The Judging of War Criminals : Individual Criminal Responsibility Under International Law
Abstract: Violations of the law of war, particularly in internal armed conflicts, in the 1990s, increased dramatically. This led to the establishment, by the UN Security Council, of international criminal tribunals for former Yugoslavia and for Rwanda. Council action also led to legal debates on the law applicable in international and internal conflicts, and whether there is a legal limit to the Council´s authority when acting under Chapter VII of the UN Charter. The thesis thus considers the legal basis for the establishment of the two tribunals, the rules for imposing individual criminal responsibility and the legal limits, if any, of the Security Council.In a critique of the laws of armed conflict, the thesis examines the criminal provisions in the Hague and Geneva Conventions, particularly Common Article 3 to the four 1949 Geneva Conventions, the "grave breaches" provisions of the Geneva Conventions and Additional Protocol I of 1977 and similar provisions of Additional Protocol II of 1977. The thesis further examines the law relating to the principle of state sovereignty, to child soldiers, and to rape as a crime under international law. The law on military necessity, ex post facto, tu quoque, mens rea, superior orders, command responsibility and reprisals, as applied in international criminal prosecution is also examined.The main findings are that: (a) there has been only marginal improvement in the law on the judging of war criminals under international law since the end of the Second World War. This is due to imprecise criminal provisions in the law of armed conflict, the narrow interpretation of the doctrine of state sovereignty, emphasis by states on protection of national interests, and legal limitations inherent in the UN Charter; and (b), state practice since 1945 demonstrates that the law on rape and other gender-based abuses in armed conflict, and the law on child soldiers, are fragmented and not uniformly applied. However, the study notes that because of the ingenious ways in which the Security Council has, since the 1990s, applied Chapter VII of the UN Charter, individuals may now be held criminally responsible under international law for violation of the law in internal armed conflicts.The study recommends a review of the law of war with a view to (a) clarifying the law on genocide, crimes against humanity and ethnic cleansing, (b) adopting legally binding international instruments on rape and gender-based abuses, and on child soldiers, and (c) providing guidelines for use of Chapter VII by the Security Council.
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