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- Author: Ilias Bantekas x
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This book examines the historical evolution of international humanitarian law, in particular the legal and political bases for the penalisation of infractions associated with this body of law. The interaction of law, politics and financial considerations have proved detrimental for staging criminal prosecutions, even to this day, but ultimately have not negated the criminal liability of perpetrators. The book explores the various forms of direct participation in humanitarian law offences and the concept of the doctrine of superior responsibility. It stipulates the liability of those persons who, being in a position of authority, fail to prevent or punish crimes committed by their subordinates. The book deals with the elaboration of a legal theoretical model, defined as the 'duty to control', which attempts to address the gap identified in the relevant law of causation. It traces the evolution of humanitarian law in the context of non-international armed conflicts, with the aim of determining the application of humanitarian and criminal norms therein. Although for the purposes of humanitarian law the distinction between non-international and international conflicts is becoming less significant, people must still be aware of the mechanism known as 'conflict classification'. The world's major powers, with the exception of the UK, have expressly or implicitly widened their judicial jurisdiction by penalising extraterritorial breaches committed in internal armed conflicts. The book focuses on the legislative and judicial efforts of developed nations, mainly from Europe and North America. For these countries, the suppression of extraterritorial crime is not of imminent importance.
Humankind has enjoyed a rich history of wars, ever since men could organise themselves into fighting units against adversary forces. While international law categorically sanctioned the resort to war other than for legitimate self-defence, the family of nations has since time immemorial, whether individually or collectively, attempted to regulate personal conduct in warfare. After the Thirty Years War, which was terminated with the 1648 Peace Treaty of Westphalia, war became an interstate affair, rather than as previously a personal feud between princes. This chapter examines the evolution of custom in international humanitarian law and the elements that demonstrate evidence of state practice and opinio juris with regard to criminalisation. Wright, in his comments to the concluding Law Report of the allied trials of World War II, claimed that the punishment of war criminals had 'been recognised by the practice of nations and [was] part of the traditional law'.
This chapter analyses the circumstances under which superiors incur liability for the acts of their subordinates. A fundamental question posed in this chapter is whether all types of superiors are liable in accordance with the same criteria, or whether this depends upon each particular person's de facto or de jure status. The chapter presents an analysis of the necessary and reasonable measures expected of operational, tactical and POW camp commanders, as well as the extent of their liability in accordance with either the people they command or control, or the territory that they occupy. Regulation 8(ii) of the British Royal Warrant was subsequently construed by the United Nations War Crimes Commission as referring to a matter of evidence and not of substantive law. The chapter examines the applicable mens rea standard required under the doctrine of command responsibility, as well as possible lege ferenda standards.
The interaction of law, politics and financial considerations have proved detrimental for staging criminal prosecutions, even to this day, but ultimately have not negated the criminal liability of perpetrators. This chapter explores the various forms of direct participation in humanitarian law offences. These are: planning and conspiracy; ordering others to commit a crime; incitement and dissemination of hate propaganda; and complicity. The chapter describes the concept of war crimes and crimes against humanity. Since the adoption of the Genocide Convention, the concept of criminal conspiracies has attracted the attention of the ILC regarding its Draft Code of Crimes against the Peace and Security of Mankind. Draft Article 2 deals with the individual responsibility of participants in international offences. An order is unlawful when it violates international humanitarian law, regardless of its legitimacy under national law.
This chapter maintains that the concept of individual responsibility for offences committed in non-international armed conflicts has evolved through an instant customary process, from 1992 until 1998. There is still a question mark as to what is the exact ambit of criminal liability in internal conflicts. The existing distinction between international and internal armed conflicts is not a contemporary creation. The difference lies not in the nature of the actual hostilities themselves but in that people of the same land are naturally friends, their land being sick and torn by faction. Depending on the severity of hostilities, the organisation and level of international legitimacy enjoyed by the dissidents, two stages of civil conflict have traditionally been recognised: insurgency and belligerency. Common Article 3 of the 1949 Geneva Conventions calls into application a set of minimum humanitarian standards with regard to those armed conflicts that are 'not of an international character'.
This chapter describes the historical survey of superior responsibility. It examines who may be subjected to the doctrine, seeking to ascertain whether the concept of superior is a fixed one, or whether it fluctuates in accordance with certain identifiable parameters. The chapter also examines the existence of a meaningful difference between the terms 'command' and 'control'. Army officers do not argue that the doctrine is misconceived, they simply refuse to subject their military to it, as far as this is possible without showing forthright contempt for international humanitarian law. Incarceration of a culprit, after judicial ascertainment of the underlying crimes and motives, serves in the minds of the victims to restore truth and ultimately allow them to continue their lives. The chapter considers the procedural aspects of the doctrine under what circumstances natural persons are deemed to possess such authority over others as to incur criminal liability for their crimes.