Session 10 Flashcards
Q: What are the two criteria for identifying a Non-International Armed Conflict (NIAC)?
A: (1) A certain level of intensity in the violence; (2) the presence of organized armed groups.
Q: What treaty provision is considered the foundational legal source for NIACs?
A: Common Article 3 of the 1949 Geneva Conventions.
Q: What is the significance of Common Article 3 in the law of armed conflict?
A: It applies to all NIACs and sets minimum standards for humane treatment, including prohibitions on torture, murder, and degrading treatment.
Q: What are the conditions for Additional Protocol II (AP II) to apply to a NIAC?
A: The armed group must be organized, and must control territory and conduct sustained military operations against state forces.
Q: Why do many states hesitate to acknowledge a NIAC within their borders?
A: Recognizing a NIAC may legitimize insurgent groups and trigger international legal obligations.
Q: What role does customary international law play in NIACs?
A: It fills gaps in treaty law and extends protections found in IACs, such as the conduct of hostilities and protection of civilians.
Q: Which ICTY case expanded the definition of a NIAC and emphasized the criteria of intensity and organization?
A: The Tadić case (1995).
Q: Can war crimes be prosecuted in NIACs under international criminal law?
A: Yes. War crimes committed in NIACs are punishable under the Rome Statute and precedents from ICTY and ICTR.
Q: What are some examples of contemporary challenges in classifying NIACs?
A: The presence of transnational armed groups, spillover conflicts, and multiple non-state actors with shifting alliances.
Q: What protections exist for civilians in NIACs under IHL?
A: Prohibitions on indiscriminate attacks, starvation as a method of warfare, and forced displacement, mainly from CA3, AP II, and customary law.
Q: Why does Frédéric Mégret argue that justice for Ukraine depends on the outcome of the war?
A: Because meaningful accountability is more likely after a Ukrainian victory; a Russian victory or ambiguous peace could undermine legal efforts.
Q: How is Ukraine using international law in its response to Russian aggression?
A: Ukraine is actively using domestic and international legal mechanisms (e.g., ICC, ICJ, ECHR), not as lawfare but as a legitimate application of law.
Q: What is Russia’s strategy regarding international justice mechanisms?
A: Russia avoids jurisdiction, withdraws from institutions, and uses propaganda and distorted legal arguments (e.g., genocide claims) to justify its actions.
Q: What are the challenges to prosecuting Russian leaders for aggression?
A: Legal hurdles include sovereign immunity, lack of access to suspects, and Russia’s veto at the UN Security Council, which blocks tribunal creation.
Q: What does Mégret say about the proposed special tribunal for aggression?
A: It may be created for symbolic purposes, but will likely be ineffective unless it can actually arrest suspects and enforce rulings.
Q: How does Mégret describe the nature of Russian actions in Ukraine?
A: He suggests Russia may be pursuing an “almost genocidal” strategy, aimed at destroying Ukrainian identity, not just achieving military goals.
Q: What was Thomas Lubanga Dyilo charged with at the ICC?
A: War crimes for conscripting, enlisting, and using children under 15 to actively participate in hostilities in a non-international armed conflict.
Q: What was the ICC’s conclusion about the nature of the conflict in Ituri between 2002 and 2003?
A: It was a non-international armed conflict despite foreign involvement by Uganda and Rwanda, which did not internationalize the conflict involving the UPC/FPLC.
Q: How did the ICC define conscription, enlistment, and use in hostilities regarding child soldiers?
Conscription = forcible recruitment
Enlistment = voluntary recruitment
Use in hostilities = direct combat roles and support roles (e.g., scouts, bodyguards, messengers)
Q: Under which legal provision was Lubanga prosecuted for using child soldiers?
A: Article 8(2)(e)(vii) of the Rome Statute, which criminalizes the recruitment and use of children under 15 in non-international armed conflicts.
Q: Why was the “voluntary” nature of child participation rejected as a defense?
A: Because children under 15 cannot legally consent to enlistment, and international law prohibits their recruitment regardless of voluntariness.
Q: What is the significance of the Lubanga case in international law?
A: It was the first ICC conviction, establishing important precedents on the use of child soldiers and clarifying legal standards for NIACs.
Q: What is the main argument of the ICTJ briefing on Ukraine?
A: Justice in Ukraine must go beyond prosecutions and include victim-centered, restorative approaches to rebuild a democratic, inclusive society.
Q: What are some multilateral efforts underway to pursue accountability for crimes in Ukraine?
A: ICC investigations, the Joint Investigation Team (JIT), Ukraine’s ICJ genocide case, and proposals for special tribunals for aggression.
Q: Why is documentation critical in Ukraine’s transitional justice process?
A: It can help build an impartial public record, support truth-seeking, aid in creating victim registries, and inform future reparations.
Q: What challenges exist in Ukraine’s domestic criminal accountability efforts?
A: Weak coordination with international actors, absence of a prosecutorial strategy, and questions about fair trial standards.
Q: Why is a purely retributive approach to justice considered inadequate?
A: It risks overcriminalizing civilians, fails to meet victims’ needs, and may ignore structural harms—highlighting the need for restorative justice.
Q: What does the briefing say about rebuilding Ukraine post-conflict?
A: Reconstruction should not focus solely on infrastructure but must also promote social cohesion, civic participation, and inclusive democracy.
Q: What is international criminal law (ICL) and when did it begin to emerge?
A: ICL is a branch of international law that holds individuals accountable for serious crimes like war crimes, genocide, and crimes against humanity. It gained prominence after WWII with the Nuremberg and Tokyo tribunals.
Q: What are the four core international crimes under international criminal law?
A: War crimes, crimes against humanity, genocide, and (potentially) aggression.
Q: What is universal jurisdiction in the context of ICL?
A: It allows any state to prosecute grave international crimes, even if there is no territorial or national link to the accused or the victims.
Q: What institutions implement international criminal law?
A: National courts, ad hoc tribunals (e.g., ICTY, ICTR), hybrid courts, and the International Criminal Court (ICC).
Q: Which five ICC member states referred the situation in Palestine to the ICC in November 2023?
A: South Africa, Bangladesh, Bolivia, Comoros, and Djibouti.
Q: What triggered renewed pressure on the ICC to act on Palestine in late 2023?
A: The escalation of Israeli military operations in Gaza after the October 7 Hamas attacks and the rising civilian death toll.
Q: What is a key criticism of ICC Prosecutor Karim Khan’s response to the Palestine situation?
A: He has issued vague, rhetorical statements but taken no concrete legal action since the investigation opened in 2021.
Q: How does the Global South’s response to Palestine compare to the Global North’s support for Ukraine at the ICC?
A: The Global South is now asserting itself to push for accountability, contrasting with the swift Western response to Russian aggression in Ukraine.
Q: What concern does Shane Darcy raise about the prosecutor’s legal threshold for action?
A: Khan may be applying a stricter evidentiary standard than required under the Rome Statute, potentially to avoid political backlash.
Q: Why is the Palestine case seen as a “make or break” moment for the ICC?
A: Inaction may confirm double standards in international law and damage the Court’s credibility, especially with Global South states like South Africa.
Q: Who is on trial in the Netherlands for Syrian regime crimes, and what is he accused of?
A: A Syrian man known as Mustafa A. is accused of war crimes and crimes against humanity, including torture and participation in the Liwa al-Quds militia.
Q: What makes this Dutch trial significant in the broader Syrian justice context?
A: It is the first trial in the Netherlands targeting a pro-Assad militia member, potentially setting legal precedents under universal jurisdiction.
Q: What is universal jurisdiction and how is it used in this case?
A: Universal jurisdiction allows a country to prosecute international crimes regardless of where they occurred, as long as the suspect is present on its territory.
Q: How have civil society organizations contributed to the case?
A: Groups like the Nuhanovic Foundation and Syrian Center for Media and Freedom of Expression supported victims and witnesses, aiding participation and testimony.
Q: What are the Dutch court’s measures to support access to justice for Syrians?
A: The court offers Arabic interpretation, livestream access, and formal victim participation, improving transparency and engagement.
Q: How does this trial fit into the wider European trend of prosecuting Syrian regime crimes?
A: It follows earlier universal jurisdiction cases in Germany and France, contributing to a growing legal effort to hold the Assad regime accountable for atrocity crimes.
Q: What sparked the latest war crimes allegations in the Israel-Gaza conflict?
A: The October 7 Hamas attacks on Israeli civilians and Israel’s subsequent bombing campaign in Gaza.
Q: What legal mechanisms exist for prosecuting war crimes in the conflict?
A: Israeli national courts, international courts like the ICC, and universal jurisdiction in foreign national courts.
Q: What is the ICC’s current involvement in the Israel-Palestine situation?
A: The ICC is investigating crimes in Palestine since 2014 and received a referral from five states in November 2023.
Q: Why is it difficult to prosecute war crimes during ongoing conflicts?
A: It’s hard to gather evidence, ensure witness safety, and apprehend suspects, especially when states like Israel reject ICC jurisdiction.
Q: What role does universal jurisdiction play in prosecuting war crimes?
A: It allows national courts to try war crimes regardless of where they occurred or the nationality of the perpetrators.
Q: What is the overall outlook for war crimes accountability in the Israel-Gaza conflict?
A: Though slow, there is growing international momentum and legal precedent suggesting prosecutions may eventually happen.
Q: What prompted the ICC investigation into Ukraine in March 2022?
A: A referral by 38 countries following Russia’s invasion of Ukraine, enabling ICC Prosecutor Karim Khan to open a formal war crimes investigation.
Q: Is Ukraine a member of the ICC, and how does the Court have jurisdiction?
A: Ukraine is not a full ICC member, but it has accepted ICC jurisdiction over crimes committed on its territory since November 2013.
Q: What crimes can the ICC investigate in the Ukraine context?
A: War crimes, crimes against humanity, and genocide—but not aggression, as neither Ukraine nor Russia are State Parties to the Rome Statute.
Q: What types of violations were documented by Human Rights Watch in Ukraine?
A: Alleged Russian war crimes, including the use of cluster munitions on hospitals and preschools, with civilian casualties mounting.
Q: What legal principle allows high-level leaders to be held accountable for war crimes?
A: Command responsibility—leaders may be liable if they knew or should have known about crimes by subordinates and failed to act.
Q: What additional efforts are being made alongside the ICC investigation?
A: The UN Human Rights Council is working to form a commission of inquiry, and national courts may act under universal jurisdiction.
