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.
{"title":"Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-Level United States Officials Accountable for Torture","authors":"Katherine Gallagher","doi":"10.1093/JICJ/MQP077","DOIUrl":"https://doi.org/10.1093/JICJ/MQP077","url":null,"abstract":"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.","PeriodicalId":408293,"journal":{"name":"OUP: Journal of International Criminal Justice","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117018362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Judges of the Special Tribunal for Lebanon (STL) recently adopted the Rules of Procedure and Evidence to guide the work of the court in bringing to justice those responsible for the attack of 14 February 2005 that resulted in the death of then-Lebanese Prime Minister Rafiq Hariri (‘the Hariri Attack’) as well as related attacks. These provisions draw heavily on analogous instruments of the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda. However, they also contain a number of innovations, including the enhanced role of the Pre-Trial Judge, the establishment of an independent and empowered Defence Office and the possibility of trials in absentia. The review carried out in this article is not a comprehensive analysis of every provision of the Rules of Procedure and Evidence. Instead, the purpose is to describe the key features of this instrument and, in doing so, to highlight points of interest, intersection and divergence in comparison with the analogous instruments of other International Criminal Tribunals. As such, the exegesis is intended to provide an overview of the procedural framework of the STL that will be of use to scholars and practitioners alike.
{"title":"The Special Tribunal for Lebanon Swiftly Adopts its Rules of Procedure and Evidence","authors":"M. Gillett, Matthias Schuster","doi":"10.1093/JICJ/MQP061","DOIUrl":"https://doi.org/10.1093/JICJ/MQP061","url":null,"abstract":"The Judges of the Special Tribunal for Lebanon (STL) recently adopted the Rules of Procedure and Evidence to guide the work of the court in bringing to justice those responsible for the attack of 14 February 2005 that resulted in the death of then-Lebanese Prime Minister Rafiq Hariri (‘the Hariri Attack’) as well as related attacks. These provisions draw heavily on analogous instruments of the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda. However, they also contain a number of innovations, including the enhanced role of the Pre-Trial Judge, the establishment of an independent and empowered Defence Office and the possibility of trials in absentia. The review carried out in this article is not a comprehensive analysis of every provision of the Rules of Procedure and Evidence. Instead, the purpose is to describe the key features of this instrument and, in doing so, to highlight points of interest, intersection and divergence in comparison with the analogous instruments of other International Criminal Tribunals. As such, the exegesis is intended to provide an overview of the procedural framework of the STL that will be of use to scholars and practitioners alike.","PeriodicalId":408293,"journal":{"name":"OUP: Journal of International Criminal Justice","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126266563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the legal origins of ‘murder in violation of the law of war’, an offence defined in the US Military Commissions Act (MCA) and resorted to in the case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit this offence based in part on a questionable legal instruction. The acquittal may have been proper under a correct view of the law. Nevertheless, the specific context in which this offence was alleged, combined with the judge’s instruction, highlights key aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of war violation’. This approach, which is substantially represented by the US Supreme Court’s judgment in ex parte Quirin, has been criticized by International Humanitarian Law (IHL) scholars as an erroneous view of customary IHL. However, close analysis of the legal and historical context in which this approach developed reveals that ‘murder in violation of the law of war’ is a municipal US offence that represents an English common law implementation of the law of nations. This article explains why reading this offence to incorporate IHL war crimes, as Hamdan’s judge did, is inappropriate in the context of the MCA and Hamdan’s case. It then demonstrates that the authorities relied upon by the Quirin Court, the Lieber Code and a treatise by authoritative US military law commentator, WilliamWinthrop, understood punishment for law of war violations to be permitted by the law of nations but imposed under municipal law. Thus,‘murder in violation of the law of war’ is properly viewed as a municipal, common law offence punishing * Assistant Professor, United States Military Academy (USMA), West Point, NY; Major, Judge Advocate General’s Corps, US Army; Member, Editorial Committee of this Journal. The views expressed in this article are solely the author’s and do not necessarily reflect those of the US Army, US Military Academy or any other department or agency of the US government. The author thanks Mr Richard Jackson, Lieutenant Colonel Eric Jensen and Colonel James Schoettler for their comments on a much earlier draft. Any remaining errors or misunderstandings are solely the author’s. [johncdehn@gmail.com] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journal of International Criminal Justice (2009), 1 of 20 doi:10.1093/jicj/mqp015 Oxford University Press, 2009, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org unprivileged fighters. In future studies the author will address the appropriateness of prescribing and enforcing this municipal offence in extraterritorial armed conflict.
{"title":"The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of ‘Murder in Violation of the Law of War’","authors":"John C. Dehn","doi":"10.1093/JICJ/MQP015","DOIUrl":"https://doi.org/10.1093/JICJ/MQP015","url":null,"abstract":"This article examines the legal origins of ‘murder in violation of the law of war’, an offence defined in the US Military Commissions Act (MCA) and resorted to in the case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit this offence based in part on a questionable legal instruction. The acquittal may have been proper under a correct view of the law. Nevertheless, the specific context in which this offence was alleged, combined with the judge’s instruction, highlights key aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of war violation’. This approach, which is substantially represented by the US Supreme Court’s judgment in ex parte Quirin, has been criticized by International Humanitarian Law (IHL) scholars as an erroneous view of customary IHL. However, close analysis of the legal and historical context in which this approach developed reveals that ‘murder in violation of the law of war’ is a municipal US offence that represents an English common law implementation of the law of nations. This article explains why reading this offence to incorporate IHL war crimes, as Hamdan’s judge did, is inappropriate in the context of the MCA and Hamdan’s case. It then demonstrates that the authorities relied upon by the Quirin Court, the Lieber Code and a treatise by authoritative US military law commentator, WilliamWinthrop, understood punishment for law of war violations to be permitted by the law of nations but imposed under municipal law. Thus,‘murder in violation of the law of war’ is properly viewed as a municipal, common law offence punishing * Assistant Professor, United States Military Academy (USMA), West Point, NY; Major, Judge Advocate General’s Corps, US Army; Member, Editorial Committee of this Journal. The views expressed in this article are solely the author’s and do not necessarily reflect those of the US Army, US Military Academy or any other department or agency of the US government. The author thanks Mr Richard Jackson, Lieutenant Colonel Eric Jensen and Colonel James Schoettler for their comments on a much earlier draft. Any remaining errors or misunderstandings are solely the author’s. [johncdehn@gmail.com] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journal of International Criminal Justice (2009), 1 of 20 doi:10.1093/jicj/mqp015 Oxford University Press, 2009, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org unprivileged fighters. In future studies the author will address the appropriateness of prescribing and enforcing this municipal offence in extraterritorial armed conflict.","PeriodicalId":408293,"journal":{"name":"OUP: Journal of International Criminal Justice","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129794288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article deals with the legal and moral imperatives arising out of the Kapo trials, which took place in Israel between 1951 and 1964. Section 2 considers substantive aspects of the Israeli Nazi and Nazi Collaborators Law (adopted in 1950), as well as the moral quagmire embedded within this Law. Section 3 explores the dialogue that these trials advanced (and the dialogue that they failed to advance) in Israeli society. Section 4 offers some reflection on the reasons why these trials have been expunged from Israel`s collective memory. The authors also attempt to shed some light on the impact that this deliberate collective forgetting has had on the construction of Israel`s national identity and examine the central role that judicial institutions have played in reconstructing the past and providing meaning for the Kapo trials as a nation-building mechanism.
{"title":"Punishing International Crimes Committed by the Persecuted: The Kapo Trials in Israel (1950s-1960s)","authors":"Orna Ben-Naftali, Yogev Tuval","doi":"10.1093/JICJ/MQI022","DOIUrl":"https://doi.org/10.1093/JICJ/MQI022","url":null,"abstract":"This article deals with the legal and moral imperatives arising out of the Kapo trials, which took place in Israel between 1951 and 1964. Section 2 considers substantive aspects of the Israeli Nazi and Nazi Collaborators Law (adopted in 1950), as well as the moral quagmire embedded within this Law. Section 3 explores the dialogue that these trials advanced (and the dialogue that they failed to advance) in Israeli society. Section 4 offers some reflection on the reasons why these trials have been expunged from Israel`s collective memory. The authors also attempt to shed some light on the impact that this deliberate collective forgetting has had on the construction of Israel`s national identity and examine the central role that judicial institutions have played in reconstructing the past and providing meaning for the Kapo trials as a nation-building mechanism.","PeriodicalId":408293,"journal":{"name":"OUP: Journal of International Criminal Justice","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114527694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Military Commissions Act codifies a wide range of provisions that are inconsistent with binding international humanitarian law standards. In spite of the Act's title, these inconsistencies go well beyond the rules and procedures governing the trail of terrorist suspects before military commissions. In addition to violating fundamental fair trial guarantees defined in international humanitarian law, the Act misapplies the Geneva Conventions by adopting a one size fits all approach to the characterization of all counter-terrorist operations, provides for an overly broad definition of unlawful combatant status that effectively deprives terror suspects of applicable law of war protections, repudiates longstanding elementary considerations of humanity contained in common Article 3 and entrenches a detention regime that does not comport with the terms of the Geneva Conventions. These departures from international humanitarian law are reinforced by provisions of the Act that purport to insulate US government personnel and their agents from contrary interpretation and judicial scrutiny. The Act is thus best described as a series of breaches rather than developments of international humanitarian law, and as such, signals a stark departure from the US's historical commitment to the laws of war.
{"title":"The Military Commissions Act's Inconsistency with the Geneva Conventions: An Overview","authors":"J. Stewart","doi":"10.1093/jicj/mql096","DOIUrl":"https://doi.org/10.1093/jicj/mql096","url":null,"abstract":"The Military Commissions Act codifies a wide range of provisions that are inconsistent with binding international humanitarian law standards. In spite of the Act's title, these inconsistencies go well beyond the rules and procedures governing the trail of terrorist suspects before military commissions. In addition to violating fundamental fair trial guarantees defined in international humanitarian law, the Act misapplies the Geneva Conventions by adopting a one size fits all approach to the characterization of all counter-terrorist operations, provides for an overly broad definition of unlawful combatant status that effectively deprives terror suspects of applicable law of war protections, repudiates longstanding elementary considerations of humanity contained in common Article 3 and entrenches a detention regime that does not comport with the terms of the Geneva Conventions. These departures from international humanitarian law are reinforced by provisions of the Act that purport to insulate US government personnel and their agents from contrary interpretation and judicial scrutiny. The Act is thus best described as a series of breaches rather than developments of international humanitarian law, and as such, signals a stark departure from the US's historical commitment to the laws of war.","PeriodicalId":408293,"journal":{"name":"OUP: Journal of International Criminal Justice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130208870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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