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7719 results in Intersentia

Page 324 of 386

  • Annex II - Amendments to the Elements of Crimes, Rome Statute of the International Criminal Court

  • from PART VI - ANNEXES
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 263-264

  • Summary

    Article 8 bis

    Crime of aggression

    Introduction

  • It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.

  • There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.

  • The term “manifest” is an objective qualification.

  • There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations.

    • Elements

  • The perpetrator planned, prepared, initiated or executed an act of aggression.

  • The perpetrator was a person1 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

  • The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.

  • The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

  • The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

  • The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

  • Chapter VIII - National and Regional Prosecution of the Crime of Aggression

  • from PART V - NATIONAL AND REGIONAL CRIMINALISATION AND PROSECUTION OF THE CRIME OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 191-256

  • Summary

    THE CRIME OF AGGRESSION AND THE COMPLEMENTARITY IMPERATIVE

    The foundation of the international criminal justice system dominated by the International Criminal Court is the notion that states, and not the ICC, should take on the primary responsibility to investigate and prosecute cases of genocide, crimes against humanity and war crimes. The ICC should in principle only step in when states are unwilling or unable to deal with the matter at hand. This is known as the principle of complementarity. Needless to say, not all states are party to the ICC. However, other enforcement regimes beyond the Rome Statute of the ICC, for instance the UN Torture Convention, the Genocide Convention and the Geneva Conventions provide for an enforcement regime based on the domestication of crimes under international law and the concomitant possibility to enforce international criminal law at the national level.

    The Kampala Resolution on the Crime of Aggression adopted by the Assembly of States Parties expresses the sentiment that the crime of aggression, unlike the other core crimes, should rather not be prosecuted at the national level. There is no prohibition of national prosecutions. But there is a strong hint that there should not be any progressive domestication of the crime of aggression. Understandings 4 and 5 regarding the amendments to the Rome Statute on the crime of aggression provide that the amendments to the Rome Statute are adopted for purposes of the Rome Statute only, and not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than the Rome Statute.

    It is further understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another state. The latter Understanding is actually superfluous. The Rome Statute does not create a duty on the part of states parties to criminalise the core crimes under their domestic law. Of course, there is a duty on states parties to cooperate with the ICC, but there is no duty with respect to the implementation at national level of substantive international criminal law, safe for the modification of crimes against the administration of justice, thus including the ICC administration of justice as duly protected under domestic law as well.

  • Annex I - Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

  • from PART VI - ANNEXES
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 259-262

  • Summary

    1. Article 5, paragraph 2, of the Statute is deleted.

    2. The following text is inserted after article 8 of the Statute:

    Article 8 bis

    Crime of aggression

    1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

    2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

    a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

    b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

    c) The blockade of the ports or coasts of a State by the armed forces of another State;

    d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

    e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

    f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

  • Preface

  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp ix-x

  • Summary

    At the time of writing the crises in Syria and Ukraine have gripped the attention of the international media. Both crises caused extensive instability and human misery in some of the most volatile regions of the world. In neither of the two situations the ‘international community’ seemed to be able to find any real solutions. In both situations the use of armed force under international law formed part of the narrative. In Syria's case some presented the use of force as a solution (or at least as part of the solution) in order to stop an immoral and criminal regime from murdering its own people. Others objected to the use of force as a simplistic and prima facie unlawful way to solve a complex situation. In the case of Ukraine the unlawful use of force (including a powerful neighbour's use of armed force by proxy) was presented as the root cause of the conflict.

    The UN Charter-based collective security system provides for a strict framework on the prohibition of the use of force. Self-defence and the use of force as per Security Council authorisation are lawful. Other claims to lawfulness, including humanitarian intervention, pre-emptive self-defence and modern versions of the Just War doctrine are not lawful. Thus provides the modern jus contra bellum which emerged in the aftermath of the Second World War.

    The crime of aggression is the criminalisation of the unlawful use of force. The quest to find a suitable definition for this most opaque of the so-called core crimes resulted in the Kampala Resolution on the Crime of Aggression, which provides for a definition of aggression and for conditions for the exercise of International Criminal Court jurisdiction over the crime of aggression. The drafting, diplomacy and eventual adoption of the package of proposals constituted an achievement in its own right and a worthy monument to the legacy of Nuremberg; the birthplace of modern international criminal law. But there are significant substantive and jurisdictional limitations that render the Kampala Resolution on the Crime of Aggression perhaps more of a sentimental achievement than any real tool in the quest to end impunity for the most serious crimes under international law.

  • Foreword to the First Edition

  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp vii-viii

  • Summary

    Aggression has been a hot topic ever since it entered the realm of international criminal justice at the Nuremberg and Tokyo trials after the Second World War. It now belongs to the category of “the international core crimes”, together with war crimes, crimes against humanity and genocide. A – provisional – point of culmination in the legal status of aggression as an international crime is its inclusion in the list of crimes that come within the jurisdiction of the International Criminal Court.

    Despite its status as the “supreme international crime”, suggesting that aggression is more serious than the other international crimes, aggression is not an uncontroversial crime. Ever since its appearance, there has been disagreement over its actual meaning. Unlike for war crimes and genocide, no specialised convention for aggression has been adopted after the Second World War. Whereas there seems to be a growing consensus that aggression is prohibited under customary international law, and while it is even an international crime giving rise to individual criminal responsibility, no generally accepted definition of aggression exists as yet.

    Professor Kemp's book is the first comprehensive study of the subject with a focus on individual criminal responsibility. He starts by looking at aggression within the general framework of the collective security system of the United Nations set up after the Second World War, offering a detailed analysis of the various developments leading to the prohibition of the use of force in its normative and institutional perspective. Then follows an indepth study of various steps leading to the criminalisation of aggression, comprising the transition from a State responsibility-oriented approach towards a greater emphasis on individual criminal responsibility. Hardly any progress has been made after Nuremberg and Tokyo as far as individual criminal responsibility is concerned. While the 1974 General Assembly Resolution defining aggression has a clear focus on State Responsibility, projects oriented towards introducing individual criminal responsibility for this crime did not materialise. None of the International Law Commission's draft s defining aggression as an international crime made it into a treaty, and very little, if any, national legislation and jurisprudence exist on the “supreme international crime”.

  • Chapter II - From Jus Ad Bellum to Jus Contra Bellum: The Prohibition of the Use of Force in Normative and Institutional Perspective

  • from PART II - COLLECTIVE SECURITY AND THE JUS CONTRA BELLUM
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 47-70

  • Summary

    INTRODUCTION: THE SHIFT FROM JUS AD BELLUM TO JUS CONTRA BELLUM

    In Chapter I it was shown how the collective security system as it stands today developed primarily in response to the two devastating world wars. The anarchic international system where war was part of international politics (and regarded as an extension of a sovereign state's right to pursue the national interest), gave way to the liberal ideal of a collective security system based on respect for international law and institutions of collective security. Part of this shift away from power politics at international level involved a move away from what was known as the jus ad bellum, or the right that states would assert in order to use war in the national interest. The jus ad bellum was not limited by legal constraints to the extent that we have today in the Charter of the United Nations, and under customary international law. Ian Brownlie pointed out that in the period before 1914 (outbreak of the First World War) the right to resort to war was oft en asserted as a sovereign right. But even then statesmen and writers on the topic often linked the jus ad bellum to some or other justification, such as self-defence. By 1928, with the conclusion of the so-called Kellogg-Briand Pact (General Treaty for Renunciation of War as an Instrument of National Policy), the contracting parties declared that war would no longer be used as an instrument of national policy or to solve international disputes. This, according to Yoram Dinstein, was the historical moment when ‘international law progressed from jus ad bellum to jus contra bellum.’

    In Chapter I the prohibition on the use of force was explained with reference to the theory and practice of the liberal ideal of collective security. The Security Council of the UN is the primary institutional guarantor of this ideal. The institutional framework designed to maintain international peace and security as discussed in Chapter I will serve as background to a discussion in Chapter II of the content of the prohibition of the use of force and the criminalisation of crimes against peace, which will be discussed in Chapter III.

  • Chapter 4 - The Survival and Development of the Child and the Child's Human Dignity

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 141-192

  • Summary

    ‘Since when have you turned men into slaves, whereas they are born free of their mothers?’

    Caliph Omar Ibn Alkhattab, seventh century

    INTRODUCTION

    In its general guidelines for periodic reports, the Committee on the Rights of the Child states that article 6 of the Convention on the Rights of the Child (CRC) should be implemented in a manner that is compatible with the human dignity of the child. Precisely, the Committee on the Rights of the Child asks the States Parties to the Convention on the Rights of the Child to create a suitable environment in order to ensure to the maximum extent possible the survival and development of the child in a way that is compatible with the child's human dignity:

    Please describe specific measures taken to guarantee the child's right to life and to create an environment conducive to ensuring to the maximum extent possible the survival and development of the child, including physical, mental, spiritual, moral, psychological and social development, in a manner compatible with human dignity, and to prepare the child for an individual life in a free society.

    This chapter studies the interrelationship between the human dignity of the child and article 6(2) of the CRC on the right of the child to survival and development. The chapter starts with an identification of the concept of human dignity in the context of article 6(2). Following this, the chapter highlights the universal importance of the concept of human dignity, by highlighting the importance of human dignity in various cultural and religious backgrounds. This is also achieved by focusing on some international and domestic legal documents and constitutions. The chapter highlights the importance of the concept as a base or foundation for human rights. Later there is more detailed discussion on the relationship between article 6(2) and the concept of human dignity. As pointed out in Chapter 3, under the Convention on the Rights of the Child, article 6(2) has various capacities, e.g., the general principle capacity, the aim capacity, the qualifying factor capacity and the right capacity. This chapter discusses the interaction between the human dignity of the child and article 6(2) under various capacities.

  • Chapter 1 - Historical Background

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 7-46

  • Summary

    ‘Its language had been left more broadly stated than some would have liked.’

    James Grant, Former Executive Director of UNICEF

    INTRODUCTION

    On 20 November 1989 the United Nations (UN) General Assembly (GA) adopted Resolution A/RES/44/25, to which the Convention on the Rights of the Child (CRC) is annexed. Article 6(2) of this Convention is concerned with the right of the child to survival and development and reads as follows: ‘States Parties shall ensure to the maximum extent possible the survival and development of the child.’ This article speaks about two rights: the right of the child to survival and the right of the child to development.

    This chapter analyses the drafting history of article 6(2). The discussion starts with an analysis of the relationship between the concept of development, including human development, and the Convention on the Rights of the Child. This is important in order to put article 6(2) of the CRC in its original context as a right to development. The chapter then includes a descriptive analysis of the international instruments on the protection of the rights of the child in general and his or her right to development in particular prior to the adoption of the CRC. Following that, a detailed analysis of the drafting history of article 6(2) is included. Lastly, in an attempt to have a comprehensive historical analysis of article 6(2), the chapter discusses what can be called the ‘unoffi cial’ historical background of article 6(2), examining, in this regard, the role of United Nations Children's Fund (UNICEF) in the draft ing of the article and the possible reflection of the adoption of the 1986 Declaration on the Right to Development.

    This historical analysis is crucial in relation to the comprehensive interpretation, classification and implementation of article 6(2). It is also very important to point out that this analysis is not approached philosophically. Moreover, it is not about debating the nature or the historical evolution of the concept of children's rights or the arguments concerned with whether to grant children any rights or not.

  • Introduction

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 1-6

  • Summary

    One of the big achievements of the 1989 United Nations Convention on the Rights of the Child (CRC) is a provision designated for the survival and development of the child. Article 6(2) of this Convention reads: ‘State parties shall ensure to the maximum extent possible the survival and development of the child.’ This article is unique, for two reasons: firstly, because it guarantees for the child a rights-based approach for his or her survival and development. This means that the survival and development of the child is no longer merely charity that is given to the child by individuals, society and more significantly the State, who have jurisdiction over the child. Secondly, it is unique because it allows for terms such as ‘survival’ to be included in the body of a legally binding document. This has not been an easy thing to achieve, as will be explained later in the book.

    The exceptional existence of article 6(2) requires a comprehensive interpretation that fulfils the spirit and aims of this provision. This is also important when considering the significant position of the Convention on the Rights of the Child as a whole. Suffice to say, in this respect, that with the exception of the United States, Somalia and South Sudan, the Convention on the Rights of the Child has achieved universal ratification.

    The wide ratification of the Convention also makes it necessary to have an updated understanding of its provisions, particularly article 6(2). This kind of knowledge should be useful for the fulfilment and implementation of the right of the child to survival and development in almost every country around the globe. In addition, human-rights instruments in general, and the Convention on the Rights of the Child in particular, are meant to be living documents. This requires the interpretation of the Convention to be constantly reviewed and renewed. The legal interpretation presented in this book is one step in this direction. Obviously, there is always going to be a need for a deeper and updated understanding of the right of the child to survival and development.

    Chapter 1 of the book discusses the rather difficult process that led to the adoption of article 6(2).

  • Chapter 6 - Case Studies on Article 6(2)

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 249-276

  • Summary

    INTRODUCTION

    This chapter includes two detailed case studies that aim at highlighting the broad spectrum of article 6(2) on the right of the child to survival and development. This furthers the conclusion that the right of the child to survival and development is basically about the right of the child to ‘everything’. The case studies also emphasise the complex and evolving nature of State Party obligations under article 6(2). The two topics are discussed in detail. The discussion starts with the first case study, which adresses the interaction of climate change and the right of the child to survival and development. The second case study focuses on the connection between breastfeeding and the right of the child to survival and development.

    However, legitimate questions might arise with regard to the bases for choosing the two topics. Why choose climate change and breastfeeding? Are there any very far-reaching considerations? The interaction between human rights and the current issue of climate change is an important and pressing topic. In fact, climate change negatively interacts with the right of the child to survival and development. In this respect, it is important for a ‘comprehensive’ study on the right of the child to survival and development to cover this current and significant topic. As for the case study on the right of the child to survival and development and breastfeeding, it is important to emphasise that the relationship between the two was emphasised, as discussed in Chapter 1, during the draft ing of article 6(2). It is also important to point out that the discussion is not about a subjective right of the baby against his or her mother. In fact it is more about the responsibility and obligations of the State in such a horizontal relationship.

    FIRST CASE STUDY: CLIMATE CHANGE AND THE RIGHT OF THE CHILD TO SURVIVAL AND DEVELOPMENT

    INDIVIDUALITY AND INDEPENDENCE OF THE RIGHT OF THE CHILD TO SURVIVAL AND DEVELOPMENT

    It is important to re-emphasise that the right of the child to survival and development is a right on its own which is separate from other children's rights. It has its own broad formulation and components.

  • Chapter 5 - Who is Responsible? The Obligation of the State Party to Create Measures and Conditions Necessary for the Survival and Development of the Child

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 193-248

  • Summary

    ‘I am afraid that God might ask me about a stumbled mule in Iraq.’

    Caliphate Omar Ibn Alkhattab,

    Seventh century

    INTRODUCTION

    The adoption of the Convention on the Rights of the Child (CRC) has been a major step towards the recognition of children as legal rights holders. For the CRC, children are not only to be protected as subjects – they are also rights holders. Normally, in a ‘traditional’ human-rights context there are two main parties, namely the rights holders and the duty bearers. The Convention made it a reality that children are the rights holders vis-à-vis the State under whose jurisdiction they fall.

    The main aim of this chapter is to discuss the responsibility of the State, as the duty bearer, for the implementation and realisation of the rights of children to survival and development as guaranteed by article 6(2) of the CRC. To achieve this, the chapter focuses on two main points. The first one is that the survival and development of the child is not simply a right that is included in the CRC, it is actually an aim of the entire Convention. It is also a general principle of the CRC and a tool to measure the State Party's implementation of the Convention. As a general principle, it is similar to the best interests of the child, the nondiscrimination principle and the participation principle. States Parties that implement the Convention in a way that interferes with the survival and development of the child are in violation of the CRC.

    The second main point that the chapter discusses is related to the ‘formulation’ of the right of the child to survival and development itself. Based on an understanding that the survival and development is simply about the right of the child to everything, the chapter discusses the concept of the State Party obligation, under article 6(2), and the degree of this duty. This formulation of article 6(2) conveys that the survival and development of the child includes different ‘kinds’ of rights. In turn, different kinds of rights involve different kinds of State obligations.

  • Chapter 3 - The Nature of Article 6(2) on the Survival and Development of the Child

  • Khadeija Elsheikh Mahgoub
  • Book:
    The International Law on the Right of the Child to Survival and Development
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    17 November 2015, pp 113-140

  • Summary

    INTRODUCTION

    This chapter attempts to discuss the nature of article 6(2) on the survival and development of the child. Article 6(2) has been identified by many as a general principle of the Convention on the Rights of the Child (CRC). Other authors disagree and instead classify article 6(2) as an aim of the entire substantive article of the CRC. The main argument in this chapter is that the article is very complex and has multiple identities. Basically, article 6(2) is a right in itself, an aim of the Convention, a general principle and a quality-control factor.

    In this regard, it is probably worth mentioning that having more than one categorisation of an article of the Convention is not new to the Convention on the Rights of the Child. For example, article 12 of the Convention includes the following on the participation of children:

  • States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

  • For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

    • The Committee on the Rights of the Child has stated that this article is not only a general principle, but also a means for States to use: ‘Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children's rights.’

    ARTICLE 6(2) AS A GENERAL PRINCIPLE: A DISPUTED IDENTITY

    This identity of article 6(2) appeared very early on the children's rights literature that followed the adoption of the Convention on the Rights of the Child. Nevertheless this identity of article 6(2) has been disputed by many authors over the years.

Page 324 of 386