Lecture 1 & 2
Introduction to ICL & international crimes
You feel it when you lose one person. People often do not feel the loss of 2 million people, it
is often just a number. After WOII -> need something for crimes that surpass the national
jurisdiction, crimes that ofend the international community as a whole. For this reason these
need to be addressed at the international level.
International/hybrid courts and tribunals
- IMT (Nuremberg) and IMTFE (Tokyo)
Established August 1945/ January 1946.
- ICTY & ICTR
Established in 1993/1994 by the UN SC by Resolution 827(1993)/955(1994).
- SCSL and ECCC (hybrid courts)
Established in 2002/2004 with an agreement between the UN and Sierra
Leone/Cambodian government.
- ICC
Established under the 1998 Rome Statute that cm into force in 1 July 2002.
International crimes
Ordinary (domestic) crimes
Murder, torture, rape, etc. War crimes
Crimes against humanity
Genocide
IHL as basis of war crimes
Modern international humanitarian law:
- Hague Conventions of 1899 and 1907 -> regulating methods and means of warfare
- Geneva Conventions of 1949 and Additional Protocols [AP] of 1977 and 2005 ->
regulating treatment of protected groups of persons (during confict).
Diferent persons are protected under the GC. These are further expanded in the
protocol’s.
> GC I: wounded and sick on the feld > AP I: expands upon rules
applicable to IACs
> GC II: wounded and sick at sea > AP II: expands upon rules
applicable to NIACs
> GC III: prisoners of war > AP III: creates a third
internationally recognized
> GC IV: civilians protective emblem: the
“red crystal”
Distinguishing between two kinds of armed conficts:
- International armed conficts (‘IACs’) -> GC I-IV + AP I
- Non-international armed conficts (‘NIACs’) -> Common Article 3 GCs + AP II
Article 3 GC (same for all four) -> restricted list of rules.
Int. humanitarian law sets rules of warfare: international & non-international armed conficts.
There are only a few non-international rules -> the doctrine of sovereignty was strong.
Mutual interest to committing to a broad set of rules -> protection etc. End 20/21 century ->
changed through customary international law. Customary international law exists of state
practice backed by opinio juris. States accepted rules of international conficts for non-
international conficts, but not all rules. However, the gap has mostly disappeared. Most
noticeable diference: GC III. No state has interest in providing rebels with this privilege. Bad
for their authority. Rebels are treated as (war)criminals. Exception: common article 3. Basic
rules that are accepted. Restricted list of rules.
Internationalizing a NIAC: third-party states’ involvement
- Another states intervenes in a NIAC through its troops
- A military group in the internal armed confict act on behalf of another State
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, ‘overall control’ test: the controlling state has a role: in (i) organizing, coordinating, or
planning the general military actions of the military group, and is (ii) fnancing, training
and equipping, or providing operational support to that group.
Since the end of the cold war conficts have become increasingly complex in their actual
circumstances.
Afghanistan-Taliban: is treated as in non-international confict. Other parties were asked by
the state to fght the Taliban. No clash of two states. Also possible that a state jumps in to
fght on the side on the side of the rebels, e.g. Syria. Then it becomes an international
confict. Also possible that a state does not send troops etc. directly (indirect involvement),
e.g. Ukraine. Here you have to do the overall control test. Introduced by the international
court of justice, Nicaragua case. The efective control test was also introduced, but they
found this threshold too high and came up with the overall control test.
Conficts can also change, e.g. shift of government. You have to look at the moment of the
conduct.
War crimes
Serious violations of the law of war which entail individual criminal responsibility. Serious
violation international law & customs of law (humanitarian law) during war. Serious violation
of IHL that entails individual criminal responsibility for the person that commits that act. In its
essence it can be seen as an extension of IHL. IHL is probably one of the most ancient bodies
of law.
Two traditional categories of war crimes:
- Grave breaches of the Geneva Conventions 1949
Article 2 ICTY Statute, exhaustive list. See also article 49, 50, 129 & 146 GC’s.
- Serious violations of the laws and customs of war
Article 3 ICTY, non-exhaustive list.
Has to be serious. IHL and the GC’s contain a lot of technical rules. This gives rise to
state responsibility, but not criminal responsibility for individuals. E.g. not making sure
that there is a cafeteria at the prisoner camp can’t be seen as a war crime.
However, ICC exhaustive list of violation of customs of war in article 8.
Grave breaches
Contextual elements:
- Existence of an international armed confict
An armed confict between two or more states
- Nexus between the (alleged) criminal act and the international armed confict:
The criminal act must be ‘closely related’ to the international armed confict: ‘the
existence of an armed confict must, at a minimum, have played a substantial part in
the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in
which it was committed or the purpose for which it was committed.’ (ICTY Kunarac et al.
Appeal Judgment)
- The victim is a protected person under the Geneva Conventions
i) Wounded and sick (on the feld/at sea) + religious, medical and hospital personnel
caring for them + their personal property [GC I and II];
ii) Prisoners of war [GC III];
iii) Civilians, who fnd themselves ‘in the hands of a Party to the confict of which they
are not nationals’ [GC IV].’
General defnition: everyone who is not a member of the armed forces of a state.
But also additional element: only enemies civilians, not own civilians. IHL defnes
civilians by reference to a requirement of formal nationality. States don’t want to
subject themselves to rules how they deal with their own civilians. After cold war ->
diferent kind of conficts: ethnic, religious conficts while forming new states. This
defnition caused problems, e.g. Bosnian Serbs army who killed Bosnian muslims ->
same nationality. This was an international confict, because of the intense
(indirect) involvement of Serbia in the Bosnia Herzegovina war it breached the
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