Serious Violations Of International Law Research Articles

Conceptual basis of international jurisdiction

Constant changes in international relations and global challenges in the geopolitical arena disrupt the effectiveness and relevance of existing approaches to international justice. In this context, there is a need to analyze the conceptual foundations of this field in order to adapt to modern realities. The main goal of this study is to analyze the conceptual foundations of international justice, taking into account the latest scientific achievements and global perspectives. The focus of the research is the formation of new theoretical approaches and conceptual frameworks for the analysis and understanding of international criminal law. The methodological basis of the study is based on the analysis of scientific works in the field of international criminal law, as well as the use of modern scientific approaches to information processing. The article reveals new aspects and perspectives of the study of the conceptual foundations of international justice, which can contribute to the further development of the theory and practice of disclosure and investigation of serious violations of international law. The author highlights four conceptual ideas that underlie International Criminal Justice. The first concept concerns the principle of legality, which takes into account not only legal norms, but also social and legal transformations. The second idea considers the principle of international crime, which covers serious violations of international law. The third concept concerns individual responsibility for international crimes, regardless of the social status and official position of the subject of the offense. The fourth idea is the principle of universal jurisdiction, which provides a legal response to serious violations of international law, regardless of the circumstances and the subject of their commission. These concepts reflect the goal of international criminal justice, which is the inevitability of punishment for serious violations of international law, since their commission threatens the security of all humanity.

Optional but not qualified: Neutrality, the UN Charter and humanitarian objectives

Abstract Neutral States must abstain from supporting a party to a conflict with military equipment and assistance. This core aspect of the law of neutrality has not changed with the adoption of the UN Charter in 1945, or with the brutal Russian aggression against Ukraine. That said, by reviewing the changes to neutrality law over time, this article finds plausible reasons to believe that neutrality has – for better or worse – become optional for the vast majority of States, which can today opt to be non-belligerent States – i.e., States that are neither neutral nor parties to the armed conflict. All States have to cooperate to bring to an end serious violations of international law, including humanitarian law, and this duty of cooperation has abolished “sitting-still neutrality”, but it does not render neutrality law moot. This reading of “optional but not qualified” neutrality maintains the core neutrality idea of abstaining in military matters. In this article, I argue that views of “obsolete” or “qualified” neutrality are not new at all but depart from well-accepted rules of legal interpretation and raise concerns about double standards. Viewing neutrality as optional but unqualifiable offers greater conceptual clarity, is more honest than alternative views, and comes with advantages for humanitarian action.

Reading China's Global Security Initiative Through an International Legal Lens

Closely related to China's response to Russia's full-scale invasion of Ukraine in 2022, the Global Security Initiative (‘GSI’) has attracted attention to its vision on the current international legal order. This essay examines three major themes of the GSI through an international legal lens: common security, sovereign equality and the amorphous idea of ‘legitimate security interest’. Firstly, it highlights the risk that the notion of common security and the related emphasis on ‘major countries’ relationship in the GSI could be abused to justify state oppression of domestic population or major countries’ domination over ‘minor countries’ and proposes a reading to limit these concepts to promoting peace-making efforts led by states, particularly ‘major countries’, with cascading effects on other countries in conflicts. Secondly, it argues that the GSI's re-emphasis on sovereign equality usefully counters unilateralism and should be interpreted not retrospectively to avoid accountability but prospectively to combat impunity for serious violations of international law. Thirdly, it argues that while the notion of legitimate security interest may be irrelevant to the prohibition of the use of force in international relations, it could be a useful consideration in discharging states’ obligation to settle international disputes peacefully.

Processing War Crimes in front of National Courts in the Region – Between International Obligations and Real Politics

The fight against impunity for war crimes is one of the basic principles of international law. The criminal prosecution of the perpetrators of these crimes stems from international obligations that states have for the purpose of establishing facts and truth as the basis for establishing the rule of law. The right to the truth as a basic guarantee against repetition, the obligation to prosecute serious crimes under international law and the right to a fair trial, the right to effective legal remedies and reparations, and the obligation to remember and memorialize, are obligations prescribed to states by numerous international legal instruments. A fundamental contribution to the fight against impunity for crimes committed on the territory of the former Yugoslavia in the armed conflicts of the nineties of the twentieth century was made by the International Ad Hoc Criminal Tribunal for the former Yugoslavia. His legal legacy is significant both in the field of determining responsibility for crimes and in the development of international law. With the strategy for ending the work of the International Criminal Tribunal for the former Yugoslavia, the obligation to process war crimes was placed under the jurisdiction of the national courts of the countries in the region. The judicial authorities in the region, with the support of the International Residual Mechanism for Criminal Courts, the successor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, took on the responsibility of prosecuting war crimes committed during the armed conflicts of the 1990s in the territory of the former Yugoslavia, and for this purpose specialized departments were established courts and prosecutor's offices for processing war crimes. However, numerous suspects of high or middle military and civilian chain of command who participated in crimes, most of which were committed on the territory of Bosnia and Herzegovina, and for which their superiors were convicted before the Hague Tribunal, have not yet been prosecuted, that is, the sentences have been carried out. The national courts in the region, which have the obligation to ensure the implementation of the international principle of the fight against impunity and to continue the work of the international judiciary, have proven to be ineffective in that area, if not in the service of realpolitik. Numerous high-ranking war crime suspects avoid criminal responsibility by fleeing to neighboring countries where they have or have acquired dual citizenship. By abusing the institution of extradition, impunity has been granted to those suspected of serious violations of international law. In addition, by unfoundedly applying the institute of universal jurisdiction in the prosecution of war crimes, national courts not only ignore the jurisprudence of international courts, but also contribute to the revisionism of established facts. The lack of regional cooperation in the prosecution of war crimes, despite numerous agreements signed for this purpose, the non-recognition of judgments of the courts of neighboring states in the region, are problems that continue to prevent the acceptance of facts and truth as the basis of a guarantee of non-repetition. Moreover, the facts established in the judgments before the international judiciary are the subject of institutional denial and revisionism in the territories of the states of the former Yugoslavia that participated in armed conflicts in the 90s. Negationism and revisionism, deeply institutionally rooted in the post-war societies of the former Yugoslavia, their toleration and approval, as well as the ineffective work of the national judiciary, led to the phenomenon of glorification of crimes and war criminals in the region. Through the reports of relevant international and national institutions and examples from court practice, this work aims to point out the obligations and key shortcomings in the work of national courts in the region of the former Yugoslavia and the problems of regional cooperation in the prosecution of war crimes.

The International Responsibility of non-State Armed Groups and Victims’ Right to Reparations

It is commonly accepted that quasi-state Non-State Armed Groups may violate international humanitarian law and that, under certain circumstances, their members may commit breaches of international criminal and human rights law. However, given the very nature of such groups —and their controversial role in the international legal system—, their victims’ right to reparations is often questioned. This article outlines the legal questions surrounding serious violations of international law committed by Non-State Armed Groups and argues that their victims are entitled to reparations.

Sanctions against Russia: Legal Setting, Intermediate Economic Impact and Potential Political Outcome

We discuss the sanctions against Russia from three perspectives: legal, economic, and political. The sanctions fit into a trend towards recomprehensivation and the use of autonomous rather than UN sanctions. We highlight (1) new sanctions-senders and sanction innovation, indicating which of those are a context-specific development and which are potentially of a more lasting nature, (2) the determinants and economic dynamics of sanctions that are important for an intermediate evaluation of this case, and (3) the uncertainty of the ultimate political outcome of large-scale sanctions. The case suggests that autonomous sanctions are and will remain a central response to serious violations of international law and that they thus require further legal thought.

State Immunity and Victims’ Rights to Access to Court, Reparation, and the Truth

Abstract Recently municipal courts have found that foreign states do not enjoy jurisdictional immunity with respect to civil claims involving serious violations of international law within the forum state’s territory during armed conflict. This article assesses the recent judgments’ potential impact, taking into account previous court practice and international human rights jurisprudence. It concludes that an exception to immunity in the above circumstances where no alternative judicial remedies exist for the victims has a basis in previous practice and may be required to give effect to international human rights obligations. A recognition by the foreign state of an individual victims’ right to bring a claim before that state’s courts could provide the victims with reparation in the form of satisfaction. Where no such possibility exists, a limited exception to the rule of state immunity would ensure the victims’ right to access to court and to the truth.

ON THE QUESTION OF THE RELATIONSHIP OF WAR AND MILITARY CRIMES IN INTERNATIONAL AND NATIONAL LAW

The article is devoted to the study of military (crimes against the established order of military service) and war crimes. Particular attention is paid to the concept and features of these phenomena. The sources of both international and national law were also considered for the comparative characteristics of military and war crimes in order to understand their meaning and avoid the shift of these concepts. We have explored various aspects of the concept of war crimes. They are violations of the laws and customs of war. War crimes are serious violations of international law. They are violations of the Geneva Conventions of August 12, 1949. There is a list of war crimes in the Rome Statute of the International Criminal Court. This list is contained in Аrt. 8. The list of war crimes is contained in Art. 18 of the Draft Code of Crimes against the Peace and Security of Humanity too. International jurisprudence shows that there is a special subject of war crimes. The author of the article studied the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on the Application of International Criminal and Humanitarian Law”. This bill proposes to exclude certain articles on military crimes and to introduce new articles on war crimes into the Criminal Code of Ukraine. The new war crimes articles contain a list of war crimes. This list is substantially similar to the list of war crimes contained in the Rome Statute of the International Criminal Court. The concept of war and military crimes is given. The main differences between military and military crimes are revealed. Identical signs of war and military crimes have been studied. As a result, the author of the article has made a conclusion about the relationship between war and military crimes under international and national law.

From Complicity to Due Diligence: When Do States Incur Responsibility for Their Involvement in Serious International Wrongdoing?

The article considers different modes of State involvement in serious violations of international law and the legal criteria for unlawful contributions. Giving special attention to participation below the level of complicity – when a State contributes to serious violations without possessing positive knowledge – the author considers primary rules of international law that prohibit indirect participation, such as the duty to respect and ensure fundamental human rights. The article argues in favour of a risk-based ex ante responsibility in order to prevent cooperation between States which violate fundamental legal norms of the international community. Accordingly, States incur responsibility for indirect participation if they do not exercise the necessary diligence to prevent such violations. Though due diligence is usually referred to when States fail to intervene in cases of third party abuse, it applies a fortiori in cases of active contributions. While the article concentrates on serious human rights violations, it also refers to other fields of international law, including breaches of international humanitarian law. By specifying the legal parameters of due diligence as a general principle it thus contributes to the scholarly debate on the content of due diligence in international law more generally.

INTERNATIONAL CRIMES WITHIN THE JURISDICTION OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS

Although in international law responsibility traditionally had belonged to states, along with involvement of individuals in conflicts between states and committing by them crimes on a massive scale, a need to criminalize such acts and to bring offenders guilty of the most serious violations of international law to justice - arose. Establishment of international criminal courts resulted from the need to fulfill internationally the idea of justice. Development of international criminal courts reflects differences in inter alia attitude towards ratione materiae of particular courts and tribunals. The purpose of this article is to present and discuss international crimes within the jurisdiction of international criminal courts and tribunals. A typology of international criminal courts was indicated and the most important courts and tribunals were presented in detail. The paper discusses subject jurisdiction of International Military Court in Nuremberg and International Military Tribunal for the Far East in Tokio, the first international courts established to bring war criminals to justice; as well as the subject jurisdiction of the International Criminal Court, the only permanent court in international criminal court system, having universal jurisdiction. Four categories of the most serious crimes of international concern were considered, and doubts concerning subject jurisdiction of the International Criminal Court, as well as its functioning in general, were signalized.

The Duty to Compensate for Expenses Occurring as a Result of Mass Migration in International Law

The phenomenon of mass expulsion has nowadays become ubiquitous, when millions of people flee from their homes across entire continents to escape gross human rights violations and internal disturbances. Migration waves are now considered inevitable in order to escape inhuman consequences of current conflicts; still, thus far, only a marginal degree of discussion has been dedicated in the legal literature to the adverse effects of such events on the host State’s environment, economy and resources. Emphatically, it is important to stress that the aim of the present research is not to enrage public opinion regarding mass migration flows, but to articulate the serious violations of international law committed by States, which generate mass outflows, and consequently, to draw attention to the need for compensating non-refouling States for the expenses borne. Accordingly, this paper starts its analysis by first discussing the definition of mass migration under international law. Then it continues by addressing the question of standing of the host State to claim compensation as well as the responsibility and liability of the State of origin under international law. The paper finally elaborates on the concept of burden sharing for the costs incurred and the relevant practice of the United Nations Compensation Commission. As a conclusion, the paper will argue that in order to preserve the current normative system of the protection of refugees, international law ought to provide an effective remedy for legitimate concerns of host States.

A Duty to Give Reasons in the Security Council

In recent years, the un Security Council has repeatedly come under criticism for its inaction in the face of serious violations of international law. As a means to prevent further deadlocks, this article advocates the introduction of a duty to explain votes cast in the Council. In certain situations, such a duty to give reasons already exists today, although it is not implemented. We propose to extend this duty to all votes in the Security Council and to codify it in its Provisional Rules of Procedure. A comprehensive duty to give reasons has three major virtues: it increases the quality of Council decisions, it enhances legal certainty, and it improves the accountability of the Council and of its members. As opposed to structural reforms, our proposal does not necessitate amending the un Charter and thus does not depend on the consent of the Council’s permanent members.

Of Plumbers and Social Architects: Elements and Problems of the Judgment of the International Court of Justice in Jurisdictional Immunities of States

This analysis of the judgment of the International Court of Justice in the Jurisdictional Immunities case is conducted in two parts. The first briefly presents the basic elements of the judgment of the Court in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening); the second part identifies and discusses some problems raised by the judgment. These include the legal character of the rule of state immunity, the limits of the positivist methodology to establish state practice as evidence of customary international law and its exceptions, and the troubles with a strictly procedural approach to consider a possible exception to immunity for serious violations of international law and international humanitarian law. The comment concludes with a brief general assessment of the judgment of the Court, its role and the future development of the law of state immunities by national courts.

Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist

In its judgment of 3 February 2012 in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), the International Court of Justice has considered the relationship between jus cogens and the rule of State immunity. The Court has denied the existence of a jus cogens exception to the rule of State jurisdictional immunities based primarily on the distinction between peremptory norms as rules of substance and jurisdictional immunities as rules of procedure. For the Court, a conflict between rules on jurisdictional immunities, 'essentially procedural in nature,' and substantive rules of jus cogens is conceptually impossible. This comment presents a critique of the approach and reasoning of the Court regarding the absolute separation between procedural and substantive rules, and supports that a legal conflict may exist between jus cogens and jurisdictional immunities. Moreover, it sustains that the decision of the Court is neither an ideal kind of stability for international law nor an encouraging legal message to national judges dealing with public interest claims arising from serious violations of international law.

UN Security Council Resolutions Concerning Children Affected by Armed Conflict: In Whose ‘Best Interest’?

The agreement by the Security Council to adopt thematic resolutions on children is a powerful expression of our collective commitment to children and their rights: specifically to ensuring children’s right to protection from serious violations of international law. Still history is replete with examples of protectionism by powerful decision-makers; not all follow a rights-based approach as entrenched within international human rights law. The objective of this paper is to investigate the decision-making processes and related outcomes of the Security Council from the perspective of international law. At the core of this investigation is an analysis of two interconnected dynamics: first the extent to which the Council is bound – under the Charter of the United Nations – by the Convention on the Rights of the Child (CRC); and second the extent to which the Council is in compliance with these obligations. This includes de-constructing the resolutions from the perspective of the procedural right of the best interests of the child and also assessing the outcomes with reference to the Council’s primary responsibility – the maintenance of peace and security. Attentive to the normative power of the Security Council’s decisions and recommendations, the paper cuts deeper to investigate: (i) the legal effects of the resolutions for the development international law relating to children and (ii) the consequences for children’s right to protection from serious violations of international law – present and future.

JUS COGENS AND JURISDICTIONAL IMMUNITIES OF STATES AT THE INTERNATIONAL COURT OF JUSTICE: “A CONFLICT DOES EXIST”

In its judgment of 3 February 2012 in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the International Court of Justice has examined the relationship between jus cogens and the rule of State immunity. The Court has denied the existence of a jus cogens exception to that rule, primarily on the basis of the distinction between peremptory norms as rules of substance and jurisdictional immunities as rules of procedure. For the Court, a conflict between rules on jurisdictional immunities, “essentially procedural in nature”, and substantive rules of jus cogens is conceptually impossible. This article criticizes the approach and reasoning of the Court regarding the absolute separation between procedural and substantive rules, and argues that a legal conflict may exist between jus cogens and jurisdictional immunities. Moreover, it sustains that the decision of the Court does not bring about an ideal kind of stability for the international legal order nor is it an encouraging legal message to national judges dealing with public interest claims arising from serious violations of international law.

The Emerging Recogntion of Universal Civil Jurisdiction

This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.

Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture

This article examines the efforts to hold high-level US officials accountable for their alleged role in the torture and other serious abuse of detainees under US control through the principle of universal jurisdiction. First, it sets out what is known about United States detention and interrogation practices during the so-called ‘war on terror’, and what efforts, if any, have been undertaken in the United States to hold individuals accountable for their role in the torture and serious abuse of detainees. After a preliminary comment on the definition of torture, it examines the factual and legal underpinnings, and adjudicative results of the cases filed in this regard in Germany and France, and the recent efforts undertaken in Spain. It concludes by enquiring about the role and future of universal jurisdiction, particularly in cases of powerful defendants, in closing the impunity gap for serious violations of international law. After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question is whether those who ordered the use of torture will be held to account. — Maj. General Antonio M. Taguba (US-Ret.), led the US Army’s official investigation into the Abu Ghraib prisoner abuse scandal.1 In releasing these [torture] memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution . … This is a time for reflection, not retribution. — President Barack Obama, on release of legal memos that govern interrogations using ‘enhanced interrogation techniques’, including acts recognized to be torture.2

The Spanish Constitutional Tribunal's Decision in Guatemalan Generals: Unconditional Universality is Back

On 26 September 2005, the Spanish Constitutional Tribunal reversed the decisions of the Audiencia Nacional and the High Court (Tribunal Supremo) in the case of the Guatemalan Generals. According to the two judicial bodies, the exercise of universal jurisdiction over international crimes required a link between the crime or the victims or the offender and Spain, such as the presence of the offender on Spanish territory or the Spanish nationality of the victims. The Constitutional Tribunal held, instead, that these requirements are contrary to the principle pro actione, i.e. they result in an unjustified restriction of the constitutional right to effective judicial protection. The Tribunal also clarified that universal jurisdiction, whose aim is fighting impunity, does not require any link other than the universal character of the values protected by the provisions criminalizing the most serious violations of international law. The presence of the accused in Spain is merely a condition for trial, not a distinct ground of jurisdiction; in other words, the accused must be in Spain for the trial to begin, but jurisdiction may be exercised even in his absence, for example for the issuance of a request for extradition. The only condition to which the exercise of universal jurisdiction is subject is that the state of the locus commissi delicti is not already investigating and prosecuting the case effectively.

The Role of the UN Secretary-General: The Power of Persuasion Based on Law

In an address to General Assembly on 12 September 2002, delivered fifteen minutes before President Bush's statement on Iraq, secretary-general (SG) made it clear that he believed new military action against Iraq should occur only on basis of a new Security Council (SC) resolution. Without stating explicitly that such authorization was necessary, he suggested that respect for international and unique legitimacy provided by UN required it. He added, however, that should Iraq continue to defy its obligations, SC face its responsibilities, implying that it must be prepared to threaten or authorize use of force. (1) A year earlier, in August 2001, SC adopted a little noticed resolution on conflict prevention, which invites SG to refer cases of serious violations of international law to SC. (2) The request would seem to fly in face of a decision taken in 1945 not to empower SG to bring to attention of SC violations of legal instrument that bears most directly on its work--the Charter itself. (3) While SG was expected and encouraged to perform independent political functions, UN's founders did not anoint him guardian of charter. And yet, with little fanfare, resolution 1366 seems to call upon him to play precisely that role with respect to charter and much charter-based law. These two events--the SG's intervention in debate over military action in Iraq and invitation in Resolution 1366--highlight an important and poorly understood dimension of role of SG. In addition to being chief administrative officer of and world's top diplomat, he is an influential participant in legal discourse that infuses much of global politics. Despite defeat of proposed amendment to Article 99, this is a role SG has played (and could not help but play) since earliest days of UN. He is a key member of an interpretive community associated with implementation and elaboration of charter-based law. With little formal authority and no material power, SG's influence depends largely on his persuasive powers. (4) That influence, moreover, is wielded within an institutional and normative context that he helps shape. By examining SG's role as a legal actor, this article aims to shed light on sources of those persuasive powers. I argue that political and legal roles of SG are intertwined, and that his political influence is reinforced by his ability to draw upon values and principles embodied in Charter. I begin by reviewing legal basis of SG's authority and evolving conceptions of that authority under successive secretaries-general. I then offer a brief account of international as a process of justificatory discourse, terms of which are set and constrained by an interpretive community associated with a particular field of practice. As a participant in practice of peace and security, SG contributes to interpretation, hardening, and progressive elaboration of charter-based in that field. In third section, I examine how various SGs have intervened in legal discourse and argue that voice of office carries considerable weight. The article concludes by summarizing sources of secretary-general's persuasive powers, laying stress on what may be called normative authority of office. The Secretary-General as Legal Actor The legal basis for secretary-general's role lies in Articles 7 and 97 through 101 of Charter. Article 97 names him chief administrative officer of organization; Article 98 stipulates that he shall perform functions entrusted to him by deliberative organs of UN. More interesting from a constitutional point of view is independent political role derived from Article 99, which reads: the Secretary-General may bring to attention of Security Council any matter which in his opinion may threaten maintenance of international peace and security. …