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This chapter explores the normative lessons offered by the structurally analogous descriptive and normative limitations of just war theory and transitional justice. Just war theory provides normative prescriptions for the onset, conduct during, ending, and aftermath of war. Transitional justice provides normative prescriptions for dealing with widespread human rights violations characteristically committed during conflict and/or periods of repression. Both just war theory and transitional justice provide normative prescriptions for profoundly non-ideal circumstances. Yet a yawning gap remains between the normative picture of just war and of transitional justice on the one hand, and the descriptive reality of contemporary conflicts and transitional justice practices on the other. To engage with the reality of each practice in a way that will prove actionable for its participants, new forms of normative guidance are needed.
Academics rarely raise the need to consider persons with disabilities when preventing, investigating and prosecuting international humanitarian law (IHL) violations. Worse still, no actual attempts have been made to include a disability perspective into practical guidance and monitoring mechanisms. This article addresses that void by laying out how existing yet unutilized IHL obligations can be leveraged to repress and suppress disability-based IHL violations. In doing so, the article will detail how fact-finding approaches, criminal investigative processes and reporting methods for IHL violations can be inclusive of persons with disabilities and thus more appropriately address the endemic under-representation of a disability perspective in the planning and execution of military operations during armed conflict and the specific crimes they thereby suffer. Additionally, this article will articulate concrete changes that should be made to international criminal law procedures for prosecuting war crimes to provide recognition and accountability for disability-based IHL violations, as has been done for violations against women and children. Finally, this article will diagnose the state of the law to address any legal challenges or hurdles that may hamper the inclusion of a disability perspective in fulfilling the IHL obligation to reduce and address violations of humanitarian law.
“The Longest Day in Graignes,” recounts the three German assaults on the village on 11–12 June. The paratroopers rebuffed the numerically superior enemy, until they ran out of ammunition. The 17th SS Panzergrenadier Division also employed heavy guns, including artillery, against the village. The Germans damaged the twelfth-century Romanesque Church. Once they seized the center of the village, the SS troops proceeded to murder the village priest, Father Albert Le Blastier, and his aides for tending to wounded Americans. The Nazi troops terrorized other villagers. The Nazis also executed nineteen US prisoners, many of whom had been wounded in action. The length of the battle held the 17th SS Panzergrenadier Division back from its central mission, namely the recapture of the strategically vital port town of Carentan.
The Manchurian Candidate myth that Americans could be psychologically manipulated and turned into secret agents of a foreign power emerged in the early Cold War. The belief combined fears that Soviet/Chinese mind manipulators were so adept that they could transform honorable American soldiers into turncoats. However, while disquiet about the efficacy of communist brainwashing remained palpable in the aftermath of World War II, the result of China's communist treatment of prisoners of war did not create, as was greatly feared, actual Manchurian candidates capable of misleading their native publics once repatriated. If brainwashing in the American understanding of the term did not occur, what was the actual outcome and what sort of processes were used on Asians who were not part of the communist masses? We need to unravel the PRC's take on the processes of “thought reform” to understand why it kept returning to a policy designed to “re-educate” prisoners of war, often doubly labeled as war criminals. These policies not only reveal how the CCP aimed to render justice beyond the conclusion of its war with Japan but also demonstrate how this practice then grew into a later catalyst for unification plans in PRC-ROC relations during the 1970s.
Despite the fact that persons with disabilities comprise, according to current statistics, a significant portion of conflict-affected communities and are disproportionately affected by armed conflict, the lack of inclusion in accountability mechanisms for acts amounting to crimes under international law is notable. The Convention on the Rights of Persons with Disabilities (CRPD) provides a framework for mainstreaming inclusive investigation practices and promoting greater accountability, through application of the principles of autonomy, non-discrimination and accessibility. This article makes suggestions for the operationalization of this CRPD framework through specific recommendations for accountability mechanisms, alongside legal opportunities for recognition of crimes affecting persons with disabilities and crimes resulting in disability. A case study of the so-called Islamic State of Iraq and the Levant and persons with disabilities in Iraq is used to illustrate the application of recommendations to ensure that persons with disabilities are no longer the “forgotten victims of armed conflict”.
This chapter explores the scope of application of international criminal law with respect to the repression of international crimes affecting animals during war. It considers how war crimes, crimes against humanity and genocide could apply. It then reviews all judgments – up to July 2020 – from the ad hoc/hybrid international criminal tribunals and the International Criminal Court where war crime allegations were adjudged and animals featured therein. It thus gives the first ever detailed account of how international criminal law has been used to address and repress international crimes that affect animals during war. The chapter then explores international criminal law’s limits and gaps in this area. It submits that animal cruelty during war should be recognised under international law in the same way that it is during peacetime under domestic law. It proposes that ‘other inhumane acts’ under the heading of crimes against humanity could be a means to potentially achieve this aim.
This chapter summarises the main elements in international crimes against civilians in situations of armed conflict and illustrates the prosecution of offenders. Only a tiny percentage of the crimes actually committed are even properly investigated and only in even fewer cases are the perpetrators actually prosecuted. This is despite the fact that the extent of unlawful violence against civilians would be greatly reduced by substantially enhanced efforts to ensure respect for domestic and international law by holding individuals to due account for their illegal actions.
Little is known about how international humanitarian law has developed around the world, other than in Europe and the USA. However, it is a topic worth researching, as it may reveal new connections, causalities and the previously unknown origins of legal institutions. Mexico is a good example of how the rules of war developed differently in different countries, since – as early as 1871 – it incorporated the law of war in its domestic criminal law. This article will explore how the idea of criminalizing violations of the laws of war flourished in nineteenth-century Mexico. A combination of factors including foreign interventions, civil wars, the liberal convictions of the drafters of the Mexican Criminal Code and their will to achieve the rank of “civilized nations” led to the creation of the crime “violations of the duties of humanity”. This development was a milestone in the history of pursuing individual criminal responsibility for violations of the laws of war and, therefore, is a missing piece in its history.
An initial glimpse into the ICC courtroom introduces the lead participants on the first day of the Court’s first trial. This chapter contrasts the modern courtroom in The Hague with culturally distant conflicts arising in the Congo, which tested the Court’s stamina for implementing international legal norms. The Court’s legal mission was formulated in the Rome Statute, a treaty accepted after 1998 by some 120 member states, building on earlier court models from Nuremberg, Yugoslavia, and Rwanda. Its moral scope contained broad ideals: promoting long-term peace and justice by prosecuting those deemed most responsible for atrocities that “shock the conscience of humanity.” Among the ICC’s innovations was a commitment to elevate victims of mass atrocities, enabling their active participation in trial proceedings. The Court’s overall design included a series of tensions and conflicts that would emerge during the years covered by the Congo trials. In addition to the cultural contrast between The Hague and the Congo, there were tensions between the strictly legal courtroom proceedings and the inevitable political entanglements facing an international court.
In Chapter 2, the analysis focusses on the substantive applicability of the ICC’s framework to environmental harm. It surveys the aims of the Court, as set out in its Preamble; the jurisdictional and admissibility criteria governing the Court’s activities; and the substantive provisions of the Rome Statute of the ICC, namely genocide, crimes against humanity, war crimes, and the crime of aggression.
This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”
This chapter contemplates the possibility of enforcing the responsibility of individuals with regard to violations of the principles of lawful targeting. It foregoes re-stating the general principles that govern the individual responsibility for war crimes, in favour of strictly addressing the responsibility for unlawful attacks during armed conflict. Two issues are discussed separately. The first one is the norms that criminalize attacks against persons not directly involved in hostilities and against civilian objects. It is verified whether each violation of IHL as regards targeting results in criminal responsibility. The second issue is responsibility strictly for the participation in hostilities, because in several states there have been attempts to criminalize this as a type of war crime. Moreover, punishability of such participation offers a good illustration of the differences in treatment of those on the state and the non-state side of armed conflict.
International criminal law is the branch of public international law under which individuals may be held criminally responsible for the offenses of genocide, crimes against humanity, war crimes, and the crime of aggression. International criminal law seeks to prevent impunity by holding accountable those individuals who are responsible for serious violations of international criminal law. This chapter begins with the history of international criminal law, starting with the aftermath of the First and Second World Wars, and ending with the creation of a spate of international criminal courts and tribunals in recent decades. The chapter then covers substantive aspects of international criminal law, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Finally, the chapter covers key procedural aspects of international criminal law, including the jurisdiction of international courts and tribunals, the admissibility of cases, modes of liability, and immunities. The International Criminal Court (ICC) will form a focal point in this chapter.
Section H is a brief analysis of international criminal law and its applicability to nuclear operations. It discusses the prohibition of genocide, crimes against humanity and war crimes, with a specific focus on the use of nuclear weapons.
The chapter discusses the founding of the Polish War Crimes Office, the ways in which the War Crime Office engaged with the UNWCC, and the Charge Files that it submitted. It is argued that the Polish War Crimes Office developed Charge Files in a strategic and organised manner. It was able to do this due to the continuous flow of intelligence from the Polish Underground State. It is also maintained that, through contributions to legal debates within the UNWCC and through submitted Charge Files, the Polish War Crimes Office helped to expand understanding of the idea of ‘war crimes’.
In the early part of the Second World War, the Polish Government in Exile (often in concert with the Czechoslovak government) sought to maintain pressure on the British Foreign Office to respond to war crimes. The chapter examines the statements made by Allied governments, from the Anglo–French–Polish statement of April 1940 to the publication of Punishment of War Crimes (2) in late August 1943. It analyses the diplomatic steps taken by the Polish Government in Exile to press for an Allied response to German atrocities. The chapter charts the path to the important St James’s Palace Declaration on Punishment for War Crimes of 13 January 1942. The 10 December 1942 Polish Note to Allies and the 17 December 1942 United Nations Declaration that publicly and officially recognised Germany’s policy ’to exterminate the Jewish people in Europe’ are also discussed.
This article poses the question as to whether and why States overlook the prosecution of people for war crimes rather than terrorist offences, where war crimes would be preferred. It looks at whether a diverse range of States (Afghanistan, Australia, Mali, the Netherlands and the Russian Federation) are able through their domestic legislation to prosecute people for war crimes or for terrorist offences. It considers what the value of prosecutions is theoretically and legally, and what the impact of prosecutions is practically in a State. It proposes that prosecutors, police and judges should ask the question whether an alleged offender should be prosecuted for war crimes and/or terrorist offences with war crimes being the preferred option where there is evidence that they have been committed.
Chapter 3 orients the student to the basics of LOAC as it exists on today’s battlefields. It moves from long-past history to modern, even contemporary, history by relating today’s LOAC, along with its more recent historical foundations and modern law of war incidents. For example, World War I and the ineffective trials of German war criminals by German courts – the Leipzig trials – are shown to be the impetus for World War II’s Nuremberg and Tokyo international military tribunals. The LOAC import of the League of Nations and the Spanish Civil War are detailed, along with the 1929 Geneva Conventions’ (two Conventions) contributions. The bulk of the chapter is an examination of today’s four 1949 Geneva Conventions, including their “common articles,” the varied routes to the charging of war crimes alleged against both combatants and civilians, along with the significance of “grave breach” war crimes. Indicators of war crimes is detailed, as well.
The “asymmetry myth” is that war crimes are committed by one's enemies but never, or hardly ever, by one's own combatants. The myth involves not only a common failure to acknowledge our own actual war crimes but also inadequate reactions when we are forced to recognize them. It contributes to the high likelihood that wars, just or unjust in their causes, will have a high moral cost. This cost, moreover, is a matter needing consideration in the jus ante bellum circumstances of preparedness for war as well as of conduct within it. As part of the symposium on Ned Dobos's book, Ethics, Security, and the War-Machine, I will argue that the strength of the asymmetry myth is sustained by certain forms of romantic nationalism linked to the glamorization of military endeavor.
The conclusion examines two stories from 2016 that reflect broader themes of veterans returning to Việt Nam. The appointment of Vietnam veteran and alleged war criminal Bob Kerrey to Chair of Fulbright University Vietnam revived the now-familiar narrative about American redemption in Việt Nam, while the pilgrimage of thousands of Australians to Việt Nam for the 50th anniversary of the Battle of Long Tan demonstrated a profound sense of entitlement to Vietnamese spaces. The conclusion summarizes that veterans returned in search of resolution or peace, which manifested in nostalgia. Upon return, many returnees found a measure of peace, but were challenged by the erasure of their wartime presence. Veterans negotiated this displacement by drawing from wartime narratives and performing nostalgic practices to reclaim their sense of belonging in Việt Nam. Yet the 2016 stories indicate that veteran influence in the country will decline as Việt Nam moves on from war.