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CRIME OF AGGRESSION AND WAR CRIMES ius ad bellum v. ius in bello

CRIME OF AGGRESSION AND WAR CRIMES ius ad bellum v. ius in bello. Dr . Maja Munivrana Vajda Ak.god . 2013/2014. AGGRESSION .

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CRIME OF AGGRESSION AND WAR CRIMES ius ad bellum v. ius in bello

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  1. CRIME OF AGGRESSION AND WAR CRIMESius ad bellum v. iusinbello Dr. Maja Munivrana Vajda Ak.god. 2013/2014

  2. AGGRESSION Art. 6. a) IMT Statute: CRIME AGAINST PEACE (namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing) Ex inurialexoritur?

  3. Art. 5. RS …The Court has jurisdiction in accordance with this Statute with respect to the following crimes: Crime of genocide Crimes against humanity War crimes Crime of aggression. (2) The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

  4. UN Charter Art. 2 (4) – duty to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Art. 51. – Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security Chapter VII. – art. 39. (SC determinestheexistenceof …actofaggression), art. 42. (SC may take such action ….as may be necessary to maintain or restore international peace and security)

  5. Res. RC/Res. 6. (11/6/2010) • art. 5(2) deleted • art. 8. bis. – crimedefinition • Art. 15 bis and 15 ter – exerciseofjurisdiction • Art. 25(3) bis • AmendmentsoftheEoC– art. 8 bis. • Technicalamendments + understandings

  6. CrimeofAgression) Perpetrator ? person in a position effectively to exercise control of or to direct the political or military action of a State (applies to other participants as well) Art. 33. RS? Planning, perpetration, initiation or execution of an act of aggression

  7. ActofAgression + general clause (use of armed forces by a State against the sovereignty, territorial integrity or political independence or in any other manner inconsistent with the UN Charter) + enumeration of acts which, regardless of a declaration of war, qualify as an act of aggression in accordance with UN GA Res. 3314/1974) + by its character, gravity and scale constitutes a manifest violation of the UN Charter

  8. Who determinesanactofaggression? SC– chapter VII.? ICJ: Advisoryopinions? Contentiouscases? art. 119. RS? UNGA– Uniting for PeaceRes. 377 A/1950? ICC itself?

  9. TRIGGER JURISDICTION (art 15. bis i ter) State referral /propriomotu powers Only if a SP accepts such jurisdiction SNP – not over the crime committed by its national or over its territory Check if there is a SC determination/ if not, postponement 6 months Authorization of PTC SCdid not ask for a deferral according to art. 16 SC referral 1 year after ratification by 30 SP Decision of 2/3 SP after 1.1.2017. Irrespective of whether the State concerned has accepted jurisdiction of the ICC

  10. Additionalproblems? Only acts of states? Right to self-determination? Humanitarian interventions? Do we need the crime of aggression?

  11. WAR CRIMES aRT. 6. b) IMT StatutE: WAR CRIMES (namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity)

  12. iusinbello Haague law (1899., 1907.) – traditionally applied in international conflicts Geneva Law (four conventions 1949, two (three) additional protocols 1977) –grave breaches – applicable only to international conflicts

  13. InternationalCourts ICTY art. 2. GravebreachesofGenevaConventions art. 3. violationofthelaws or customsoflaw ICC art. 8. warcrimes

  14. APPLICATION OF IHL (GC) ARMED CONFLICT International – 4 GC + AP 1 Non-internationalcharacter – commonart. 3 GC + AP 2 NEXUS PROTECTED PERSONS PERPETRATORS?

  15. Scopeofapplicatin – armedconflict INTERNATIONAL: art. 2. GC: Declared war Armed conflict between two HCP (irrespective of declaration of war) occupation 2. art. 1(4) AP 1: Fights against colonial domination NON-INTERNATIONAL: art. 3. GC: armed conflicts in the territory of one HCP (not of international character) art. 1. AP 2: Not applicable: to situations of internation disturbances and tensions (riots, isolated and sporadic acts of violence or other acts of similar nature) Applicable to: AC between armed forces of HCP and dissident armed forces or otherorganized armed groups (command. Control over territory)

  16. Scopeofapplication– armedconflict(in ICTY caselaw): “Anarmedconflictexistswheneverthere is a resort to armedforcebetweenStatesorprotractedarmedviolencebetweengvt. authoritiesandorganizedarmedgroupsorbetweensuchgroupswithin the state” duration – extendsbeyond the cessation of hostitlitiesuntil a general conclusion of peace is reached/peacefulsettlementachieved teritorry – wholeterritory of the warringstates / under the control of a partywhetheror nor actualcombattakes place there

  17. NEXUS ICTR: insufficient to show a simple temporal concurrence between the crimes charged and the internal armed conflict, direct link necessary, defendant must be connected with one of embattled parties” ICTY : “obvious link between the criminal act and armed conflict”; “closely related to the armed conflict as a whole” * Kunarac: guiding criteria (perpetrator combatant, victim not, victim member of the opposinfg party, act serves a military goal or committed in the context of perpetrator’s official duties) ICC – EoC: “Conduct took place in the context of and was associated with an armed conflict

  18. PROTECTED PERSONS Wounded and sick Wounded and sick at sea POW Civilians (negative definition) “ find themselves in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (ICTY: “ethnicity may become determinative of national allegiance”)

  19. PROHIBITED MEANS AND METHODS OF WARFARE Haague law + AP 1: Military objectives + principles of necessity (military advantage), distinction (beteen civilians and combatants/civilian objects and military objectives + indiscriminate attacks are prohibited”) and proportionality (only force proportional to the military objective may be used)

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