Grave Breaches Research Articles

Briefly Noted

On December 19, 2023, the Svea Court of Appeal in Sweden issued its judgment in the above case affirming the conviction and sentencing of Hossein Seyed Ahmadi, an Iranian citizen, for grave breaches of international humanitarian law and murder that took place in Iran in 1988. Specifically, he was charged with having executed prisoners associated with the People's Mojahedin Organization of Iran in the Gohardasht prison. Though the Court of Appeal dismissed the conviction of grave breaches of IHL with regard to some of the prisoners at issue, it found overall that the district court was correct in holding that the prosecutor substantiated the charges levied against Ahmadi. With regard to the murder charge, the Court of Appeal affirmed and noted that it should actually have been considered several acts of murder instead of just one single act. One judge dissented and argued that the defendant should have been found guilty of aiding and abetting murder rather than murder itself. The Court of Appeal also agreed with the district court's assessment that the acts took place in relation to the conflict between Iran and Iraq, thus triggering the application of IHL. Ahmadi's sentence to life in prison stands, and damages have been awarded to surviving plaintiffs and relatives of the deceased prisoners.

A ‘withdrawal’ syndrome: counsel resignations in international arbitrations

Abstract The Russia–Ukraine conflict has grabbed the world’s attention as a grave breach of a state’s sovereignty. Among the several implications of the conflict, it has opened a Pandora’s box with counsel and law firms resigning from representing Russia and Russian entities in international legal proceedings including arbitrations. Counsel resignation, once completely within the decision-making of clients and counsel, has grown into an issue that requires third-party deliberations and adjudication. Though trite in law that a counsel and a client have mutual rights to end professional ties between each other, a counsel’s voluntary resignation in arbitration remains unexplored. This necessitates a global discussion as it directly encroaches upon the fundamental rule of law that every person has the right to be represented and defended. Thus, counsel resignation has been elevated to a moral quandary of professional obligations. The aim of this article is to draw a broad outline of the present legal position on counsel resignations, the conundrums surrounding it, and the scope of an arbitral tribunal’s jurisdiction to interfere in these matters.

African Philosophical Contributions to International Criminal Law

Abstract This article displays the various ways that African philosophies have made a contribution to international criminal law. It shows that African philosophies have, to a certain extent, influenced the manner in which post-conflict African states as well as the African Union (au) address accountability for grave breaches of international law. This influence is evidenced in the setting up of traditional African approaches to accountability for international crimes in post-conflict African states as well as in some of the au initiatives which address accountability for grave breaches. The article begins by contextualizing the topic within traditional African cultures through a historical analysis of the practices, concepts and institutions that governed criminal accountability as well as an analysis of the African philosophies upon which these practices, concepts and institutions were anchored. It continues with the concern of ‘how’ and ‘to what extent’ African philosophies have influenced international criminal law. Moreover, it considers some of the controversial areas of international criminal law in which African philosophies are overlooked, despite their potential to make a valuable contribution. This section is supported by the belief that a combined approach to international criminal law, of both traditional African and Western concepts, offers a better solution to the current impasse experienced in certain areas.

International Humanitarian Law and International Criminal Tribunals

International humanitarian law is the branch of customary and treaty-based international positive law whose purposes are to limit the methods and means of warfare and to protect the victims of armed conflicts. Grave breaches of its rules constitute war crimes for which individuals may be held directly accountable and which it is up to the sovereign states to prosecute. However, should a state not wish to, or not be in a position to prosecute, the crimes can be tried by international criminal tribunals instituted by treaty or by binding decision of the United Nations Security Council. This brief description of the current legal and political situation reflects the state of the law at the dawn of the twenty-first century. It does not, however, describe the work of a single day or the fruit of a single endeavor. Quite the contrary, it is the outcome of the international community’s growing awareness, in the face of the horrors of war and the indescribable suffering inflicted on humanity throughout the ages, that there must be limits to violence and that those limits must be established by the law and those responsible punished so as to discourage future perpetrators from exceeding them.

ZLOČIN GENOCIDA U PRAVU O ODGOVORNOSTI / THE CRIME OF GENOCIDE IN LAW OF RESPONSIBILITY

The paper deals with the issue of the responsibility of the main subjects of international law for grave breaches of obligations arising from the imperative norms of general international law in relation to the commission of the crime of genocide. The focus of this paper is in certain aspects of the relationship between individual criminal responsibility and the international responsibility of States and international organizations, which should be interpreted as two separate systems of responsibility in international law. Each system has its own special fundaments, features and characteristics. Consequently, the starting point is that the responsibility of States for genocide does not depend on the responsibility of individuals for the crime, although the International Court of Justice has made extensive use of the conclusions of the chambers of the International Criminal Tribunal for the former Yugoslavia. (Judgment from 2007). The paper therefore analyzes the question of the existence of a theoretical legal possibility for the so-called indirectly proving the responsibility of States (and international organizations) for genocide through a prior examination of the criminal responsibility of leaders, but also through proving a joint criminal enterprise for the purposes of committing the crime, or do these conceptions represent a starting point for the responsibility of the main subjects of international law or they are simply "proof" of the attribution of the act to a State? In this paper, we examine whether a joint criminal enterprise could be a reflection of a State plan and/or policy for committing the crime of genocide and how a collective plan or policy for committing that crime could be interpreted. After all, are they actually a dolus specialis of this crime, that is, whether a genocidal intent is manifested in a State precisely in a plan or policy?

The Perils of Gender Self-Determination: Global Shifts in Sex Reclassification Law and Policy

Abstract The Article maps the global rise of the emerging gold standard for recognition and protection of trans populations: laws and policies allowing for self-identification of gender identity, commonly referred to as “gender self-determination.” The Article suggests that, while gender self-determination allows for greater access to resources and opportunities for transgender people because it removes grave breach to bodily autonomy, it also formulates “gender identity” as a private entity of the self, separated from publicly assigned sex. Thus, gender self-determination inevitably redraws the public–private divide along the contours of the transgender body, suggesting a need to examine the apparatus of assigning sex at birth and its pivotal role in both the systemic exclusions of trans people and gender inequality more broadly. To make this case, the Article provides a comparative review and analysis of laws and policies allowing for sex reclassification on identity documents from over a hundred jurisdictions worldwide, from a complete ban on classification, through medical and corroborations requirements, to gender self-identification. The Article demonstrates a shift within sex reclassification policies from the body to the self, from external to internal truth, revealing a growing emphasis on the separation of gender identity from sex in legal analysis, pointing to its possible detrimental effects on questions of sex-based equality. To secure the autonomy of the trans legal subject, self-determination laws and policies formulate gender identity as an inherent and internal feature of the self. Yet, the sovereignty of a right to gender identity is circumscribed by the system of sex classification and its individuating logics, in which one must be stamped with a sex classification to be an autonomous legal subject. Finally, the Article argues that addressing the distribution of life prospects along gender lines requires going back to the category of sex and critically rethinking its fundamental differentiating structures.

Protecting health facilities during wars in the COVID-19 era: A case study of the Indonesian Hospital in the Gaza Strip in the Palestinian Territories.

This case study aimed at assessing the impact of the May 2021 War on medical personnel who worked during the coronavirus pandemic. This study was conducted at the Indonesian Hospital in the northern Gaza Strip. This case study included a sample of 391 participants. Of these participants, 100 employees of the Indonesian Hospital were selected randomly. The results revealed that the war has affected social distancing practices and adherence to health guidelines related to the pandemic, an impossible luxury to a large degree, with a mean rate of 4.54. There was a sharp shortage of medical supplies and medicines that have been affected by the war, which in turn affected the treatment of patients with coronavirus with a mean rate of 4.54. In addition, the medical staff faced mild exposure to gases due to military actions, with a mean rate of 3.78. This study recommended that vulnerable countries should be protected under the International Humanitarian Law and be given the necessity of respecting and protecting healthcare. In addition, the denial of medical treatment may be considered cruel or inhumane behavior and an affront to human dignity, constituting war crimes as grave breaches of the Geneva Conventions.

Understanding Russia’s Actions in Ukraine as the Crime of Genocide (Translation into Ukrainian by Denys Azarov)

This is the Ukrainian-language version of the article previously published in the Journal of International Criminal Justice (Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian, Volodymyr Venher, Understanding Russia’s Actions in Ukraine as the Crime of Genocide, Journal of International Criminal Justice, Volume 21, Issue 2, May 2023, Pages 233–264, https://doi.org/10.1093/jicj/mqad018) by Oxford University Press. The translation is published under the terms of the Creative Commons Attribution License CC BY 4.0. Abstract from an English edition. The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.

Criminal Responsibility by Omission for Failures to Stop Autonomous Weapon Systems

Abstract This article deals with establishing the criminal responsibility, through the model of commission by omission, of autonomous weapon systems (AWS) users in situations where failures to suspend AWS-driven attacks have caused a war crime. The author tackles the question of whether an omission to stop such an AWS may amount to the actus reus of war crimes of unlawful attacks and does so by establishing how the doctrine of commission by omission can be applied on the basis of the grave breaches regime in the First Additional Protocol to the Geneva Conventions and the Rome Statute of the International Criminal Court. In deconstructing the status of commission by omission under both these legal frameworks, this article analyses whether the substantive conditions of commission by omission, namely, the legal duty to act and the capacity to act, are met. The author suggests that ‘human control’, manifested in the ability to supervise, intervene and stop an AWS-driven attack, should be considered a necessary pre-condition for the imputation of criminal responsibility in at least some expected scenarios of AWS use. In the absence of such human control, there would be no accountability for unlawful attacks, including indiscriminate attacks, caused by AWS, which would lead to impunity for such crimes. On the one hand, the attribution of responsibility by omission has, therefore, crucial implications for closing the ‘responsibility gap’ within this context. On the other hand, based on the analysis of ‘control’ as the key principle for criminal responsibility by omission, the author argues that an additional treaty obligation should be adopted to ensure human control over AWS and preserve accountability for potential unlawful attacks.

Ukrainian Women are Raped, Men are Killed: The Russian Federation Violates International Law

Summary The large-scale use of rape against women and the murder of men by the Russian armed forces has been widely documented since it first invaded Ukraine in February 2022. Consequently, many Ukrainian families have been affected both physically and mentally by the use of sexual and gender-based violence as a method of war. This paper presents a detailed analysis of these ‘classical’ sexual and gender-based violence cases from the perspective of grave breaches of international humanitarian law. According to the Rome Statute of the International Criminal Court and case law, these cases constitute war crimes, crimes against humanity or genocide. Investigations have already commenced into cases of sexual and gender-based violence on both the national and international level. The first Russian soldier formally accused of raping a female (wife) and killing her husband, is already standing trial before the Ukrainian courts. The International Criminal Court, within the ad hoc jurisdiction given by Ukrainian authorities, as well as specially established mechanisms and law enforcement agencies of foreign states; have also begun investigations into cases of ‘classical’ sexual and gender-based violence on the international level.

Evaluating Thailand’s Domestic Implementation of Prevention of Grave Breaches under the Geneva Conventions

International Humanitarian Law (IHL) is the law that aims to reduce human suffering in situations of armed conflict. The contemporary roots of treaty-based IHL could arguably be traced back to the four Geneva Conventions, in which Thailand is also a party. States may choose from a wide variety of methods to domestically implement IHL. One such method is through national legislation. The Geneva Conventions, in particular, obliged its state parties to criminalize grave breaches. This article aims to assess this one aspect of the domestic implementation of IHL within Thailand. To accomplish this, Swiss and Malaysian laws are used as examples for the analysis of Thai law to reflect upon. It is argued that the current rules scattered through the Thai legal system are doctrinally insufficient to ensure the complete applicability of the grave breaches regime. The article will then suggest how the current Thai legal regime may be improved to ensure better compliance with the obligations to prevent grave breaches within the Geneva Conventions.

Prohibition of Child Recruitment as Soldiers: An International Regulatory Discourse

Children are frequently turned into child soldiers or used as human shields in armed conflicts. The use of child soldiers is condemned by all nations and is regarded as a grave breach of both children's rights and international humanitarian law. The paper aims to discuss pertinent provisions of international legal norms, particularly those that relate to child soldiers in the sequence of their adoption. Additionally, it presents the issue of the implementation of several international conventions on the issue of using child soldiers and its atrocities in the international community. As the result, when it comes to addressing the issue of child soldiers, the international legal sources do not present a consistent picture. There has been a various provision in the determination of minimum age of a child that led to major debates among international communities. The situation is further exacerbated by the fact that, while some countries have accepted the convention as binding on themselves, their implementation faces significant challenges, such as the fact that the majority of international treaties lack sanctioning power, limiting their ability to properly accomplish the preventive purpose.

Understanding Russia’s Actions in Ukraine as the Crime of Genocide

Abstract The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.

Child Soldier Ban: An International Regulatory Discourse

Children are frequently turned into child soldiers or used as human shields in armed conflicts. The use of child soldiers is condemned by all nations and is regarded as a grave breach of both children's rights and international humanitarian law. The paper aims to discuss pertinent provisions of international legal norms, particularly those that relate to child soldiers in the sequence of their adoption. Additionally, it presents the issue of the implementation of several international conventions on the issue of using child soldiers and its atrocities in the international community. As the result, when it comes to addressing the issue of child soldiers, the international legal sources do not present a consistent picture. There has been a various provision in the determination of minimum age of a child that led to major debates among international communities. The situation is further exacerbated by the fact that, while some countries have accepted the convention as binding on themselves, their implementation faces significant challenges, such as the fact that the majority of international treaties lack sanctioning power, limiting their ability to properly accomplish the preventive purpose.

Copyright Breach: Notions, Aspects, and Keys

This paper aims to re-examine the scientific notions linked to plagiarism, its aspects and origins, its occurrence in society, and ways of ascertaining it to enhance the alertness and consciousness of teachers and learners of plagiarism. The objective of information yielding is the detection and finding of data and strengthening the individual conditions. By itself, plagiarism and employing different evil ways are not well-matched with this objective and purpose. A good number of scholarly researchers consent that plagiarism is a grave breach of issuing moral principles. In the latest decennaries, the knowledge-based body is truly worried about the rapid increase of plagiarism. Despite being prevalent, plagiarism is not coherent with the values and ethics of knowledge. Currently, certain mass media announce alarming reports of plagiarism within research-based issuings, comprising information usage by renowned researchers. The occurrence scale of plagiarism has been divulged in diverse inquiries and grows dissimilar in different spheres, nations, instructive extents, and eras. Effective prevention by employing appropriate directives at a convenient time, the proper communications between instructors and learners, and working out practical strategies, for this purpose, are attainable methods of undertaking plagiarism.

Critical Analysis of Suppression and Punishment for Grave Breaches of the Law of Wars

Critical Analysis of Suppression and Punishment for Grave Breaches of the Law of Wars

Evolution of the Individual Criminal Accountability Principle in International Law

The creation of Special Tribunals with authority to prosecute those accused of "grave breaches" and infringements of the law towards humanity was among the most significant breakthroughs in international law. Unquestionably, this is a recent worldwide development that has raised questions about sovereignty and impunity. Since the horrors committed by the Nazis and the Nuremberg trials, war crimes legislation has expanded its definition to include several offenses that are now referred to as "international crimes" and "crimes of genocide." Although it was created to combat the politics of punishment for those who commit these crimes, some member states are unwilling to prosecute people who commit these recognized international crimes. In fact, the Rome Statute for the International Criminal Court (ICC) was drafted due to the jurisprudence established by these Special Tribunals. More precisely, it has been maintained that Act of war crimes and Act of crimes against humanity are perpetrated by individuals and not by impersonal forces, and that international law can only be upheld and implemented by punishing those responsible for such horrible crimes. Nevertheless, a convincing argument could be made that the establishment of these tribunals heralds a revolutionary change in international law. The qualitative research methodology has been applied to the following article.

Social memory and the impact of commemorative remedies ordered by the Inter-American Court of Human Rights

AbstractSocial memory studies start from the premise that people acquire their memories not only through individual means, but through social processes as well. Social groups often provide materials for memory, and prod individuals into recalling particular events. One of the distinctive differences between the practice of the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) concerns memory-related remedies. While the IACtHR quite frequently orders respondent states to commemorate grave violations of human rights (including the construction of monuments), the ECtHR has refrained from granting such commemorative remedies. Some organizations representing victims have called upon additional tribunals to embrace the IACtHR’s remedial approach to address grave breaches of international law. Drawing on social memory scholarship, this study is aimed at empirically assessing the impact of four sites of memory in Colombia established by order of the IACtHR. The study’s findings suggest that international tribunals alone cannot shape collective memories that are inconsistent with sociocultural features characterizing the local society. On the other hand, judicially-ordered sites of memory are meaningful for the victims’ families and small-scale social units. These findings turn our attention to micro-level sociological perspectives, and particularly to the symbolic-interactionist approach to international law, highlighting the vital symbolic role of international tribunals for individuals and small social units. The valuable role of such memorial sites for the victims’ relatives and related communities suggests that international tribunals addressing grave human rights violations should consider granting commemorative remedies.

How does the obligation to investigate alleged serious violations of international humanitarian law apply in ad hoc military coalitions?

This article assesses how the obligation to investigate alleged violations of international humanitarian law (IHL) – also referred to as the law of armed conflict – applies in situations where multiple states cooperate militarily in an ad hoc manner. Following an examination of the particular accountability issues raised by ad hoc military coalitions, the article applies doctrinal legal analysis to: (1) the grave breaches regime, (2) the customary obligation to investigate alleged war crimes, (3) the obligation to ensure respect for IHL, and (4) the notion of complicity under international law. It is concluded that the interplay of these different legal regimes and standards requires the investigation of the conduct of other states in a variety of different circumstances during ad hoc military cooperation. However, Status of Forces Agreements (SOFAs) and the potential immunities of state officials from criminal jurisdiction complicate the implementation of these obligations in practice. As such, in addition to the legal conclusions reached regarding the obligation to investigate’s operation in ad hoc military coalitions, more fundamental issues are brought into focus, namely the tension between state sovereignty and current developments towards accountability for serious violations of IHL.

Professional authority and sexual coercion: A paradigmatic case study of doctor abuse

Professionals occupy a position of esteem in society. Doctors and health professionals tend to score especially highly on public opinion surveys of trust. Sexual violence and abuse (SVA) by medical professionals towards their patients is a grave breach of that confidence. This paper uses thematic analysis of a paradigmatic case study of doctor abuse, drawn from a larger sample of semi-structured interviews conducted for an Economic and Social Research Council (ESRC) funded United Kingdom (UK) study 2015–2018 into justice and gender based violence. It explores how professional authority can both facilitate and conceal sexual coercion through building dependency; use of language and authorship of the official record; and by functional complicity and ‘data doubling’ within intra and inter-professional cultures. While there is an established literature on child sexual abuse, including in institutional contexts, this paper focuses on the lived experience of grooming and sexual violence of an adult survivor of doctor abuse.