scholarly journals International Legal Problems of Qualification of Armed Conflicts

2021 ◽  
Vol 39 (68) ◽  
pp. 735-757
Author(s):  
Mykhaylo Buromenskiy ◽  
Vitalii Gutnyk
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Treaties ◽  
Legal Doctrine ◽  
International Agencies

The article addresses the qualification problems of armed conflicts. The study was conducted through the analysis of international legal doctrine, international treaties, decisions of international organizations. Attention is paid to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. It is noted that International Humanitarian Law has been in place since the beginning of the armed conflict. Therefore, the application of International Humanitarian Law does not require any recognition of the existence of armed conflict (international or non-international); this conflict exists because of armed clashes. It is emphasized that the need to classify the conflict arises in view of domestic and international legal factors (to bring to international criminal justice those who have committed war crimes; state responsibility for internationally wrongful acts, etc.). Attention was paid to the non-existence of a single body, which was empowered to determine the existence of an armed conflict. Different international agencies may have different qualifications for the same armed conflict. It is concluded that it is necessary to establish a Committee of Experts under the UN Secretary-General, to avoid different qualifications from the same armed conflict.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

2008 ◽  
Vol 8 (1-2) ◽  
pp. 319-329 ◽  
Author(s):  
Gauthier de Beco
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
War Crimes ◽  
Trial Chamber ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

When is a conflict international? Time for new control tests in IHL

2016 ◽  
Vol 98 (903) ◽  
pp. 1019-1041
Author(s):  
Djemila Carron
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Armed Group ◽  
Court Of Justice ◽  
International Court

AbstractThis article clarifies the control a State should have over an armed group for the triggering act of an international armed conflict and for the internationalization of non-international armed conflicts in international humanitarian law. It explains the reasons for the distinction between these two types of attribution and details the specificities of each test, with an innovative approach. The author proposes new control tests for both triggering and internationalization, rejecting the effective and overall control tests regarding internationalization proposed by the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. For instance, regarding the internationalization of a non-international armed conflict, a general and strict control test is proposed. Finally, this article addresses specific issues like the difficult question of the control required for an occupation through an armed group.

Denying Humanitarian Access as an International Crime in Times of Non-International Armed Conflict: The Challenges to Prosecute and Some Proposals for the Future

2015 ◽  
Vol 48 (3) ◽  
pp. 281-307 ◽  
Author(s):  
Rogier Bartels
Keyword(s):  
International Criminal Court ◽  
Armed Conflict ◽  
International Criminal ◽  
International Crime ◽  
Good Reason ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law

Impeding humanitarian access and the starving of civilians is prohibited under international humanitarian law in times of both international and non-international armed conflicts. Such conduct is criminalised under the Rome Statute of the International Criminal Court (ICC Statute) when committed during an international armed conflict. However, without good reason, it is not a war crime when committed during a non-international armed conflict. Contemporary conflicts, such as that in Syria, show that this is a problematic omission. This article addresses the challenges in prosecuting the denial of humanitarian access during international armed conflicts and examines the options to prosecute before the International Criminal Court such denial in times of non-international armed conflict as other war crimes, crimes against humanity, and genocide. The author concludes that these options would not suffice and proposes to add to the ICC Statute the starvation of the civilian population, including through impeding humanitarian access, as a war crime for non-international armed conflicts.

The notion of “protracted armed conflict” in the Rome Statute and the termination of armed conflicts under international law: An analysis of select issues

2019 ◽  
Vol 101 (912) ◽  
pp. 1091-1115
Author(s):  
Dustin A. Lewis
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
General Category ◽  
Humanitarian Law ◽  
Principles And Standards

AbstractLegal controversies and disagreements have arisen about the timing and duration of numerous contemporary armed conflicts, not least regarding how to discern precisely when those conflicts began and when they ended (if indeed they have ended). The existence of several long-running conflicts – some stretching across decades – and the corresponding suffering that they entail accentuate the stakes of these debates. To help shed light on some select aspects of the duration of contemporary wars, this article analyzes two sets of legal issues: first, the notion of “protracted armed conflict” as formulated in a war-crimes-related provision of the Rome Statute of the International Criminal Court, and second, the rules, principles and standards laid down in international humanitarian law and international criminal law pertaining to when armed conflicts have come to an end. The upshot of the analysis is that under existing international law, there is no general category of “protracted armed conflict”; that the question of whether to pursue such a category raises numerous challenges; and that several dimensions of the law concerning the end of armed conflict are unsettled.

The International Criminal Court and Non-International Armed Conflicts

2000 ◽  
Vol 13 (2) ◽  
pp. 395-425 ◽  
Author(s):  
Heike Spieker
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Conflicts

Non-international armed conflicts are more numerous, more brutal and entail more blood-shed today than international ones. The Statute of the International Criminal Court explicitly upholds the traditional distinction between international and non-international conflicts, and armed conflicts will have to be characterized accordingly. But the tendency to adapt the international humanitarian law (IHL) regime for non-international conflicts to the rules for international ones emerges. Article 7 on Crimes Against Humanity and Article 8(2)(c) and (e) on War Crimes amount to real progress in this respect. Yet, the regulation on war crimes in particular does not provide for comprehensive criminal responsibility of individual perpetrators in non-international conflicts.

New Mechanisms for the Enforcement of International Humanitarian Law

2001 ◽  
Vol 95 (4) ◽  
pp. 934-952 ◽  
Author(s):  
Daryl A. Mundis
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Community ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
Domestic Courts

The international criminal court (ICC) will serve as a permanent institution dedicated to the enforcement of international humanitarian law sixty days after the sixtieth state has deposited its instrument of ratification, acceptance, approval, or accession to the Treaty of Rome with the Secretary-General of the United Nations.1 Pursuant to Article 11 of the ICC Statute, however, the ICC will have jurisdiction only with respect to crimes committed after the treaty comes into force.2 Consequently, when faced with allegations of violations of international humanitarian law in the period prior to the establishment of the ICC, the international community has five options if criminal prosecutions are desired.3 First, additional ad hoc international tribunals, similar to those established for the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia, ICTY) and Rwanda (International Criminal Tribunal for Rwanda, ICTR) could be established.4 Second, "mixed" international criminal tribunals, which would share certain attributes with the ad hoc Tribunals, could be created.5 Third, the international community could leave the prosecution of alleged offenders to national authorities, provided that the domestic courts are functioning and able to conduct such trials. Fourth, in those instances where the national infrastructure has collapsed, international resources could be made available to assist with the prosecution of the alleged offenders in domestic courts. Finally, the international community could simply do nothing in the face of alleged violations of international humanitarian law.

scholarly journals Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Military Necessity

<p>The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.</p>

NGO Fact-Finding for IHL Enforcement: In Search of a New Model

2018 ◽  
Vol 51 (2) ◽  
pp. 261-299
Author(s):  
Gerald M Steinberg ◽  
Anne Herzberg
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
Criminal Court ◽  
Source Material ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Amnesty International ◽  
Legal Standards ◽  
The Media ◽  
Fact Finding

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact.

scholarly journals Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

2021 ◽  
Author(s):  
◽  
James Gallagher
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Committee ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Military Necessity

<p>The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.</p>

Implementing Legislation for the Application of the Law on the International Criminal Tribunal for the Former Yugoslavia and Criteria for its Evaluation

1998 ◽  
Vol 1 ◽  
pp. 35-68
Author(s):  
Ivo Josipović
Keyword(s):  
World War Ii ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Former Yugoslavia ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
History Of

The establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTY) and the adoption of its Statute heralded a new page in the history of international, particularly international criminal, law. For the first time since World War II, an international criminal court was established. The Tribunal was created in order to achieve important legal and political goals: to punish perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia since 1991; to prevent further crimes; to facilitate the peace process; and to serve as a test for a future permanent international criminal court.

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