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International Jurisprudence Leviticus 19 | Romans 7 | Exodus 21 Matthew 22:34-40
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Vol. I, Issue I – Inaugural Edition
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Biblical Authority Leviticus 19 (NIV) Various Laws 1 The LORD said to Moses, 2 "Speak to the entire assembly of Israel and say to them: 'Be holy because I, the LORD your God, am holy. 3 " 'Each of you must respect his mother and father, and you must observe my Sabbaths. I am the LORD your God. 4 " 'Do not turn to idols or make gods of cast metal for yourselves. I am the LORD your God. 5 " 'When you sacrifice a fellowship offering to the LORD, sacrifice it in such a way that it will be accepted on your
6 It the
behalf. shall be eaten on day you sacrifice it the next anything the
or on day; left over until third day must be burned up. 7 If any of it is eaten on the third day, it is impure and will not be accepted. 8 Whoever eats it will be held responsible because he has desecrated what is holy to the LORD; that person must be cut off from his people. 9 " 'When you reap the harvest of your land, do not reap to the very edges of your field or gather the gleanings of your harvest. 10 Do not go over your vineyard a second time or pick up the grapes that have fallen. Leave them for the poor and the alien. I am the LORD your God. 11 " 'Do not steal. " 'Do not lie. " 'Do not deceive one another. 12 " 'Do not swear falsely by my name and so profane the name of your God. I am the LORD. 13 " 'Do not defraud your neighbor or rob him. " 'Do not hold back the wages of a hired man overnight. 14 " 'Do not curse the deaf or put a stumbling block in front of the blind, but fear your God. I am the LORD. 15 " 'Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly. 16 " 'Do not go about spreading slander among your people. " 'Do not do anything that endangers your neighbor's life. I am the LORD. 17 " 'Do not hate your brother in your heart. Rebuke your neighbor frankly so you will not share in his guilt. 18 " 'Do not seek revenge or bear a grudge against one of your
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people, but love your neighbor as yourself. I am the LORD. 19 " 'Keep my decrees. " 'Do not mate different kinds of animals. " 'Do not plant your field with two kinds of seed. " 'Do not wear clothing woven of two kinds of material. 20 " 'If a man sleeps with a woman who is a slave girl promised to another man but who has not been ransomed or given her freedom, there must be due punishment. Yet they are not to be put to death, because she had not been freed. 21 The man, however, must bring a ram to the entrance to the Tent of Meeting for a guilt offering to the LORD. 22 With the ram of the guilt offering the priest is to make atonement for him before the LORD for the sin he has committed, and his sin will be forgiven. 23 " 'When you enter the land and plant any kind of fruit tree, regard its fruit as forbidden. For three years you are to consider it forbidden; it must not be eaten. 24 In the fourth year all its fruit will be holy, an offering of praise to the LORD. 25 But in the fifth year you may eat its fruit. In this way your harvest will be increased. I am the LORD your God. 26 " 'Do not eat any meat with the blood still in it. " 'Do not practice divination or sorcery. 27 " 'Do not cut the hair at the sides of your head or clip off the edges of your beard. 28 " 'Do not cut your bodies for the dead or put tattoo marks on yourselves. I am the LORD. 29 " 'Do not degrade your daughter by making her a prostitute, or the land will turn to prostitution and be filled with wickedness. 30 " 'Observe my Sabbaths and have reverence for my sanctuary. I am the LORD. 31 " 'Do not turn to mediums or seek out spiritists, for you will be defiled by them. I am the LORD your God. 32 " 'Rise in the presence of the aged, show respect for the elderly and revere your God. I am the LORD. 33 " 'When an alien lives with you in your land, do not mistreat him. 34 The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the LORD your God. 35 " 'Do not use dishonest standards when measuring length, weight or quantity. 36 Use honest scales and honest weights, an honest ephah and an honest hin. I am the LORD your God, who brought you out of Egypt. 37 " 'Keep all my decrees and all my laws and follow them. I am the LORD.' "
______ Romans 7 (NIV) An Illustration From Marriage 1 Do you not know, brothers--for I am speaking to men who know the law--that the law has authority over a man only as long as he lives? 2 For example, by law a married woman is bound to her husband as long as he is alive, but if her husband dies, she is released from the law of marriage. 3 So then, if she marries another man while her husband is still alive, she is called an adulteress. But if her husband dies, she is released from that law and is not an adulteress, even though she marries another man. 4 So, my brothers, you also died to the law through the body of Christ, that you might belong to another, to him who was raised from the dead, in order that we might bear fruit to God. 5 For when we were controlled by the sinful nature, the sinful passions aroused by the law were at work in our bodies, so that we bore fruit for death. 6 But Page 5 of 142
now, by dying to what once bound us, we have been released from the law so that we serve in the new way of the Spirit, and not in the old way of the written code.
Struggling With Sin 7 What shall we say, then? Is the law sin? Certainly not! Indeed I would not have known what sin was except through the law. For I would not have known what coveting really was if the law had not said, "Do not covet." 8 But sin, seizing the opportunity afforded by the commandment, produced in me every kind of covetous desire. For apart from law, sin is dead. 9 Once I was alive apart from law; but when the commandment came, sin sprang to life and I died. 10 I found that the very commandment that was intended to bring life actually brought death. 11 For sin, seizing the opportunity afforded by the commandment, deceived me, and through the commandment put me to death. 12 So then, the law is holy, and the commandment is holy, righteous and good. 13 Did that which is good, then, become death to me? By no means! But in order that sin might be recognized as sin, it produced death in me through what was good, so that through the commandment sin might become utterly sinful. 14 We know that the law is spiritual; but I am unspiritual, sold as a slave to sin. 15 I do not understand what I do. For what I want to do I do not do, but what I hate I do. 16 And if I do what I do not want to do, I agree that the law is good. 17 As it is, it is no longer I myself who do it, but it is sin living in me. 18 I know that nothing good lives in me, that is, in my sinful nature. For I have the desire to do what is good, but I cannot carry it out. 19 For what I do is not the good I want to do; no, the evil I do not want to do--this I keep on doing. 20 Now if I do what I do not want to do, it is no longer I who do it, but it is sin living in me that does it. 21 So I find this law at work: When I want to do good, evil is right there with me. 22 For in my inner being I delight in God's law; 23 but I see another law at work in the members of my body, waging war against the law of my mind and making me a prisoner of the law of sin at work within my members. 24 What a wretched man I am! Who will rescue me from this body of death? 25 Thanks be to God--through Jesus Christ our Lord! So then, I myself in my mind am a slave to God's law, but in the sinful nature a slave to the law of sin.
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Exodus 21 (NIV) 1 "These are the laws you are to set before them:
Hebrew Servants 2 "If you buy a Hebrew servant, he is to serve you for six years. But in the seventh year, he shall go free, without paying anything. 3 If he comes alone, he is to go free alone; but if he has a wife when he comes, she is to go with him. 4 If his master gives him a wife and she bears him sons or daughters, the woman and her children shall belong to her master, and only the man shall go free. 5 "But if the servant declares, 'I love my master and my wife and children and do not want to go free,' 6 then his master must take him before the judges. He shall take him to the door or the doorpost and pierce his ear with an awl. Then he will be his servant for life. 7 "If a man sells his daughter as a servant, she is not to go free as menservants do. 8 If she does not please the master who has selected her for himself, he must let her be redeemed. He has no right to sell her to foreigners, because he has broken faith with her. 9 If he selects her for his son, he must grant her the rights of a daughter. 10 If he marries another woman, he must not deprive the first one of her food, clothing and marital rights. 11 If he does not provide her with these three things, she is to go free, without any payment of money.
Personal Injuries 12 "Anyone who strikes a man and kills him shall surely be put to death. 13 However, if he does not do it intentionally, but God lets it happen, he is to flee to a place I will designate. 14 But if a man schemes and kills another man deliberately, take him away from my altar and put him to death. 15 "Anyone who attacks his father or his mother must be put to death. 16 "Anyone who kidnaps another and either sells him or still has him when he is caught must be put to death. 17 "Anyone who curses his father or mother must be put to death. 18 "If men quarrel and one hits the other with a stone or with his fist and he does not die but is confined to bed, 19 the one who struck the blow will not be held responsible if the other gets up and walks around outside with his staff; however, he must pay the injured man for the loss of his time and see that he is completely healed. 20 "If a man beats his male or female slave with a rod and the slave dies as a direct result, he must be punished, 21 but he is not to be punished if the slave gets up after a day or two, since the slave is his property. 22 "If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman's husband demands and the court allows. 23 But if there is serious injury, you are to take life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise. 26 "If a man hits a manservant or maidservant in the eye and destroys it, he must let the servant go free to compensate for the eye. 27 And if he knocks out the tooth of a manservant or maidservant, he must let the servant go free to compensate for the tooth. 28 "If a bull gores a man or a woman to death, the bull must be stoned to death, and its meat must not be eaten. But the owner of the bull will not be held responsible. 29 If, however, the bull has had the habit of goring and the owner has been warned but has Page 7 of 142
not kept it penned up and it kills a man or woman, the bull must be stoned and the owner also must be put to death. 30 However, if payment is demanded of him, he may redeem his life by paying whatever is demanded. 31 This law also applies if the bull gores a son or daughter. 32 If the bull gores a male or female slave, the owner must pay thirty shekels of silver to the master of the slave, and the bull must be stoned. 33 "If a man uncovers a pit or digs one and fails to cover it and an ox or a donkey falls into it, 34 the owner of the pit must pay for the loss; he must pay its owner, and the dead animal will be his. 35 "If a man's bull injures the bull of another and it dies, they are to sell the live one and divide both the money and the dead animal equally. 36 However, if it was known that the bull had the habit of goring, yet the owner did not keep it penned up, the owner must pay, animal for animal, and the dead animal will be his.
______ Matthew 22:34-40 (NIV) The Greatest Commandment 34 Hearing that Jesus had silenced the Sadducees, the Pharisees got together. 35 One of them, an expert in the law, tested him with this question: 36 "Teacher, which is the greatest commandment in the Law?" 37 Jesus replied: " 'Love the Lord your God with all your heart and with all your soul and with all your mind.' 38 This is the first and greatest commandment. 39 And the second is like it: 'Love your neighbor as yourself.' 40 All the Law and the Prophets hang on these two commandments."
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Table of Contents ______
International Jurisprudence Biblical Authority
I.
Introduction
II.
Preamble to The United Nations Charter
III.
International Legal Theory
IV.
Sources of International Law
V.
Types of International Law
VI.
International Criminal Law
VII.
International Litigation
VIII. Global Administrative Law IX.
Landmark Cases in International Law
X.
The Geneva Conventions
XI.
Prisoners of War
XII.
International Human Rights Instruments
Copyright Š 2015 The Advocacy Foundation, Inc. All Rights Reserved.
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Introduction Jurisprudence is the study and theory of law. Scholars in jurisprudence, also known as legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups: 1. Problems internal to law and legal systems as such. 2. Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists. Answers to these questions come from four primary schools of thought in general jurisprudence:
Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have. Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are. Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law. Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group.
Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence. Page 12 of 142
A further relatively new field is known as therapeutic jurisprudence, concerned with the impact of legal processes on wellbeing and mental health. The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the French jurisprudence, which is attested earlier.
International Law is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts signed and ratified. Much of international law is consent-based governance. This means that a state member of the international community is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct. This is an issue of state sovereignty. However, other aspects of international law are not consent-based but still are obligatory upon state and non-state actors such as customary international law and peremptory norms (jus cogens). The term "international law" can refer to three distinct legal disciplines:
Public international law, which governs the relationship between states and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law. Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case. Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
The two traditional branches of the field are:
Jus Gentium – Law Of Nations Jus Inter Gentes – Agreements Between Nations
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History International law has existed since the mid-19th century. However, its philosophical origins are found in 16th century thinkers such as Francisco de Vitoria, Francisco Suรกrez, Alberico Gentili, and Hugo Grotius, with Vitoria sometimes considered the "father of international law." Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (American Civil Law) and English common law, upon which the judge-made law of the United States is primarily based. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the International Labor Organization, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in international relations.
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States parties to the Statute of the International Criminal Court (light green means ratification or accession deposited but not yet in force, brown means signed but not yet ratified).
Universal Jurisdiction Universal Jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all states. The concept received a great deal of prominence with Belgium's 1993 law of universal jurisdiction, which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law, entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002. According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances. Page 15 of 142
Opponents, such as Henry Kissinger, argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny – that of judges." According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents. The United Nations Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict
Extraterritorial Jurisdiction International jurisdiction differs from "territorial jurisdiction", where justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. As an example, the American law the Protect America Act of 2007 asserts jurisdiction over terror-suspects on a worldwide basis. States can also in certain circumstances exercise jurisdiction over acts committed by foreign nationals on foreign territory. This form of jurisdiction tends to be much more controversial. Bases on which a state can exercise jurisdiction in this way:
The least controversial basis is that under which a state can exercise jurisdiction over acts that affect the fundamental interests of the state, such as spying, even if the act was committed by foreign nationals on foreign territory. The Indian Information Technology Act 2000 largely supports the extraterritoriality of the said Act. The law states that a contravention of the Act that affects any computer or computer network situated in India will be punishable by India – irrespective of the culprits location and nationality.
Also relatively non-controversial is the ability of a state to try its own nationals for crimes committed abroad. Some nations such as France as a matter of law will refuse to extradite their own citizens, but will instead try them for crimes committed abroad.
More controversial is the exercise of jurisdiction where the victim of the crime is a national of the state exercising jurisdiction. In the past some states have claimed Page 16 of 142
this jurisdiction (e.g., Mexico (Cutting Case (1887)), while others have been strongly opposed to it (e.g., the United States, except in cases in which an American citizen is a victim (US v Yunis (1988)). In more recent years however, a broad global consensus has emerged in permitting its use in the case of torture, "forced disappearances" or terrorist offences (due in part to it being permitted by the various United Nations conventions on terrorism); but its application in other areas is still highly controversial. For example, former dictator of Chile Augusto Pinochet was arrested in London in 1998, on Spanish judge Baltazar Garzon's demand, on charges of human rights abuses, not on the grounds of universal jurisdiction but rather on the grounds that some of the victims of the abuses committed in Chile were Spanish citizens. Spain then sought his extradition from Britain, again, not on the grounds of universal jurisdiction, but by invoking the law of the European Union regarding extradition; and he was finally released on grounds of health. Argentinian Alfredo Astiz's sentence is part of this juridical frame.
International Tribunals Universal jurisdiction asserted by a particular nation is analogous to the jurisdiction of an international tribunal, such as the International Criminal Court, established in 2002, the International Criminal Tribunal for Rwanda (1994), the International Criminal Tribunal for the Former Yugoslavia (1993), and the Nuremberg Trials (1945–49). Whether criminal jurisdiction is exercised by an international organization or by a state, Page 17 of 142
the result is the same: individuals become answerable for crimes defined and prosecuted outside of their home jurisdiction, and regardless of where the conduct occurred. Established in The Hague in 2002, the International Criminal Court (ICC) is an international tribunal empowered with the right to prosecute state-members' citizens for genocide, crimes against humanity, and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court signed in 1998. It provides for ICC jurisdiction over state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case. However, Amnesty International argues that since the end of the Second World War over fifteen states have conducted investigations, commenced prosecutions and completed trials based on universal jurisdiction for the crimes or arrested people with a view to extraditing the persons to a state seeking to prosecute them. These states include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom and the United States. Amnesty writes: All states parties to the Convention against Torture and the Inter-American Convention are obliged whenever a person suspected of torture is found in their territory to submit the case to their prosecuting authorities for the purposes of prosecution, or to extradite that person. In addition, it is now widely recognized that states, even those that are not states parties to these treaties, may exercise universal jurisdiction over torture under customary international law.
Immunity for State Officials On 14 February 2002 the International Court of Justice in the ICJ Arrest Warrant Case concluded that State officials may have immunity under international law while serving in office. The court stated that immunity was not granted to State officials for their own benefit, but instead to ensure the effective performance of their functions on behalf of their respective States. The court also stated that when abroad, State officials may enjoy immunity from arrest in another State on criminal charges, including charges of war crimes or crimes against humanity. But the ICJ qualified its conclusions, saying that State officers "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda... , and the future International Criminal Court." In 2003 Charles Taylor, the former president of Liberia, was served with an arrest warrant by the Special Court for Sierra Leone (SCSL) that was set up under the auspices of a treaty that binds only the United Nations and the Government of Sierra Leone. Taylor contested the Special Court's jurisdiction, claiming immunity, but the Special Court for Sierra Leone concluded in 2004 that "the sovereign equality of states Page 18 of 142
does not prevent a Head of State from being prosecuted before an international criminal tribunal or court." The Special Court convicted Taylor in 2012 and sentenced him to fifty years' imprisonment, making him the first head of state since the Nuremberg Trials after World War II to be tried and convicted by an international court. In sum, the question whether a former Head of State might have immunity depends on which international court or tribunal endeavors to try him, how the court is constituted, and how it interprets its own mandate.
Universal Jurisdiction Laws Around The World Australia The High Court of Australia confirmed the authority of the Australian Parliament, under the Australian Constitution, to exercise universal jurisdiction over War Crimes in the Polyukhovich v Commonwealth case of 1991.
Belgium In 1993, Belgium's Parliament passed a "law of universal jurisdiction" (sometimes referred to as "Belgium's genocide law"), allowing it to judge people accused of war crimes, crimes against humanity or genocide. In 2001, four Rwandan citizens were convicted and given sentences from 12 to 20 years' imprisonment for their involvement in 1994 Rwandan genocide. There was a rapid succession of cases:   
Prime Minister Ariel Sharon was accused of involvement in the 1982 Sabra and Shatila massacre in Lebanon, conducted by a Christian militia; Israelis filed a case against Yasser Arafat on grounds of responsibility for terrorist activity; in 2003, Iraqi victims of a 1991 Bagdad bombing pressed charges against George H.W. Bush, Colin Powell and Dick Cheney.
Confronted with this sharp increase in cases, Belgium established the condition that the accused person must be Belgian or present in Belgium. An arrest warrant issued in 2000 under this law, against the then Minister of Foreign Affairs of the Democratic Republic of the Congo, was challenged before the International Court of Justice in the case entitled ICJ Arrest Warrant Case. The ICJ's decision issued on 14 February 2002 found that it did not have jurisdiction to consider the question of universal jurisdiction, instead deciding the question on the basis of immunity of high-ranking state officials. However, the matter was addressed in separate and dissenting opinions, such as that of President Guillaume who concluded that universal jurisdiction exists only in relation to piracy; and the dissenting opinion of Judge Oda who recognised piracy, hijacking, terrorism and genocide as crimes subject to universal jurisdiction. On 1 August 2003, Belgium repealed the law on universal jurisdiction, and introduced a new law on extraterritorial jurisdiction similar to or more restrictive than that of most other European countries. However, some cases that had already started continued. Page 19 of 142
These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré (dubbed the "African Pinochet"). In September 2005, Habré was indicted for crimes against humanity, torture, war crimes and other human rights violations by a Belgian court. Arrested in Senegal following requests from Senegalese courts, he is now under house arrest and waiting for (an improbable) extradition to Belgium.
Canada To implement the Rome Statute, Canada passed the Crimes Against Humanity and War Crimes Act. Michael Byers, a University of British Columbia law professor, has argued that these laws go further than the Rome Statute, providing Canadian courts with jurisdiction over acts pre-dating the ICC and occurring in territories outside of ICC member-states; ―as a result, anyone who is present in Canada and alleged to have committed genocide, torture [...] anywhere, at any time, can be prosecuted [in Canada].‖
Finland A Finnish high court sentenced a Rwandan preacher to life in jail in 2010 for his participation in Rwanda's genocide in 1994. Francois Bazaramba, 59, moved in 2003 to Finland seeking asylum. Finland allows prosecutions for crimes against humanity wherever they are committed. At the time of the genocide, he was a pastor in the Baptist church in Nyakizu in southern Rwanda. According to Finnish newspaper Page 20 of 142
Helsingin Sanomat, the court found him guilty of orchestrating deadly attacks, and organising the torching of Tutsi homes. In a statement the court said he had spread anti-Tutsi propaganda and incited "killings through fomenting anger and contempt towards Tutsis". "The court has found Bazaramba guilty of an offence which without a genocidal intent would be judged as a murder or incitement to murder," the statement said. "For those crimes, the only possible punishment is life imprisonment." He was acquitted of 10 counts of murder and of providing training and acquiring weapons, Helsingin Sanomat reports. During the trial, the court heard from 68 witnesses, travelling to Rwanda and Tanzania to hear some testimonies.
France The article 689 of the code de procédure pénale states the infractions that can be judged in France when they were committed outside French territory either by French citizens or foreigners. The following infractions may be prosecuted:
Torture Terrorism Nuclear smuggling Naval piracy Airplane hijacking
Germany Germany has implemented the principle of universal jurisdiction for genocide, crimes against humanity and war crimes into its criminal law through the "Völkerstrafgesetzbuch" or VStGB ("international criminal code"), which implemented the treaty creating the International Criminal Court into domestic law. The law was passed in 2002 and up to 2014 it has been used once, in the trial of Rwandan rebel leader Ignace Murwanashyaka. As of 2014 the trial is on-going.
Israel The moral philosopher Peter Singer, along with Kenneth Roth, has cited Israel's prosecution of Adolf Eichmann in 1961 as an assertion of universal jurisdiction. He claims that while Israel did invoke a statute specific to Nazi crimes against Jews, its Supreme Court claimed universal jurisdiction over crimes against humanity. Eichmann's defense lawyer argued that Israel did not have jurisdiction on account of Israel not having come into existence until 1948. The Genocide Convention also did not come into effect until 1951, and the Genocide Convention does not automatically provide for universal jurisdiction. It is also argued that Israel agents obtained Eichmann illegally, violating international law when they seized and kidnapped Eichmann, and brought him to Israel to stand trial. The Argentinian government settled the dispute diplomatically with Israel.
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Israel argued universal jurisdiction based on the "universal character of the crimes in question" and that the crimes committed by Eichmann were not only in violation of Israel law, but were considered "grave offenses against the law of nations itself. It's also asserted that the crime of genocide is covered under international customary law. As a supplemental form of jurisdiction, a further argument is made on the basis of protective jurisdiction. Protective jurisdiction is a principle that, "...provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned."
Malaysia In November 2011 the Kuala Lumpur War Crimes Commission purportedly exercised universal jurisdiction to try and convict in absentia former US President George W. Bush and former British Prime Minister Tony Blair for the invasion of Iraq. In May 2012 the tribunal again under a purported exercise of universal jurisdiction took testimony from victims of torture at Abu Ghraib and Guantanamo, and convicted in absentia former President Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Deputy Assistant Attorneys General John Yoo and Jay Bybee, former Attorney General Alberto Gonzales, and former counselors David Addington and William Haynes II for conspiracy to commit war crimes. The tribunal referred their findings to the chief prosecutor at the International Court of Justice in The Hague. The legitimacy of the tribunal and its findings have been questioned.
Spain Spanish law recognizes the principle of universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1 July 1985, establishes that Spanish courts have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be described according to Spanish criminal law as genocide, terrorism, or some other, as well as any other crime that, according to international treaties or conventions, must be prosecuted in Spain. On 25 July 2009 the Spanish Congress passed a law that limits the competence of the Audiencia Nacional under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain, or the alleged perpetrators are in Spain. The law still has to pass the Senate, the high chamber, but passage is expected because it is supported by both major parties. In 1999, Nobel peace prize winner Rigoberta Menchú brought a case against the Guatemalan military leadership in a Spanish Court. Six officials, among them Efraín Ríos Montt and Óscar Humberto Mejía, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain's Constitutional Court ruled in September 2005, the Spanish Constitutional Court declaration that the "principle of universal
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jurisdiction prevails over the existence of national interests", following the Menchu suit brought against the officials for atrocities committed in the Guatemalan Civil War[39][40] In June 2003, Spanish judge Baltasar GarzĂłn jailed Ricardo Miguel Cavallo, a former Argentine naval officer, who was extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship. On 11 January 2006 the Spanish High Court accepted to investigate a case in which seven former Chinese officials, including the former President of China Jiang Zemin and former Prime Minister Li Peng were alleged to have participated in a genocide in Tibet. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals. China denounced the investigation as an interference in its internal affairs and dismissed the allegations as "sheer fabrication". The case was shelved in 2010, because of a law passed in 2009 that restricted High Court investigations to those "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain". Criticisms were lodged against former Israeli Defense Forces chief of General Staff Lt.Gen. (res.) Dan Halutz and other six other senior Israeli political and military officials by pro-Palestinian organizations, who sought to prosecute them in Spain under the principle of universal jurisdiction. On 29 January 2009, Fernando Andreu, a judge of the Audiencia Nacional, opened preliminary investigations into claims that a targeted killing attack in Gaza in 2002 warranted the prosecution of Halutz, the former Israeli defence minister Binyamin Ben-Eliezer, the former defence chief-of-staff Moshe Ya'alon, and four others, for crimes against humanity. Israeli Prime Minister Benjamin Netanyahu strongly criticized the decision, and Israeli officials refused to provide information requested by the Spanish court. The attack targeted the founder and leader of the military wing of the Hamas, Salah Shehade, who was responsible for hundreds of civilian deaths. The attack targeted the building where Shahade hid in Gaza City, and also wounded 150 Palestinians, according to the complaint. The Israeli chief of operations and prime minister apologized officially, saying they were unaware, due to faulty intelligence, that civilians would be in the house. The investigation in the case was halted on 30 June 2009 by a decision of a panel of 18 judges of the Audiencia Nacional. The Spanish Court of Appeals rejected the lower court's decision, and on appeal in April 2010 the Supreme Court of Spain upheld the Court of Appeals decision against conducting an official inquiry into the IDF's targeted killing of Shehadeh.
The United Kingdom An offence is generally only triable in the jurisdiction where the offence took place, unless a specific statute enables the UK to exercise extraterritorial jurisdiction. This is the case for: 
Sexual offences against children (s. 72 of the Sexual Offences Act 2003) Page 23 of 142
Fraud and dishonesty (Criminal Justice Act 1993 Part 1) Terrorism (ss. 59, 62–63 of the Terrorism Act 2000) Bribery (s. 109 of the Anti-terrorism, Crime and Security Act 2001)
In December 2009 a court in London issued an arrest warrant for Tzipi Livni in connection with accusations of war crimes in the Gaza Strip during Operation Cast Lead (2008–2009). The warrant was issued on 12 December and revoked on 14 December 2009 after it was revealed that Livni had not entered British territory. The warrant was later denounced as "cynical" by the Israeli foreign ministry, while Livni's office said she was "proud of all her decisions in Operation Cast Lead". Livni herself called the arrest warrant "an abuse of the British legal system". Similarly a January visit to Britain by a team of Israel Defense Forces (IDF) was cancelled over concerns that arrest warrants would be sought by pro-Palestinian advocates in connection with allegations of war crimes under laws of universal jurisdiction.
The United States While the United States has no formal statute authorizing it, in some cases the Federal government has exercised self-help in apprehending or killing persons suspected of conspiring to commit crimes within the United States from outside of the country, or committing crimes against U.S officials outside of the United States. This has occurred even when the suspect is not a U.S. person, has never been in the United States, and even when the person has never conspired or assisted in the commission of a crime within the United States, there is a functioning government which could try the person for the crime committed there, and notwithstanding the existence of a proper extradition treaty between that country and the United States, ignoring the provisions of the treaty and capturing or killing the person directly. In 1985, Dr. Humberto Alvarez-Machain, a Mexican national, allegedly assisted in the torture and murder of a U.S. DEA agent in Mexico. Notwithstanding that the U.S had an extradition treaty with Mexico (and because the Mexican government declined to extradite a Mexican national to the U.S. for a crime allegedly committed in Mexico), the U.S. Government hired a private citizen and some Mexican nationals to essentially act as mercenaries, who then went into Mexico. kidnapped Dr. Alvarez-Machain and brought him back to the U.S. for trial for the crime committed in Mexico. The trial court ruled that since Alvarez-Machain had been brought to the U.S. in violation of the treaty, his arrest was unlawful. The United States Supreme Court, in United States v. AlvarezMachain, ruled that notwithstanding the existence of an extradition treaty with Mexico, it was still legal for the U.S. government to exercise self-help and essentially grab him off the street in Mexico ("forcible abduction") to bring him back to the U.S. for trial. In Alvarez-Machain's subsequent criminal trial, he was acquitted, and he lost a civil suit he filed for false arrest against the government.
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Preamble to the United Nations Charter The Preamble to the United Nations Charter is the opening (preamble) of the United Nations Charter.
History Jan Smuts originally wrote the opening lines of the Preamble as, "The High Contracting Parties, determined to prevent a recurrence of the fratricidal strife which twice in our generation has brought untold sorrow and loss upon mankind. . ." which would have been similar to the opening lines of the Covenant of the League of Nations. After considerable argument at the San Francisco Conference, Virginia Gildersleeve was successful in changing and shortening the Preamble, however, with much of Smuts' original text reattached at the end. The opening phrase "We the peoples of the United Nations .." echoing that of the United States Constitution, was suggested by US congressman and delegate Sol Bloom. The preambulatory phrase "In Larger Freedom" became the title of a UN reform proposal by Secretary-General Kofi Annan.
Text The Preamble reads as follows: WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to regain faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom,
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AND FOR THESE ENDS
to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
United Nations Security Council Resolution UN Security Council Resolutions Sources: UN Security Council · UNBISnet · Wikisource
1 to 100 (1946–1953) 101 to 200 (1953–1965) 201 to 300 (1965–1971) 301 to 400 (1971–1976) 401 to 500 (1976–1982) 501 to 600 (1982–1987) 601 to 700 (1987–1991) 701 to 800 (1991–1993) 801 to 900 (1993–1994)
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901 to 1000 (1994–1995) 1001 to 1100 (1995–1997) 1101 to 1200 (1997–1998) 1201 to 1300 (1998–2000) 1301 to 1400 (2000–2002) 1401 to 1500 (2002–2003) 1501 to 1600 (2003–2005) 1601 to 1700 (2005–2006) 1701 to 1800 (2006–2008) 1801 to 1900 (2008–2009) 1901 to 2000 (2009–2011) 2001 to 2100 (2011–2013) 2101 to 2200 (2013–present)
A United Nations Security Council resolution is a UN resolution adopted by the fifteen members of the Security Council; the UN body charged with "primary responsibility for the maintenance of international peace and security". The UN Charter specifies (in Article 27) that a draft resolution on non-procedural matters is adopted if nine or more of the fifteen Council members vote for the resolution, and if it is not vetoed by any of the five permanent members. Draft resolutions on "procedural matters" can be adopted on the basis of an affirmative vote by any nine Council members. The five permanent members are the People's Republic of China (which replaced the Republic of China in 1971), France, the Russian Federation (which replaced the defunct Soviet Union in 1991), the United Kingdom, and the United States.
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The Martens Clause The Martens Clause [pronunciation: /mar'tɛnz/] was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land. The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. — Convention with respect to the laws of war on land (Hague II), 29 July 1899.
The Clause appears in a slightly modified form in the 1907 Hague conventions: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. — Laws and Customs of War on Land (Hague IV), 18 October 1907
The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants. The clause did not appear in the Geneva Conventions of 1949, but was it included in the additional protocols of 1977. It is in article 1 paragraph 2 of Protocol I (which covers international conflicts), and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts). The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907: Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience
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In its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law, the plenipotentiaries considered its inclusion appropriate because: First, despite the considerable increase in the number of subjects covered by the law of armed conflicts, and despite the detail of its codification, it is not possible for any codification to be complete at any given moment; thus the Martens clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted. Secondly, it should be seen as a dynamic factor proclaiming the applicability of the principles mentioned regardless of subsequent developments of types of situation or technology. Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, writes that: The problem faced by humanitarian lawyers is that there is no accepted interpretation of the Martens Clause. It is therefore subject to a variety of interpretations, both narrow and expansive. At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm. A wider interpretation is that, as few international treaties relating to the laws of armed conflict are ever complete, the Clause provides that something which is not explicitly prohibited by a treaty is not ipso facto permitted. The widest interpretation is that conduct in armed conflicts is not only judged according to treaties and custom but also to the principles of international law referred to by the Clause. The International Court of Justice (ICJ) in their advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996, had to consider the general laws of armed conflict before they could consider the specific laws relating to nuclear weapons. Several different interpretations of this clause were presented in oral and written submissions to the ICJ. Although the ICJ advisory opinion did not provide a clear understanding of the Clause, several of submissions to the court provided an insight into its meaning. The evidence that Ticehurst presents is that just as in 1899 there was a disagreement between the great powers and the minor powers that lead to the formulation of the Clause, so in 1996 a similar divergence of views exists between the declared nuclear powers and the non nuclear powers with the nuclear powers taking a narrow view of the Clause and the non nuclear powers taking a more expansive view. Ticehurst concludes that: ... By refusing to ratify treaties or to consent to the development of corresponding customary norms, the powerful military States can control the content of the laws of armed conflict. Other States are helpless to prohibit certain technology possessed by the powerful military States. ... the Martens Clause establishes an objective means of determining natural law: the dictates of the public conscience. This makes the laws of Page 30 of 142
armed conflict much richer, and permits the participation of all States in its development. The powerful military States have constantly opposed the influence of natural law on the laws of armed conflict even though these same States relied on natural law for the prosecutions at Nuremberg. The ICJ in its Advisory Opinion did not clarify the extent to which the Martens Clause permits notions of natural law to influence the development of the laws of armed conflict. Consequently, its correct interpretation remains unclear. The Opinion has, however, facilitated an important debate on this significant and frequently overlooked clause of the laws of armed conflict.
Judicial Review Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law. The Martens Clause was quoted in the following judicial rulings:
Decision of the Supreme Court of Norway on 27 February 1946 in appeal proceedings against Karl-Hans Hermann Klinge, Kriminalassistent of the Gestapo (confirmation of the death sentence imposed by the first instance) Decision of the US military tribunal III in Nuremberg on 10 February 1948 in the case United States v. Krupp Decision of the Netherlands court of cassation on 12 January 1949 in the procedure against SS-Obergruppenführer Hanns Rauter, general commissioner for the safety organization in the Netherlands from 1940 to 1945 Decision Brussels military courts (Conseil de guerre de Bruxelles) in the K.W.. case on 8 February 1950 Decision of the International Criminal Tribunal for the Former Yugoslavia on 8 March 1996 over the permission of the accusation during the process against Milan Martić (case IT-95-11, decision IT-95-11-R61) Decision of the Constitutional Court of Colombia of 18 May 1995 for the constitutionality of Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. (decision C-225/95) The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996 Judgement of the German Federal Constitutional Court on 26 October 2004 for the compatibility of the expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law (decision BVerfG, 2 BvR 955/00 of 26.10.2004)
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The Rule of Law in Armed Conflicts Project (RULAC Project) The Rule of Law in Armed Conflicts Project (RULAC Project) is an initiative of the Geneva Academy of International Humanitarian Law and Human Rights to support the application and implementation of the international law of armed conflict.
Overview Through a global database and analysis, the RULAC Project has as its aim an assessment of the implementation by states of the law applicable in armed conflicts:
international humanitarian law international human rights law international criminal law refugee law
The project will ultimately cover all member states of the United Nations and parties to the Geneva Conventions as well as contested territories, whether they are in situation of armed conflict or not. Indeed, certain international rules must be implemented during peacetime or are relevant in post-conflict situations, in particular those relating to the repression of international crimes. In addition, the rules regarding the fight against terrorism, also to be covered by the website, are applicable to states that are not necessarily in a situation of armed conflict. The website is divided into three parts. The homepage offers a small description of the applicable law and addresses the main legal issues in that area, for example the legal qualification of conflicts or the applicability of international law to non-state armed Page 32 of 142
groups. The website then offers for each country the relevant texts and documents dealing with the national and international legal framework (national legislation and case law, resolutions of intergovernmental organizations, treaty, etc.). Finally, the website offers a legal analysis that, on one hand, qualifies the conflict under international humanitarian law and on the other hand, determines the applicable law. This part of the website, certainly the most delicate in juridical and political terms, is particular to the RULAC Project. The RULAC Project should prove to be a precious source of information for government officials, journalists and more widely for any person interested by the respect of the law in war.
The Geneva Conventions The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in 1949.
The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in 1864. It was significantly revised and replaced by the 1906 version, the 1929 version, and later the First Geneva Convention of 1949. The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in 1906. It was significantly revised and replaced by the Second Geneva Convention of 1949. The Geneva Convention relative to the Treatment of Prisoners of War was adopted in 1929. It was significantly revised and replaced by the Third Geneva Convention of 1949. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was adopted in 1949.
In addition, there are three additional amendment protocols to the Geneva Convention:
Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries. Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries. Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.
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International Legal Theory International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, others are interdisciplinary, while others have been developed expressly to analyse international law.
Classical Approaches to International Law Natural law Many early international legal theorists were concerned with axiomatic truths thought to be reposed in natural law. 16th century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.
Eclectic or Grotian Approach Hugo Grotius, a Dutch theologian, humanist and jurist played a key role in the development of modern international law. In his De jure Belli ac Pacis Libri Tres ("Three Books on the Law of War and Peace") of 1625, and drawing from the Bible and from the St. Augustine's just war theory, he argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice. Drawing, though, Page 35 of 142
from domestic contract law, he argued that relations among polities ought to be governed by the law of peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of the observance of commitments. On his part, Christian von Wolff, contended the international community should be a world superstate (civitas maxima), having authority over the component member states. Emmerich de Vattel rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In Le droit des gens, Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenents of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshirned in the 1648 Peace of Westphalia.
Legal Positivism The early positivist school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of international law in 1650. Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time, Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states. John Jacob Moser emphasized the importance of state practice in international law. Georg Friedrich von Martens, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe. During the 19th century, positivist legal theory became even more dominant due to nationalism and the Hegelian philosophy. International Commercial law became a branch of domestic law: private international law, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe. Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that must be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity. Extralegal arguments, i.e., arguments that have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is only hard law, no soft law. Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's conduct as long as it follows international norms. Page 36 of 142
International Relations - International Law approaches Legal scholars have drawn from the four main schools of thought in the areas of political science and international relations: realism, liberalism, institutionalism, and constructivism to examine, through an interdisciplinary approach, the content of legal rules and institutions, to explain why and how legal institutions came to be and why they are effective. These methods have led some scholars to reconceptualize international law in general.
Realism Realism contends that, in an anarchic international system, states are locked in a perpetual struggle for survival that obligates them to maximize their relative power in order to preserve their territory and existence. Since international cooperation is possible only inasmuch as it responds to the states' self-interest in maximizing their power and prospects for survival, states do not pursue cooperation on the basis of normative commitments. According to Realist legal scholars, states adopt only international legal norms that either enhance their power, formalize the subordination of weaker states, or that they intend to violate deliberately to their own advantage. Page 37 of 142
International Law may thus address only peripheral matters that do not impact the states´ power or autonomy. Consequently, for realists, international law is a "tenuous net of breakable obligations" Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the deterrent and coercive effects of a stable balance of power." Thus, the role of reciprocity and sanctions is underlined. Morrow, for instance, notes that: International politics in modern times generally recognizes no authority above the nation-state. Agreements among states are enforceable only by the agreeing states themselves. This assumption of anarchy poses a paradox for agreements to limit violence during wartime. (...) Reciprocity serves as the main tool to enforce agreements in international politics. Enforcement of an agreement is devolved to the parties themselves. Damaged parties have the option to respond with retaliatory sanctions to a violation of an agreement. The threat of reciprocal sanctions may be sufficient to deter violations, and so agreements can be enforced in international politics.
Liberalism Based on the Liberal international relations theory, some scholars argue that the states' stance towards international law is determined by their domestic politics and, in particular, by the aggregation of the preferences of key domestic individuals and groups toward the rule of law. Thus, democratic states, having a representative government, are more likely than non-democratic states to accept the legal regulation of both domestic and international politics, and more likely to accept and observe international law. Furthermore, democratic societies are linked by a complex net of interstate, transnational and transgovernmental relations so that both their foreign policy bureaucracies and their civil societies are interested in promoting and strengthening transnational cooperation through the creation and observance of international legal norms. Hence, the adoption of and the compliance with international legal norms among democratic states should be easier and more peaceful than the observance of international law among non-democratic states. In this regard, Slaughter notes that: Agreements concluded among liberal States are more likely to be concluded in an atmosphere of mutual trust, a precondition that will facilitate any kind of enforcement. In particular, however, the assumptions that these are agreements reached with the participation of a network of individuals and groups in the participating States, and that these States are committed to the rule of law enforced by national judiciaries should lead to more 'vertical' enforcement through domestic courts. This mode of enforcement contrasts with the traditional 'horizontal' mode involving State responsibility, reciprocity, and countermeasures.
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Rational Choice and Game Theory This approach to law applies theories or economics to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of ration choice under limited conditions. Rational choice is the assumption that individual actors seek to maximize their preferences. Most of the economic theory employed here is neoclassical traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors. Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory. Game Theory, which can demonstrate how actors with maximizing behavior might fail to take action increase join gain. Public choice applies economic tools to problems outside of markets. These tools are used to describe and evaluate law. Using these tools laws are tested for economic efficiency. Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth. Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed. This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them. This approach relies on assumptions that perfect competition exists, and that individuals will behave to maximize their preferences. The empirical presence of these conditions is often difficult to determine.
International Legal Process The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved. "It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy". ILP was developed in response to the "realists from the discipline of international relations", who realized with the beginning of the Cold War how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeldan, in which the American legal process method was adapted to create an international legal process. ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law. ILP also measures the extent to which individuals are held accountable for abuses in international conflicts. While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device. Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP. The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "‌feminism, republicanism, law and economics, liberalism as well as human rights, peace and protection to the environment." The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is Page 39 of 142
important in order to resolve the changing of legal standards over time. The NLP shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.
Policy Oriented Perspectives New Haven Approach The New Haven School is a policy-oriented perspective on international law pioneered by Myres S. McDougal, Harold D. Lasswell, and W. Michael Reisman. Its intellectual antecedents lie in sociological jurisprudence of Roscoe Pound and the reformist ambitions of the American Legal Realists. From the standpoint of the New Haven approach, jurisprudence is a theory about making social choices. International law itself reflects the expectations of relevant community members about stable patterns of behavior created by assertions of control by legal authorities. The primary jurisprudential and intellectual tasks are the prescription and application of policy in ways that maintain community order and simultaneously achieve the best possible approximation of the community's social goals. These normative social goals or values of the New Haven approach include maximizing shared community values, such as wealth, enlightenment, skill, well-being, affection, respect and rectitude. The teleological goal of New Haven School jurisprudence is the interpretation of international law as a system of creating minimum world public order, with continued progress toward the development of shared values into an optimum order.
Critical Legal Studies Critical Legal Studies (CLS) emerged as a legal theory in America during the 1970s. It exists to this day as a method of analyzing international law from a highly theoretical perspective. The method proposes that the nature of international law is limited because it is determined by language, which is biased and still stuck in the conventional structures of politics and power. Critical Legal scholars argue that those structures of power can be found within the binaries that exist in legal language (man vs. woman, majority vs. minority, etc.). Recognizing the political aspect of international law, these scholars also argue that universality is impossible. Criticism of this method suggests that this radical practice is impossible to put into application. It was successful, however, in pushing forward other approaches to international law (feminist, cultural relativist, etc.) because of its deep analysis of language, and all the imbalance that it reveals.
Central Case Approach The central case approach is a method of looking at human rights situations. This approach recognizes the existence of certain universal rights. It begins analyzing a human rights issue by constructing a hypothetical ideal situation in which those rights are applied, a standard against which to compare an actual situation. The central case approach then investigates to what extent, and in what ways the actual situation Page 40 of 142
deviates from the ideal (or the central case). The central case approach allows for more complexity than the traditional binary method of analysis. In binary terms, human rights are simply violated or they are upheld. This does not allow for degrees of severity of a human rights violation, which creates a deceptively simplistic view of a situation. John Finnis developed the concept of a central case as it applied to assessing legal systems; Tai-Heng Cheng was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society's political and social situations in addition to specific human rights abuses. This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency. The central case approach provides an accurate and flexible picture of situations that are in a state of change. Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights.
Feminist Legal Theory Feminist legal theory critiques current legal vocabulary and practice by arguing it is patriarchal, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist Hilary Charlesworth criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.
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LGBT Legal Theory Lesbian, Gay, Bisexual, and Transgender/Transsexual (LGBT) International Law Theory is a critical school of thought that continues to develop as the shortcomings of international law are realized, in regard to the integration of queer theory into international law theory. While human rights conventions have recently begun to generalize in regard to equality and its recipients, in the past, any discussions of sexual orientation and gender identity have gone largely untouched. The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT rights (and protection of persons), as well as the integration of queer theory within the realm of international law. As LGBT theory has become more prominent in scholarly works, international courts and international law organizations (particularly the European Union Council and the United Nations) have considered workplace discrimination on the basis of sexuality, issues stemming from the definition of family in regard to homosexual unions, the position of transsexuals in the question of sexual orientation, the need for recognition of LGBT rights in regard to general health advocacy and the HIV/AIDS crisis, the inclusion of and LGBT advocacy group within the UN (with advisor status), and the ongoing active persecution of people engaging in homosexual acts, among other issues. According to scholar Nancy Levit, the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context, that is the critical body of LGBT International Law Theory.
International Law in Ancient Rome The idea of international law in Roman times is a complicated one. For, not only does the Roman Republic and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term "international law" is an applicable term is not yet decided. Many scholars and authors define international law as "the law governing relations between sovereign, territorial states." Any attempt to find a similar parallel in Roman law would find a logical starting point in the ius gentium (the laws of nations). The ius gentium began as a Roman recognition of like legal practices and institutions (such as slavery) that was found at that time in most states. This brand of law was in fact private law in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states. However, when citizenship was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole. Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.
Third World Third World Approaches to International Law (TWAIL) is a critical approach to international law that is not a "method" in the strict sense of questioning "what the law Page 42 of 142
is". Rather, it is an approach to law that is unified by a particular set of concerns and analytical tools with which to explore them. It is an approach that draws primarily from the history of the encounter between international law and colonized peoples. TWAIL shares many concepts with post-colonial studies, feminist theory, Critical legal studies, Marxist theory and critical race theory. TWAIL scholarship prioritizes in its study the power dynamic between the First World and Third World and the role of international law in legitimizing the subjugation and oppression of Third World peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather use the term to indicate peoples who have the shared experience of underdevelopment and marginalization. Contemporary TWAIL scholarship has it origins in works of jurists such as Georges AbiSaab, F. Garcia-Amador R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias. Over the years, several Western scholars have been sympathetic to the Third World's position and made important contributions to this body of scholarship, and these include, scholars such as C.H. Alexandrowicz, Richard Falk, Nico Schrijver and PJ.I.M. de Waart. David Kennedy and Martti Koskenniemi have also contributed support in their own work. TWAIL as a loose network of scholars has had several conferences thus far.
The Rule According to a Higher Law The rule according to a higher law means that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust. "Higher law" can be interpreted in this context as the divine or natural law or basic legal values, established in the international law, – the choice depending on the viewpoint. But this is definitely a Law above the law. And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law. "To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should maintain the same constitutional structures in practice". The rule according to higher law is a practical approach to the implementation of the higher law theory which creates a bridge of mutual understanding (with regard to universal legal values) between the English language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of Page 43 of 142
Rechtsstaat, translated into other languages of continental Europe as État de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and Правовое государство (Ru.). The latter doctrine is the product of continental European legal thought which had adopted it from German legal philosophy. Its name can be translated into English as ―legal state‖ or "state of law" or "state of rights" or "constitutional state" – consistently meaning the state in which the exercise of governmental power is kept in check by the higher law rather than by the changeable law established by this state. Amartya Sen mentioned that the legal theorists in ancient India used term of classical Sanscrit "nyaya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.
Examples Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Although these codes were de jure fully suitable for application in legal practice, their enforcement by the then U.S. government de facto violated basic human rights of a significant part of the population. William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the Constitution." Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle. In some countries, the political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against Jewish and Romany population of Europe during World War II, some of the former leaders of Nazi Germany argued that they had broken none of the laws effective when Hitler had been in power. It was only by invoking the rule according to a higher law that the Allied prosecutors were able to legitimately overcome such defenses. In other countries, conversely, the political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary corollary to the axiom that "no one is above the law," the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general." Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law." They also constitute the basis of the "higher law theory."
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Constitutional Government as Enforcement of The Higher Law The Rechtsstaat doctrine (Legal state, State of right, Constitutional state, Constitutional government) was first introduced by the German philosopher Immanuel Kant in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century. Kant’s approach is based on the supremacy of country’s written constitution created using principles of the Higher Law. This supremacy meant creating guarantees for the implementation of his central idea: a permanently peaceful life as a basic condition for the happiness and prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of constitutionalism and constitutional government. Kant had formulated the main problem of constitutionalism as an instrument for the practical implementation of the Higher Law as follows, ―The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution.‖ This idea of Kant’s has become the foundation for the constitutional theory of the 21st century. The Legal state concept is based on the ideas introduced by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals: ―The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.‖ The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the Emperor Alexander II, was (and still is) based primarily upon the German legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which literally translates as "Legal State." Its closest English analogue is "the rule of law." The Russian Legal state concept adopts the written constitution as the country's supreme law (the rule of constitution). It is a fundamental but undefined principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning to the "Legal State" definition is anything but theoretical. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by the society." Page 45 of 142
The Russian concept of Legal state has adopted many segments of constitutional economics which serves as a practical implementation of the higher law theory in economics. Economist James M. Buchanan argues that, in the framework of constitutional government, any governmental intervention or regulation must be conditioned by the three following assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And third, changing the government responsibilities towards more intervention and control will not profoundly and perversely affect the social and economic life. Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals who are its members." This philosophical position is, in fact, the very subject matter of constitutional economics. A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan, together with Kant, believes that a constitution in its capacity as the Higher Law, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions, while balancing interests of the state and society against those of individuals, with their constitutional rights to personal freedom and private happiness. Buchanan also outlines importance of protection of the moral principles underlying constitutional norms. He writes that "the ethics of constitutional citizenship is not directly comparable to ethical behavior in interaction with other persons within the constraints imposed by the rules of an existing regime. An individual may be fully responsible, in the standard ethical sense, and yet fail to meet the ethical requirement of constitutional citizenship."
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Sources of International Law
The First Geneva Convention (1864) is one of the earliest formulations of international law.
Sources of international law include treaties, international customs, general principles of law as recognized around the world, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.
Historic Considerations and Development During the 19th century, it was recognised by legal positivists that a sovereign could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and was later preserved in Article 38(1) of the 1946 Statute of the International Court of Justice. Page 48 of 142
Modern Views Article 38(1) of the Statute of the International Court of Justice is generally recognised as a definitive statement of the sources of international law. It requires the Court to apply, among other things, (a) international conventions "expressly recognized by the contesting states", and (b) "international custom, as evidence of a general practice accepted as law". To avoid the possibility of non liquet, sub-paragraph (c) added the requirement that the general principles applied by the Court were those that had been "the general principles of the law recognized by civilized nations". As it is states that by consent determine the content of international law, sub-paragraph (d) acknowledges that the Court is entitled to refer to "judicial decisions" and the most highly qualified juristic writings "as subsidiary means for the determination of rules of law".
Hierarchy On the question of preference between sources of international law, rules established by treaty will take preference if such an instrument exists. It is also argued however that international treaties and international custom are sources of international law of equal validity; this is that new custom may supersede older treaties and new treaties may override older custom. Certainly, judicial decisions and juristic writings are regarded as auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by 'civilized nations' should be recognized as a principal or auxiliary source of international law.
Treaties as Law Treaties and conventions are the persuasive source of international law and are considered "hard law." Treaties can play the role of contracts between two or more parties, such as an extradition treaty or a defence pact. Treaties can also be legislation to regulate a particular aspect of international relations, or form the constitutions of international organisations. Whether or not all treaties can be regarded as sources of law, they are sources of obligation for the parties to them. Article 38(1)(a) of the ICJ, which uses the term "international conventions", concentrates upon treaties as a source of contractual obligation but also acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it is not formally a party. For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must either be capable of affecting non-parties or have consequences for parties more extensive than those specifically imposed by the treaty itself.
Treaties as Custom Some treaties are the result of codifying existing customary law, such as laws governing the global commons, and jus ad bellum. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or Page 49 of 142
accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right. The most obvious examples are the 1949 Geneva Conventions for the Protection of War Victims. Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties. This outcome is possible in a number of ways:
When the treaty rule reproduces an existing rule of customary law, the rule will be clarified in terms of the treaty provision. A notable example is the Vienna Convention on the Law of Treaties 1969, which was considered by the ICJ to be law even before it had been brought into force. When a customary rule is in the process of development, its incorporation in a multilateral treaty may have the effect of consolidating or crystallising the law in the form of that rule. It is not always easy to identify when this occurs. Where the practice is less developed, the treaty provision may not be enough to crystallise the rule as part of customary international law. Even if the rule is new, the drafting of the treaty provision may be the impetus for its adoption in the practice of states, and it is the subsequent acceptance of the rule by states that renders it effective as part of customary law. If a broad definition is adopted of state practice, the making of a treaty would fall within the definition. Alternatively, it is possible to regard the treaty as the final act of state practice required to establish the rule in question, or as the necessary articulation of the rule to give it the opinio juris of customary international law. Convention-based "instant custom" has been identified by the ICJ on several occasions as representing customary law without explanation of whether the provision in question was supported by state practice. This has happened with respect to a number of provisions of the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it could deny to third parties the normal consequences of non-accession to the treaty. It is also possible, though less common, for a treaty to be modified by practices arising between the parties to that treaty. The other situation in which a rule would take precedence over a treaty provision would be where the rule has the special status of being part of the jus cogens.
The United Nations Charter Pursuant to Chapter XVI, Article 103 of the United Nations Charter, the obligations under the United Nations Charter overrides the terms of any other treaty.
International Custom Article 38(1)(b) of the ICJ Statute refers to "international custom" as a source of international law, specifically emphasizing the two requirements of state practice plus
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acceptance of the practice as obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris). Derived from the consistent practice of (originally) Western states accompanied by opinio juris (the conviction of States that the consistent practice is required by a legal obligation), customary international law is differentiated from acts of comity by the presence of opinio juris (although in some instances, acts of comity have developed into customary international law, i.e. diplomatic immunity). Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in international law.
State Practice When examining state practice to determine relevant rules of international law, it is necessary to take into account every activity of the organs and officials of states that relate to that purpose. There has been continuing debate over where a distinction should be drawn as to the weight that should be attributed to what states do, rather than what they say represents the law. In its most extreme form, this would involve rejecting what states say as practice and relegating it to the status of evidence of opinio juris. A more moderate version would evaluate what a state says by reference to the occasion on which the statement was made. It is only relatively powerful countries with extensive international contacts and interests that have regular opportunities of contributing by deed to the practice of international law. The principal means of contribution to state practice for the majority of states will be at meetings of international organisations, particularly the UN General Assembly, by voting and otherwise expressing their view on matters under consideration. Moreover, there are circumstances in which what states say may be the only evidence of their view as to what conduct is required in a particular situation. Page 51 of 142
The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected, and an absence of substantial dissent. There have been a number of occasions on which the ICJ has rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention. Within the context of a specific dispute, however, it is not necessary to establish the generality of practice. A rule may apply if a state has accepted the rule as applicable to it individually, or because the two states belong to a group of states between which the rule applies. A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate its persistent objection to that rule, either as a member of a regional group or by virtue of its membership of the international community. It is not easy for a single state to maintain its dissent. Also, rules of the jus cogens have a universal character and apply to all states, irrespective of their wishes. Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that there can be, in appropriate circumstances, such a concept as "instant custom". Even within traditional doctrine, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule. Because of this, the question is sometimes raised as to whether the word "custom" is suitable to a process that could occur with great rapidity.
Practice by International Organizations It may be argued that the practice of international organizations, most notably that of the United Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an additional source of international law, even though it is not mentioned as such in Article 38(1) of the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus predating the role that international organizations have come to play in the international plane. That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint after the decolonization process that took place in the early 1960s and the participation of nearly all nations of the world in the United Nations.
Opinio Juris A wealth of state practice does not usually carry with it a presumption that opinio juris exists. ―Not only must the acts concerned amount to a settled practice, but they must
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also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.‖ In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking. Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain.
Jus Cogens A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties: For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture. The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that required to establish the creation of a new rule of customary international law. Indeed, jus cogens could be thought of as a special principle of custom with a superadded opinio juris. The European Court of Human Rights has stressed the international public policy aspect of the jus cogens.
General Principles of Law The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a large number of systems of municipal law. Given the limits of treaties or custom as sources of international law, Article 38(1) may be looked upon as a directive
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to the Court to fill any gap in the law and prevent a non liquet by reference to the general principles. In earlier stages of the development of international law, rules were frequently drawn from municipal law. In the 19th century, legal positivists rejected the idea that international law could come from any source that did not involve state will or consent, but were prepared to allow for the application of general principles of law, provided that they had in some way been accepted by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states. An area that demonstrates the adoption of municipal approaches is the law applied to the relationship between international officials and their employing organizations, although today the principles are regarded as established international law. The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings. The principle of good faith was said by the ICJ to be "[o]ne of the basic principles governing the creation and performance of legal obligations". Similarly, there have been frequent references to equity. It is generally agreed that equity cannot be employed to subvert legal rules (that is, operate contra legem). This "equity as law" perception is reinforced by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator. However, the principles of estoppel and equity in the international context do not retain all the connotations they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.
Judicial Decisions and Juristic Writings According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law". It is difficult to tell what influence these materials have on the development of the law. Pleadings in cases before the ICJ are often replete with references to case law and to legal literature.
Judicial Decisions The decisions of international and municipal courts and the publications of academics can be referred to, not as a source of law as such, but as a means of recognizing the Page 54 of 142
law established in other sources. In practice the International Court of Justice does not refer to domestic decisions although it does invoke its previous case-law. There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case. Often the International Court of Justice will consider General Assembly resolutions as indicative of customary international law.
Juristic Writings Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law'. The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law. This is accepted practice in the interpretation of international law and was utilised by the United States Supreme Court in The Paquete Habana case (175 US (1900) 677 at 700-1).
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Types of International Law Public International Law Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either: 1. custom, or customary international law (consistent state practice accompanied by opinio juris), 2. globally accepted standards of behavior (peremptory norms known as jus cogens or ius cogens), or 3. codifications contained in conventional agreements, generally termed treaties. Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).
Private International Law Conflict of laws, often called "private international law" in civil law jurisdictions is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958. Page 57 of 142
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International Criminal Law
The current headquarters of the International Criminal Court in The Hague
International Criminal Law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against humanity, as well as the crime of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law. "Classical" international law governs the relationships, rights, and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation of those prohibition imposed by individual states. International criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals.
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History Some precedents in international criminal law can be found in the time before World War I. However, it was only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The International Military Tribunal for the Far East). It operated from 1946 to 1948. After the beginning of the war in Bosnia, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission had commenced preparatory work for the establishment of a permanent International Criminal Court in 1993; in 1998, at a Diplomatic Conference in Rome, the Rome Statute establishing the ICC was signed. The ICC issued its first arrest warrants in 2005.
Sources of International Criminal Law International criminal law is a subset of international law. As such, its sources are the same as those that comprise international law. The classical enumeration of those sources is in Article 38(1) of the 1946 Statute of the International Court of Justice and comprise: treaties, customary international law, general principles of law (and as a subsidiary measure judicial decisions and the most highly qualified juristic writings). The ICC statute contains an analogous, though not identical, set of sources that the ICC may rely on.
The Importance of Prosecuting International Crimes The prosecution of severe international crimes—including genocide, crimes against humanity, and war crimes—is necessary to enforce international criminal law and deliver justice to victims. This is an important component of transitional justice, or the process of transforming societies into rights-respecting democracies and addressing past human rights violations. Investigations and trials of leaders who have committed crimes and caused mass political or military atrocities is a key demand of victims of human rights abuses. Prosecution of such criminals can play a key role in restoring dignity to victims, and restoring trusting relationships in society. Page 60 of 142
The International Criminal Court, as described below, can play an important role in prosecuting international crimes in cases where domestic courts are unwilling or unable to do so.
Institutions of International Criminal Law Today, the most important institution is the International Criminal Court (ICC), as well as several ad hoc tribunals:
International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda
Apart from these institutions, some "hybrid" courts and tribunals exist—judicial bodies with both international and national judges:
Special Court for Sierra Leone, (investigating the crimes committed the Sierra Leone Civil War) Extraordinary Chambers in the Courts of Cambodia, (investigating the crimes of the Red Khmer era) Special Tribunal for Lebanon, (investigating the assassination of Rafik Hariri) The War Crimes Court at Kosovo
International Criminal Court The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression). The court's creation perhaps constitutes the most significant reform of international law since 1945. It gives authority to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law. It came into being on July 1, 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force—and it can only prosecute crimes committed on or after that date. The court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere. As of January 2015, 123 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Page 61 of 142
Africa. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from "acts which would defeat the object and purpose" of the treaty until they declare they do not intend to become a party to the treaty. Three signatory states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute. 41 United Nations member states have neither signed nor acceded to the Rome Statute; some of them, including China and India, are critical of the Court. Palestine, a UN observer state, acceded to the Statute on 2 January 2015, which will enter into force for them on 1 April 2015. Additionally, Ukraine, a non-ratifying signatory, has accepted the Court's jurisdiction for a limited period in 2013-2014. The court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states. To date, the Court:has opened investigations into nine situations: the Democratic Republic of the Congo; Uganda; Central African Republic I and II; Darfur, Sudan; Kenya; Libya; Côte d'Ivoire; and Mali. The Office of the Prosecutor is also conducting preliminary examinations in nine matters in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine. It publicly indicted 36 people. The ICC has issued arrest warrants for 28 individuals and summonses to eight others. Eight persons are in detention. Proceedings against 24 are ongoing: ten are at large as fugitives, two are under arrest but not in the Court's custody, nine are in the pre-trial phase, and another three are at trial. Proceedings against 12 have been completed: two have been convicted, one has been acquitted, four have had the charges against them dismissed, two have had the charges against them withdrawn, one has had his case declared inadmissible, and three have died before trial.
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As of March 2011, three trials against four people are underway: two trials regarding the situation in the Democratic Republic of the Congo and one trial regarding the Central African Republic. Another two people have been committed to a fourth trial in the situation of Darfur, Sudan. One confirmation of charges hearing (against one person in the situation of the DR Congo) is to start in July 2011 while two new cases (against a total of six persons in the situation of Kenya) will begin with the suspects' first appearances in April 2011.
International Criminal Tribunal for Rwanda The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pĂŠnal international pour le Rwanda (TPIR), is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. In 1995 it became located in Arusha, Tanzania, under Resolution 977. (From 2006, Arusha also became the location of the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was expanded in Resolution 1165. Through several resolutions, the Security Council called on the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 2012. The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva Conventions (dealing with war crimes committed during internal conflicts). So far, the Tribunal has finished 50 trials and convicted 29 accused persons. Another 11 trials are in progress. 14 individuals are awaiting trial in detention; but the prosecutor intends to transfer 5 to national jurisdiction for trial. 13 others are still at large, some suspected to be dead. The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty. According to the ICTR's Completion Strategy, in accordance with Security Council Resolution 1503, all first-instance cases were to have completed trial by the end of 2008 (this date was later extended to the end of 2009). On July 1, 2012, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTR. The ICTR has been called upon by the United Nations Security Council to finish its work by December 31, 2014, and to prepare its closure and transition of cases to the Mechanism.
International Criminal Tribunal for the former Yugoslavia The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Page 63 of 142
Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands. The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences. The last indictment was issued 15 March 2004. The Tribunal aims to complete all trials by mid-2011 and all appeals by 2013, with the exception of Radovan Karadžić whose trial is expected to end in 2012 and the appeal to be heard by February 2014. Goran Hadžić has been charged, however is still at large and thus do not fall within the court's completion strategy. On 1 July 2013, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTY. The ICTY has been called upon by the United Nations Security Council to finish its work by 31 December 2014 and to prepare its closure and transition of cases to the Mechanism.
Recognition of International Criminal Law in Domestic Jurisdictions United Kingdom Under section 51(1) of the International Criminal Court Act 2001, genocide and crimes against humanity committed either in the United Kingdom or by United Kingdom nationals abroad can be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the United Kingdom has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is presumed territorial in the absence of express words and based on the presence of the accused within the jurisdiction. There are a number of statutes that impose criminal liability on UK and/or non-UK nationals who commit particular acts outside the jurisdiction, but this can only be exercised where the individual is present or visits the United Kingdom, otherwise the UK government would need to seek extradition from the state in which he is located.
Legal Person's Criminal Liability It is a rule of statutory interpretation that unless a contrary intention appears, the word "person" includes any body of persons corporate or unincorporated. Thus, once the principle of corporate liability for the form of legal entity is accepted, the entity can be Page 64 of 142
charged with any international offence no matter where it was committed in the same way as a natural person.
Legal Person's Liability in Tort Under the Rules of the Supreme Court, a court can accept claims against a corporation for a tort arising out of an international crime committed outside the jurisdiction so long as there is some real connection with the UK (see forum shopping and forum non conveniens). This liability is usually based on some activity committed within the jurisdiction or on the fact that profits from the tortious activity have been received within the jurisdiction. Similarly, most breaches of international human rights would be tortious, e.g., torture could be trespass to the person, etc. Civil proceedings may be served on a person who is physically present within the jurisdiction, even if only temporarily. Proceedings may also be served outside the jurisdiction with the permission of the court. This will usually be granted for defendants resident in the lex loci solutionis (the Latin tag for "the law of the place of performance whether in contract or tort), the lex situs (the Latin tag for "the law of the place where the property is located") or the proper law state.
The United States
U.S. implementation Because United States federal criminal law is statutory, the relevant international criminal prohibition must have been incorporated directly into U.S. criminal law through Congressional legislation before the matter can be prosecuted in United States Courts. Congress has enacted statutes covering genocide, war crimes, torture, piracy, slavery, Page 65 of 142
and trafficking in women and children to meet the U.S. obligations under international agreements.
Legal Person's Liability In Tort Although U.S. federal courts do not apply the doctrine of universal jurisdiction, Filártiga v. Peña-Irala 630 F.2d 876 (2d Cir., June 30, 1980), interpreted the Alien Tort Statute, 28 U.S.C., which provides: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The Filartiga ruling allows a range of tort claims for alleged breaches of the "law of nations". Companies may also be liable for the illegal exploitation of resources abroad under the National Stolen Properties Act and the Racketeering Influenced Corrupt Organizations Act (RICO), and the courts have allowed claims for forced labour and personal injuries when employed as a slave laborer, and claims by citizens of "foreign" countries for injuries inflicted by security forces employed by a subsidiary of a U.S. corporation. U.S. courts have in personam (the Latin tag for "personal jurisdiction") over a corporation if: 1. 2. 3. 4.
It is organized in a U.S. state's jurisdiction; It is doing business in a U.S. jurisdiction; It has consented to be sued; or It appears in court to defend the action without specifying that the purpose of the appearance is a special appearance.
In personam jurisdiction over a corporation may be "general"—i.e., a suit may be brought for any cause of action over which the forum court has subject matter jurisdiction and is a proper venue; or "specific", i.e., the suit may address only those activities which gave rise to the cause of action. Even if the jurisdiction and venue are proper, a federal court has a discretion to dismiss the suit under the act of state doctrine or one of its related doctrines, such as comity or political question.
Canada Natural Persons In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes, breach of responsibility by a military commander or a superior (usually a civilian superior), offences against the administration of justice of the International Criminal Court, and possession or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary international law. Page 66 of 142
Legal persons Companies are not expressly included or excluded from prosecution for international crimes under CAHW. but all the standard remedies in tort are available against corporations for activities committed outside the jurisdiction. For civil jurisdiction, the court requires a "real and substantial connection" with the subject matter of the case (i.e., the forum conveniens rule).
France
Natural persons The new Criminal Code includes a series of provisions describing crimes against humanity in considerable detail, including genocide and aggravated war crimes. A limited number of international crimes have equivalents in French domestic law, e.g., forced labour is the equivalent of illegal confinement. Extraterritorial jurisdiction is based on a connection with France through:  

nationality of the perpetrator (active personality jurisdiction) of the crime or the victim (passive personality jurisdiction); Events constituting the crime represent a connected series of acts or an indivisible act occurring both in France and another state, or where there were acts of complicity in France for a crime committed abroad, if the acts are criminal under all relevant systems of law; or Concept of universality where French public policy interests are affected.
Legal persons In French law, a civil action can be brought jointly with a penal action before a criminal court. Corporate liability is covered in Articles 121-2 of the new Criminal Code which provide that legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides that legal persons may incur criminal liability for all crimes against humanity.
Norway
Natural persons Norwegian municipal law incorporates specific areas of international law, but there must be a matching penal provision in the domestic criminal law as a precondition to enforcement. Norway is a signatory to the International Criminal Court which has complementary jurisdiction to municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Norway prosecutes international crimes using domestic Page 67 of 142
penal law, e.g., genocide can be treated as homicide, torture as an offence against the person, etc. Norwegian criminal law is applicable to acts committed abroad by any Norwegian national or any person domiciled in Norway when the act is a felony under the law of the country in which it is committed. There is a general discretion to decline a prosecution which occurred in a case brought against the Israeli Prime Minister.
Legal Persons If a business entity domiciled in Norway is involved in unlawful activity committed outside the jurisdiction, both civil and criminal actions are available subject to the rule of "double actionability", i.e., the activity must have been unlawful under the laws of both Norway and the country of commission. The Norwegian Code of Compensation allows actions for damages for the loss and damage arising from the breach of international law. Civil jurisdiction is based on residence or temporary personal presence for natural persons and the place where the board of directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in Norway. The court must be conveniens, i.e., objectively competent in a local and functional way and, in some cases, this requires the defendant's consent.
Germany Germany has incorporated international criminal law into its domestic legal system in 2002 with the creation of the VĂślkerstrafgesetzbuch ("Code of Crimes against International Law").
Crimes Against Humanity Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings." They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; massacres; dehumanization; extermination; human experimentation; extrajudicial punishments; military use of children; kidnappings; unjust imprisonment; slavery; cannibalism, torture; rape; political, racial, or religious persecution; and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may instead constitute grave infringements of human rights, or – depending on the circumstances – war crimes, but are not classified as crimes against humanity.
Abolition of the Slave Trade There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation Page 68 of 142
of the slave trade using moral language. For example the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice". The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (Which also formed ACT, No. XV. of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance".
First Use On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". An excerpt from this joint statement reads: In view of these new crimes of Turkey against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres. At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.
Nuremberg Trials Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Gรถring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.
In the aftermath of the Second World War, the London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-War Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but in paragraph 6 (c) Crimes Against Humanity, defined as
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Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was also stated: The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.
Tokyo Trials The defendants at the Tokyo International Tribunal. General Tojo was one of the main defendants, and is in the centre of the middle row
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the Second World War. The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948. A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines). In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War. War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk War Crimes Trials. Page 70 of 142
Apartheid The systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976. The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council.[13] In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.
The United Nations The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948. The International Criminal Court (ICC) was organized by the Rome Statute and the UN has delegated several crimes against humanity cases to the ICC. Because these cases were referred to the ICC by the UN, the ICC has broad authority and jurisdiction for these cases. The ICC acting without a UN referral lacks the broad jurisdiction to prosecute crimes against humanity, and cannot prosecute many cases, particularly if they occur outside of ICC-member nations. The most recent 2005 UN referral to the ICC of Darfur resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. The first person to be handed over to the ICC was Thomas Lubanga. He was convicted on 14 March 2012 and on 10 July 2012 was sentenced to 14 years imprisonment, pending appeal. The ICC is still seeking Joseph Kony. When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said "The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials. The UN has not referred any further crimes against humanity cases to the ICC since March 2005. A report on the 2008-9 Gaza War by Richard Goldstone accused Palestinian and Israeli forces of possibly committing a crime against humanity. In 2011, Goldstone said that he no longer believed that Israeli forces had targeted civilians or committed a crime against humanity.
UN Security Council UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution commits the Council to action to protect civilians in armed conflict.
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In 2008 the U.N. Security Council adopted resolution 1820, which noted that ―rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide‖.
The International Criminal Court In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the UN, and Article 7 of the treaty stated that: For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health; The Rome Statute Explanatory Memorandum states that crimes against humanity are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice.
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Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.[2]
Council of Europe The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section "Additional measures concerning violence in conflict and post-conflict situations", states in paragraph 69 that member states should: "penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;" In the Explanatory Memorandum on this recommendation when considering paragraph 69: Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the Geneva Conventions and as war crimes. To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". Article 7.2.a states "For the purpose of paragraph 1: "Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack."
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This means that an individual crime on its own, or even a number of such crimes, would not fall under the Rome Statute unless they were the result of a State policy or an organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter publishing his conclusions about allegations of crimes committed during the invasion of Iraq in March 2003 which might fall under the ICC. I n a section entitled "Allegations concerning Genocide and Crimes against Humanity" he states that "the available information provided no reasonable indicator of the required elements for a crime against humanity," i.e. 'a widespread or systematic attack directed against any civilian population'". The Holodomor has been recognized as a crime against humanity by the European Parliament.
Genocide
International Law After the Holocaust, which had been perpetrated by the Nazi Germany and its allies prior to and during World War II, Lemkin successfully campaigned for the universal acceptance of international laws defining and forbidding genocide. In 1946, the first Page 74 of 142
session of the United Nations General Assembly adopted a resolution that "affirmed" that genocide was a crime under international law, but did not provide a legal definition of the crime. In 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) which defined the crime of genocide for the first time. The CPPCG was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally recognized definition of genocide which has been incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, which established the International Criminal Court (ICC). Article II of the Convention defines genocide as: ...any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. The first draft of the Convention included political killings, but these provisions were removed in a political and diplomatic compromise following objections from some countries, including the USSR, a permanent security council member. The USSR argued that the Convention's definition should follow the etymology of the term, and may have feared greater international scrutiny of its own Great Purge. Other nations feared that including political groups in the definition would invite international intervention in domestic politics. The convention's purpose and scope was later described by the United Nations Security Council as follows: The Convention was manifestly adopted for humanitarian and civilizing purposes. Its objectives are to safeguard the very existence of certain human groups and to affirm and emphasize the most elementary principles of humanity and morality. In view of the rights involved, the legal obligations to refrain from genocide are recognized as erga omnes. When the Convention was drafted, it was already envisaged that it would apply not only to then existing forms of genocide, but also "to any method that might be evolved in the future with a view to destroying the physical existence of a group". As emphasized in the preamble to the Convention, genocide has marred all periods of history, and it is this very tragic recognition that gives the concept its historical evolutionary nature.
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The Convention must be interpreted in good faith, in accordance with the ordinary meaning of its terms, in their context, and in the light of its object and purpose. Moreover, the text of the Convention should be interpreted in such a way that a reason and a meaning can be attributed to every word. No word or provision may be disregarded or treated as superfluous, unless this is absolutely necessary to give effect to the terms read as a whole. Genocide is a crime under international law regardless of "whether committed in time of peace or in time of war" (art. I). Thus, irrespective of the context in which it occurs (for example, peace time, internal strife, international armed conflict or whatever the general overall situation) genocide is a punishable international crime. — UN Commission of Experts that examined violations of international humanitarian law committed in the territory of the former Yugoslavia.
Specific Provisions "Intent to Destroy" In 2007 the European Court of Human Rights (ECHR), noted in its judgement on Jorgic v. Germany case that in 1992 the majority of legal scholars took the narrow view that "intent to destroy" in the CPPCG meant the intended physical-biological destruction of the protected group and that this was still the majority opinion. But the ECHR also noted that a minority took a broader view and did not consider biological-physical destruction was necessary as the intent to destroy a national, racial, religious or ethnic group was enough to qualify as genocide. In the same judgement the ECHR reviewed the judgements of several international and municipal courts judgements. It noted that International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice had agreed with the narrow interpretation, that biological-physical destruction was necessary for an act to qualify as genocide. The ECHR also noted that at the time of its judgement, apart from courts in Germany which had taken a broad view, that there had been few cases of genocide under other Convention States municipal laws and that "There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide".
In Part The phrase "in whole or in part" has been subject to much discussion by scholars of international humanitarian law. The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic – Trial Chamber I – Judgment – IT98-33 (2001) ICTY8 (2 August 2001) that Genocide had been committed. In Prosecutor v. Radislav Krstic – Appeals Chamber – Judgment – IT-98-33 (2004) ICTY 7 (19 April 2004) paragraphs 8, 9, 10, and 11 addressed the issue of in part and found that "the part must be a substantial part of that group. The aim of the Genocide Convention is to Page 76 of 142
prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole." The Appeals Chamber goes into details of other cases and the opinions of respected commentators on the Genocide Convention to explain how they came to this conclusion. The judges continue in paragraph 12, "The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal's Statute]." In paragraph 13 the judges raise the issue of the perpetrators' access to the victims: "The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. ... The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can—in combination with other factors—inform the analysis."
CPPCG Coming Into Force The Convention came into force as international law on 12 January 1951 after the minimum 20 countries became parties. At that time, however, only two of the five permanent members of the UN Security Council were parties to the treaty: France and the Republic of China. The Soviet Union ratified in 1954, the United Kingdom in 1970, the People's Republic of China in 1983 (having replaced the Taiwan-based Republic of China on the UNSC in 1971), and the United States in 1988. This long delay in support for the Convention by the world's most powerful nations caused the Convention to languish for over four decades. Only in the 1990s did the international law on the crime of genocide begin to be enforced.
UN Security Council on Genocide UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution committed the Council to action to protect civilians in armed conflict.
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In 2008 the UN Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".
Municipal Law Since the Convention came into effect in January 1951 about 80 United Nations member states have passed legislation that incorporates the provisions of CPPCG into their municipal law.
Criticisms of the CPPCG and Other Definitions of Genocide William Schabas has suggested that a permanent body as recommended by the Whitaker Report to monitor the implementation of the Genocide Convention, and require States to issue reports on their compliance with the convention (such as were incorporated into the United Nations Optional Protocol to the Convention against Torture), would make the convention more effective. Page 78 of 142
Writing in 1998 Kurt Jonassohn and Karin Björnson stated that the CPPCG was a legal instrument resulting from a diplomatic compromise. As such the wording of the treaty is not intended to be a definition suitable as a research tool, and although it is used for this purpose, as it has an international legal credibility that others lack, other definitions have also been postulated. Jonassohn and Björnson go on to say that none of these alternative definitions have gained widespread support for various reasons. Jonassohn and Björnson postulate that the major reason why no single generally accepted genocide definition has emerged is because academics have adjusted their focus to emphasise different periods and have found it expedient to use slightly different definitions to help them interpret events. For example Frank Chalk and Kurt Jonassohn studied the whole of human history, while Leo Kuper and R. J. Rummel in their more recent works concentrated on the 20th century, and Helen Fein, Barbara Harff and Ted Gurr have looked at post World War II events. Jonassohn and Björnson are critical of some of these studies, arguing that they are too expansive, and conclude that the academic discipline of genocide studies is too young to have a canon of work on which to build an academic paradigm. The exclusion of social and political groups as targets of genocide in the CPPCG legal definition has been criticized by some historians and sociologists, for example M. Hassan Kakar in his book The Soviet Invasion and the Afghan Response, 1979–1982 argues that the international definition of genocide is too restricted, and that it should include political groups or any group so defined by the perpetrator and quotes Chalk and Jonassohn: "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator." While there are various definitions of the term, Adam Jones states that the majority of genocide scholars consider that "intent to destroy" is a requirement for any act to be labelled genocide, and that there is growing agreement on the inclusion of the physical destruction criterion. Barbara Harff and Ted Gurr defined genocide as "the promotion and execution of policies by a state or its agents which result in the deaths of a substantial portion of a group ...[when] the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality." Harff and Gurr also differentiate between genocides and politicides by the characteristics by which members of a group are identified by the state. In genocides, the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In politicides the victim groups are defined primarily in terms of their hierarchical position or political opposition to the regime and dominant groups. Daniel D. Polsby and Don B. Kates, Jr. state that "... we follow Harff's distinction between genocides and 'pogroms,' which she describes as 'short-lived outbursts by mobs, which, although often condoned by authorities, rarely persist.' If the violence persists for long enough, however, Harff argues, the distinction between condonation and complicity collapses." According to R. J. Rummel, genocide has 3 different meanings. The ordinary meaning is murder by government of people due to their national, ethnic, racial, or religious group Page 79 of 142
membership. The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. This also includes non-killings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. A generalized meaning of genocide is similar to the ordinary meaning but also includes government killings of political opponents or otherwise intentional murder. It is to avoid confusion regarding what meaning is intended that Rummel created the term democide for the third meaning. Highlighting the potential for state and non-state actors to commit genocide in the 21st century, for example, in failed states or as non-state actors acquire weapons of mass destruction, Adrian Gallagher defined genocide as 'When a source of collective power (usually a state) intentionally uses its power base to implement a process of destruction in order to destroy a group (as defined by the perpetrator), in whole or in substantial part, dependent upon relative group size'. The definition upholds the centrality of intent, the multidimensional understanding of destroy, broadens the definition of group identity beyond that of the 1948 definition yet argues that a substantial part of a group has to be destroyed before it can be classified as genocide (dependent on relative group size). A major criticism of the international community's response to the Rwandan Genocide was that it was reactive, not proactive. The international community has developed a mechanism for prosecuting the perpetrators of genocide but has not developed the will or the mechanisms for intervening in a genocide as it happens. Critics point to the Darfur conflict and suggest that if anyone is found guilty of genocide after the conflict either by prosecutions brought in the International Criminal Court or in an ad hoc International Criminal Tribunal, this will confirm this perception.
International Prosecution of Genocide By Ad hoc Tribunals All signatories to the CPPCG are required to prevent and punish acts of genocide, both in peace and wartime, though some barriers make this enforcement difficult. In particular, some of the signatories—namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and former Yugoslavia— signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consent. Despite official protests from other signatories (notably Cyprus and Norway) on the ethics and legal standing of these reservations, the immunity from prosecution they grant has been invoked from time to time, as when the United States refused to allow a charge of genocide brought against it by former Yugoslavia following the 1999 Kosovo War. It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish for prosecution, because a chain of accountability must be established. International criminal courts and Page 80 of 142
tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.
Nuremberg Tribunal (1945–1946) Because the universal acceptance of international laws, defining and forbidding genocide was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), those criminals who were prosecuted after the war in international courts, for taking part in the Holocaust were found guilty of crimes against humanity and other more specific crimes like murder. Nevertheless the Holocaust is universally recognized to have been a genocide and the term, that had been coined the year before by Raphael Lemkin, appeared in the indictment of the 24 Nazi leaders, Count 3, which stated that all the defendants had "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups..."
International Criminal Tribunal for the Former Yugoslavia (1993 to present) The term Bosnian Genocide is used to refer either to the genocide committed by Serb forces in Srebrenica in 1995, or to ethnic cleansing that took place during the 1992– 1995 Bosnian War. In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide. On 26 February 2007, the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre in Srebrenica and Zepa constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed. On 12 July 2007, European Court of Human Rights when dismissing the appeal by Nikola Jorgić against his conviction for genocide by a German court (Jorgic v. Germany) noted that the German courts wider interpretation of genocide has since been rejected by international courts considering similar cases. The ECHR also noted that in the 21st century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide, and the ICTY has found in the Momcilo Krajisnik case that the actus reu, of genocide was met in Prijedor "With regard to the charge of genocide, the Chamber found that in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide".
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About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date, after several plea bargains and some convictions that were successfully challenged on appeal two men, Vujadin Popović and Ljubiša Beara, have been found guilty of committing genocide, Zdravko Tolimir has been found guilty of committing genocide and conspiracy to commit genocide, and two others, Radislav Krstić and Drago Nikolić, have been found guilty of aiding and abetting genocide. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgić lost an appeal against his conviction in the European Court of Human Rights. A further eight men, former members of the Bosnian Serb security forces were found guilty of genocide by the State Court of Bosnia and Herzegovina (See List of Bosnian genocide prosecutions). Slobodan Milošević, as the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina, so no verdict was returned. In 1995, the ICTY issued a warrant for the arrest of Bosnian Serbs Radovan Karadžić and Ratko Mladić on several charges including genocide. On 21 July 2008, Karadžić was arrested in Belgrade, and he is currently in The Hague on trial accused of genocide among other crimes. Ratko Mladić was arrested on 26 May 2011 by Serbian special police in Lazarevo, Serbia.
International Criminal Tribunal for Rwanda (1994 to present) The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April 1994, commencing on 6 April. The ICTR was created on 8 November 1994 by the Security Council of the United Nations in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. So far, the ICTR has finished nineteen trials and convicted twenty seven accused persons. On 14 December 2009 two more men were accused and convicted for their crimes. Another twenty five persons are still on trial. Twenty-one are awaiting trial in detention, two more added on 14 December 2009. Ten are still at large. The first trial, of Jean-Paul Akayesu, began in 1997. In October 1998, Akayesu was sentenced to life imprisonment. Jean Kambanda, interim Prime Minister, pled guilty.
Extraordinary Chambers in the Courts of Cambodia (2003 to present) The Khmer Rouge, led by Pol Pot, Ta Mok and other leaders, organized the mass killing of ideologically suspect groups. The total number of victims is estimated at approximately 1.7 million Cambodians between 1975–1979, including deaths from slave labour.
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On 6 June 2003 the Cambodian government and the United Nations reached an agreement to set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) which would focus exclusively on crimes committed by the most senior Khmer Rouge officials during the period of Khmer Rouge rule of 1975–1979. The judges were sworn in early July 2006. The genocide charges related to killings of Cambodia's Vietnamese and Cham minorities, which is estimated to make up tens of thousand killings and possibly more The investigating judges were presented with the names of five possible suspects by the prosecution on 18 July 2007.
Kang Kek Iew was formally charged with war crime and crimes against humanity and detained by the Tribunal on 31 July 2007. He was indicted on charges of war crimes and crimes against humanity on 12 August 2008. His appeal against his conviction for war crimes and crimes against humanity was rejected on 3 February 2012, and he is serving a sentence of life imprisonment. Nuon Chea, a former prime minister, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 19 September 2007. His trial, which is ongoing, started on 27 June 2011. Khieu Samphan, a former head of state, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 19 September 2007. His trial, which is ongoing, started on 27 June 2011. Ieng Sary, a former foreign minister, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 12 November 2007. His trial, which is ongoing, started on 27 June 2011. Ieng Thirith, a former minister for social affairs and wife of Ieng Sary, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. She was transferred into the custody of the ECCC on 12 November 2007. Proceedings against her have been suspended pending a health evaluation.
There has been disagreement between some of the international jurists and the Cambodian government over whether any other people should be tried by the Tribunal.
By the International Criminal Court Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. Due to the United States concerns over the ICC, the
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United States prefers to continue to use specially convened international tribunals for such investigations and potential prosecutions.
Darfur, Sudan There has been much debate over categorizing the situation in Darfur as genocide. The ongoing conflict in Darfur, Sudan, which started in 2003, was declared a "genocide" by United States Secretary of State Colin Powell on 9 September 2004 in testimony before the Senate Foreign Relations Committee. Since that time however, no other permanent member of the UN Security Council followed suit. In fact, in January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of the Sudan has not pursued a policy of genocide." Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide." In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the Commission report but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution. As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.
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In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. On 14 July 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors claimed that alBashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. On 4 March 2009, the ICC issued a warrant of arrest for Omar Al Bashir, President of Sudan as the ICC Pre-Trial Chamber I concluded that his position as head of state does not grant him immunity against prosecution before the ICC. The warrant was for war crimes and crimes against humanity. It did not include the crime of genocide because the majority of the Chamber did not find that the prosecutors had provided enough evidence to include such a charge.
Genocide in History The preamble to the CPPCG states that "genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world," and that "at all periods of history genocide has inflicted great losses on humanity." In many cases where accusations of genocide have circulated, partisans have fiercely disputed such an interpretation and the details of the event. This often leads to the promotion of vastly different versions of the event in question. Revisionist attempts to challenge or affirm claims of genocide are illegal in some countries. For example, several European countries ban denying the Holocaust, while in Turkey referring to mass killings of Armenians, Greeks and Assyrians as a genocide may be prosecuted under Article 301. William Rubinstein argues that the origin of 20th century genocides can be traced to the collapse of the elite structure and normal modes of government in parts of Europe following the First World War: The 'Age of Totalitarianism' included nearly all of the infamous examples of genocide in modern history, headed by the Jewish Holocaust, but also comprising the mass murders and purges of the Communist world, other mass killings carried out by Nazi Germany and its allies, and also the Armenian genocide of 1915. All these slaughters, it is argued here, had a common origin, the collapse of the elite structure and normal modes of government of much of central, eastern and southern Europe as a result of the First World War, without which surely neither Communism nor Fascism would have existed except in the minds of unknown agitators and crackpots. — William Rubinstein, Genocide: a history
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Stages of Genocide, Influences Leading to Genocide, and Efforts to Prevent It For genocide to happen, there must be certain preconditions. Foremost among them is a national culture that does not place a high value on human life. A totalitarian society, with its assumed superior ideology, is also a precondition for genocidal acts. In addition, members of the dominant society must perceive their potential victims as less than fully human: as "pagans," "savages," "uncouth barbarians," "unbelievers," "effete degenerates," "ritual outlaws," "racial inferiors," "class antagonists," "counterrevolutionaries," and so on. In themselves, these conditions are not enough for the perpetrators to commit genocide. To do that—that is, to commit genocide—the perpetrators need a strong, centralized authority and bureaucratic organization as well as pathological individuals and criminals. Also required is a campaign of vilification and dehumanization of the victims by the perpetrators, who are usually new states or new regimes attempting to impose conformity to a new ideology and its model of society. — M. Hassan Kakar In 1996 Gregory Stanton, the president of Genocide Watch, presented a briefing paper called "The 8 Stages of Genocide" at the United States Department of State. In it he suggested that genocide develops in eight stages that are "predictable but not inexorable". The Stanton paper was presented to the State Department, shortly after the Rwandan Genocide and much of its analysis is based on why that genocide occurred. The preventative measures suggested, given the briefing paper's original target audience, were those that the United States could implement directly or indirectly by using its influence on other governments. Stage
Characteristics
Preventive measures "The main preventive measure at People are divided into "us and this early stage is to develop 1. Classification them". universalistic institutions that transcend... divisions." "When combined with hatred, "To combat symbolization, hate symbols may be forced upon 2. symbols can be legally forbidden as Symbolization unwilling members of pariah can hate speech". groups..." "Local and international leaders should condemn the use of hate "One group denies the humanity of speech and make it culturally the other group. Members of it are 3. unacceptable. Leaders who incite Dehumanization equated with animals, vermin, genocide should be banned from insects, or diseases." international travel and have their foreign finances frozen." Page 86 of 142
"The U.N. should impose arms embargoes on governments and "Genocide is always organized... citizens of countries involved in 4. Organization Special army units or militias are genocidal massacres, and create often trained and armed..." commissions to investigate violations" "Prevention may mean security protection for moderate leaders or "Hate groups broadcast polarizing assistance to human rights 5. Polarization propaganda..." groups...Coups d’Êtat by extremists should be opposed by international sanctions." "Victims are identified and "At this stage, a Genocide 6. separated out because of their Preparation Emergency must be declared. ..." ethnic or religious identity..." "At this stage, only rapid and overwhelming armed intervention "It is 'extermination' to the killers can stop genocide. Real safe areas 7. Extermination because they do not believe their or refugee escape corridors should victims to be fully human". be established with heavily armed international protection." "The response to denial is "The perpetrators... deny that they 8. punishment by an international Denial committed any crimes..." tribunal or national courts" In April 2012, it was reported that Stanton would soon be officially adding two new stages, Discrimination and Persecution, to his original theory, which would make for a 10-stage theory of genocide. In a paper for the Social Science Research Council Dirk Moses criticises the Stanton approach concluding: In view of this rather poor record of ending genocide, the question needs to be asked why the "genocide studies" paradigm cannot predict and prevent genocides with any accuracy and reliability. The paradigm of "genocide studies," as currently constituted in North America in particular, has both strengths and limitations. While the moral fervor and public activism is admirable and salutary, the paradigm appears blind to its own implication in imperial projects that are themselves as much part of the problem as they are part of the solution. The US government called Darfur a genocide to appease domestic lobbies, and because the statement cost it nothing. Darfur will end when it suits the great powers that have a stake in the region. — Dirk Moses
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Other authors have focused on the structural conditions leading up to genocide and the psychological and social processes that create an evolution toward genocide. Helen Fein showed that pre-existing anti-Semitism and systems that maintained anti-Semitic policies were related to the number of Jews killed in different European countries during the Holocaust. Ervin Staub showed that economic deterioration and political confusion and disorganization were starting points of increasing discrimination and violence in many instances of genocides and mass killing. They lead to scapegoating a group and ideologies that identified that group as an enemy. A history of devaluation of the group that becomes the victim, past violence against the group that becomes the perpetrator leading to psychological wounds, authoritarian cultures and political systems, and the passivity of internal and external witnesses (bystanders) all contribute to the probability that the violence develops into genocide. Intense conflict between groups that is unresolved, becomes intractable and violent can also lead to genocide. The conditions that lead to genocide provide guidance to early prevention, such as humanizing a devalued group,creating ideologies that embrace all groups, and activating bystander responses. There is substantial research to indicate how this can be done, but information is only slowly transformed into action.
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International Litigation International Litigation (sometimes called "transnational litigation") is the practice of litigation in connection with disputes among businesses or individuals residing or based in different countries. The main difference between international litigation and domestic litigation is that, in the former, certain issues are more likely to be of significance — such as personal jurisdiction, service of process, evidence from abroad, and enforcement of judgments.
Jurisdiction Although there are differences among the jurisdictional statutes of many American states, they all are subject to the due process requirements imposed by the Constitution of the United States.[1] As a result, most American lawyers who are familiar with general principles of jurisdiction in one or more states of the US are able to guide their clients through jurisdictional issues in connection with disputes among litigants from different states. The situation is different with respect to jurisdictional principles in the international context. The first difference concerns Long arm jurisdiction, which is the statutory grant of jurisdiction to local courts over out-of-state defendants. A long-arm statute authorizes a court in a state to exercise jurisdiction over an out-of-state defendant. Without a long arm statute, the courts in a state might not have personal jurisdiction over an out-ofstate defendant. A state's authorization to exercise jurisdiction is limited by the federal Constitution. The use of a long arm statute is usually considered constitutional where the defendant has certain minimum contacts with the forum state and there has been reasonable notice of the action against that defendant. Second, many countries take the view that American concepts of long-arm jurisdiction are too broad, and courts of such countries will not recognize judgments from American courts based on the exercise of American long-arm jurisdiction. Looking at the issue from the non-American perspective, courts in some countries exercise jurisdiction based upon principles that American courts would consider unfair and repugnant to American law. For example, in some countries, such as England and Israel, a court may exercise jurisdiction over a defendant that is considered to be a "necessary or proper" party in a case against a local defendant. It is not clear that such a jurisdictional basis would be Page 90 of 142
upheld by American courts when the non-US judgment-creditor seeks to enforce in the United States.
Service of Process In every lawsuit, the plaintiff must effect service of process upon the defendant(s). In the international context, the issue of service of process is more complex. In the United States, service of process is routinely carried out by private lawyers or their agents. In contrast, many other countries consider the activity of serving process in a judicial proceeding to be one appropriate only for the government or an arm of the government. As a result of differing approaches to the issue of service of process, several nations signed the Hague Service Convention (1965), under which each member nation is required to establish a Central Authority to receive, review, and execute requests from foreign courts for carrying out service of process. Most countries that are signatories to the Hague Service Convention will accept requests for service that are signed by the lawyer for the plaintiff (claimant). Two exceptions are the UK and Israel. Any lawyer who ignores the international aspects of service of process when suing a non-US defendant might find that the resulting judgment cannot be enforced where the defendants' assets are available.
Evidence Under the Federal Rules of Civil Procedure, a lawyer licensed in one federal district may execute a subpoena to obtain documents or testimony from a witness located in a (distant) federal district. In contrast to the domestic situation, when a party to an international dispute needs to obtain evidence located in a foreign country, that party will usually need to make a request of the local court for it (the court) to issue a Letter of Request pursuant to the Hague Evidence Convention. Under the HEC, each member state is required to designate a Central Authority to receive, review, and carry out incoming requests to obtain evidence from persons (or other entities) located in the receiving country. Litigants before non-US tribunals may request the assistance of American courts to obtain evidence, through Section 1782 Discovery. The use of Section 1782 has increased in recent years.
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Trial Considerations Once a lawsuit proceeds past the discovery stage and is ready for trial, the differences between domestic litigation and international litigation are much less pronounced. Nonetheless, there are special issues involving non-US litigants. Depending upon the language sophistication of the witnesses on behalf of the non-US party, it might be necessary to arrange for an interpreter to translate trial testimony. Interpreters cost money, which increases the costs of the trial.
Recognition & Enforcement In the domestic US context, the recognition of judgments is governed by the Full Faith and Credit Clause of the federal Constitution. Full faith and credit does not apply to non-US judgments. The United States is not a party to any multilateral treaty governing the recognition of foreign judgments. Nonetheless, the approach of American courts to the recognition of non-US judgments has been a liberal one, ever since the US Supreme Court's decision in Hilton v. Guyot. Most states in the US have enacted the Uniform Foreign Money-Judgments Recognition Act, which governs the recognition of non-US judgments. As a general rule, under the Uniform Act, grounds for non-recognition can be predicated upon:
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Lack of conclusiveness: if the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law. the foreign court did not have personal jurisdiction over the defendant. The foreign court did not have jurisdiction over the subject matter; The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; The judgment was obtained by fraud; The cause of action on which the judgment is based is repugnant to the public policy of the state where enforcement is sought; The judgment conflicts with another final and conclusive judgment; The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action; or The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction.
Other Considerations Some states of the US require foreign corporations to deposit "security" when filing suit in their courts. Some other states require foreign corporations to register to do business as a condition to suing. In cases in federal court, a witness based outside the United States may execute an affidavit (or declaration) pursuant to 28 U.S.C. section 1746 without having his/her signature notarized. This procedure makes federal court more attractive to a litigant that expects to need to rely upon witnesses who are not based in the United States.
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Global Administrative Law Global
Administrative Law is
an
emerging field that is based upon a dual insight: that much of what is usually termed ―global governance‖ can be accurately characterized as administrative action; and that increasingly such action is itself being regulated by administrative law-type principles, rules and mechanisms – in particular those relating to participation, transparency, accountability and review. GAL, then, refers to the structures, procedures and normative standards for regulatory decision-making including transparency, participation, and review, and the rule-governed mechanisms for implementing these standards, that are applicable to formal intergovernmental regulatory bodies; to informal intergovernmental regulatory networks; to regulatory decisions of national governments where these are part of or constrained by an international intergovernmental regime; and to hybrid public-private or private transnational bodies. The focus of this field is not the specific content of substantive rules, but rather the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, transparency, participation, and assurance of legality in global governance.
Overview Today almost all human activity is subject to some form of global regulation. Goods and activities that are beyond the effective control of any one State are regulated at the global level. Global regulatory regimes cover a vast array of different subject-areas, including forest preservation, the control of fishing, water regulation, environmental protection, arms control, food safety and standardization, financial and accounting standards, internet governance, pharmaceuticals regulation, intellectual property protection, refugee protection, coffee and cocoa standards, labour standards, antitrust regulation, to name but a very few. This increase in the number and scope of regulatory regimes has been matched by the huge growth of international organizations: nowadays over 2,000 intergovernmental organizations (IGO) and around 40,000 Nongovernmental organizations (NGO) are operating worldwide. There are, of course, great differences among the various different types of regulatory regimes. Some merely provide a framework for State action, whereas others establish guidelines addressed to domestic administrative agencies, and others still impact directly upon national civil society actors. Some regulatory regimes create their own implementation mechanisms, while others rely on national or regional authorities for this task. To settle disputes, some regulatory regimes have established judicial (or quasijudicial) bodies, or refer to those of different regimes; while others resort to ―softer‖ forms, such as negotiation. Within this framework, the traditional mechanisms based on Page 95 of 142
State consent as expressed through treaties or custom are simply no longer capable of accounting for all global activities. A new regulatory space is emerging, distinct from that of inter-State relations, transcending the sphere of influence of both international law and domestic administrative law: this can be defined as the global administrative space. IOs have become much more than instruments of the governments of their Member States; rather, they set their own norms and regulate their field of activity; they generate and follow their own, particular legal proceedings; and they can grant participatory rights to subjects, both public and private, affected by their activities. Ultimately, they have emerged as genuine global public administrations. In other words, the structures, procedures and normative standards for regulatory decision-making applicable to global institutions (including transparency, participation, and review), and the rule-governed mechanisms for implementing these standards are coming to form a specific field of legal theory and practice: that of global administrative law. The main focus of this emerging field is not the particular content of substantive rules generated by global regulatory institutions, but rather the actual or potential application of principles, procedural rules and reviewing and other mechanisms relating to accountability, transparency, participation, and the rule of law in global governance.[4]
Bibliographical References Overview Articles
Sabino CASSESE, ―Administrative Law without the State? The Challenge of Global Regulation‖, 37 New York University Journal of International Law and Politics 663 (2005) Benedict KINGSBURY, Nico KRISCH and Richard B. STEWART, "The Emergence of Global Administrative Law", 68 Law and Contemporary Problems 15 (2005)
Casebooks
Global Administrative Law: The Casebook (3rd edition, 2012), edited by Sabino CASSESE, Bruno CAROTTI, Lorenzo CASINI, Eleonora CAVALIERI, and Euan MACDONALD Global Administrative Law: Cases, Materials, Issues (2nd edition, 2008), edited by Sabino CASSESE, Bruno CAROTTI, Lorenzo CASINI, Marco MACCHIA, Euan MACDONALD, and Mario SAVINO Global Administrative Law: Cases and Materials (1st edition, 2006)
Essays and Other Relevant Publications
Stefano BATTINI, Giulio VESPERINI (eds.), Global and European Constraints Upon National Right to Regulate: the Service Sector (February 29, 2008) Page 96 of 142
Lorenzo CASINI, ―Diritto amministrativo globale‖, in Sabino CASSESE (dir.), Dizionario di diritto pubblico, Milano (2006), ad vocem Daniel C. ESTY, ―Good Governance at the Supranational Scale: Globalizing Administrative Law‖, 115 Yale Law Journal 1490 (2006) Nico KRISCH, Benedict KINGSBURY (eds.), Symposium on ―Global Governance and Global Administrative Law in the International Legal Order‖, 17 European Journal of International Law, no. 1 (2006) NYU School of Law-IIILJ, GAL Working Papers Series NYU School of Law-IIILJ, GAL Emerging Scholars Working Papers Series
Bibliographical Resources
"General Bibliography", from Global Administrative Law: The Casebook (3rd edition, 2012) "General Bibliography", from Global Administrative Law: Cases, Materials, Issues (2nd edition, 2008) GAL Bibliography Update (Maurizia De Bellis, June 2006) Diritto amministrativo globale: Bibliografia (Bruno Carotti and Lorenzo Casini, 2006) "A Global Administrative Law Bibliography", 68 Law and Contemporary Problems 357 (2005) "GAL Bibliography", ed. by Euan MacDonald, on the NYU-IILJ Website
Relevant Institutions and Research Projects
The Global Administrative Law (GAL) Project based in the Institute for International Law and Justice (IILJ) - New York University School of Law. The Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht at Heidelberg has a GAL project with case studies of international administration (in English). The Istituto di Ricerche sulla Pubblica Amministrazione (IRPA), an Italian non profit organization founded in 2004 by Professor Sabino Cassese and other professors of administrative law, promotes advanced studies and research projects on GAL. The European University Institute in Florence has a project on self-regulation led by Professor Fabrizio Cafaggi. The Global Economic Governance Programme at Oxford University, directed by Professor Ngaire Woods. The Center for International Governance Innovation, an international think-tank based in Ontario, Canada. The Bremen Project, a Collaborative Research Center established in January 2003, supported by the University of Bremen, the International University (Bremen), and the Bremen University of Applied Sciences. La Chaire Mutations de L'Action Publique et du Droit Public (MADP), a professorship established under Professor Jean-Bernard Auby at Sciences Po (Paris). Page 97 of 142
Page 98 of 142
Landmark Cases In International Law International Court of Justice Cases This is a list of contentious cases and advisory opinions brought to the International Court of Justice since its creation in 1946. As of 2 November 2014, 161 cases have been entered onto the General List for consideration before the court. The jurisdiction of the ICJ is limited. Only states have standing to bring a compulsory claim against another state, and then only with the consent of the responding state. However, certain United Nations bodies and agencies such as the UN General Assembly have the power to submit questions for advisory opinions. Although these advisory opinions are not binding under international law, they do provide the ICJ's interpretation of what international law is. The list is organized by and includes only those disputes assigned a General List number by the registrar of the court. In the early days of the court, any formally correct application was accepted by the registrar and entered on to the General List. If there was no jurisdiction (because of lack of consent by the responding party), the case was soon ordered removed by the court. In 1978, however, the Court amended its rules and instructed the registrar to only enter a case on the General List if there was consent by the responding party, seemingly reducing the problem of meritless applications. However, at times consent and therefore jurisdiction is contested by the responding party. Such a case may be ordered to be added to the General List over the protestations of the respondent to allow the court to decide whether there is consent. In such a situation, however, the mere addition of a dispute to the General List does not have legal significance. Cas e# 1 2
3
4
Date of Date of applicatio dispositio n n Corfu Channel United 22 May 9 April Albania Case Kingdom 1947 1949 General List Number 2 assigned to some elements of Corfu Channel Case Conditions of Admission of a 24 State to 9 April November UN General Assembly Membership in 1949 1947 the United Nations Reparation for Injuries Suffered 7 11 April in the Service of December UN General Assembly 1949 the United 1948 Nations Case name
Applicant
Respondent
Type of disposition Judgment on Merits
Opinion on Merits
Opinion on Merits
Page 99 of 142
Date of Date of Type of applicatio dispositio disposition n n 28 18 Judgment Septembe December on Merits r 1949 1951
Cas e#
Case name
Applicant
Respondent
5
Fisheries Case
United Kingdom
Norway
6
Case Concerning the Protection of French Nationals and Protected Persons in Egypt
France
Egypt
13 October 1949
29 March Discontinue 1950 d
7
Asylum Case
Colombia
Peru
15 October 1949
20 Judgment November on Merits 1950
UN General Assembly
31 October 1949
18 July 1950
Opinion on Merits
UN General Assembly
28 November 1949
3 March 1950
Opinion on Merits
UN General Assembly
27 December 1949
11 July 1950
Opinion on Merits
28 October 1950
27 August 1952
Judgment on Merits
20 November 1950
28 May 1951
Opinion on Merits
8
9
10
11
12
13
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Competence of the General Assembly for the Admission of a State to the United Nations International Status of South West Africa Rights of Nationals of the United States of America in Morocco Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case
France
United States
UN General Assembly
Colombia
Peru
14
Haya de la Torre
Colombia
Peru
15
Ambatielos Case
Greece
United Kingdom
16
Anglo-Iranian Oil Co.
United Kingdom
Iran
Judgment 20 27 on November November Admissibilit 1950 1950 y 13 December 1950 9 April 1951 26 May 1951
13 June 1951
Judgment on Merits
19 May 1953 22 July 1952
Judgment on Merits Judgment on
Page 100 of 142
Cas e#
Case name
17
Minquiers and Ecrehos Case
France
United Kingdom
18
Nottebohm Case
Liechtenste in
Guatemala
19
Monetary Gold Removed from Rome in 1943
20
21
22
23
24
25 26 27 28
Electricite de Beyrouth Company Case Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Treatment in Hungary of Aircraft and Crew of the United States (United States v. Hungary) Treatment in Hungary of Aircraft and Crew of the United States (United States v. Soviet Union) Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa Aerial Incident of 10 March 1953 Antarctica (UK v. Argentina) Antarctica (UK v. Chile) Aerial Incident of 7 October 1952
Applicant
Respondent
France, United Kingdom, United States
Italy
France
Lebanon
UN General Assembly
Date of Date of Type of applicatio dispositio disposition n n Jurisdiction 5 17 Judgment December November on Merits 1951 1953 17 6 April Judgment December 1955 on Merits 1951 19 May 1953
15 June 1954
Judgment on Jurisdiction
15 August 1953
29 July 1954
Case Dismissed
21 December 1953
13 July 1954
Opinion on Merits
United States
Hungary
3 March 1954
12 July 1954
Discontinue d
United States
Soviet Union
3 March 1954
12 July 1954
Discontinue d
6 December 1954
7 June 1955
Opinion on Merits
29 March 1955 4 May 1955 4 May 1955 2 June 1955
14 March 1956 16 March 1956 16 March 1956 14 March 1956
Discontinue d Discontinue d Discontinue d Discontinue d
UN General Assembly
United States United Kingdom United Kingdom United States
Czechoslovakia Argentina Chile Soviet Union
Page 101 of 142
Cas e# 29
30
31
32
33
34
35
36
37
38
39
40
41
Case name Certain Norwegian Loans Judgements of the Administrative Tribunal of the ILO upon Complaints made against UNESCO Admissibility of Hearings of Petitioners by the Committee on South West Africa Right of Passage over Indian Territory Application of the Convention of 1902 Governing the Guardianship of Infants Interhandel Case Aerial Incident of 27 July 1955 (Israel v. Bulgaria) Aerial Incident of 27 July 1955 (United States v. Bulgaria) Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria) Sovereignty over Certain Frontier Land Arbitral Award Made by the King of Spain on 23 December 1906 Aerial Incident of 4 September 1954 Barcelona Traction, Light and Power Company
Applicant
Respondent
France
Norway
Date of Date of Type of applicatio dispositio disposition n n 6 July 6 July Judgment 1955 1957 on Merits
UNESCO
2 December 1955
23 October 1956
Opinion on Merits
UN General Assembly
19 December 1955
1 June 1956
Opinion on Merits
12 April 1960
Judgment on Merits
Portugal
India
22 December 1955
Netherland s
Sweden
10 July 1957
Switzerland
United States
Israel
Bulgaria
16 October 1957
26 May 1959
United States
Bulgaria
28 October 1957
30 May 1960
United Kingdom
Bulgaria
2 October 21 March 1957 1959
Netherlands
27 November 1957
Honduras
Nicaragua
1 July 1958
Belgium
Soviet Union
Spain
Judgment on Jurisdiction Judgment on Jurisdiction Discontinue d
22 3 August Discontinue November 1959 d 1957
Belgium
United States
28 Judgment November on Merits 1958
20 June 1959
Judgment on Merits
18 Judgment November on Merits 1960
9 22 August Discontinue December 1958 d 1958 23 Septembe r 1958
10 April 1961
Discontinue d
Page 102 of 142
Cas e#
42
43
44 45 46
47
48
Case name Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société RadioOrient (France v. Lebanon) Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization Aerial Incident of 7 November 1954 Preah Vihear Temple South West Africa (Ethiopia v. South Africa) South West Africa (Liberia v. South Africa) Northern Cameroons
Certain Expenses of the United Nations Barcelona Traction, Light and Power 50 Company, Limited (Second Application: 1962)
Applicant
Respondent
Date of Date of Type of applicatio dispositio disposition n n
France
Lebanon
13 31 August Discontinue February 1960 d 1959
International Maritime Organization
United States Cambodia
Thailand
Ethiopia
South Africa
Liberia
South Africa
Cameroon
United Kingdom
49
51
North Sea Continental Shelf cases
North Sea Continental Shelf cases Legal Consequences for States of the 53 Continued Presence of 52
Soviet Union
UN General Assembly
25 March 1959
8 June 1960
8 July 7 October 1957 1959 6 October 15 June 1959 1962 4 18 July November 1966 1960 4 18 July November 1966 1960 2 30 May December 1961 1963 21 20 July December 1962 1961
Opinion on Merits
Discontinue d Judgment on Merits Judgment on Merits Judgment on Merits Judgment on Jurisdiction Opinion on Merits
Spain
19 June 1962
West Germany
Denmark
20 February 1967
West Germany
Netherlands
20 February 1967
Joined with 20 Germany v. February Netherland 1969 s 20 Judgment February on Merits 1969
5 August 1970
21 June 1971
Belgium
Security Council
5 February Judgment 1970 on Merits
Opinion on Merits
Page 103 of 142
Cas e#
54
55
56
57
58
59
Case name South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 Appeal Relating to the Jurisdiction of the ICAO Council Fisheries Jurisdiction (Germany v. Iceland) Fisheries Jurisdiction (United Kingdom v. Iceland) Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal Nuclear Tests Case (Australia v. France) Nuclear Tests Case (New Zealand v. France)
60
Trial of Pakistani Prisoners of War
61
Western Sahara
62
63
64 65
Aegean Sea Continental Shelf Case Continental Shelf (Tunisia/Libyan Arab Jamahiriya) United States Diplomatic and Consular Staff in Tehran Interpretation of
Applicant
Respondent
India
Pakistan
Date of Date of Type of applicatio dispositio disposition n n
30 August 18 August 1971 1972
Judgment on Jurisdiction
West Germany
Iceland
5 June 1972
25 July 1974
Judgment on Merits
United Kingdom
Iceland
14 April 1972
25 July 1974
Judgment on Merits
3 July 1972
12 July 1973
Opinion on Merits
United Nations Administrative Tribunal
Australia
New Zealand
Pakistan
France
9 May 1973
20 Judgment December on 1974 Jurisdiction
France
9 May 1973
20 Judgment December on 1974 Jurisdiction
India
UN General Assembly
Greece
Turkey
Tunisia
Libya
United States
Iran WHO
15 December 1973 21 16 December October 1974 1975 19 10 August December 1976 1978 1 24 December February 1978 1982 11 May 1973
Discontinue d Opinion on Merits Judgment on Jurisdiction Judgment on Merits
6 February 1987
24 May 1980
Judgment on Merits
28 May
20
Opinion on Page 104 of 142
Cas e#
66
67
68
69
70
71
72
73
Case name the Agreement of 25 March 1951 between the WHO and Egypt Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal Delimitation of the Maritime Boundary in the Gulf of Maine Area Continental Shelf (Libyan Arab Jamahiriya/Malta) Frontier Dispute (Burkina Faso/Republic of Mali) Military and Paramilitary Activities in and Against Nicaragua Application for Revision and Interpretation of the Judgment of 24 Februaiy 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal Border and Transborder Armed Actions (Nicaragua v. Costa Rica)
Applicant
Respondent
United Nations Administrative Tribunal
Date of Date of Type of applicatio dispositio disposition n n 1980 December Merits 1980
28 July 1981
20 July 1982
Canada
United States
12 October 1984
Libya
Malta
3 June 1985
Burkina Faso
Mali
22 December 1986
Nicaragua
United States
27 June 1986
Tunisia
Libya
10 December 1985
United Nations Administrative Tribunal
Nicaragua
Costa Rica
10 Septembe r 1984
28 July 1986
27 May 1987
Opinion on Merits
Opinion on Merits
19 August Discontinue 1987 d
Page 105 of 142
Cas e#
74
75 76
77
78
79
Case name Border and Transborder Armed Actions (Nicaragua v. Honduras) Land, Island and Maritime Frontier Dispute Elettronica Sicula S.p.A. (ELSI) Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 Maritime Delimitation in the Area Between Greenland and Jan Mayen Aerial Incident of 3 July 1988
Certain Phosphate Lands in Nauru Applicability of Article VI, Section 22, of the 81 Convention on the Privileges and Immunities of the United Nations 80
82
Arbitral Award of 31 July 1989
83
Territorial Dispute (Libyan Arab Jamahiriya/Chad)
84
East Timor
85
Maritime Delimitation between GuineaBissau and Senegal
Applicant
Nicaragua
El Salvador
Respondent
Honduras
Honduras: ua
United States
Nicarag
Italy
UN General Assembly
Date of Date of Type of applicatio dispositio disposition n n 28 July 1986
11 11 Judgment December September on Merits 1986 1992 20 July 1989
7 March 1988
26 April 1988
Opinion on Merits
14 June 1993
Denmark
Norway
Iran
United States
17 May 1989
Nauru
Australia
19 May 1989
13 June 1989
ECOSOC
20 Judgment December on 1988 Jurisdiction
22 Discontinue February d 1996 13 Discontinue September d 1993
15 Opinion on December Merits 1989
Senegal
12 23 August Judgment November 1989 on Merits 1991
Libya
Chad
3 February 1994
Portugal
Australia
30 June 1995
GuineaBissau
GuineaBissau
Senegal
8 12 March Discontinue November 1991 d 1998
Page 106 of 142
Cas e#
Case name
86
Passage through the Great Belt
87
88
89
90
91
92 93
Maritime Delimitation and Territorial Questions between Qatar and Bahrain Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Oil Platforms (Islamic Republic of Iran v United States of America) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) GabÄ?ĂkovoNagymaros Project Legality of the Use by a State of
Applicant
Respondent
Date of Date of Type of applicatio dispositio disposition n n 10 17 May Discontinue September 1991 d 1992
Finland
Denmark
Qatar
Bahrain
Libya
United Kingdom
10 3 March Discontinue September 1992 d 2003
Libya
United States
10 3 March Discontinue September 1992 d 2003
Iran
United States
Bosnia and Herzegovina
Serbia and Montenegro
Hungary
Slovakia WHO
8 July 1991
16 March 2001
Judgment on Merits
6 November 2003
26 February 2007
25 In September progress 1997 3 8 July Opinion on Septembe 1996 Merits
Page 107 of 142
Cas e#
94
95
96
97
98
Case name Nuclear Weapons in Armed Conflict Land and Maritime Boundary Between Cameroon and Nigeria Legality of the Threat or Use of Nuclear Weapons Fisheries Jurisdiction (Spain v. Canada) Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests Kasikili/Sedudu Island
Vienna Convention on Consular Relations 99 (Paraguay v. United States of America) Difference Relating to Immunity from Legal Process of 100 a Special Rapporteur of the Commission on Human Rights Request for Interpretation of 101 the Judgment of 11 June 1998 Sovereignty over 102 Pulau Ligitan and Pulau Sipadan
Applicant
Cameroon
Respondent
Date of Date of Type of applicatio dispositio disposition n n r 1993
Nigeria: Equatorial 29 March 1996 Guinea
UN General Assembly
6 January 1995
10 October 2002
Judgment on Merits
8 July 1996
Opinion on Merits
Spain
Canada
4 Judgment 28 March December on 1995 1998 Jurisdiction
New Zealand
France
22 21 August September Dismissed 1995 1995
Botswana
Namibia
13 December 1999
Paraguay
United States
ECOSOC
Cameroon
Nigeria
Indonesia
Malaysia
10 Discontinue November d 1998
10 August 1998
29 April 1999
Opinion on Merits
28 October 1998
25 March 1999
Judgment on Merits
17 December 2002
Page 108 of 142
Cas e#
Case name
103
Ahmadou Sadio Diallo
Guinea
104
LaGrand
Germany
Applicant
Legality of Use of 105 Force (Yugoslavia Yugoslavia v. Belgium) Legality of Use of 106 Force (Yugoslavia Yugoslavia v. Canada) Legality of Use of 107 Force (Yugoslavia Yugoslavia v. France) Legality of Use of 108 Force (Yugoslavia Yugoslavia v. Germany) Legality of Use of 109 Force (Yugoslavia Yugoslavia v. Italy) Legality of Use of 110 Force (Yugoslavia Yugoslavia v. Netherlands) Legality of Use of 111 Force (Yugoslavia Yugoslavia v. Portugal) Legality of Use of 112 Force (Yugoslavia Yugoslavia v. Spain) Legality of Use of Force (Yugoslavia 113 Yugoslavia v. United Kingdom) Legality of Use of Force (Yugoslavia 114 Yugoslavia v. United States of America) Armed Activities on the Territory of Democratic the Congo 115 Republic of the (Democratic Congo Republic of the Congo v. Burundi) Armed Activities on the Territory of Democratic the Congo 116 Republic of the (Democratic Congo Republic of the Congo v. Uganda)
Date of Date of Type of applicatio dispositio disposition n n 28 Democratic Republic of December 19 June Judgment 2012 on Merits the Congo 1998 2 March 27 June Judgment United States 1999 2001 on Merits 15 Judgment 29 April December on Belgium 1999 2004 Jurisdiction 15 Judgment 29 April Canada December on 1999 2004 Jurisdiction 15 Judgment 29 April December on France 1999 2004 Jurisdiction 15 Judgment 29 April December on Germany 1999 2004 Jurisdiction 15 Judgment 29 April December on Italy 1999 2004 Jurisdiction 15 Judgment 29 April December on Netherlands 1999 2004 Jurisdiction 15 Judgment 29 April December on Portugal 1999 2004 Jurisdiction Respondent
Spain
29 April 1999
United Kingdom
29 April 1999
United States
29 April 1999
2 June 1999
Discontinue d
Burundi
23 June 1999
30 January 2001
Discontinue d
-
In progress
Uganda
2 June 1999
Discontinue d
15 Judgment December on 2004 Jurisdiction
Page 109 of 142
Cas e#
Case name
Applicant
Armed Activities on the Territory of the Congo Democratic (Democratic 117 Republic of the Republic of the Congo Congo v. Rwanda) Application of the Convention on the Prevention and 118 Punishment of the Croatia Crime of Genocide (Croatia v. Serbia) 119
Aerial Incident of 10 August 1999
Territorial and Maritime Dispute between 120 Nicaragua and Honduras in the Caribbean Sea 121
122
123
124
125
126
Respondent
Date of Date of Type of applicatio dispositio disposition n n
30 January 2001
Rwanda
Serbia
2 July 1999
Pakistan
India
21 Septembe r 1999
Nicaragua
Honduras
Democratic Arrest Warrant of Republic of the 11 April 2000 Congo Application for the Revision of the Judgment of 11 July 1996 in the Case concerning Bosnia and Application of the Herzegovina Convention on the Prevention and Punishment of the Crime of Genocide Certain Property Liechtenste (Liechenstein v. in Germany) Territorial and Maritime Dispute Nicaragua (Nicaragua v. Colombia) Frontier Dispute Benin (Benin/Niger) Armed Activities Democratic on the Territory of Republic of the the Congo (New Congo Application: 2002)
3 February Judgment 2015 on Merits
21 June 2000
Judgment on Jurisdiction
8 October 2007
Belgium
17 October 2000
14 February 2002
Judgment on Merits
Yugoslavia
24 April 2001
3 February 2003
Judgment on Jurisdiction
Germany
1 June 2001
10 Judgment February on 2005 Jurisdiction
Colombia
6 19 Judgment December November on Merits 2001 2012
Niger
12 July 2005
Rwanda
28 May 2002
3 February 2006
Judgment on Jurisdiction Page 110 of 142
Cas e#
Case name
(Democratic Republic of the Congo v. Rwanda) Application for Revision of the Judgment of 11 September 1992 in the Case concerning the 127 Land, Island And Maritime Frontier Dispute (El Salvador/Hondura s: Nicaragua Intervening) Avena and Other Mexican 128 Nationals 129
130
131
132
133
134
135
Certain Criminal Proceedings in France Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Maritime Delimitation in the Black Sea Dispute regarding Navigational and Related Rights Status vis-Ă -vis the Host State of a Diplomatic Envoy to the United Nations Pulp Mills on the River Uruguay
136 Certain Questions
Respondent
Date of Date of Type of applicatio dispositio disposition n n
El Salvador
Honduras
Judgment 10 18 on Septembe December Admissibilit r 2002 2003 y
Mexico
United States
Applicant
Democratic Republic of the Congo
Malaysia
9 January 31 March 2003 2004
16 Discontinue November d 2010
France
23 May 2008
Singapore
UN General Assembly
Judgment on Merits
10 December 2003
7 July 2004
Romania
Ukraine
3 February 2009
Costa Rica
Nicaragua
13 July 2009
Dominica
Switzerland
9 June 2006
Uruguay
Argentina
20 April 2010
Djibouti
France
4 June
Opinion on Merits
Discontinue d
Page 111 of 142
Cas e#
Case name
Applicant
Respondent
of Mutual Assistance in Criminal Matters 137
Maritime Dispute (Peru v. Chile)
Peru
Chile
138
Aerial Herbicide Spraying
Ecuador
Colombia
Mexico
United States
Georgia
Russia
139
140
141
142
143
144
145
146
Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals Application of the International Convention on the Elimination of All Forms of Racial Discrimination Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo Application of the Interim Accord of 13 September 1995 Jurisdictional Immunities of the State Questions relating to the Obligation to Prosecute or Extradite Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters Judgment No.2867 of the Administrative
UN General Assembly
Macedonia
Germany
Date of Date of Type of applicatio dispositio disposition n n 2008
27 January 2014 13 31 March Discontinue September 2008 d 2013
19 January 2009
12 August 2008
1 April 2011
Judgment on Jurisdiction
10 October 2008
22 July 2010
Opinion on Merits
5 December 2011
Greece
Italy,
3 February Judgment 2012 on Merits
Greece
Belgium
Senegal
Belgium
Switzerland
International Fund for Agricultural Development
19 February 2009
26 April 2010
20 July 2012
Judgment on Merits
5 April 2011
Discontinue d
1 February Opinion on 2012 Merits Page 112 of 142
Cas e#
Case name
Tribunal of the International Labour Organization Certain questions concerning 147 diplomatic relations 148
Whaling in the Antarctic
Frontier Dispute (Burkina Faso v. Niger) Certain Activities carried out by 150 Nicaragua in the Border Area Request for Interpretation of 151 Temple of Preah Vihear Case 149
Applicant
Respondent
Date of Date of Type of applicatio dispositio disposition n n
12 May 2010
Discontinue d
31 May 2010
31 March 2014
Judgment on Merits
Niger
21 July 2010
16 April 2013
Judgment on Merits
Costa Rica
Nicaragua
18 November 2010
-
In progress
Cambodia
Thailand
28 April 2011
Honduras
Brazil
Australia, New Zealand
Japan
Burkina Faso
11 November Judgment 2013
Construction of a Road in Costa 152 Rica along the San Juan River
Nicaragua
Costa Rica
22 December 2011
17 April 2013
Joined with Certain Activities carried out by Nicaragua
Obligation to Negotiate Access 153 to the Pacific Ocean
Bolivia
Chile
24 April 2013
-
In progress
Nicaragua
Colombia
-
In progress
Nicaragua
Colombia
-
In progress
TimorLeste
Australia
-
In progress
154
Delimitation of the Continental Shelf
Alleged Violations of Sovereign Rights Seizure of Certain 156 Documents and Data Maritime Delimitation in the 157 Caribbean Sea and the Pacific Ocean Obligations concerning 158 Negotiations 155
Costa Rica
Marshall Islands
16 Septembe r 2013 27 November 2013
Nicaragua
25 February 2014
-
In progress
India
24 April 2014
-
In progress
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Cas e#
Case name
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) Obligations concerning Negotiations relating to Cessation of the Nuclear Arms 159 Race and to Nuclear Disarmament (Marshall Islands v. Pakistan) Obligations concerning Negotiations relating to Cessation of the Nuclear Arms 160 Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom) Maritime 161 Delimitation in the Indian Ocean
Applicant
Respondent
Date of Date of Type of applicatio dispositio disposition n n
Marshall Islands
Pakistan
24 April 2014
-
In progress
Marshall Islands
United Kingdom
24 April 2014
-
In progress
Kenya
28 August 2014
-
In progress
Somalia
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The Geneva Conventions The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the first three treaties (1864, 1906, 1929), and added a fourth. The Geneva Conventions extensively defined the basic rights of wartime prisoners (civilians and military); established protections for the wounded; and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries. Moreover, the Geneva Convention also defines the rights and protections afforded to noncombatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions (First Hague Conference, 1899; Second Hague Conference 1907), and the bio-chemical warfare Geneva Protocol (Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, 1925).
History The Swiss social activist Henry Dunant visited wounded soldiers after the Battle of Solferino in 1859, he was shocked by the lack of facilities, personnel, and medical aid available to help these soldiers. As a result, he published his book, Memoir of the Solferino, in 1862, on the horrors of war. His wartime experiences inspired Dunant to propose:
A permanent relief agency for humanitarian aid in times of war A government treaty recognizing the neutrality of the agency and allowing it to provide aid in a war zone
The former proposal led to the establishment of the Red Cross in Geneva. The latter led to the 1864 Geneva Convention, the first codified international treaty that covered the sick and wounded soldiers in the battlefield. For both of these accomplishments, Henry Dunant became corecipient of the first Nobel Peace Prize in 1901. The ten articles of this first treaty were initially adopted on August 22, 1864 by twelve nations. Clara Barton was instrumental in campaigning for the ratification of the 1864 Geneva Convention by the United States, which eventually ratified it in 1882.
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The second treaty was first adopted in the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies at Sea, concluded on July 6, 1906 and specifically addressed members of the Armed Forces at sea. It was continued in the Geneva Convention relative to the Treatment of Prisoners of War, concluded on July 27, 1929 and entered into effect on June 19, 1931. Inspired by the wave of humanitarian and pacifistic enthusiasm following World War II and the outrage towards the war crimes disclosed by the Nuremberg Trials, a series of conferences were held in 1949 reaffirming, expanding and updating the prior three Geneva Conventions and adding a new elaborate Geneva Convention relative to the Protection of Civilian Persons in Time of War. Despite the length of these documents, they were found over time to be incomplete. In fact, the very nature of armed conflicts had changed with the beginning of the Cold War era, leading many to believe that the 1949 Geneva Conventions were addressing a largely extinct reality: on the one hand, most armed conflicts had become internal, or civil wars, while on the other, most wars had become increasingly asymmetric. Moreover, modern armed conflicts were inflicting an increasingly higher toll on civilians, which brought the need to provide civilian persons and objects with tangible protections in time of combat, thus bringing a much needed update to the Hague Conventions of 1899 and 1907. In light of these developments, two Protocols were adopted in 1977 that extended the terms of the 1949 Conventions with additional protections. In 2005, a third brief Protocol was added establishing an additional protective sign for medical services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent emblems, for those countries that find them objectionable.
Contents The Geneva Conventions are rules that apply in times of armed conflict and seek to protect people who are not or are no longer taking part in hostilities; these include the sick and wounded of armed forces on the field, wounded, sick, and shipwrecked members of armed forces at sea, prisoners of war, and civilians. The first convention dealt with the treatment of wounded and sick armed forces in the field. The second convention dealt with the sick, wounded, and shipwrecked members of armed forces at sea. The third convention dealt with the treatment of prisoners of war during times of conflict; the conflict in Vietnam greatly contributed to this revision of the Geneva Convention. The fourth convention dealt with the treatment of civilians and their protection during wartime.
Conventions In diplomacy, the term convention does not have its common meaning as an assembly of people. Rather, it is used in diplomacy to mean an international agreement, or treaty. The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in 1949.
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The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in 1864. It was significantly revised and replaced by the 1906 version, the 1929 version, and later the First Geneva Convention of 1949. The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in 1906. It was significantly revised and replaced by the Second Geneva Convention of 1949. The Geneva Convention relative to the Treatment of Prisoners of War was adopted in 1929. It was significantly revised and replaced by the Third Geneva Convention of 1949. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was adopted in 1949.
With three Geneva Conventions revised and adopted, and the fourth added, in 1949 the whole set is referred to as the "Geneva Conventions of 1949" or simply the "Geneva Conventions". The treaties of 1949 were ratified, in whole or with reservations, by 196 countries.
Protocols The 1949 conventions have been modified with three amendment protocols:
Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.
Application The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3. The topic of applicability has generated some controversy. When the Geneva Conventions apply, governments have surrendered some of their national sovereignty by signing these treaties.
Common Article 2 relating to International Armed Conflicts This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:
The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which predates the 1949 version. The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. This language Page 118 of 142

was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a police action. The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions.
Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as an international conflict. When the criteria of international conflict have been met, the full protections of the Conventions are considered to apply.
Common Article 3 relating to Non-International Armed Conflict This article states that the certain minimum rules of war apply to armed conflicts that are not of an international character, but that are contained within the boundaries of a single country. The applicability of this article rests on the interpretation of the term armed conflict. For example it would apply to conflicts between the Government and rebel forces, or between two rebel forces, or to other conflicts that have all the characteristics of war but that are carried out within the confines of a single country. A handful of
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individuals attacking a police station would not be considered an armed conflict subject to this article, but only subject to the laws of the country in question. The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3, and additionally within the language of Protocol II. The rationale for the limitation is to avoid conflict with the rights of Sovereign States that were not part of the treaties. When the provisions of this article apply, it states that: 

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: o violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; o taking of hostages; o outrages upon dignity, in particular humiliating and degrading treatment; and o the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. The wounded and sick shall be collected and cared for.
Enforcement Enforcement authority of the United Nations Security Council The final international tribunal for all issues related to the Geneva Conventions and other treaties is the United Nations Security Council. As a charter, the UN Charter is a constituent treaty, and all members are bound by its articles. The UN Charter's Article 25 and others require that obligations to the United Nations prevail over all other treaty obligations. The UNSC rarely invokes its authority regarding the Geneva Conventions and so most issues are resolved by regional treaties or by national law.
Protecting Powers The term protecting power has a specific meaning under these Conventions. A protecting power is a state that is not taking part in the armed conflict, but that has agreed to look after the interests of a state that is a party to the conflict. The protecting power is a mediator enabling the flow of communication between the parties to the conflict. The protecting power also monitors implementation of these Conventions, such as by visiting the zone of conflict and prisoners of war. The protecting power must act as an advocate for prisoners, the wounded, and civilians. Page 120 of 142
Grave Breaches Not all violations of the treaty are treated equally. The most serious crimes are termed grave breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention:
willful killing, torture or inhumane treatment, including biological experiments willfully causing great suffering or serious injury to body or health compelling a protected person to serve in the armed forces of a hostile power willfully depriving a protected person of the right to a fair trial if accused of a war crime.
Also considered grave breaches of the Fourth Geneva Convention are the following:
taking of hostages extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly unlawful deportation, transfer, or confinement.
Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes. Nations are also obligated to search for persons alleged to commit these crimes, or persons having ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place. The principle of universal jurisdiction also applies to the enforcement of grave breaches when the UN Security Council asserts its authority and jurisdiction from the UN Charter to apply universal jurisdiction. The UNSC did this via the International Criminal Court when they established the International Criminal Tribunal for Rwanda and the Page 121 of 142
International Criminal Tribunal for the former Yugoslavia to investigate and/or prosecute alleged violations.
Legacy Although warfare has changed dramatically since the Geneva Conventions of 1949, they are still considered the cornerstone of contemporary international humanitarian law. They protect combatants who find themselves hors de combat, and they protect civilians caught up in the zone of war. These treaties came into play for all recent international armed conflicts, including the War in Afghanistan (2001–present), the 2003 invasion of Iraq, the invasion of Chechnya (1994–present),[31] and the 2008 War in Georgia. The Geneva Conventions also protect those affected by non-international armed conflicts such as the Syrian Civil War. The lines between combatants and civilians have blurred when the actors are not exclusively High Contracting Parties (HCP). Since the fall of the Soviet Union, an HCP often is faced with a non-state actors, as argued by General Wesley Clark in 2007. Examples of such conflict include the Sri Lankan Civil War, the Sudanese Civil War, and the Colombian Armed Conflict, as well most military engagements of the US since 2000. Some scholars hold that Common Article 3 deals with these situations, supplemented by Protocol II (1977). These set out minimum legal standards that must be followed for internal conflicts. International tribunals, particularly the International Criminal Tribunal for the former Yugoslavia (ICTY), have clarified international law in this area. In the 1999 Prosecutor v. Dusko Tadic judgement, the ICTY ruled that grave breaches apply not only to international conflicts, but also to internal armed conflict. Further, those provisions are considered customary international law, allowing war crimes prosecution by the United Nations and its International Court of Justice over groups that have signed and have not signed the Geneva Conventions. Controversy has arisen over the US designation of irregular opponents as "unlawful enemy combatants" (see also unlawful combatant) especially in the SCOTUS judgments over the Guantanamo Bay brig facility Hamdi v. Rumsfeld, Hamdan v. Rumsfeld and Rasul v. Bush, and later Boumediene v. Bush. President Bush 43, aided by Attorneys-General John Ashcroft and Alberto Gonzalez and General Keith B. Alexander, claimed the power, as Commander in Chief of the Armed Forces, to determine that any person, including an American citizen, who is suspected of being a member, agent, or associate of Al Qaeda, the Taliban, or possibly any other terrorist organization, is an ―enemy combatant‖ who can be detained in U.S. military custody until hostilities end, pursuant to the international law of war. The application of the Geneva Conventions to the 2014 conflict in the Ukraine (Crimea) is a troublesome problem because some of the personnel who engaged in combat against the Ukrainians were not identified by insignia, although they did wear militarystyle fatigues. American pilots in Operation Southern Watch were documented to bear no insignia, so as to gain some illusory intelligence advantage. The types of Page 122 of 142
comportment qualified as acts of perfidy under jus in bello doctrine are listed in Articles 37 through 39 of the Geneva Convention; the prohibition of fake insignia is listed at Article 39.2, but the law is silent on the complete absence of insignia. The status of POW captured in this circumstance remains a question.
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Prisoners of War
A prisoner of war (POW, PoW, PW, P/W, WP, PsW, enemy prisoner of war (EPW) or "missing-captured") is a person, whether combatant or non-combatant, who is held in custody by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase is dated 1660. Belligerents hold prisoners of war in custody for a range of legitimate and illegitimate reasons, such as isolating them from enemy combatants still in the field, releasing and repatriating them in an orderly manner after hostilities, demonstrating military victory, punishing them, prosecuting them for war crimes, exploiting them for their labor, recruiting or even conscripting them as their own combatants, collecting military and political intelligence from them, or indoctrinating them in new political or religious beliefs. Modern Times The 1648 Peace of Westphalia, which ended the Thirty Years' War, established the rule that prisoners of war should be released without ransom at the end of hostilities and that they should be allowed to return to their homelands.
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There also evolved the right of parole, French for "discourse", in which a captured officer surrendered his sword and gave his word as a gentleman in exchange for privileges. If he swore not to escape, he could gain better accommodations and the freedom of the prison. If he swore to cease hostilities against the nation who held him captive, he could be repatriated or exchanged but could not serve against his former captors in a military capacity.
European Settlers Captured in North America Early historical narratives of captured colonial Europeans, including perspectives of literate women captured by the indigenous peoples of North America, exist in some number. The writings of Mary Rowlandson captured in the brutal fighting of King Philip's War are an example. Such narratives enjoyed some popularity, spawning a genre of the captivity narrative, and had lasting influence on the body of early American literature, most notably through the legacy of James Fenimore Cooper's Last of the Mohicans. Some Native Americans continued to capture Europeans and use them as both as laborers and bargaining chips into the 19th century; see for example John R. Jewitt, an Englishman who wrote a memoir about his years as a captive of the Nootka people on the Pacific Northwest Coast from 1802–1805.
French Revolutionary Wars and Napoleonic Wars The earliest known purposely built prisoner-of-war camp was established at Norman Cross, England in 1797 to house the increasing number of prisoners from the French Revolutionary Wars and the Napoleonic Wars. The average prison population was about 5,500 men. The lowest number recorded was 3,300 in October 1804 and 6,272 on 10 April 1810 was the highest number of prisoners recorded in any official document. Norman Cross was intended to be a model depot providing the most humane treatment of prisoners of war. The British government went to great lengths to provide food of a quality at least equal to that available to locals. The senior officer from each quadrangle was permitted to inspect the food as it was delivered to the prison to ensure it was of sufficient quality. Despite the generous supply and quality of food, some prisoners died of starvation after gambling away their rations. Most of the men held in the prison were low-ranking soldiers and sailors, including midshipmen and junior officers, with a small number of privateers. About 100 senior officers and some civilians "of good social standing", mainly passengers on captured ships and the wives of some officers, were given parole d'honneur outside the prison, mainly in Peterborough although some as far away as Northampton, Plymouth, Melrose and Abergavenny. They were afforded the courtesy of their rank within English society.
Prisoner Exchanges The extensive period of conflict during the American Revolutionary War and Napoleonic Wars (1793–1815), followed by the Anglo-American War of 1812, led to the emergence of a cartel system for the exchange of prisoners, even while the belligerents were at war. A cartel was usually arranged by the respective armed service for the exchange of Page 126 of 142
like-ranked personnel. The aim was to achieve a reduction in the number of prisoners held, while at the same time alleviating shortages of skilled personnel in the home country.
American Civil War At the start of the civil war a system of paroles operated. Captives agreed not to fight until they were officially exchanged. Meanwhile they were held in camps run by their own army where they were paid but not allowed to perform any military duties. The system of exchanges collapsed in 1863 when the Confederacy refused to exchange black prisoners. In the late summer of 1864, a year after the Dix-Hill Cartel was suspended; Confederate officials approached Union General Benjamin Butler, Union Commissioner of Exchange, about resuming the cartel and including the black prisoners. Butler contacted Grant for guidance on the issue, and Grant responded to Butler on August 18, 1864 with his now famous statement. He rejected the offer, stating in essence, that the Union could afford to leave their men in captivity, the Confederacy could not. After that about 56,000 of the 409,000 POWs died in prisons during the American Civil War, accounting for nearly 10% of the conflict's fatalities. Of the 45,000 Union prisoners of war confined in Camp Sumter, located near Andersonville, Georgia, 13,000 (28%) died. At Camp Douglas in Chicago, Illinois, 10% of its Confederate prisoners died during one cold winter month; and Elmira Prison in New York state, with a death rate of 25%, very nearly equalled that of Andersonville.
Amelioration During the 19th century, there were increased efforts to improve the treatment and processing of prisoners. As a result of these emerging conventions, a number of international conferences were held, starting with the Brussels Conference of 1874, with nations agreeing that it was necessary to prevent inhumane treatment of prisoners and the use of weapons causing unnecessary harm. Although no agreements were immediately ratified by the participating nations, work was continued that resulted in new conventions being adopted and becoming recognized as international law that specified that prisoners of war be treated humanely and diplomatically.
Hague & Geneva Conventions Specifically, Chapter II of the Annex to the 1907 Hague Convention IV – The Laws and Customs of War on Land covered the treatment of prisoners of war in detail. These provisions were further expanded in the 1929 Geneva Convention on the Prisoners of War and were largely revised in the Third Geneva Convention in 1949. Article 4 of the Third Geneva Convention protects captured military personnel, some guerrilla fighters, and certain civilians. It applies from the moment a prisoner is captured until he or she is released or repatriated. One of the main provisions of the convention makes it illegal to torture prisoners and states that a prisoner can only be required to give their name, date of birth, rank and service number (if applicable). Page 127 of 142
The ICRC has a special role to play, with regards to international humanitarian law, in restoring and maintaining family contact in times of war, in particular concerning the right of prisoners of war and internees to send and receive letters and cards (Geneva Convention (GC) III, art.71 and GC IV, art.107). However, nations vary in their dedication to following these laws, and historically the treatment of POWs has varied greatly. During World War II, Imperial Japan and Nazi Germany (towards Russian POWs and Western Allied commandos) were notorious for atrocities against prisoners of war. The German military used the Soviet Union's refusal to sign the Geneva Convention as a reason for not providing the necessities of life to Russian POWs; and the Soviets similarly killed Axis prisoners or used them as slave labor. The Germans also routinely executed Western Allied commandos captured behind German lines per the Commando Order. North Korean and North and South Vietnamese forces routinely killed or mistreated prisoners taken during those conflicts.
Qualifications To be entitled to prisoner-of-war status, captured persons must be lawful combatants entitled to combatant's privilege—which gives them immunity from punishment for crimes constituting lawful acts of war such as killing enemy combatants. To qualify under the Third Geneva Convention, a combatant must be part of a chain of command, wear a "fixed distinctive marking, visible from a distance", bear arms openly, and have conducted military operations according to the laws and customs of war. (The Convention recognizes a few other groups as well, such as "[i]nhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously take up arms to
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resist the invading forces, without having had time to form themselves into regular armed units".) Thus, uniforms and/or badges are important in determining prisoner-of-war status; and francs-tireurs, terrorists, saboteurs, mercenaries, and spies do not qualify because they do not always follow the laws and customs of war and therefore they fall under the category of unlawful combatants. In practice, these criteria are rarely interpreted strictly. Guerrillas, for example, usually do not wear a uniform or carry arms openly, but captured guerrillas are often granted POW status. The criteria are applied primarily to international armed conflicts; in civil wars, insurgents are often treated as traitors or criminals by government forces, and are sometimes executed. However, in the American Civil War, both sides treated captured troops as POWs, presumably out of reciprocity, although the Union regarded Confederate personnel as separatist rebels. However, guerrillas and other irregular combatants generally cannot expect to receive benefits from both civilian and military status simultaneously.
Rights Under the Third Geneva Convention, prisoners of war (POW) must be:
Treated humanely with respect for their persons and their honor Able to inform their next of kin and the International Committee of the Red Cross of their capture Allowed to communicate regularly with relatives and receive packages Given adequate food, clothing, housing, and medical attention Paid for work done and not forced to do work that is dangerous, unhealthy, or degrading Released quickly after conflicts end Not compelled to give any information except for name, age, rank, and service number
In addition, if wounded or sick on the battlefield, the prisoner will receive help from the International Committee of the Red Cross. When a country is responsible for breaches of prisoner of war rights, those accountable will be punished accordingly. An example of this is the Nuremberg and Tokyo Trials. German and Japanese military commanders were prosecuted for preparing and initiating a war of aggression, murder, ill treatment, and deportation of individuals, and genocide during World War II. Most were executed or sentenced to life in prison for their crimes.
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The United States Military Terminology and Code of Conduct The United States Military Code of Conduct was promulgated in 1955 via Executive Order 10631 under President Dwight D. Eisenhower to serve as a moral code for United States service members who have been taken prisoner. It was created primarily in response to the breakdown of leadership and organization, specifically when U.S. forces were POWs during the Korean War. When a military member is taken prisoner, the Code of Conduct reminds them that the chain of command is still in effect (the highest ranking service member eligible for command, regardless of service branch, is in command), and requires them to support their leadership. The Code of Conduct also requires service members to resist giving information to the enemy (beyond identifying themselves, that is, "name, rank, serial number"), receiving special favors or parole, or otherwise providing their enemy captors aid and comfort. Since the Vietnam War, the official U.S. military term for enemy POWs is EPW (Enemy Prisoner of War). This name change was introduced in order to distinguish between enemy and U.S. captives. In 2000, the U.S. military replaced the designation "Prisoner of War" with "MissingCaptured". A January 2008 directive states that the reasoning behind this is since "Prisoner of War" is the international legal recognized status for such people there is no need for any individual country to follow suit. This change remains relatively unknown even among experts in the field and "Prisoner of War" remains widely used in the Pentagon which has a "POW/Missing Personnel Office" and awards the Prisoner of War Medal.
Numbers of POWs This is a list of nations with the highest number of POWs since the start of World War II, listed in descending order. These are also the highest numbers in any war since the Convention Relative to the Treatment of Prisoners of War entered into force on 19 June 1931. The USSR had not signed the Geneva convention. Armies Soviet Union
Number of POWs held in captivity 4–5.7 million taken by Germany (2.7–3.3 million died in German POW camps (68-56%))
Nazi Germany
3,127,380 taken by USSR (474,967 died in captivity (15.2%)) (according to another source 1,094,250 died in captivity (35.8%)) unknown number in Yugoslavia, Poland, Netherlands, Belgium, Denmark (the death rate for German prisoners of war was highest in Yugoslavia with over 50%) 1.3 million unknown
Name of conflict World War II (Total)
World War II
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France Poland United Kingdom United States
1,800,000 taken by Germany
World War II
675,000 (420,000 taken by Germany; 240,000 taken by the Soviets in Invasion of Poland, and 1939; 15,000 taken by Germany in Warsaw in 1944) Warsaw Uprising ≈200,000 (135,000 taken in Europe, does not include Pacific or World War II Commonwealth figures) ≈130,000 (95,532 taken by Germany)
World War II
Pakistan
Indo-Pakistani War 90,368 taken by India & Bangladesh Liberation force (Mukti Bahini). (Bangladesh Liberation Later released by India in accordance with the Simla Agreement. War) of 1971
Iraq
≈175,000 taken by Coalition of the Gulf War
Persian Gulf War
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International Human Rights Instruments
International Human Rights Instruments
are treaties and other international documents relevant to international human rights law and the protection of human rights in general. They can be classified into two categories: declarations, adopted by bodies such as the United Nations General Assembly, which are not legally binding although they may be politically so as soft law; and conventions, which are legally binding instruments concluded under international law. International treaties and even declarations can, over time, obtain the status of customary international law. International human rights instruments can be divided further into global instruments, to which any state in the world can be a party, and regional instruments, which are restricted to states in a particular region of the world. Most conventions establish mechanisms to oversee their implementation. In some cases these mechanisms have relatively little power, and are often ignored by member states; in other cases these mechanisms have great political and legal authority, and their decisions are almost always implemented. Examples of the first case include the UN treaty committees, while the best exemplar of the second case is the European Court of Human Rights. Mechanisms also vary as to the degree of individual access to them. Under some conventions – e.g. the European Convention on Human Rights – individuals or states are permitted, subject to certain conditions, to take individual cases to the enforcement mechanisms; under most, however (e.g. the UN conventions), individual access is contingent on the acceptance of that right by the relevant state party, either by a Page 133 of 142
declaration at the time of ratification or accession, or through ratification of or accession to an optional protocol to the convention. This is part of the evolution of international law over the last several decades. It has moved from a body of laws governing states to recognizing the importance of individuals and their rights within the international legal framework.
The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights are sometimes referred to as the international bill of rights.
Declarations
Declaration of the Rights of the Child 1923 Universal Declaration of Human Rights (UN, 1948) American Declaration of the Rights and Duties of Man (OAS, 1948) Declaration on the Rights of Disabled Persons (UN, 1975) Declaration on the Right to Development (UN, 1986) Cairo Declaration of Human Rights in Islam (OIC,1990) Vienna Declaration and Programme of Action (World Conference on Human Rights, 1993) Declaration of Human Duties and Responsibilities (UNESCO, 1998) Universal Declaration on Cultural Diversity (UNESCO, 2001) Declaration on the Rights of Indigenous Peoples (UN, 2007) UN declaration on sexual orientation and gender identity (UN, 2008)
Conventions Global
International Covenant on Civil and Political Rights (ICCPR)
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International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA) International Covenant on Economic, Social, and Cultural Rights (ICESCR) Convention Relating to the Status of Refugees and Protocol Relating to the Status of Refugees Convention on the Rights of the Child (CRC) Convention Against Torture (CAT) Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC) Convention on the Prevention and Punishment of the Crime of Genocide Convention on the Rights of Persons with Disabilities (CRPD) International Convention for the Protection of All Persons from Enforced Disappearance Indigenous and Tribal Peoples Convention, 1989 (ILO 169)
Regional: Africa
African Charter on Human and Peoples' Rights African Charter on the Rights and Welfare of the Child Maputo Protocol
Regional: America
American Convention on Human Rights Inter-American Convention to Prevent and Punish Torture Inter-American Convention on Forced Disappearance of Persons Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities
Regional: Europe
Charter of Fundamental Rights of the European Union Convention on Action against Trafficking in Human Beings European Charter for Regional or Minority Languages (ECRML) European Convention on Human Rights (ECHR) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) European Social Charter (ESC), and Revised Social Charter Framework Convention for the Protection of National Minorities (FCNM)
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http://en.wikipedia.org/wiki/Jurisprudence
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http://en.wikipedia.org/wiki/International_law
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http://en.wikipedia.org/wiki/International_human_rights_instruments
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http://en.wikipedia.org/wiki/Universal_jurisdiction
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http://en.wikipedia.org/wiki/Geneva_Conventions
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