Chapter 2. Articulating A Robust Jurisprudence: Trends In The Development Of The Modern International Rights Regime

This book fills a major gap in the scholarly literature concerning international criminal law, comparative criminal law, and human rights law. The principle of legality (non-retroactivity of crimes and punishments and related doctrines) is fundamental to criminal law and human rights law. Yet this was the first book-length study of the status of legality in international law - in international criminal law, international human rights law, and international humanitarian law. This was also the first book to survey legality/non-retroactivity in all national constitutions, developing the patterns of implementation of legality in the various legal systems such as Common Law, Civil Law, Islamic Law, and Asian Law around the world. This is a necessary book for any scholar, practitioner, and library in the area of international, criminal, comparative, human rights, or international humanitarian law.

This book brings together leading feminist international criminal and humanitarian law academics and practitioners to examine the place of gender in international criminal law (ICL). It identifies and analyses prevailing misconceptions and narrow understandings of gender, before turning to a consideration of the impact a limited conceptualization has on accountability efforts and the protection of rights. It includes specific examples from national and international jurisprudence from which it is clear that the term ‘gender’ has not been well understood and that gender ‘blind spots’ prevail. These manifest starkly, for example, with respect to sexual violence against men and boys, gender-based crimes affecting children, and the gendered dimensions of slavery, forced marriage, and reproductive crimes. The authors consider how best to implement a deeper and more accurate understanding of gender in the practice of international criminal law by identifying possible responses, including embedding a sophisticated gender strategy into the practice of ICL, the gender-sensitive application of international human rights and international humanitarian law, and feminist reconstruction of judging in ICL. Other authors examine efforts to ensure that gender is expansively interpreted in ICL, for example in a new treaty on crimes against humanity, and that victims’ reparation awards are gender-inclusive. The objective of this book is to promote a more nuanced and expanded understanding of the concept of ‘gender’ in the field ICL in order to strengthen efforts for accountability for war crimes, crimes against humanity, genocide, and aggression.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

The article presents both theoretical and practical reflections on international humanitarian law as a part of public international law. The author analyses the principle of legal certainty as an integral component and foundation of any normative legal regulation within a specific legal field. A correlation is drawn between international humanitarian law and related branches of international law, such as international criminal law and international human rights law. The study discusses the fundamental principles of international humanitarian law in the context of contemporary approaches to its interpretation as jus in bello, with references to previous definitions. The article analyses the definition of international humanitarian law in the context of balancing its two main principles: military necessity and humanity. A distinction is made between international humanitarian law and international human rights law. The study explores scholarly approaches to understanding the interrelationship and mutual influence of international humanitarian law and international human rights law based on the principles of complementarity and affinity. Consequently, the differences between international humanitarian law and international human rights law are identified. The author analyses practical examples of differentiating these branches of public international law at the present stage based on the lex specialis principle. The article also identifies future trends in the continued mutual development of international humanitarian law and international human rights law. It explores the influence of international criminal law on international humanitarian law, establishing that the field of international criminal law complements international humanitarian law, especially when it comes to the practical application of international criminal law norms in punishing acts that fall under the prohibitive norms of international humanitarian law. Finally, the article systematizes approaches to the integration of elements within the system of public international law.

This lecture explores the place of justice, accountability and remedies in the global agenda against terror, illustrated by a case study on Iraq and the Islamic State in Iraq and the Levant (ISIL.) The two international regimes traditionally applicable to the acts of armed groups, including “terrorist groups”, are international criminal law and international humanitarian law. The lecture argues that they carry each strong limitations, such as those related to the ‘‘armed conflict’’ nexus requirement. This lecture shows that a third regime, international counter-terrorism, has developed over the last two decades and become the de facto legal regime for armed non-State actors. This regime has displaced and weakened international humanitarian and criminal law while further eroding victims’ protection and accountability. The lecture further suggests that all three legal frameworks fail to capture the nature of control exercised by armed groups such as ISIL, and the extent of their functions, including those amounting to governance. The lecture argues that such functions can best be apprehended through international human rights law (IHRL). Tracing armed groups’ human rights obligations and legal personality to treaty and customary law, the lecture concludes with proposals to hold armed groups accountable under IHRL as well as possible approaches to strengthen accountability for crimes committed by ISIL.

The nature of the relationship between international humanitarian law and international human rights law remains a vexed one. In recent years, human rights lawyers and activists have sought to apply human rights norms to military conduct in international and internal conflicts, and during belligerent occupations. With varying degrees of success, complainants have brought their cases before international tribunals, and to national courts able to apply international human rights standards. This development has occurred largely because forums exist to hear human rights claims, whereas they do not for persons claiming individual redress for violations of international humanitarian law. However, human rights norms have also been seen as more restrictive: as placing greater constraints on States' freedom to conduct hostilities, preventively detain, and administer occupied territories. It is for this reason that some States have resisted attempts to extend the reach of international human rights law into areas traditionally seen as governed by international humanitarian law. This chapter argues that principles have now developed to govern the relationship between the two bodies of law. However, their application to different situations remains a work-in-progress and controversies remain. In particular, despite valient efforts, it remains unclear what what happens in situations where the two bodies of law cannot be read together? There are only few rules of norm-conflict resolution in international law, all of which have limited application in the context of the relationship between international humanitarian law and human rights law. Most inconsistencies between the rules of the two bodies of law are not true conflicts at all, as they do not require States to conduct themselves in different ways. It is simply that international humanitarian law is the more permissive system. In such situations, to argue that the two bodies of law are ‘complementary and mutually reinforcing’ is to do little more than issue a policy prescription. In reality, in such cases States have to make a choice as regards which rules they wish to comply (a choice which is likely to be a political one) and take the consequences. There are fundamental incompatibilities between international humanitarian law and human rights law, not only as regards discrete rules but in their theoretical bases. Attempts can be made to reconcile them, to avoid conflicts, but they can only be provisional and on a case-by-case basis. The legal tools available cannot always provide an answer. Absent legislation, conflicts will remain. And in a world of States with differing interests and values, the adoption of new rules governing armed conflict and belligerent occupation will be difficult, if not impossible. One difference between the two bodies of rules, in particular, remains fundamental. Despite developments over past decades which are said to indicate a ‘humanization of humanitarian law’, international humanitarian law, in contrast to human rights law, is not based on an individual rights paradigm. It is this difference, even excluding the differences in the substantive protections accorded individuals under the two bodies of law, which will ensure that individuals continue to bring complaints regarding their treatment in situations of armed conflict before human rights bodies. And even if human rights bodies take the view that States’ human rights obligations in situations of armed conflict are to be interpreted using the yardstick of international humanitarian law, their interpretations of humanitarian law are likely to differ from lawyers advising States’ defence ministries and armed forces, who are likely to continue to be unhappy with such trespasses into what they see as their chasse gardee.

ICL AND HRL: AS DIFFERENT AS COMPLEMENTARY For centuries, public international law (PIL) was seen as the legal order regulating the conduct of States and their interaction with other States at an international level. It was only at a relatively late stage that the rights of the individual to be protected from atrocities committed under the command of State authority were regulated (right to war/right in war, under the scope of international humanitarian law (IHL)). To a significant extent, it was with the unprecedented international crisis emerging from World War Two that human rights law (HRL) and international criminal law (ICL) robustly came into being. HRL and ICL are likely to be the two areas of PIL in which the individual's status as an international actor is of central relevance: in HRL as a (potential) victim of misguided State authority and in ICL as a (potential) perpetrator of some of the most severe crimes against mankind. The HRL project traditionally aimed at protecting individuals against States’ abuse, thus limiting the State power. Instead, criminal law was developed to ensure the reach of the State over individuals so as to guarantee order and security. If it is true that HRL consists essentially of a mechanism defining inherent, personal (i.e. inalienable) rights and allocating these rights and resulting freedoms (‘ espaces de liberte ’) to individuals by balancing potential conflicts between rights, criminal law sets in where some of these freedoms have been violated. From that perspective, criminal law acts as a guarantor so as to ensure that these rights are respected. With the emergence of ICL, the distinction between HRL and criminal law became blurred. The ICL project was intended to criminalise the most heinous violations of fundamental human rights while at the same time activating the individual responsibility of perpetrators. ICL was therefore seen as a device for the protection and enforcement of human rights, as opposed to being a tool at the disposal of an arbitrary power to be used against individuals. It was then perceived as being more intertwined with HRL than with criminal law. Undoubtedly, ICL and HRL are linked insofar as both are based and built upon the key concept of human dignity.

As of today, international criminal law, human rights law and international humanitarian law are perceived to be linked one to another. Nobody would deny today their close relationship or advocate the separate existence of these three chapters of international law. International humanitarian law deals with victims of armed conflict. In the period between the two World Wars international humanitarian law progressed in fields like the prohibition of particularly cruel weapons. The end of the 2nd World War brought about the beginning of the human rights era, which still characterizes our present time. The situation changed with the International Conference on Human Rights, convened by the United Nations in Teheran in 1968, a few months after the Six Days War in the Middle East had awakened international concern for armed conflict. International criminal law, human rights law and international humanitarian law have different origins. Keywords: armed conflict; human rights law; international criminal law; international humanitarian law; United Nations; World Wars

Advances in mobile phone technology and social media have created a world where the volume of information generated and shared is outpacing the ability of humans to review and use that data. Machine learning (ML) models and “big data” analytical tools have the power to ease that burden by making sense of this information and providing insights that might not otherwise exist. In the context of international criminal and human rights law, ML is being used for a variety of purposes, including to uncover mass graves in Mexico, find evidence of homes and schools destroyed in Darfur, detect fake videos and doctored evidence, predict the outcomes of judicial hearings at the European Court of Human Rights, and gather evidence of war crimes in Syria. ML models are also increasingly being incorporated by States into weapon systems in order to better enable targeting systems to distinguish between civilians, allied soldiers and enemy combatants or even inform decision-making for military attacks.The same technology, however, also comes with significant risks. ML models and big data analytics are highly susceptible to common human biases. As a result of these biases, ML models have the potential to reinforce and even accelerate existing racial, political or gender inequalities, and can also paint a misleading and distorted picture of the facts on the ground. This article discusses how common human biases can impact ML models and big data analytics, and examines what legal implications these biases can have under international criminal law and international humanitarian law.

The protection regimes of international human rights law (IHRL) and international humanitarian law (IHL) partially overlap. Certain unwanted conduct may therefore violate both human rights norms, which – subject to derogation – apply at all times, and humanitarian law rules, which only apply during armed conflicts. Under international criminal law, such conduct may therefore amount to both a crime against humanity and a war crime. The present contribution briefly sets out the role of human rights law in safeguarding the rights of accused persons before international criminal courts and tribunals, and thereafter analyses the impact of the interplay between IHRL and IHL on the application of the crimes against humanity and war crimes regimes. The author highlights problems that may arise in cases of crimes against humanity charges for conduct that took place during an international or non-international armed conflict, and stresses the need to keep the two regimes separate and ensure a good understanding of IHL, also in cases where – as a result of prosecutorial discretion – no war crimes are charged.

This study undertakes a philosophical examination of the intersection of international criminal law and human rights law, revealing the paradoxical tensions between the pursuit of justice and the protection of human rights. Through a critical analysis of the normative foundations of these two fields, this research discloses the differing ontological and epistemological assumptions underlying international criminal law and human rights law. Employing a qualitative research methodology, this study conducts an in-depth examination of the major international criminal law and human rights law instruments, including the Rome Statute of the International Criminal Court and the Universal Declaration of Human Rights. Additionally, this research undertakes a critical discourse analysis of the jurisprudence of international criminal law and human rights law institutions, including the International Criminal Court and the European Court of Human Rights. This study argues that the paradox of justice at the intersection of international criminal law and human rights law stems from the differing conceptions of justice and human rights that underlie these two fields. While international criminal law prioritizes retributive justice and the punishment of perpetrators, human rights law emphasizes restorative justice and the protection of human dignity. To reconcile this paradox, this research proposes a philosophical framework that integrates the insights of both fields. Drawing on the concepts of "justice as recognition" and "human rights as capabilities," this study develops a novel approach to understanding the intersection of international criminal law and human rights law. The findings of this study contribute to a deeper understanding of the complex relationships between justice, human rights, and international law. This research informs strategies for enhanced cooperation and accountability between international criminal law and human rights law institutions, ultimately promoting a more just and equitable international legal order. This study employs a qualitative research methodology, including critical discourse analysis and philosophical inquiry. The research questions guiding this study include: What are the differing ontological and epistemological assumptions underlying international criminal law and human rights law? How do these differing assumptions give rise to the paradox of justice at the intersection of international criminal law and human rights law? How can a philosophical framework that integrates the insights of both fields reconcile this paradox?. The study's findings suggest that a philosophical framework that integrates the insights of both fields is necessary to reconcile the paradox of justice. The research also highlights the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions in promoting a more just and equitable international legal order. The key lessons from this study include the importance of understanding the complex relationships between justice, human rights, and international law, and the need for a philosophical framework that integrates the insights of both fields. The study also emphasizes the importance of enhanced cooperation and accountability between international criminal law and human rights law institutions.

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

This collection of essays by sixteen outstanding authorities in the relevant fields assesses The International Criminal Court from the perspective of the year 1998 when it was first established by the Rome Statute. The book's detailed analysis of the potential uses (and misuses) of the Statute—its lacunae and shortcomings as well as its signal advances in jurisdiction and accountability—make International Crimes, Peace and Human Rights a significant reference and guide, not only to the Rome Statute, but also to the Court's jurisprudence as it develops in the coming years and decades. Published under the Transnational Publishers imprint.

The interrelationship of international human rights and humanitarian law is, in spite of the existence of a considerable level of literature on point, still somewhat uncertain. There have been claims that the two areas have increasingly converged, which have been countered with arguments to the effect that the twain never shall meet. This piece sees to investigate the relationship between these areas though an empirical analysis of the practice of the ICTY, and the way in which that Tribunal has sought to use human rights jurisprudence in a humanitarian law, and international criminal law, context. To show this, the piece analyses the relevant jurisprudence of the ICTY. Whilst giving credit where it is due, this piece attempts to show that the ICTY's practice, whilst not unimpeachable, has, in its more recent pronouncements, taken a more sophisticated approach than other international courts. With this in mind, he piece argues that in spite of its flaws, the later jurisprudence of the ICTY has helped to show that the interrelationships of international law, criminal law, human rights law, and international criminal law are not simple. As such the ICTY as made a useful contribution to the area, and one which has been somewhat more carefully thought through than the comments of other international courts, who have used the ICTY's jurisprudence without passing comment on the differentials that may exist between international criminal law and international law, and human rights law, in particular.

The article deals with the applicability of apartheid in occupied territory. Rather than assessing whether in specific situation of an occupation an occupying power has established an apartheid regime, the article discusses whether there is anything in the law of occupation or in the international regulation of apartheid that makes them mutually exclusive. On the basis of international human rights law, international criminal law, and international humanitarian law considerations, it is argued that apartheid can be applied to occupied territory following the ordinary rules for the application of international human rights law and international criminal law in occupied territory. Accordingly, international law does not bar the application of apartheid in occupied territory, but rather, the law of occupation and apartheid coincide to strengthen the protection of civilians in occupied territories.