors), requiring them to put in place domestic measures and legislation compatible with their international obligations. Unlike international humanitarian law standards, human rights apply at all times, including during peacetime (although the content of some human rights, e.g. the right to life, is modified in times of armed conflict where International Humanitarian Law takes precedence)

Question 9

What is Genocide?

Answer 9

Genocide is defined as an act committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group. This can be done through any of the following acts: killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births and forcibly transferring children of the group to another group

Aside from the genocidal acts themselves being punishable under international criminal law, other prohibited conduct includes conspiracy, incitement, attempt and complicity to commit genocide, whether by rulers, public officials or private individuals. Genocide does not require a nexus to an armed conflict and so is punishable both during wartime and peacetime

Question 10

What are Crimes against Humanity?

Answer 10

Crimes against humanity are specific crimes committed as part of a widespread or systematic attack directed against any civilian population. They can be committed as part of State policies, but can also be perpetrated by non-State armed groups or paramilitary/militia forces. Unlike war crimes, crimes against humanity do not require a nexus to an armed conflict and so are punishable whether committed during conflict or in peacetime. Unlike genocide, crimes against humanity are not necessarily committed against a specific group.

Question 11

What are War Crimes?

Answer 11

War crimes are violations of international humanitarian law that entail individual criminal responsibility under international law. This includes grave breaches of the 1949 Geneva Conventions and other serious violations of the laws and customs applicable in international or non-international armed conflicts

In contrast to genocide and crimes against humanity, war crimes must be committed in the context of an armed conflict, either of an international or non-international character.

Question 12

What is the difference between ICC and ICJ?

Answer 12

The ICJ revolves disputes between States, while the ICC prosecutes indivudals for crimes.

Question 13

Nullum crimen, nulla poena, sine praevia lege poenali

Answer 13

there can be no no international justice, without international law.

Question 14

What was the way the Nuremberg trials proescuted indivuals?

Answer 14

*Recognised that individuals have rights under international law, even if the sovereign denies them those rights, and that state authorization provides no cover for the violations of those rights;

*And that individuals have obligations under international law that go above, and might be contrary to, obligations to the sovereign state, and that they can be punished internationally for violating these obligations

Question 15

What is ICTY?

Answer 15

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

Question 16

What is the ICTR?

Answer 16

International Criminal Tribunal for Rwanda

Question 17

What are the Purposes of international criminal justice?

Answer 17

*To bring a sense of justice to war-torn places;
*to re-establish the rule of law;
*to provide a sound foundation for lasting peace;
*to bring repose to victims and provide an outlet to end cycles of violence and revenge;
*to demonstrate that culpability is individual, and not the responsibility of entire groups;
*to provide a safe forum for victims to tell their stories;
*to demonstrate fairness and the highest standards of due process;
*to provide exemplary procedures to serve as a model for rebuilding a legal system;
*to create an accurate historical record; public education in general;
*to develop and expand the application and interpretation of international law and norms;
*to provide a forum for considering restitution and reparation

Question 18

What is the reading on Israel and Gaza and the laws of war?

Answer 18

*The theoretical separation of jus ad bellum and jus in bello provides important protection during armed conflict. It guarantees that jus in bello will apply regardless of the cause of a conflict.
*International law provides no clear definition for the term terrorism, it has political and ideological connotations.

Question 19

What is the UNSC definition on terrorism?

Answer 19

The United Nations Security Council, it its resolution 1566 of October 2004, states that terrorists acts are “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.

Question 20

What is the EU Definition of terrorism?

Answer 20

Terrorist offenses are:
-offences under national law, which, given their nature or context, may seriously damage a country or an international organisation and committed with the aim of:
-seriously intimidating a population, or
-unduly compelling a Government or international organisation to perform or abstain from performing any act, or
-seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences:50

Question 21

What is the definition of genocide in the Convention on the prevention and punishment of the crime on genocide?

Answer 21

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group

Question 22

What are the general principles of IHL?

Answer 22

1. The principle of distinction (between civilians and combatants, civilian objects and military objectives
2. The principle of proportionality
3. The principle of necessity (from which flows the prohibition of superfluous injury and unnecessary suffering)
4. “elementary considerations of humanity”[76] and the so-called “Martens clause”, which prescribes that in cases not covered by treaties (and traditional customary international law) “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscienc

Question 23

What are the soures of IHL?

Answer 23

Geneva Conventions and the additional protocols.

*The first Geneva Convention protects wounded and sick soldiers on land during war.
*The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.
*The third Geneva Convention applies to prisoners of war.
*The fourth Geneva Convention affords protection to civilians, including in occupied territory.

Question 24

What is the principle of proportionality?

Answer 24

*The principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

*In other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought

Question 25

What are the Nuremberg Principles?

Answer 25

1. Any person who commits an act which constitutes a crime under international
   law is responsible therefore and liable to punishment.
2. The fact that internal law does not impose a penalty for an act which constitutes a
   crime under international law does not relieve the person who committed the act
   from responsibility under international law.
3. The fact that a person who committed an act which constitutes a crime under
   international law acted as Head of State or responsible government official does not
   relieve him from responsibility under international law.
4. The fact that a person acted pursuant to order of his Government or of a superior
   does not relieve him from responsibility under international law,
   provided a moral choice was in fact possible to him.
5. Any person charged with a crime under international law has the right to a fair trial
   on the facts and law.
6. The crimes hereinafter set out are
   punishable as crimes under international law:
   (a) Crimes against peace, (b) War Crimes and (c) Crimes against humanity.
7. Complicity in the commission of a crime against peace, a war crime, or a crime
   against humanity as set forth in Principle VI is a crime under international law.

Question 26

What are the critiques of the ICC

Answer 26

• Accusation of bias against Africa.
• Proceedings are very
  slow.
  -It is extremely expensive

Question 27

What is the purpose of the ICJ?

Answer 27

To bring a sense of justice to warn-torne places.
To re-establish the rule of law.
To provide a sound foundation for lasting peace.
To bring respose to victims and provide an outlet to end cycles of violence and
revenge.
To demonstrate that
culpability is individual, and not the responsibility of entire
groups.
To provide a
safe forum for victims to tell their stories.
To demonstrate fairness and the highest standards of due process.
To provide exemplary procedures to serve as a model for rebuilding a legal system.
To create an
accurate historical record; public education in general.
To develop and expand the application and interpretation of international law and
norms.
To provide a forum for considering restitution and reparations.
Creates an historical record that is available and can be checked and contains
evidence.