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Abstract: This article argues that the ex post facto clause only prevents a state from exercising jurisdiction if at an earlier date it could not have exercised universal jurisdiction as a matter of customary law over terrorist acts against diplomats. Part I of the article explores the ex post facto clause and universal jurisdiction over international crimes. Part II argues that if a person commits an international crime over which universal jurisdiction could be exercised as a matter of customary law and not solely as a result of an international agreement at the time of commission, and the United States subsequently passes a federal statute making that activity a crime, the statute can be applied retroactively because it is not an ex post facto law with regard to the act in question. Part III suggests that when the United States has the right to prosecute a perpetrator of an international crime subject to universal jurisdiction over whom it obtains custody, it should exercise its right to do so.
Abstract: History has not and cannot for a long time render its verdict on the Nuremberg trials. This verdict will, it is clear, depend less on Nuremberg and on the events which preceded it than on events which are to come. But debate on the issues raised by the trial is in full swing. It has been hailed as a significant contribution to international law, order, and justice.’ It has been attacked with a variety of objections: ex post facto, novelty and confusion, threat to the great traditions of Anglo-American justice, disrepute for the judiciary, the power of the victors masquerading as law, a barrier to the development of a democratic legal order in Germany. Professor Max Rheinstein in the February issue of this Review joined the men who have attacked the legal and moral foundations of this trial. His views are representative of the whole current of criticism. Certain issues raised by the debate may be clarified by an examination of his position and the problems which it suggests. This article examines some of the core arguments put forward by Rheinstein.
Akhavan, Payam. “Justice and Reconciliation in the Great Lakes Region of Africa: the Contribution of the International Criminal Tribunal for Rwanda.” Duke Journal of Comparative and International Law. 7 (1996): 325-348.
Abstract: The choice of focus of this article on the Rwanda Tribunal and its potential impact on the Great Lakes Region of Africa is not an arbitrary one. While it is recognised that any attempt at “comparative calamity” with a view to measuring human suffering is ultimately a futile and obscene exercise, the tragedy which befell Rwanda in 1994 deserves a special space in the blood-stained pages of history. Rwandan genocide merits distinction not only because of its shocking efficiency, its scale and proportional dimensions among the victim population, but also because of the international community could have prevented at least its most revolting aspects but refused to intervene. Was it simply Western cultural proximity of the Yugoslav victims which provoked the cry of indignation that resulted in the establishment of the Yugoslav Tribunal? Had the Rwandan genocide occurred first, would we have resigned ourselves to the view of Africa as a continent where horror is commonplace, and where an international tribunal would make no appreciable difference?
Abstract: The primary focus of this article is on certain alleged claims of defense or immunity concerning prosecution of international crime. Many authors have raised questions concerning the meaning of the principles ‘nullum crimen sine lege’ and ‘nulla poena sine lege’. Are they legal principles, and do they constitute a defense to prosecution of violations of customary international law or treaties? If domestic or international statutes or charters incorporate such international law by reference, are the ‘nullem crimen’ principles necessarily violated? Moreover, are such incorporations violative of ex post facto prohibitions?
Abstract: On August 10, 1995, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia issued a ruling of procedural nature, which authorised the Prosecutor to withold from the accused and his counsel the identity of a number of witnesses against the accused. This article examines the ruling.
Abstract: Human Rights Watch submission on three areas of the ECCC (Extraordinary Chambers of Courts of Cambodia) Draft Internal Rules, offering views towards revision of the rules in such a way that they will conform more closely to international fair trial standards. The three areas of concern, as addressed by HRW are: (a) trials in absentia; (b) the independence of the Defense Office and the Victims Unit; and (c) the public nature of the proceedings.
Stanton, Gregory H. “The Cambodian Genocide and International Law.” Genocide and Democracy in Cambodia: the Khmer Rouge, the United Nations, and the International Community. Ed. Ben Kiernan. New Haven, Conn: Yale Univ Southeast Asia Studies, 1993.
Abstract: To be punishable under the Genocide Convention, the destruction of a group must be intentional. Intent can be established by a systematic pattern that could only be the result of orders from the top of a pyramid of command. But intent can be proven more definitely through written orders or through testimony by witnesses to oral orders. Such direct evidence has now been collected.
Abstract: One feature of the Special Tribunal for Lebanon (‘STL’) differentiating it from other international criminal tribunals (except for the Nuremberg International Military Tribunal) is that its Statute allows for trials in absentia. The Statute permits such trials when an accused failed to appear in court or even to appoint a defence lawyer, but only on the condition that, where the indictment could not be served or notified to the accused, it was duly publicized through the media or communicated to the state of residence or nationality of the accused. Following the case law of the European Court of Human Rights, Article 22(3) of the STL Statute allows for retrial, except where an absent defendant was represented at trial by counsel of his or her own choosing. The author argues this right to retrial should not be applied either where (i) the accused expressly waived in writing his right to be present, but then failed to appoint counsel of his choosing; or (ii) a state’s failure to hand the accused over to the STL does not cure the accused’s refusal to voluntarily surrender to the STL. She also argues that the right of retrial following trials in absentia ought to accrue to Lebanese courts, notwithstanding Article 5(1) of the Statute, which seems to prohibit Lebanese courts retrying individuals convicted by the STL. Finally, she takes into account the position of states that prohibit trials in absentia, but are requested to surrender a person convicted in absentia by the STL for the purpose of executing his sentence, suggesting an ad hoc agreement between the state in question and the STL may be required as a remedy.
Abstract: The author emphasizes on the importance of equality of arms by which both parties in a trial have fair opportunity to get justice. The authors draws on different cases to show the role equality of arms played in those cases.
Abstract: War crimes are repulsive, heinous acts. War carried out under the most civilized laws of armed conflict is horrible, but its horrors are greatly exacerbated by those brutal acts of plunder, torture, rape, and murder that humanitarian laws of war forbid. Such vile acts affect not only those against whom they are perpetrated; they appall and offend all of humanity. Prevention and punishment of war crimes is of legal concerns and moral obligations, not just for those governments in whose territory crimes occurred, but for all states. Indeed, the effective prosecution and punishment of war criminals remain essential to the prevention of such crimes, the protection of human rights and fundamental freedoms, and the promotion of international peace and security
Abstract: This paper examines explicitly what kind of a right the right of humanitarian intervention is. It is argued that the most plausible right-holders would be the UN Security Council and any third party as authorized by the Council. It is argued that different right-holders would have a different kind of right. The implications of different kinds of rights are diverse and require both theoretical and practical considerations. Moreover, a link between the right and responsibility to intervene is made.
Abstract: Numerous scholars have made the case against granting amnesty to those who commit violations of international humanitarian law (the laws of war), or who commit other serious human rights crimes (genocide, torture, and crimes against humanity. Specifically, prosecuting the perpetrators of such crimes is seen as necessary to discourage future offenses, deter vigilante justice, promote reconciliation, and reinforce respect for the law and the new democratic regime. Before weighing the policies for and against granting amnesty in any given case, government and international organisation officials must first determine whether there exists an international obligation to prosecute the particular offense. It is one thing to suggest that in a given case the decision not to prosecute violators represented a poor policy judgment; it is quite another to conclude that such a decision violated international law. Were such a conclusion possible, the decision to forego prosecution could be challenged before domestic courts or in international fora. In addition, given the role of the United Nations in some of these cases, such a determination would seriously damage the credibility of the United Nations as an institution committed to the rule of law. Finally, it would be highly inappropriate for an International Criminal Court to defer to a national amnesty in a situation where the amnesty violates obligations contained in the very international conventions that make up the court’s subject matter jurisdiction.
Abstract: This articles examines the history of international penal law institutions and analyzes efforts by the world community to create an international penal code. The author also discusses the argument against such a code, which may have contributed to the thirty-seven year delay in approval by the senate of the Genocide Convention.
Abstract: The author talks about the definition and the contexts of war crime. The list will change from time to time through addition of new offences and the omission of some.
Abstract: The author states that war crimes are primarily due, not to individual variations from accepted standards, but to the venom of national propaganda which affects all individuals in a state from the highest to the lowest, which on the one hand impells the private in the ranks to acts of base brutality against the enemy private opposing him and-on the other hand-leads the high command and national leaders of a country in desperate straits to authorize or order modes and methods of procedure which civilization has long since condemned.
Abstract: From the perspective of international law, the author argues justification of Bangladesh’s secession as an independent state exploring the relationship that exists between the principle of self-determination and the inavitability of its birth.