Jann K. Kleffner
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780199238453
- eISBN:
- 9780191716744
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238453.001.0001
- Subject:
- Law, Public International Law
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against ...
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The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.Less
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter details the rapid development of genocide from an academic concept to a substantive international crime. It provides a brief overview of the etymology of the term ‘genocide’ following ...
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This chapter details the rapid development of genocide from an academic concept to a substantive international crime. It provides a brief overview of the etymology of the term ‘genocide’ following its first usage by Professor Raphael Lemkin in 1944 to describe Nazi atrocities during World War II. It details the early usages of the concept in subsequent criminal trials of Nazi offenders, as well as the definition of genocide in the 1948 Genocide Convention. It also discusses the critical (and controversial) decision of the Convention's drafters to exclude political groups, thereby limiting the Convention to national, ethnic, racial, and religious collectives. Acts intended physically or biologically to destroy these four groups thus are condemned as ‘genocide’, whereas the identical criminal conduct—directed instead at other human collectives—is not.Less
This chapter details the rapid development of genocide from an academic concept to a substantive international crime. It provides a brief overview of the etymology of the term ‘genocide’ following its first usage by Professor Raphael Lemkin in 1944 to describe Nazi atrocities during World War II. It details the early usages of the concept in subsequent criminal trials of Nazi offenders, as well as the definition of genocide in the 1948 Genocide Convention. It also discusses the critical (and controversial) decision of the Convention's drafters to exclude political groups, thereby limiting the Convention to national, ethnic, racial, and religious collectives. Acts intended physically or biologically to destroy these four groups thus are condemned as ‘genocide’, whereas the identical criminal conduct—directed instead at other human collectives—is not.
Maurizio Ragazzi
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298700
- eISBN:
- 9780191707513
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298700.001.0001
- Subject:
- Law, Law of Obligations
In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations ...
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In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating obligations erga omnes in light of state practice and court decisions (including the South West Africa and the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of aggression and genocide, and the protection from slavery and racial discrimination. From this analysis, the book infers five common elements of obligations erga omnes, including their reflecting basic moral values. The book then examines these common elements in light of other candidates of obligations erga omnes proposed in the international literature and state practice. Before drawing general conclusions, the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and actio popularis.Less
In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating obligations erga omnes in light of state practice and court decisions (including the South West Africa and the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of aggression and genocide, and the protection from slavery and racial discrimination. From this analysis, the book infers five common elements of obligations erga omnes, including their reflecting basic moral values. The book then examines these common elements in light of other candidates of obligations erga omnes proposed in the international literature and state practice. Before drawing general conclusions, the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and actio popularis.
Paul Christoph Bornkamm
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199694471
- eISBN:
- 9780191738326
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694471.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in ...
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Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.Less
Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.
David L. Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international ...
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This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international law, as well as a theoretical analysis of whether political genocide should be recognized as a separate crime by the international community. The book analyses whether a stand-alone crime of political genocide should be recognized under international law. It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime. It then demonstrates that other international offences—notably crimes against humanity and war crimes—are not workable substitutes for a specific offence that protects political groups. This is followed by an analytical study of the protection of human groups under international law. The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence. It then applies this ‘rights-based approach’ in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction ‘as such’. The writing includes an analysis of state practice and opinio juris on the treatment of political groups. It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law. In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.Less
This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international law, as well as a theoretical analysis of whether political genocide should be recognized as a separate crime by the international community. The book analyses whether a stand-alone crime of political genocide should be recognized under international law. It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime. It then demonstrates that other international offences—notably crimes against humanity and war crimes—are not workable substitutes for a specific offence that protects political groups. This is followed by an analytical study of the protection of human groups under international law. The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence. It then applies this ‘rights-based approach’ in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction ‘as such’. The writing includes an analysis of state practice and opinio juris on the treatment of political groups. It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law. In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the ...
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This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.Less
This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter explores the relationship between genocide and other offences under international law, focusing on crimes against humanity (e.g., extermination, torture, and other forms of group ...
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This chapter explores the relationship between genocide and other offences under international law, focusing on crimes against humanity (e.g., extermination, torture, and other forms of group violence, as well as unlawful persecution on discriminatory grounds). In some circumstances, crimes against humanity cover similar ground to genocide because they outlaw large-scale violence and prohibit serious discrimination based upon membership in certain human groups. The availability of such offences has been offered as a sufficient justification not to include political groups within the concept of genocide. The chapter compares genocide to these other aspects of international criminal law and demonstrates that these other crimes are neither a workable nor a sufficient proxy for a separate international crime prohibiting political genocide.Less
This chapter explores the relationship between genocide and other offences under international law, focusing on crimes against humanity (e.g., extermination, torture, and other forms of group violence, as well as unlawful persecution on discriminatory grounds). In some circumstances, crimes against humanity cover similar ground to genocide because they outlaw large-scale violence and prohibit serious discrimination based upon membership in certain human groups. The availability of such offences has been offered as a sufficient justification not to include political groups within the concept of genocide. The chapter compares genocide to these other aspects of international criminal law and demonstrates that these other crimes are neither a workable nor a sufficient proxy for a separate international crime prohibiting political genocide.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0009
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter proposes an optional protocol to the 1948 Genocide Convention paired and an amendment to the ICC Statute to address political genocide. It considers several potential objections to ...
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This chapter proposes an optional protocol to the 1948 Genocide Convention paired and an amendment to the ICC Statute to address political genocide. It considers several potential objections to creating the new offense, including its potential impact on legitimate military and law enforcement interests (e.g., terrorism prevention). It also considers whether the inclusion of political groups would interfere with the Convention itself or otherwise dilute the concept of genocide as a unique offense. It demonstrates that none of these considerations justify continued non-recognition of political genocide. The chapter then discusses the divergence between law ‘on the books’ and actual enforcement, using the situation in Darfur as an example of difficulties of exercising political will on the international plane. It concludes that the direct prohibition of political genocide through law is an essential first step to preventing and punishing atrocities aimed at destroying political groups ‘as such’.Less
This chapter proposes an optional protocol to the 1948 Genocide Convention paired and an amendment to the ICC Statute to address political genocide. It considers several potential objections to creating the new offense, including its potential impact on legitimate military and law enforcement interests (e.g., terrorism prevention). It also considers whether the inclusion of political groups would interfere with the Convention itself or otherwise dilute the concept of genocide as a unique offense. It demonstrates that none of these considerations justify continued non-recognition of political genocide. The chapter then discusses the divergence between law ‘on the books’ and actual enforcement, using the situation in Darfur as an example of difficulties of exercising political will on the international plane. It concludes that the direct prohibition of political genocide through law is an essential first step to preventing and punishing atrocities aimed at destroying political groups ‘as such’.
Guénaél Mettraux
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207541
- eISBN:
- 9780191709203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207541.003.0025
- Subject:
- Law, Human Rights and Immigration
Both genocide and war crimes are regarded as serious violations of international humanitarian law. Just as with genocide, war crimes may, in principle, be committed by and against civilians and ...
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Both genocide and war crimes are regarded as serious violations of international humanitarian law. Just as with genocide, war crimes may, in principle, be committed by and against civilians and military alike. The law of genocide and the laws of war have very different origins, however, and both categories of crime cover essentially different protected interests. War crimes and genocide contain a number of elements which are not required by the other, the most obvious being that while war crimes, of their nature, may only be committed in times of war, genocide may be committed during war or peace. Under the prevailing test of cumulative convictions developed by a majority of the appeals chamber, an individual who has been charged with both war crimes and genocide for the same criminal conduct could be convicted for both categories of crimes.Less
Both genocide and war crimes are regarded as serious violations of international humanitarian law. Just as with genocide, war crimes may, in principle, be committed by and against civilians and military alike. The law of genocide and the laws of war have very different origins, however, and both categories of crime cover essentially different protected interests. War crimes and genocide contain a number of elements which are not required by the other, the most obvious being that while war crimes, of their nature, may only be committed in times of war, genocide may be committed during war or peace. Under the prevailing test of cumulative convictions developed by a majority of the appeals chamber, an individual who has been charged with both war crimes and genocide for the same criminal conduct could be convicted for both categories of crimes.
Guénaél Mettraux
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207541
- eISBN:
- 9780191709203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207541.003.0001
- Subject:
- Law, Human Rights and Immigration
On February 22, 1993, the United Nations (UN) Security Council set up an international criminal tribunal pursuant to Chapter VII of the UN Charter. This tribunal was given the authority to prosecute ...
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On February 22, 1993, the United Nations (UN) Security Council set up an international criminal tribunal pursuant to Chapter VII of the UN Charter. This tribunal was given the authority to prosecute and judge serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991, including war crimes, genocide, and crimes against humanity. On November 8, 1994, the Security Council created another international tribunal for the purpose of prosecuting persons responsible for genocide and other serious violations of humanitarian law in Rwanda in 1994. Ratione personae, the jurisdiction of both ad hoc tribunals, is limited to natural persons and excludes any official privileges or state immunities that such persons might otherwise have enjoyed before domestic courts.Less
On February 22, 1993, the United Nations (UN) Security Council set up an international criminal tribunal pursuant to Chapter VII of the UN Charter. This tribunal was given the authority to prosecute and judge serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991, including war crimes, genocide, and crimes against humanity. On November 8, 1994, the Security Council created another international tribunal for the purpose of prosecuting persons responsible for genocide and other serious violations of humanitarian law in Rwanda in 1994. Ratione personae, the jurisdiction of both ad hoc tribunals, is limited to natural persons and excludes any official privileges or state immunities that such persons might otherwise have enjoyed before domestic courts.
Theodor Meron
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199608935
- eISBN:
- 9780191729706
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199608935.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter argues that the greatest change in international law is the creation of a new universe of international criminal and hybrid tribunals and courts in various manifestations. The UN ad hoc ...
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This chapter argues that the greatest change in international law is the creation of a new universe of international criminal and hybrid tribunals and courts in various manifestations. The UN ad hoc tribunals, in particular, have established that fair international prosecutions of war crimes, genocide, and crimes against humanity are feasible, striking a blow to the practice of impunity, leading to the establishment of the International Criminal Court and additional tribunals, and paving the way to more effective deterrence. The tribunals' most significant contributions are outlined.Less
This chapter argues that the greatest change in international law is the creation of a new universe of international criminal and hybrid tribunals and courts in various manifestations. The UN ad hoc tribunals, in particular, have established that fair international prosecutions of war crimes, genocide, and crimes against humanity are feasible, striking a blow to the practice of impunity, leading to the establishment of the International Criminal Court and additional tribunals, and paving the way to more effective deterrence. The tribunals' most significant contributions are outlined.
Theodor Meron
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199608935
- eISBN:
- 9780191729706
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199608935.003.0028
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter presents Theodor Meron's speech at Potočari Memorial Cemetery. He shares his special wish to visit the cemetery because he had the privilege of sitting as the Presiding Judge in the ...
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This chapter presents Theodor Meron's speech at Potočari Memorial Cemetery. He shares his special wish to visit the cemetery because he had the privilege of sitting as the Presiding Judge in the appeal which, for the first time, judicially recognized the crimes committed against the Bosnian Muslims in Srebrenica in 1995 as genocide. In that case, named Prosecutor versus Radislav Krstič, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia convicted one of the leaders of the Bosnian Serb assault on Srebrenica, General Radislav Krstič, for aiding and abetting genocide. In honor of the memory of the many victims of this crime lying in this cemetery, Meron reads a brief passage from the judgment in Krstič.Less
This chapter presents Theodor Meron's speech at Potočari Memorial Cemetery. He shares his special wish to visit the cemetery because he had the privilege of sitting as the Presiding Judge in the appeal which, for the first time, judicially recognized the crimes committed against the Bosnian Muslims in Srebrenica in 1995 as genocide. In that case, named Prosecutor versus Radislav Krstič, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia convicted one of the leaders of the Bosnian Serb assault on Srebrenica, General Radislav Krstič, for aiding and abetting genocide. In honor of the memory of the many victims of this crime lying in this cemetery, Meron reads a brief passage from the judgment in Krstič.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0004
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of ...
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This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of protected groups for destruction. It addresses the complexities of ascertaining a perpetrator's specific intent to destroy a human group ‘as such’ and discusses how such intent can be established at trial. It also considers the merits of analysing the perpetrator's mental state in terms of numerical considerations (targeting either a percentage of the targeted group or a certain threshold number of victims) versus other types of criteria (such as the effects of targeting group leaders or other important segments of the group on the group's overall ability to survive ‘as such’).Less
This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of protected groups for destruction. It addresses the complexities of ascertaining a perpetrator's specific intent to destroy a human group ‘as such’ and discusses how such intent can be established at trial. It also considers the merits of analysing the perpetrator's mental state in terms of numerical considerations (targeting either a percentage of the targeted group or a certain threshold number of victims) versus other types of criteria (such as the effects of targeting group leaders or other important segments of the group on the group's overall ability to survive ‘as such’).
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter analyses whether political groups merit equal treatment to the four groups enumerated in the Genocide Convention. It first discusses what human ‘groups’ really are and the inherent ...
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This chapter analyses whether political groups merit equal treatment to the four groups enumerated in the Genocide Convention. It first discusses what human ‘groups’ really are and the inherent difficulties of defining them for legal and social purposes. It details the linkages and interactions between international law and broader understandings of human groups as social collectives. It then proposes a new theoretical understanding of genocide as a rights-based offence. This theory links the legal protection of groups to certain individual rights of a collective nature that give rise to the group's existence in this context. This sets the stage for the subsequent analysis demonstrating that political collectives have many similar characteristics to the existing four groups, such that they likewise deserve specific protection from physical and biological destruction ‘as such’ through a separate crime of political genocide.Less
This chapter analyses whether political groups merit equal treatment to the four groups enumerated in the Genocide Convention. It first discusses what human ‘groups’ really are and the inherent difficulties of defining them for legal and social purposes. It details the linkages and interactions between international law and broader understandings of human groups as social collectives. It then proposes a new theoretical understanding of genocide as a rights-based offence. This theory links the legal protection of groups to certain individual rights of a collective nature that give rise to the group's existence in this context. This sets the stage for the subsequent analysis demonstrating that political collectives have many similar characteristics to the existing four groups, such that they likewise deserve specific protection from physical and biological destruction ‘as such’ through a separate crime of political genocide.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0008
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for ...
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This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.Less
This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the ...
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This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.Less
This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.003.0005
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
This chapter looks at those universal human rights conventions explicitly requiring prosecution for specific human rights violations, such as genocide, torture, slavery, traffic in persons, ...
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This chapter looks at those universal human rights conventions explicitly requiring prosecution for specific human rights violations, such as genocide, torture, slavery, traffic in persons, prostitution, apartheid, racial hatred, and enforced disappearances. It explains the scope of criminal obligations under the respective conventions. Special attention is given to the standards for criminalization, investigation, and sentences, the concept of aut dedere aut judicare and the role of victims. A comparison of the conventions reveals that there is no uniform concept for the treatment of serious human rights violations. The nature of crimes, the necessary degree of public involvement, the modes of commission, and the particular steps to be taken by States including the required penalties differ.Less
This chapter looks at those universal human rights conventions explicitly requiring prosecution for specific human rights violations, such as genocide, torture, slavery, traffic in persons, prostitution, apartheid, racial hatred, and enforced disappearances. It explains the scope of criminal obligations under the respective conventions. Special attention is given to the standards for criminalization, investigation, and sentences, the concept of aut dedere aut judicare and the role of victims. A comparison of the conventions reveals that there is no uniform concept for the treatment of serious human rights violations. The nature of crimes, the necessary degree of public involvement, the modes of commission, and the particular steps to be taken by States including the required penalties differ.
MAURIZIO RAGAZZI
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298700
- eISBN:
- 9780191707513
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298700.003.0005
- Subject:
- Law, Law of Obligations
The origins of the prohibition of genocide under international law date back to the end of World War II and the Nuremberg trial. The idea of the universal opposability of the prohibition of genocide ...
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The origins of the prohibition of genocide under international law date back to the end of World War II and the Nuremberg trial. The idea of the universal opposability of the prohibition of genocide in the advisory opinion on the Genocide Convention presents clear elements of analogy with the dictum on obligations erga omnes, in both substance and terminology. In examining these elements of analogy, this chapter shows how the legal reasoning followed in earlier pronouncements is an important component in the process by which later pronouncements by the International Court crystallize new legal developments. The chapter refers also to the principle of universal jurisdiction and selected aspects of the Genocide case (Bosnia v. Serbia).Less
The origins of the prohibition of genocide under international law date back to the end of World War II and the Nuremberg trial. The idea of the universal opposability of the prohibition of genocide in the advisory opinion on the Genocide Convention presents clear elements of analogy with the dictum on obligations erga omnes, in both substance and terminology. In examining these elements of analogy, this chapter shows how the legal reasoning followed in earlier pronouncements is an important component in the process by which later pronouncements by the International Court crystallize new legal developments. The chapter refers also to the principle of universal jurisdiction and selected aspects of the Genocide case (Bosnia v. Serbia).
Siobhán Wills
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199533879
- eISBN:
- 9780191714801
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533879.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international ...
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This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international human rights law. It does so by analysing the meaning and practical consequences for troops of the Article 1 duty to respect and ensure respect for the Geneva Conventions, of the duty to secure human rights found in most international human rights treaties, and of the duty to restore law and order in an occupation. There are more troops engaged in peacekeeping activities now than in any other time in history. Increasingly peacekeepers are in theory deployed to protect civilians from harm, but in practice the situations they find themselves in are often less than clear-cut. There are many instances in recent memory where troops failed to save the very civilians they were meant to protect. Peacekeepers may lack the mandate or resources to protect civilians from human rights abuses, or they may even themselves violate civilians' rights. This book analyses the duty to intervene to stop the commission of serious abuses of human rights. It examines the extent of troops' obligations to provide protection in light of various different operational and legal contexts. It also explores the ‘grey areas’ not adequately covered by international law. It discusses whether new approaches are needed, for example where operations are undertaken explicitly to protect people from serious violations of their human rights, and concludes by offering some guidelines for troops faced with such violations.Less
This book examines the obligations of peacekeepers and other multi-national forces to prevent serious abuses of human rights towards civilians under international humanitarian law and international human rights law. It does so by analysing the meaning and practical consequences for troops of the Article 1 duty to respect and ensure respect for the Geneva Conventions, of the duty to secure human rights found in most international human rights treaties, and of the duty to restore law and order in an occupation. There are more troops engaged in peacekeeping activities now than in any other time in history. Increasingly peacekeepers are in theory deployed to protect civilians from harm, but in practice the situations they find themselves in are often less than clear-cut. There are many instances in recent memory where troops failed to save the very civilians they were meant to protect. Peacekeepers may lack the mandate or resources to protect civilians from human rights abuses, or they may even themselves violate civilians' rights. This book analyses the duty to intervene to stop the commission of serious abuses of human rights. It examines the extent of troops' obligations to provide protection in light of various different operational and legal contexts. It also explores the ‘grey areas’ not adequately covered by international law. It discusses whether new approaches are needed, for example where operations are undertaken explicitly to protect people from serious violations of their human rights, and concludes by offering some guidelines for troops faced with such violations.
William A Schabas
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0004
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter focuses on the influence of ‘judicial activism’ on the evolution of the crime of genocide. In stark contrast to the development of the definitional boundaries of crimes against humanity, ...
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This chapter focuses on the influence of ‘judicial activism’ on the evolution of the crime of genocide. In stark contrast to the development of the definitional boundaries of crimes against humanity, the definition of genocide has not altered significantly since its formulation in the Genocide Convention of 1948. There have however, been a number of notable attempts at definitional expansion, starting with the findings of the District Court of Jerusalem (later supported by the Supreme Court of Israel) in the Eichmann case to the effect that the application of the doctrine of universal jurisdiction to genocide was implied under Article VI of the Convention. The chapter goes on to consider two more contemporary, if ultimately unsuccessful attempts in the Akayesu and Krstić cases. This examination highlights the dangers inherent in reliance on travaux préparatoires as a supplementary means of interpretation.Less
This chapter focuses on the influence of ‘judicial activism’ on the evolution of the crime of genocide. In stark contrast to the development of the definitional boundaries of crimes against humanity, the definition of genocide has not altered significantly since its formulation in the Genocide Convention of 1948. There have however, been a number of notable attempts at definitional expansion, starting with the findings of the District Court of Jerusalem (later supported by the Supreme Court of Israel) in the Eichmann case to the effect that the application of the doctrine of universal jurisdiction to genocide was implied under Article VI of the Convention. The chapter goes on to consider two more contemporary, if ultimately unsuccessful attempts in the Akayesu and Krstić cases. This examination highlights the dangers inherent in reliance on travaux préparatoires as a supplementary means of interpretation.
