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.
Larissa van den Herik
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad ...
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This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.Less
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those ...
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The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.Less
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.
Christine Byron
- Published in print:
- 2009
- Published Online:
- July 2012
- ISBN:
- 9780719073892
- eISBN:
- 9781781701942
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719073892.003.0005
- Subject:
- History, World Modern History
This chapter begins with a brief background to crimes against humanity. It then discusses Article 7(1) covering the origins and development Article 7(1)(a) Murder; Article 7(1)(b) Extermination; ...
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This chapter begins with a brief background to crimes against humanity. It then discusses Article 7(1) covering the origins and development Article 7(1)(a) Murder; Article 7(1)(b) Extermination; Article 7(1)(c) Enslavement; Article 7(1)(d) Deportation or forcible transfer; Article 7(1)(e) Imprisonment or other severe deprivation of physical liberty; Article 7(1)(f) Torture; Article 7(1)(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or sexual violence; Article 7(1)(h) Persecution; Article 7(1)(i) Enforced disappearance of persons; Article 7(1)(j) Apartheid; and Article 7(1)(k) Other inhumane acts.Less
This chapter begins with a brief background to crimes against humanity. It then discusses Article 7(1) covering the origins and development Article 7(1)(a) Murder; Article 7(1)(b) Extermination; Article 7(1)(c) Enslavement; Article 7(1)(d) Deportation or forcible transfer; Article 7(1)(e) Imprisonment or other severe deprivation of physical liberty; Article 7(1)(f) Torture; Article 7(1)(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or sexual violence; Article 7(1)(h) Persecution; Article 7(1)(i) Enforced disappearance of persons; Article 7(1)(j) Apartheid; and Article 7(1)(k) Other inhumane acts.
Kevin Jon Heller
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199554317
- eISBN:
- 9780191728624
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199554317.003.0011
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This chapter discusses the tribunals' interpretation of the crimes against humanity provision in Law No. 10. Sections 1–3 examine the three categories of crimes against humanity that were discussed ...
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This chapter discusses the tribunals' interpretation of the crimes against humanity provision in Law No. 10. Sections 1–3 examine the three categories of crimes against humanity that were discussed by the tribunals: atrocities and persecutions committed in occupied territory that also qualified as war crimes; wartime atrocities and persecutions committed outside of occupied territory; and atrocities and persecutions committed before the war. Section 4 then discusses the contextual elements that the tribunals applied to all three categories of crimes against humanity — their widespread and systematic commission pursuant to a government policy. Finally, Section 5 focuses on the specific crimes against humanity enumerated in Article II(1)(c), with an emphasis on genocide.Less
This chapter discusses the tribunals' interpretation of the crimes against humanity provision in Law No. 10. Sections 1–3 examine the three categories of crimes against humanity that were discussed by the tribunals: atrocities and persecutions committed in occupied territory that also qualified as war crimes; wartime atrocities and persecutions committed outside of occupied territory; and atrocities and persecutions committed before the war. Section 4 then discusses the contextual elements that the tribunals applied to all three categories of crimes against humanity — their widespread and systematic commission pursuant to a government policy. Finally, Section 5 focuses on the specific crimes against humanity enumerated in Article II(1)(c), with an emphasis on genocide.
Bing Bing Jia
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198268376
- eISBN:
- 9780191683510
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268376.003.0011
- Subject:
- Law, Public International Law
This chapter examines the concepts of war crimes and crimes against humanity in the context of international criminal law. It analyses whether there is a customary rule that allows for charges of war ...
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This chapter examines the concepts of war crimes and crimes against humanity in the context of international criminal law. It analyses whether there is a customary rule that allows for charges of war crimes and crimes against humanity to be considered as the same offence, and evaluates how customary international law treats these two types of crime. It explores the possibility of hierarchical distinction between these two crimes in terms of gravity.Less
This chapter examines the concepts of war crimes and crimes against humanity in the context of international criminal law. It analyses whether there is a customary rule that allows for charges of war crimes and crimes against humanity to be considered as the same offence, and evaluates how customary international law treats these two types of crime. It explores the possibility of hierarchical distinction between these two crimes in terms of gravity.
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.
Norman Geras
- Published in print:
- 2011
- Published Online:
- July 2012
- ISBN:
- 9780719082412
- eISBN:
- 9781781702086
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719082412.003.0002
- Subject:
- Political Science, Political Theory
This chapter analyzes the meaning of the claim that there are crimes that are said to be against humanity. That meaning is not transparently obvious, and it examines several ways in which it has been ...
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This chapter analyzes the meaning of the claim that there are crimes that are said to be against humanity. That meaning is not transparently obvious, and it examines several ways in which it has been construed. It puts forward an adjudication between them—an argument as to which of the construals proffered are the most compelling. It proposes, in doing so, that if such crimes can intelligibly be spoken of as crimes against humanity, it is in part because of the premise that there are fundamental human rights.Less
This chapter analyzes the meaning of the claim that there are crimes that are said to be against humanity. That meaning is not transparently obvious, and it examines several ways in which it has been construed. It puts forward an adjudication between them—an argument as to which of the construals proffered are the most compelling. It proposes, in doing so, that if such crimes can intelligibly be spoken of as crimes against humanity, it is in part because of the premise that there are fundamental human rights.
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/9780199207541.003.0010
- Subject:
- Law, Human Rights and Immigration
The ad hoc tribunals created for Rwanda and the former Yugoslavia have had an immense influence on the law of crimes against humanity. In essence, the definition of crimes against humanity as ...
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The ad hoc tribunals created for Rwanda and the former Yugoslavia have had an immense influence on the law of crimes against humanity. In essence, the definition of crimes against humanity as identified by the two tribunals consists of two superimposed layers. The first layer contains the chapeau elements or general requirements of the offence, whereas the second layer consists of one of the listed underlying offences, such as torture or murder. The statute of the tribunal for the former Yugoslavia requires (whilst the statute of the tribunal for Rwanda does not) that crimes against humanity must be committed in armed conflict, whereas the statute of the tribunal for Rwanda (but not for the former Yugoslavia) requires that crimes against humanity must involve national, political, ethnic, racial, or religious discrimination.Less
The ad hoc tribunals created for Rwanda and the former Yugoslavia have had an immense influence on the law of crimes against humanity. In essence, the definition of crimes against humanity as identified by the two tribunals consists of two superimposed layers. The first layer contains the chapeau elements or general requirements of the offence, whereas the second layer consists of one of the listed underlying offences, such as torture or murder. The statute of the tribunal for the former Yugoslavia requires (whilst the statute of the tribunal for Rwanda does not) that crimes against humanity must be committed in armed conflict, whereas the statute of the tribunal for Rwanda (but not for the former Yugoslavia) requires that crimes against humanity must involve national, political, ethnic, racial, or religious discrimination.
Alejandro Chehtman
- Published in print:
- 2010
- Published Online:
- May 2011
- ISBN:
- 9780199603404
- eISBN:
- 9780191725173
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199603404.003.0005
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This chapter presents a jurisdictional theory of international crimes. It argues that the defining feature of the concept of an international crime is that it warrants conferring upon at least some ...
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This chapter presents a jurisdictional theory of international crimes. It argues that the defining feature of the concept of an international crime is that it warrants conferring upon at least some extraterritorial authority the power to punish their perpetrators. It critically examines the leading arguments available in the literature, i.e., piracy-based explanations and the view of international crimes as harming humanity as a whole, and submits that they ultimately fail to account for their specific jurisdictional regime. This is mainly because these arguments are entirely unrelated to the reasons that justify meting out legal punishment to offenders in the first place. By contrast, the argument provided in Chapter 2 allows us to explain precisely this normative implication for standard cases of international crimes. The chapter also considers certain cases of war crimes and different varieties of terrorism to assess the explanatory potential of the view hereby endorsed. It concludes by examining the general objection put forward in the literature that a plausible theory of international criminal justice does not need an account of international crimes.Less
This chapter presents a jurisdictional theory of international crimes. It argues that the defining feature of the concept of an international crime is that it warrants conferring upon at least some extraterritorial authority the power to punish their perpetrators. It critically examines the leading arguments available in the literature, i.e., piracy-based explanations and the view of international crimes as harming humanity as a whole, and submits that they ultimately fail to account for their specific jurisdictional regime. This is mainly because these arguments are entirely unrelated to the reasons that justify meting out legal punishment to offenders in the first place. By contrast, the argument provided in Chapter 2 allows us to explain precisely this normative implication for standard cases of international crimes. The chapter also considers certain cases of war crimes and different varieties of terrorism to assess the explanatory potential of the view hereby endorsed. It concludes by examining the general objection put forward in the literature that a plausible theory of international criminal justice does not need an account of international 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/9780199207541.003.0011
- Subject:
- Law, Human Rights and Immigration
What distinguishes a crime against humanity from an ordinary crime (or from other international crimes) is the requirement that it must have been committed in the context of a widespread or ...
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What distinguishes a crime against humanity from an ordinary crime (or from other international crimes) is the requirement that it must have been committed in the context of a widespread or systematic attack against a civilian population. This requirement, which constitutes the chapeau or general requirements of crimes against humanity, must be seen as a whole and sets out the necessary context in which the acts of the accused must be inscribed. For the purpose of discussion, it may be divided, however, into five sub-elements: an attack; a link or nexus exists between the acts of the accused and the attack; the attack is directed against any civilian population; the attack is widespread or systematic; and the perpetrator has the appropriate state of mind or mens rea.Less
What distinguishes a crime against humanity from an ordinary crime (or from other international crimes) is the requirement that it must have been committed in the context of a widespread or systematic attack against a civilian population. This requirement, which constitutes the chapeau or general requirements of crimes against humanity, must be seen as a whole and sets out the necessary context in which the acts of the accused must be inscribed. For the purpose of discussion, it may be divided, however, into five sub-elements: an attack; a link or nexus exists between the acts of the accused and the attack; the attack is directed against any civilian population; the attack is widespread or systematic; and the perpetrator has the appropriate state of mind or mens rea.
Katharine Fortin
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780198808381
- eISBN:
- 9780191846106
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198808381.003.0010
- Subject:
- Law, Human Rights and Immigration, Public International Law
The chapter considers the relevance of the law on crimes against humanity to explanations of how armed groups are bound by international human rights law. Exploring the two-tiered nature of crimes ...
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The chapter considers the relevance of the law on crimes against humanity to explanations of how armed groups are bound by international human rights law. Exploring the two-tiered nature of crimes against humanity, it shows that responsibility for crimes against humanity exists at two levels: the level of the individual perpetrator (individual criminal responsibility) and the level of the entity behind the perpetrator (a civil responsibility). From this starting point, the chapter analyses what the case law on crimes against humanity can tell us about whether and when armed groups can commit crimes against humanity. The chapter ends by exploring the connection between crimes against humanity and human rights law in a normative sense, examining what a conclusion that armed groups can commit crimes against humanity demonstrates about their obligations under human rights law.Less
The chapter considers the relevance of the law on crimes against humanity to explanations of how armed groups are bound by international human rights law. Exploring the two-tiered nature of crimes against humanity, it shows that responsibility for crimes against humanity exists at two levels: the level of the individual perpetrator (individual criminal responsibility) and the level of the entity behind the perpetrator (a civil responsibility). From this starting point, the chapter analyses what the case law on crimes against humanity can tell us about whether and when armed groups can commit crimes against humanity. The chapter ends by exploring the connection between crimes against humanity and human rights law in a normative sense, examining what a conclusion that armed groups can commit crimes against humanity demonstrates about their obligations under human rights law.
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.
Niamh Hayes
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the ...
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This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the evolution of this process from the groundbreaking conceptual definition created in the Akayesu judgment, through the introduction of more mechanical elements of penetration and lack of consent in the Furundžija and Kunarac cases, up to the most recent authoritative statement of the Appeals Chamber in Gacumbitsi upholding the inclusion of non-consent as an element of the crime of rape. The chapter analyses the appropriateness of consent as an element of the crime of rape when committed as an act of genocide, a crime against humanity or a war crime, as well as the judicial and interpretational factors which gave rise to its inclusion.Less
This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the evolution of this process from the groundbreaking conceptual definition created in the Akayesu judgment, through the introduction of more mechanical elements of penetration and lack of consent in the Furundžija and Kunarac cases, up to the most recent authoritative statement of the Appeals Chamber in Gacumbitsi upholding the inclusion of non-consent as an element of the crime of rape. The chapter analyses the appropriateness of consent as an element of the crime of rape when committed as an act of genocide, a crime against humanity or a war crime, as well as the judicial and interpretational factors which gave rise to its inclusion.
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/9780199207541.003.0024
- Subject:
- Law, Human Rights and Immigration
Four elements distinguish war crimes from crimes against humanity. War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and ...
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Four elements distinguish war crimes from crimes against humanity. War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and of peace. Furthermore, a crime against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack. Whereas crimes against humanity may only be committed against civilians, most war crimes may be committed against both civilians and enemy combatants. A crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity. Nearly all of the underlying offences which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, but the converse is not necessarily true.Less
Four elements distinguish war crimes from crimes against humanity. War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and of peace. Furthermore, a crime against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack. Whereas crimes against humanity may only be committed against civilians, most war crimes may be committed against both civilians and enemy combatants. A crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity. Nearly all of the underlying offences which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, but the converse is not necessarily true.
Jonas Nilsson
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199573417
- eISBN:
- 9780191728822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573417.003.0008
- Subject:
- Law, Public International Law, Criminal Law and Criminology
The ICTY prosecutor and judges have found in the crime of persecution a suitable category to address the types of crimes committed in the former Yugoslavia during the conflict in the 1990s. For ...
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The ICTY prosecutor and judges have found in the crime of persecution a suitable category to address the types of crimes committed in the former Yugoslavia during the conflict in the 1990s. For example, out of the sixty-three persons who to date have been convicted by the ICTY, forty had been charged with this crime. In contrast, the crime of persecution was hardly applied in international or national law before the start of the ICTY proceedings. The ICTY case law dealing with the crime of persecution is one of the most important contributions of the ICTY to international criminal law. However, the ‘discovery’ of the crime of persecution by the ICTY involved certain risks for the judges, in particular since the exact boundaries of the definition of this crime, beyond what could be understood from the words of the statutory definition, had not been set out or explored in previous jurisprudence. The ICTY case law contains considerations of the contours of the criminal conduct in question with the accompanying risk of entering convictions for acts that were not criminal at the time they were carried out, and thereby violating the principle of nullum crimen sine lege. This chapter examines how the exact content of the crime of persecution is being determined in the ICTY case law by the requirements of the principle of nullum crimen sine lege, on the one hand, and a desire for it to address a series of acts or a criminal campaign, rather than one or more isolated acts, on the other.Less
The ICTY prosecutor and judges have found in the crime of persecution a suitable category to address the types of crimes committed in the former Yugoslavia during the conflict in the 1990s. For example, out of the sixty-three persons who to date have been convicted by the ICTY, forty had been charged with this crime. In contrast, the crime of persecution was hardly applied in international or national law before the start of the ICTY proceedings. The ICTY case law dealing with the crime of persecution is one of the most important contributions of the ICTY to international criminal law. However, the ‘discovery’ of the crime of persecution by the ICTY involved certain risks for the judges, in particular since the exact boundaries of the definition of this crime, beyond what could be understood from the words of the statutory definition, had not been set out or explored in previous jurisprudence. The ICTY case law contains considerations of the contours of the criminal conduct in question with the accompanying risk of entering convictions for acts that were not criminal at the time they were carried out, and thereby violating the principle of nullum crimen sine lege. This chapter examines how the exact content of the crime of persecution is being determined in the ICTY case law by the requirements of the principle of nullum crimen sine lege, on the one hand, and a desire for it to address a series of acts or a criminal campaign, rather than one or more isolated acts, on the other.
William Schabas
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199653072
- eISBN:
- 9780191739361
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653072.003.0005
- Subject:
- Law, Public International Law
The word ‘genocide’ itself has a strange, mysterious effect. For victims, it presents itself as a badge of honour, the only adequate way to describe their suffering or that of their ancestors. Those ...
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The word ‘genocide’ itself has a strange, mysterious effect. For victims, it presents itself as a badge of honour, the only adequate way to describe their suffering or that of their ancestors. Those who question whether the word is appropriate in given circumstances are sometimes dismissed as ‘deniers’ The distinction between genocide and crimes against humanity is of great symbolic significance. This is the core of the genocide mystique. It is tempting to suggest, as some have argued, that we eliminate altogether the distinctions between genocide and crimes against humanity. At a minimum, it would be helpful if genocide's proper place, nestled within the broader concept of crimes against humanity and reserved exclusively for the clearest cases of intentional extermination of national, ethnic, racial, and religious groups, were better understood and appreciated.Less
The word ‘genocide’ itself has a strange, mysterious effect. For victims, it presents itself as a badge of honour, the only adequate way to describe their suffering or that of their ancestors. Those who question whether the word is appropriate in given circumstances are sometimes dismissed as ‘deniers’ The distinction between genocide and crimes against humanity is of great symbolic significance. This is the core of the genocide mystique. It is tempting to suggest, as some have argued, that we eliminate altogether the distinctions between genocide and crimes against humanity. At a minimum, it would be helpful if genocide's proper place, nestled within the broader concept of crimes against humanity and reserved exclusively for the clearest cases of intentional extermination of national, ethnic, racial, and religious groups, were better understood and appreciated.
Norman Geras
- Published in print:
- 2011
- Published Online:
- July 2012
- ISBN:
- 9780719082412
- eISBN:
- 9781781702086
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719082412.003.0001
- Subject:
- Political Science, Political Theory
This chapter sketches something of the prehistory of the idea of crimes against humanity up to the end of the Second World War, its official emergence in the Nuremberg Charter and Trial, and some ...
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This chapter sketches something of the prehistory of the idea of crimes against humanity up to the end of the Second World War, its official emergence in the Nuremberg Charter and Trial, and some further landmarks in its development. The chapter is essentially preparatory; it may be seen as laying out the raw materials for the conceptual analysis and argument to follow. At the same time as registering some basic facts in the history of a new legal concept, it raises a question to which it does not provide the answer. For it introduces an idea fundamental to the offence of crimes against humanity—namely, that states are not above all law in the way they treat those under their jurisdiction—without explaining in virtue of what they are held to be so constrained by a ‘higher’ law.Less
This chapter sketches something of the prehistory of the idea of crimes against humanity up to the end of the Second World War, its official emergence in the Nuremberg Charter and Trial, and some further landmarks in its development. The chapter is essentially preparatory; it may be seen as laying out the raw materials for the conceptual analysis and argument to follow. At the same time as registering some basic facts in the history of a new legal concept, it raises a question to which it does not provide the answer. For it introduces an idea fundamental to the offence of crimes against humanity—namely, that states are not above all law in the way they treat those under their jurisdiction—without explaining in virtue of what they are held to be so constrained by a ‘higher’ law.
Patricia Owens
- Published in print:
- 2007
- Published Online:
- May 2009
- ISBN:
- 9780199299362
- eISBN:
- 9780191715051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299362.003.0009
- Subject:
- Political Science, Political Theory, International Relations and Politics
Arendt's apparent exclusion of violence from politics — her definitionally-enforced distinction — actually linked politics and war together in a historically and conceptually rich relationship. She ...
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Arendt's apparent exclusion of violence from politics — her definitionally-enforced distinction — actually linked politics and war together in a historically and conceptually rich relationship. She criticized the dominant Western traditions of social and political thought for borrowing their models of politics from the realm of organised violence, of command and obedience. But it is her political thought that is deeply influenced by the enduring significance of war. It may be necessary now, more than ever, to learn how to think with Arendt, a time that has delivered us moral and political catastrophes, which while not exceeding her day, strongly resemble and are directly linked to those she directly confronted. Postcolonial conflicts, revolutions and occupations, wars of annihilation and crimes against humanity, anti-Semitism, Islamophobia, and accusations of Islamo-fascism — these are among the social forces relating and separating peoples and states through organised violence.Less
Arendt's apparent exclusion of violence from politics — her definitionally-enforced distinction — actually linked politics and war together in a historically and conceptually rich relationship. She criticized the dominant Western traditions of social and political thought for borrowing their models of politics from the realm of organised violence, of command and obedience. But it is her political thought that is deeply influenced by the enduring significance of war. It may be necessary now, more than ever, to learn how to think with Arendt, a time that has delivered us moral and political catastrophes, which while not exceeding her day, strongly resemble and are directly linked to those she directly confronted. Postcolonial conflicts, revolutions and occupations, wars of annihilation and crimes against humanity, anti-Semitism, Islamophobia, and accusations of Islamo-fascism — these are among the social forces relating and separating peoples and states through organised violence.
Norman Geras
- Published in print:
- 2011
- Published Online:
- July 2012
- ISBN:
- 9780719082412
- eISBN:
- 9781781702086
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719082412.003.0003
- Subject:
- Political Science, Political Theory
This chapter explores the logical consequences of the conceptual underpinning discussed in Chapter 2. It attempts to resolve the issue of how to distinguish between crimes against humanity under ...
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This chapter explores the logical consequences of the conceptual underpinning discussed in Chapter 2. It attempts to resolve the issue of how to distinguish between crimes against humanity under international law and ordinary crimes under domestic law. It considers the most important features that have been argued to be—and not to be—defining the jurisdictional requirements of the offence of crimes against humanity: discussing the connection with war, the idea of a crime of state, the would-be requirement of a discriminatory component, the need for a threshold of scale and, throughout, the relation between crimes against humanity and basic human rights. It proposes a conceptualization of the offence of crimes against humanity that is consonant with the reading of ‘against humanity’ given in Chapter 2. It shows that an important problem remains within current crimes-against-humanity law—a contradiction, indeed, between the human-rights basis of this law and the threshold of scale that is standardly held to apply to the definition of the offence. A way of handling the contradiction is suggested.Less
This chapter explores the logical consequences of the conceptual underpinning discussed in Chapter 2. It attempts to resolve the issue of how to distinguish between crimes against humanity under international law and ordinary crimes under domestic law. It considers the most important features that have been argued to be—and not to be—defining the jurisdictional requirements of the offence of crimes against humanity: discussing the connection with war, the idea of a crime of state, the would-be requirement of a discriminatory component, the need for a threshold of scale and, throughout, the relation between crimes against humanity and basic human rights. It proposes a conceptualization of the offence of crimes against humanity that is consonant with the reading of ‘against humanity’ given in Chapter 2. It shows that an important problem remains within current crimes-against-humanity law—a contradiction, indeed, between the human-rights basis of this law and the threshold of scale that is standardly held to apply to the definition of the offence. A way of handling the contradiction is suggested.
