Protecting Children from Sexual Violence in Armed Conflict under International Humanitarian Law

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...

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

International humanitarian law and international criminal law are distinct but related fields. The application of international humanitarian law to concrete facts by international tribunals and courts has contributed to the development and clarification of this body of law. However, using a law in the courtroom that was created instead, to be applied on the battlefield poses significant challenges. In the process of such use, the law may have been distorted to fit facts that it was not envisioned to cover. Its use is as a means to punish unwanted behaviour during armed conflicts and to combat impunity risks contorting the balance on which international humanitarian law is based: military necessity and humanity. This chapter highlights some findings by international criminal tribunals and courts that do not sit easily with international humanitarian law as applied by armed forces, and discusses the consequences that applying the laws of armed conflict during criminal trials may have for this branch of international law.

The development of international humanitarian law is traditionally associated with the awakening of a humanitarian consciousness in Europe and North America. The history of Ancient China is a veritable catalogue of bloodshed and conflict. Violations of international humanitarian law are largely punished in international criminal courts and tribunals. In 1946, China actively participated in the International Military Tribunal for the Far East. With the trials of the Japanese war criminals in Tokyo and in domestic war criminal courts, Chinese scholars began to get acquainted with international humanitarian law and international criminal law. International humanitarian law are currently measured in the adoption of and adherence to international conventions and treaties. As the victim of internal and international armed conflicts for centuries, China recognizes the vital importance of establishing a permanent international criminal court to end impunity and safeguard peace. Consequently, China has supported proposals for creating an international criminal court. Keywords:Ancient China; Chinese humanitarian law; international criminal court; international criminal law; international humanitarian law

Thank you, Dean, for your kind remarks. First, a few words about the role of the ICTY. The International Criminal Tribunal for the Former Yugoslavia is, as you all know, the court of law established under Chapter VII of the UN Charter to address grave international crimes that took place in the Balkans in the 1990s. Its mandate, more specifically, is to bring to justice those individuals alleged to be responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991, and thus contribute to the restoration and maintenance of peace in the region. The ICTY's indictments have charged 161 persons, including heads of state, prime ministers, army chiefs of staff, interior ministers, and many other high- and mid-level political, military, and police leaders from various parties to the Yugoslav conflicts. Notably, as you all know, the ICTY was the first war crimes tribunal created by the United Nations and the first truly international war crimes tribunal since the Nuremberg and Tokyo tribunals, which were founded in the wake of the Second World War and were, in effect, occupation courts. The establishment of the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda, in the early 1990s not only helped to lead the way for the establishment of a number of other ad hoc international criminal courts, but demonstrated that the international community was fully committed to ending the impunity for the gravest of international crimes by making international criminal justice a reality. The ICTY and the ICTR were also an important catalyst for the adoption of the Rome Statute establishing the International Criminal Court. In addition, the ICTY has contributed to the international legal system in a far more straightforward manner through its cases and its jurisprudence. In case after case, the Chambers of the ICTY have shown that it is possible and practical to apply international criminal and humanitarian law in actual cases, not just a few times, as in Nuremberg, but repeatedly and in ways consistent with fair trial principles. The ICTY Chambers have construed, clarified, and applied customary humanitarian law, helping to articulate and strengthen norms concerning the protection of civilians and modes of individual criminal responsibility and firmly rooting its jurisprudence in the principle of legality. No less important, the decisions and judgments of the ICTY have also addressed a wide variety of procedural and evidentiary issues by reference to international standards, thus creating--perhaps for the first time--an important corpus of procedural law to which both international courts and national jurisdiction may refer. And even the factual determinations in the ICTY cases have contributed to the international legal system, as in the ICJ's ruling in the Genocide Case, where the ICJ's reliance on factual determinations by the ICTY in the Krstic case proved essential to the conclusions reached by the ICJ. Finally, the ICTY has made, and continues to make, important contributions to the strengthening of competent national judicial systems and the rule of law in the region of the former Yugoslavia. Indeed, thanks in great part to the ICTY's initiative and the support of the international community, specialized mechanisms for war crimes prosecutions have now been established in Bosnia and Herzegovina, Serbia, and Croatia, including the Special War Crimes Chamber in Sarajevo. Meanwhile, the training of legal professionals and witness support staff in the region by their ICTY counterparts has facilitated the implementation of international standards and best practices within the local judiciaries. These developments, while taking place on a national level, contribute in a meaningful way to global goals concerning the rule of the law. I turn to the implications of collocation at The Hague of tribunals and dynamics among courts situated at The Hague. …

INTRODUCTION. The practice of modern international criminal courts and tribunals raises serious questions about the proper enforcement of the rights of the accused. Among these rights, the accused's right to compensation is highlighted. Compensation is given to the accused (regardless of the verdict) for violation of his procedural rights and fundamental human rights and compensation to the acquitted person.MATERIALS AND METHODS. The analysis of ensuring the human right to compensation in the event of an unjust sentence is carried out on the basis of international human rights treaties, treaties on the creation of international courts, including appeal to the travaux preparatoires of the Statute of the International Criminal Court (ICC) and the practice of international criminal courts and tribunals, especially the ICC, as well as the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. The study was conducted using general scientific methods of cognition (in particular, analysis and synthesis), as well as comparative legal, historical legal and formal dogmatic methods. To achieve the corresponding conclusions, various methods of interpretation of the rule of law are used, in particular, grammatical, systematic, teleological, harmonic, etc.RESEARCH RESULTS. In the activities of international criminal courts and tribunals, a violation of the accused’s right to a hearing within a reasonable time is systemic, including due to the absence of any procedural deadlines on the one hand, and the absence of any rules (or their non-application) to restore the rights of the accused and punishment of the party who committed the violation of these rights. This situation poses serious problems of ensuring the rights of specific accused (including justified), but also the development of modern international criminal procedural law and international human rights law.DISCUSSION AND CONCLUSIONS. National legislation and international human rights instruments provide for the right of an acquitted person to compensation. In international criminal courts, this issue, however, is addressed in different ways. The statutes of international criminal courts ad hoc created by the UN Security Council do not mention the right to compensation for an accused or acquitted person. At the same time, the International Criminal Tribunal for Rwanda recognized that the absence of a reference to law in the Statute of the Tribunal does not mean that the persons concerned do not have the corresponding right. At the same time, this recognition did not have practical consequences. The Statute of the International Criminal Court recognizes the right to compensation, however, does so to a limited extent. Thus, in international criminal courts and tribunals, the provision of the human right to compensation (primarily compensation to an acquitted person) is performed at a lower level than that established in international human rights treaties.

Contemporary institutions of international cooperation are very diverse, a particular example of which are international courts and tribunals. The past few decades have seen a very dynamic development of such institutions of international cooperation. Not only do they take an active part in settling regular international disputes between states, but also play a role in implementing state obligations arising under their membership in international organisations. With respect to the latter role, judicial bodies act as not only international courts, but they also perform the functions of constitutional courts, administrative courts and labour tribunals. Moreover, the jurisdiction of international courts and tribunals is being extended onto the process of implementing the international law of human rights and international humanitarian law. From the point of view of international law, the legal status, structure and competence of contemporary international courts and tribunals are very diverse. This is due to the nature and content of their constituent instruments. The determining criterium of classifying a court as international is its formation by an international treaty, usually a multilateral one. Permanent courts formed by such treaties usually operate within the institutional framework of international organizations (ICJ, CJEU, ECHR) and do not have their own international legal personalities. However, it may happen that a permanent judicial body formed by an international treaty operates outside the framework of an international organisation and has its own international legal personality (ICC). This is different compared to the formation of ad hoc judicial bodies. Their legal basis can be both international treaties, including bilateral treaties (e.g. RSCSL-SCSL), and UN Security Council resolutions (e.g. ICTY, ICTR, IRMCT). Some of the international criminal tribunals are the so-called hybrid tribunals. They are specific in nature and are referred to as internationalized tribunals. Their status is clearly different than that of other tribunals, as is the legal basis for their formation and the degree of their internationalisation. Due to the above-mentioned issues, the legal status of international courts is diversified. They need to be analysed against the backdrop of the underlying issue of subjectivity of international law, and also with reference to the law of treaties and the law of the international organisations.

Case law of the International Court of Justice and international criminal tribunals reveals different judicial attitudes toward the relationship among State responsibility law, international humanitarian law (IHL) and the classification of armed conflicts. The legal precedents on this topic have been called 'the most cited example of the fragmentation of international law'. This contribution examines this conflict, or fragmentation, in order to shed light on the question whether IHL, or its interpretation and application, has had any influence on the general international law of State responsibility. With arguments specifically derived from the nature of international humanitarian law and from the structural design of State responsibility law, the article demonstrates that international armed conflicts involve two States that are responsible for the acts of their forces through which they act. Having in mind this symbiotic relationship between IHL and State responsibility for purposes of the classification of conflict, the case law on this matter, which is often cited as an example of fragmentation, can to some extent be reconciled, as long as one recognizes that attribution rules have a certain influence on the scope and application of primary rules of IHL. The article concludes that IHL (and the interpretation thereof by international tribunals with subject-matter expertise) has exercised no influence on attribution rules as found in the general international law of State responsibility, apart from the recognition that primary rules of international law (such as IHL) may contain secondary leges speciales rules dealing with the attribution of conduct in times of armed conflict.

<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>

<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>

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.

Despite the general consistency in the treatment of international humanitarian law by international courts and tribunals, recent decisions have seen significant disagreement regarding the scope of indirect responsibility for individuals and States for the provision of aid or assistance to non-State actors that perpetrate war crimes. The divisions at the international criminal tribunals with regard to the “specific direction” element of aiding and abetting are reminiscent of the divergence between the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia on the question of State responsibility for supporting or assisting non-State actors that engage in violations of international law. This article analyzes this jurisprudence on individual and State responsibility for the provision of support to non-State actors that breach international humanitarian law, and considers the interaction and interrelationship between these related but distinct forms of responsibility.

The advent of international criminal courts and the adoption of the Rome Statute aimed at creating a permanent international criminal court raise the question of whether the desire to punish the most odious crimes is leading inexorably to the creation of a supranational criminal law. Is the real intention to create an international legal system binding on States ? And if so, with what end in mind ? We know that international law is not limited to the regulation of relations between sovereign States. If the Westphalian view of international relations still has its followers, one notes increasing emphasis on the defence of humanity through humanitarian law, inciting international law to take a greater interest in protecting human beings. This trend in international law started over a hundred years ago in response to an increasing awareness of the problem. Today the world knows that by waging total war it is in danger of destroying itself. Its awareness of what happened in the past and its fears for the future have led, through international agreements called humanitarian, and in spite of the lack of any specific project, to the implementation of a number of measures intended to prevent any regression. But classic humanitarian law has proved inadequate ; it is not enough to prohibit certain acts, they also need to be sanctioned. This is why, since the end of the Cold War, international law has become steadily more repressive. It has dealt with emergency situations (ex-Yugoslavia, Rwanda) by making violations of international humanitarian law criminal offences and by creating special international jurisdictions to apply sanctions (I). The competence of these ad hoc institutions is limited however and does not enable them to sanction all internationally recognised crimes. Hence the idea of creating a universally competent international court in the future (The International Criminal Court). These new institutions will not completely replace national criminal courts. States and their agents will remain the main actors in the repression of international criminals. Given this situation, States will continue to play an essential role, taking part in prosecutions as they see fit, and retaining sovereignty in criminal matters (II). In fact States accept rather than suffer the application of humanitarian criminal law, not only for legal reasons (States' territorial and personal competence), but also for political reasons (maintaining diplomatic relations, respect for the need for national reconciliation). Clearly, the institutionalisation of the defence of human rights, through the prosecution of serious violations of humanitarian law, and the existence of specific repressive jurisdictions, does not call into question the relational nature of international law, nor the respect for the sovereign equality of all States. Under these conditions, the road to a supranational criminal law could well be long.

This chapter demonstrates how judicial decisions of international courts and tribunals have shaped international humanitarian law. Judicial decisions, specifically those of the ICTY and ICTR, have facilitated clearer comprehension of the law of non-international armed conflict. The discussion celebrates positive developments such as Tadić (ICTY), which defined “non-international armed conflict,” and Akayesu (ICTR), where “rape” is defined. However, this contribution cautions against judicial activism when interpreting war crimes because the resultant confusion frustrates those who deploy international humanitarian law during armed conflict. The International Criminal Court’s Ntaganda decision illustrates the delicate balance sustaining the relationship between international humanitarian law and international criminal law and is a reminder of the importance of the principle that war crimes vest in prohibitive rules under international humanitarian law. International humanitarian law is the starting point in interpretation, and a reversal of the correct order results in a dilution of international humanitarian law rules.

During the Russian–Ukrainian war, journalists, human rights defenders, volunteers, and ordinary citizens of Ukraine document violations of international laws and rules of warfare committed by Russian military forces. Russian troops deliberately and systematically attack hospitals, kindergartens, and schools; direct FPV drones and missiles at residential buildings; torture prisoners of war; execute captured soldiers; abuse civilians; carry out forced deportations and sexual violence. These actions constitute war crimes that are recorded and documented in order to be presented before international courts. Ukrainian online media regularly report facts and eyewitness testimonies concerning war crimes committed by the military and also initiate media projects (special projects) aimed at highlighting and documenting violations of international humanitarian law by Russian forces. The purpose of this study is to identify and analyze media projects dedicated to war crimes committed against Ukrainians during the full-scale invasion. For the analysis, media outlets included in the so-called “White List” of the Institute of Mass Information (IMI) were selected. The documentation of war crimes is understood as a process of systematic collection, recording, verification, and analysis of facts related to violations of established rules and laws of warfare as defined by international humanitarian law. The results of the study demonstrate that Ukrainian media consistently report on war crimes, document them in their publications, and conduct interviews with human rights defenders, volunteers, and journalists involved in documenting such crimes. At the same time, media outlets rarely initiate and implement such projects independently. Both Ukrainian and international teams of journalists document war crimes in Ukraine and present the collected evidence to the public. Media projects aimed at documenting war crimes include Memorial, War Crimes in Crimea, the Slidstvo.Info project Russian War Criminals, among others.