DOCSLIB.ORG

Fenrick Crimes in Combat: the Relationship Between Crimes Against Humanity and War Crimes

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Fenrick Crimes in Combat: the Relationship Between Crimes Against Humanity and War Crimes W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. Guest Lecture Series of the Office of the Prosecutor W. J. Fenrick1 “Crimes in combat: the relationship between crimes against humanity and war crimes” 5 March 2004 The Hague 1 Senior Legal Adviser, ICTY-OTP. These remarks are made by the author in his personal capacity and do not necessarily reflect the views of the ICTY-OTP or the United Nations. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 1 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. The way in which international tribunals address crimes committed in combat will have a substantial impact on perceptions of the tribunals by national foreign ministries and defence departments and may also have a substantial impact on the development of international humanitarian law (IHL) as well as the development of international criminal law. The ICC may, of course, simply adopt the approach taken by most tribunals in the past, including those which adjudicated the post World War II war crimes cases, and ignore offences committed in combat. Defensible arguments can be made that prosecutors can and must choose which cases to prosecute from an abundance of atrocities and that it is preferable to choose cases involving clear cut crimes and generally agreed morally wrong acts. I have taken part in one conference in which a respected speaker suggested that crimes committed in combat such as unlawful attacks should be regarded as non-justiciable because they would be too difficult to prosecute. If, however, the ICC–OTP does decide to prosecute for crimes committed in combat, it must develop the ability to present an honest and accurate picture of what happened during combat and the ability to assist the court to differentiate between lawful and unlawful acts in circumstances where both might result in death, injury and destruction. Unfortunately, war is a brutal business. Until it is abolished, one must accept that the purpose of the body of law which purports to regulate combat is to limit human suffering, not to eliminate it. Indeed, legal arguments which purport to eliminate violence in armed conflict may result in undermining the applicable law and rendering it ineffective. For example, arguing that any civilian casualties are too many civilian casualties no matter how important the military objective being attacked would be counterproductive as such a standard, no matter how desirable in the abstract, would not be viable in military operations at the present time. I would suggest that a defensible and realistic objective for international prosecutors handling combat related cases is to stretch the legal envelope, to pursue legal standards slightly in advance of state practice. It is not to rip the end off the envelope in pursuit of combat standards which turn all persons who fight wars, even those from law-sensitive states acting in good faith, into criminals. My reflections on the legal relationship between crimes against humanity and war crimes occurring in a combat context and on how we have learned, and continue to learn, to handle combat related issues in the ICTY–OTP may be of assistance to you as you begin to grapple with similar issues before the ICC. My reflections will focus in particular on the war crime of unlawful attacks on civilians and the crime against humanity of persecution. War crimes The concept of a war crime has been a part of international law for many centuries. In brief, war crimes are: (a) one of a list of acts generally prohibited by treaty but occasionally prohibited by customary law, and (b) committed during an armed conflict. Some of these acts are prohibited in international conflicts alone, some in internal conflicts alone and some in all conflicts. The prohibited acts must be committed (c) by a perpetrator linked to one side of the conflict, and (d) against a victim who is neutral or linked to the other side of the conflict. The body of treaty and customary law which provides the legal underpinnings for the war crimes concept and which is referred to variously as the law of war, the law of armed conflict, and IHL is quite voluminous. The standard compilation of relevant treaty texts, Schindler & Toman, The Laws of Armed Conflicts, includes over 1000 pages in its 3rd edition of 1988. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 2 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. Some enumerated war crimes are listed in Art. 2 and 3 of the ICTY Statute. In addition, we at the ICTY can prosecute for unenumerated war crimes under Art. 3 of the ICTY Statute provided certain tests set out in paras 94 and 143 of the Tadić Jurisdiction Appeal are met, in particular: (a) the violation must constitute an infringement of a rule of international humanitarian law, (b) the rule must be customary in nature or, if the rule has a treaty law basis, the treaty must be binding on the parties at the time of the incident and the rule must not conflict with a peremptory norm of international law, (c) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve important consequences for the victim, and (d) the violation of the rule must entail, under customary or treaty law, the individual criminal responsibility of the person breaching the rule. Under the ICC Statute, of course, all punishable war crimes are explicitly enumerated in Art. 8. There is no provision for the prosecution of unenumerated offences. The ICC Statute differentiates between war crimes committed in international conflicts and in what would appear to be two types of internal conflicts, a Common Article 3 conflict (Art. 8(2) (c)&(d)), and an Additional Protocol II conflict as modified by the Tadić Jurisdiction Appeal (Art. 8(2) (e)&(f)). There appears to be no room for arguing before the ICC, as we do before the ICTY, that certain war crimes apply to all armed conflicts, regardless of classification. One interesting feature of the ICC Statute is Art. 8(1) which specifies that the court has jurisdiction in respect of war crimes "in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes". Certainly, plan, policy, and scale are not elements of war crimes under customary law. The killing of a single prisoner of war or the solitary rape of a woman in occupied territory is a war crime. Presumably, plan, policy, and scale are factors to be taken into account by the Prosecutor in determining whether or not to commence investigations against particular potential accused. Speaking for myself alone, I must also observe that some of the war crimes enumerated in the ICC Statute appear to be defined in an unnecessarily narrow fashion. For example, the unlawful attack provisions all refer to "intentionally" launching or directing attacks. We at the ICTY use "wilful" as our mental element as that is the language of the Additional Protocols and "wilful" incorporates both intention and a high degree of recklessness. One might query how a chamber of the ICC would respond to a defence argument that the accused may have attacked civilians but he didn't intend to do so, he was merely too busy fighting a war to devote any resources to determining where civilians were located. Crimes against humanity The concept of a crime against humanity is much more recent. Basically, it is a twentieth century development and its first application in a criminal setting, precipitated by the mistreatment by Germany and its allies of their own nationals or the nationals of their co- belligerents, is in the post World War II war crimes cases. In brief, under customary law, a crime against humanity is: (a) one of a list of prohibited acts, (b) committed as part of a widespread or systematic attack, (c) pursuant to or in furtherance of a state or organizational policy, (d) directed against any civilian population, (e) with knowledge of the attack. There is no requirement for the existence of an armed conflict. "Civilian" clearly excludes combatants but it should otherwise be given a very broad definition, including, for example, hospital patients and resistance fighters who have laid down their arms (Prosecutor v. Tadić, Case No. IT 94-1-T (ICTY Trial Chamber Opinion and Judgment 7 May 1997, paras. 639-43). There is no treaty devoted exclusively to crimes against humanity unless one regards genocide as an aggravated form of crime against humanity. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 3 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. The entire body of treaty law devoted to crimes against humanity, excluding genocide, would take up fewer than ten pages of the text of the normal law review. The ICTY Statute addresses crimes against humanity in Art. 5. Under the ICTY Statute, as opposed to customary law, crimes against humanity must be committed "in armed conflict, whether international or internal in character". The ICC Statute is the first relatively widely ratified treaty text which, in its Art. 7, provides a relatively comprehensive definition of crimes against humanity, and of the different modalities by which such crimes may be committed. The ICC has jurisdiction over crimes again humanity committed in peace or war. Art. 7(2)(a) defines " attack directed against any civilian population" as "a course of conduct involving the multiple commission of acts referred I to in paragraph 1 (that is, the enumerated prohibited acts) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." Attack, for crimes against humanity purposes, is not the same thing as an attack in a combat context involving the use of force to seize or defend a position.
Load more

Recommended publications
  • Articles on Crimes Against Humanity
    Draft articles on Prevention and Punishment of Crimes Against Humanity 2019 Adopted by the International Law Commission at its seventy-first session, in 2019, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/74/10). The report will appear in Yearbook of the International Law Commission, 2019, vol. II, Part Two. Copyright © United Nations 2019 Prevention and punishment of crimes against humanity … Mindful that throughout history millions of children, women and men have been victims of crimes that deeply shock the conscience of humanity, Recognizing that crimes against humanity threaten the peace, security and well- being of the world, Recalling the principles of international law embodied in the Charter of the United Nations, Recalling also that the prohibition of crimes against humanity is a peremptory norm of general international law (jus cogens), Affirming that crimes against humanity, which are among the most serious crimes of concern to the international community as a whole, must be prevented in conformity with international law, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Considering the definition of crimes against humanity set forth in article 7 of the Rome Statute of the International Criminal Court, Recalling that it is the duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity, Considering the rights of victims, witnesses and others in relation to crimes against humanity, as well as the right of alleged offenders to fair treatment, Considering also that, because crimes against humanity must not go unpunished, the effective prosecution of such crimes must be ensured by taking measures at the national level and by enhancing international cooperation, including with respect to extradition and mutual legal assistance, … Article 1 Scope The present draft articles apply to the prevention and punishment of crimes against humanity.
    [Show full text]
  • Transnational Organized Crime
    IPI Blue Papers Transnational Organized Crime Task Forces on Strengthening Multilateral Security Capacity No. 2 2009 INTERNATIONAL PEACE INSTITUTE Transnational Organized Crime Transnational Organized Crime Task Forces on Strengthening Multilateral Security Capacity IPI Blue Paper No. 2 Acknowledgements The International Peace Institute (IPI) owes a great debt of gratitude to its many donors to the program Coping with Crisis, Conflict, and Change. In particular, IPI is grateful to the governments of Belgium, Canada, Denmark, Finland, Greece, Luxembourg, the Netherlands, Norway, Spain, Sweden, Switzerland, and the United Kingdom. The Task Forces would also not have been possible without the leadership and intellectual contribution of their co-chairs, government representatives from Permanent Missions to the United Nations in New York, and expert moderators and contributors. IPI wishes to acknowledge the support of the Greentree Foundation, which generously allowed IPI the use of the Greentree Estate for plenary meetings of the Task Forces during 2008. note Meetings were held under the Chatham House Rule. Participants were invited in their personal capacity. This report is an IPI product. Its content does not necessarily represent the positions or opinions of individual Task Force participants. © by International Peace Institute, 2009 All Rights Reserved www.ipinst.org CONTENTS Foreword, Terje Rød-Larsen. vii Acronyms. x Executive Summary. 1 The Challenge of Transnational Organized Crime (TOC). .4 Ideas for Action. .14 I. convene a hIgh-level ConFerenCe on toC aS a ThreaT To SeCurity ii. maP The impacts oF ToC on SeCurity, developmenT, and stability iii. strengThen Crime ThreaT analysis For un PeaCe efforts Iv. develoP straTegic, Investigative, and oPerational ParTnerShips v.
    [Show full text]
  • Warfare in a Fragile World: Military Impact on the Human Environment
    Recent Slprt•• books World Armaments and Disarmament: SIPRI Yearbook 1979 World Armaments and Disarmament: SIPRI Yearbooks 1968-1979, Cumulative Index Nuclear Energy and Nuclear Weapon Proliferation Other related •• 8lprt books Ecological Consequences of the Second Ihdochina War Weapons of Mass Destruction and the Environment Publish~d on behalf of SIPRI by Taylor & Francis Ltd 10-14 Macklin Street London WC2B 5NF Distributed in the USA by Crane, Russak & Company Inc 3 East 44th Street New York NY 10017 USA and in Scandinavia by Almqvist & WikseH International PO Box 62 S-101 20 Stockholm Sweden For a complete list of SIPRI publications write to SIPRI Sveavagen 166 , S-113 46 Stockholm Sweden Stoekholol International Peace Research Institute Warfare in a Fragile World Military Impact onthe Human Environment Stockholm International Peace Research Institute SIPRI is an independent institute for research into problems of peace and conflict, especially those of disarmament and arms regulation. It was established in 1966 to commemorate Sweden's 150 years of unbroken peace. The Institute is financed by the Swedish Parliament. The staff, the Governing Board and the Scientific Council are international. As a consultative body, the Scientific Council is not responsible for the views expressed in the publications of the Institute. Governing Board Dr Rolf Bjornerstedt, Chairman (Sweden) Professor Robert Neild, Vice-Chairman (United Kingdom) Mr Tim Greve (Norway) Academician Ivan M£ilek (Czechoslovakia) Professor Leo Mates (Yugoslavia) Professor
    [Show full text]
  • Criminal Prosecution of UN Peacekeepers: When Defenders of Peace Incite Further Conflict Through Their Own Misconduct
    American University International Law Review Volume 33 Issue 1 Article 3 2017 Criminal Prosecution of UN Peacekeepers: When Defenders of Peace Incite Further Conflict Through Their Own Misconduct Shayna Ann Giles Baker, Donelson, Bearman, Caldwell & Berkowitz Follow this and additional works at: https://digitalcommons.wcl.american.edu/auilr Part of the Human Rights Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation Giles, Shayna Ann (2017) "Criminal Prosecution of UN Peacekeepers: When Defenders of Peace Incite Further Conflict Through Their Own Misconduct," American University International Law Review: Vol. 33 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/auilr/vol33/iss1/3 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. CRIMINAL PROSECUTION OF UN PEACEKEEPERS: WHEN DEFENDERS OF PEACE INCITE FURTHER CONFLICT THROUGH THEIR OWN MISCONDUCT * SHAYNA ANN GILES I. INTRODUCTION........................................................................148 II. WITH GREAT POWER COMES GREAT RESPONSIBILITY: THE DEVELOPMENT OF THE UNITED NATIONS AND UN PEACEKEEPING...................151 A. THE UNITED NATIONS
    [Show full text]
  • Crimes Against Humanity 8
    International Criminal Law 1. Introduction & Practice Training Materials 2. What is ICL? 3. General Principles 4. International Courts Crimes 5. Domestic Application 6. Genocide Against 7. Crimes Against Humanity 8. War Crimes Humanity 9. Modes of Liability 10. Superior Responsibility Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National 11. Defences Jurisdictions, funded by the European Union 12. Procedure & Evidence Developed by International Criminal Law Services 13. Sentencing 14. Victims & Witnesses 15. MLA & Cooperation Project funded by the EU Implemented by: MODULE 7: CRIMES AGAINST HUMANITY Part of the OSCE-ODIHR/ICTY/UNICRI Project “Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions” The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations, the ICTY or the OSCE-ODIHR concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Copyright © ICLS – OSCE-ODIHR ii CONTENTS 7. Crimes against humanity ...................................................................................................... 1 7.1. Introduction .......................................................................................................................... 1 7.1.1. Module description .........................................................................................................
    [Show full text]
  • Transnational Criminal Law
    Introduction to the Laws of Kurdistan, Iraq Working Paper Series Transnational Criminal Law Pub. 2016 Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani Stanford Law School Kirkuk Main Road Crown Quadrangle Raparin 559 Nathan Abbott Way Sulaimani, Iraq Stanford, CA 94305-8610 www.auis.ed.iq www.law.stanford.edu 1 Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. In the wake of the transition to a democratic state, the country and region economy has prospered and its institutions have grown more complex. As institutional capacity has grown, so too has the need for a robust rule of law. An established rule of law can provide assurances to investors and businesses, while keeping checks on government and private powers and protecting citizens’ fundamental rights. Institutions of higher learning, such as universities and professional training centers, can and should play a key role in stimulating and sustaining this dynamic. Indeed, education is foundational. This paper is part of the Introduction to the Laws of Iraq and Iraqi Kurdistan, a series of working papers produced by the Iraqi Legal Education Initiative (ILEI) of Stanford Law School. This series seeks to engage Iraqi students and practitioners in thinking critically about the laws and legal institutions of Iraq and Iraqi Kurdistan. Founded in 2012, ILEI is a partnership between the American University of Iraq in Sulaimani (AUIS) and Stanford Law School (SLS). The project’ seeks to positively contribute to the development of legal education and training in Iraq.
    [Show full text]
  • List of Entries
    List of Entries 1%ers 1 Associations 100 ABM 1 Auto Theft 100 Accomplice Crime 1 Automated 100 Actualizing Risk-Need-Responsivity 1 Automated and Manual Forensic Adaptation 12 Examinations 100 Administrative Criminology 12 Babies Behind Bars 109 Admissibility 12 Bayesian Learning 116 Adolescence-Limited Offending 12 Bayesian Updating and Crime 116 Adolescent Contexts 12 BCS 125 Affordable Care Act 12 Behavioral Health Courts 125 Age-Crime Curve 12 Behavioral Investigative Advice 125 Agent-Based Assessments of Criminological Behavioral Learning 134 Theory 19 Behavioral Linkage Analysis 134 Agent-Based Modeling for Understanding Behavioral Management in Probation 134 Patterns of Crime 32 Behavioral Science Evidence in Criminal Agent-Based Modelling 41 Trials 145 Agent-Based Models to Predict Crime at Bias Crime 154 Places 41 Bias in Forensic Science 154 Aging Correctional Populations 48 Bias/Hate Motivated Crime 154 Aging Prison Population: Factors to Biased Policing 154 Consider 60 Bicycle Theft 162 AIDS 67 Biker Clubs/Gangs 170 Alcohol Dependence 67 Biological Geographical Profiling 171 Alternative Courts 67 Biometrics 179 Alternatives to Pre-trial Detention 68 Biometrics and Border Control Policing 179 American Dream 75 Boot Camps 188 AML 75 Border Control 188 Analytical Criminology 75 Brain 188 Anomie 75 Breakdown 188 Anomie and Crime 76 Break-In 188 Anomie Theory (Strain Theory) 86 Breaking and Entering 188 Antisocial Personality Disorder 86 Bribery 188 Antisocial Potential 86 British Crime Firms 188 Anxieties About Crime 86 British Crime Survey 194 Applied Geographical Profiling 86 British Police 203 Arms Races 100 Broken Windows Thesis 213 G. Bruinsma, D. Weisburd (eds.), Encyclopedia of Criminology and Criminal Justice, 5599 DOI 10.
    [Show full text]
  • Medical War Crimes
    Medical War Crimes Sigrid Mehring* A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 15, 2011, p. 229-279. © 2011 Koninklijke Brill N.V. Printed in The Netherlands. 230 Max Planck UNYB 15 (2011) I. Introduction II. Medical War Crimes 1. Medical Grave Breaches and Medical War Crimes 2. Medical Aspects of the Classic Grave Breaches III. Medical War Crimes in International Criminal Law 1. The ICTY and ICTR Statutes 2. The Rome Statute IV. National Implementation: The German Example V. The Prosecution of Medical War Crimes 1. The Doctors’ Trial of 1947 2. The Ntakirutimana Trial of 2003 3. General Observations concerning Prosecution VI. Possible Defenses to Medical War Crimes 1. Superior Orders 2. Mistake of Fact 3. Necessity and Duress 4. Consent of the Patient VII. Conclusion Mehring, Medical War Crimes 231 I. Introduction Physicians have always played an important role in armed conflicts be- ing the first to treat wounded and sick combatants, prisoners of war, and civilians. This makes them an important, essential category of ac- tors in armed conflicts, a role which is reflected in the laws of war.1 In granting first aid and emergency care, physicians can fulfill a further role by reporting on human rights abuses or violations of international humanitarian law.2 They are thus in a privileged position to watch over the rights of the victims of armed conflicts. However, their position is also susceptible to abuse. Physicians have always used armed conflicts for their own gain, to further their medical skills or to use their skills to enhance military gains or further medical science.
    [Show full text]
  • Crimes Against Humanity — Report of the International Law Commission
    A/70/10 Chapter VII Crimes against humanity A. Introduction 108. The Commission, at its sixty-fifth session (2013), decided to include the topic “Crimes against humanity” in its long-term programme of work,77 on the basis of the proposal prepared by Mr. Sean D. Murphy and reproduced in annex B to the report of the Commission on the work of that session.78 The General Assembly, in paragraph 8 of its resolution 68/112 of 16 December 2013, took note of the inclusion of this topic in the Commission’s long-term programme of work. 109. At its sixty-sixth session (2014), the Commission decided to include the topic in its programme of work and appointed Mr. Sean D. Murphy as Special Rapporteur for the topic. 79 The General Assembly subsequently, in paragraph 7 of its resolution 69/118 of 10 December 2014, took note of the decision of the Commission to include the topic in its programme of work. B. Consideration of the topic at the present session 110. At the present session, the Commission had before it the first report of the Special Rapporteur (A/CN.4/680), which was considered at its 3254th to 3258th meetings, from 21 to 28 May 2015.80 111. In his first report, the Special Rapporteur, after assessing the potential benefits of developing a convention on crimes against humanity (section II), provided a general background synopsis with respect to crimes against humanity (section III) and addressed some aspects of the existing multilateral conventions that promote prevention, criminalization and inter-State cooperation with respect to crimes (section IV).
    [Show full text]
  • Download the Full Report
    HUMAN RIGHTS “The Endless Wait” Long-term Arbitrary Detentions and Torture in Western Libya WATCH The Endless Wait Long-Term Arbitrary Detentions and Torture in Western Libya Copyright © 2015 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 978-1-62313-3030 Cover design by Rafael Jimenez Human Rights Watch defends the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power to respect rights and secure justice. Human Rights Watch is an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all. Human Rights Watch is an international organization with staff in more than 40 countries, and offices in Amsterdam, Beirut, Berlin, Brussels, Chicago, Geneva, Goma, Johannesburg, London, Los Angeles, Moscow, Nairobi, New York, Paris, San Francisco, Sydney, Tokyo, Toronto, Tunis, Washington DC, and Zurich. For more information, please visit our website: http://www.hrw.org DECEMBER 2015 ISBN: 978-1-62313-3030 The Endless Wait Long-Term Arbitrary Detentions and Torture in Western Libya Summary ......................................................................................................................... 1 Recommendations ........................................................................................................... 5 To the General Prosecutor ........................................................................................................
    [Show full text]
  • Aggression As a Contextual War Crime Rachel E
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Case Western Reserve University School of Law Case Western Reserve Journal of International Law Volume 48 | Issue 1 2016 Criminally Disproportionate Warfare: Aggression as a Contextual War Crime Rachel E. VanLandingham Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Rachel E. VanLandingham, Criminally Disproportionate Warfare: Aggression as a Contextual War Crime, 48 Case W. Res. J. Int'l L. 215 (2016) Available at: https://scholarlycommons.law.case.edu/jil/vol48/iss1/13 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Journal of International Law 48 (2016) Criminally Disproportionate Warfare: Aggression As A Contextual War Crime Rachel E. VanLandingham* International law has long recognized the general principle that an illegal act cannot produce legal rights. Yet, this principle of ex injuria jus non oritur is seemingly ignored in the uneasy relationship between the two international legal regimes most associated with war. A head of State can, for example, violate international law regulating the resort to armed force by ordering his military forces to illegally invade another country, yet he, through his military forces, simultaneously and subsequently benefits on the battlefield from the application of the separate body of international law regulating the actual conduct of war.
    [Show full text]
  • Criminology on Crimes Against Humanity: a North Korean Case Study Megan Alyssa Novak University of South Carolina - Columbia
    University of South Carolina Scholar Commons Theses and Dissertations 2015 Criminology on Crimes Against Humanity: A North Korean Case Study Megan Alyssa Novak University of South Carolina - Columbia Follow this and additional works at: https://scholarcommons.sc.edu/etd Part of the Criminology and Criminal Justice Commons Recommended Citation Novak, M. A.(2015). Criminology on Crimes Against Humanity: A North Korean Case Study. (Master's thesis). Retrieved from https://scholarcommons.sc.edu/etd/3162 This Open Access Thesis is brought to you by Scholar Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. CRIMINOLOGY ON CRIMES AGAINST HUMANITY: A NORTH KOREAN CASE STUDY by Megan Alyssa Novak Bachelor of Arts University of South Carolina, 2010 Submitted in Partial Fulfillment of the Requirements For the Degree of Master of Arts in Criminology College of Arts and Sciences University of South Carolina 2015 Accepted by: Eric L. Sevigny, Director of Thesis Tia Stevens Andersen, Reader Lacy Ford, Vice Provost and Dean of Graduate Studies © Copyright by Megan Alyssa Novak, 2015 All Rights Reserved. ii DEDICATION This thesis is dedicated to my son, Liam, who has taught me that the future of this world is worth fighting for. iii ACKNOWLEDGEMENTS Foremost, I would like to express my sincere gratitude to my advisor Professor Eric L. Sevigny for his continuous support of my research—for his patience, motivation, enthusiasm, and immense knowledge. As an undergraduate, his love of teaching initially inspired me to continue my education and pursue my Master’s degree.
    [Show full text]