International Criminal Law: Origins to WWI

Early Foundations and Pre-World War I

• Early International Criminal Law primarily addressed state responsibility
• Individual accountability came later later on
• Sir William Wallace's trial occurred in England in 1305
• The Peter von Hagenbach trial in 1474 marked the first international tribunal
• The Henry Wirz trial followed the U.S. Civil War in 1865
• The 1874 Brussels Conference suggested individual liability for war crimes
• The Brussels conference was never ratified.

World War I and Aftermath

• A Commission Report at the Paris Peace Conference in 1919 documented laws of war and humanity violations, citing massacres, property destruction, and attacks on hospital ships
• The report proposed prosecuting crimes before international or national courts
• Acts provoking war was considered for prosecution, foreshadowing crimes against peace at Nuremberg
• Aggression was ultimately excluded during early trials due to lack of legal authority and complexity in determining war causes
• Penal sanctions for egregious international law violations were suggested

U.S. Reservations

• The U.S. opposed international criminal tribunals due to perceived lack of precedent and jurisdiction
• "Violations of humanity" were considered moral rather than legal breaches by the U.S.
• The U.S. defended state sovereignty over prosecuting heads of state.

Treaty of Versailles and Trials

• Article 227 called for an international tribunal to prosecute Kaiser Wilhelm II for "a supreme offense against morality and treaties"
• Kaiser Wilhelm II fled to the Netherlands which refused extradition of Kaiser Wilhelm II
• Article 227 was unenforced as allies lost interest
• Articles 228–229 addressed the prosecution of lower-ranking German war criminals
• German war criminals were prosecuted in domestic military tribunals and mixed military tribunals
• The result was the Leipzig Trials in Germany where only 12 of 800 low-level defendants were tried, which led to allied protests
• The penal provisions became ineffective

Ottoman Empire Trials

• Turkey conducted domestic trials for “crimes against humanity and civilization" after WWI under British pressure
• The trials were largely ineffective because nationalist sentiments prevented meaningful accountability

Significance of the Post-War Period

• A transformative era for International Criminal Law began with the establishment of the International Military Tribunal (IMT) at Nuremberg for German war criminals
• The International Military Tribunal for the Far East (IMTFE) was made for Japanese war criminals
• The tribunals prosecuted high-ranking officials for crimes without geographic limitations
• Crimes being prosecuted represented a shift towards codified international criminal justice

Tribunal Creation and Challenges

• The Nuremberg Tribunal was created through the London Agreement of 1945 made by France, USSR, UK, and USA
• The Tokyo Tribunal was established by General Douglas MacArthur's proclamation with Allied approval
• Initial skepticism existed about legal processes with Allies, particularly Britain and the Soviet Union, favoring summary executions
• U.S. Secretary of War Henry Stimson advocated for trials, emphasizing due process consistent with American legal traditions
• Justice Robert H. Jackson became chief U.S. prosecutor

Crimes Prosecuted

• The charters of the tribunals introduced new legal concepts alongside traditional war crimes
• Crimes being prosecuted included crimes against the peace and planning or waging aggressive war or wars violating international treaties
• War crimes included violations against civilians, prisoners of war, and non-military targets, e.g., slave labor, deportation, plunder, destruction of cities
• Crimes against humanity included acts like murder, extermination, enslavement, deportation, and persecution of civilians before or during war

Outcomes of the Trials

• At Nuremberg, 24 Nazi leaders were indicted
• Out of 21, 3 defendants were acquitted
• Out of 21, 7 were sentenced to prison (10 years to life)
• Out of 21, 11 were sentenced to death
• 1 Defendant committed suicide prior to execution
• The trials emphasized transparency, thorough legal examination, and adherence to due process
• The Tokyo Tribunal held similar proceedings from May 1946 to November 1948
• The Tokyo Tribunal had its own focus on Japanese leadership

Impact on ICL

• The trials set a precedent for prosecuting international crimes and affirmed the principles of accountability and legalism in global justice
• Universal jurisdiction for war crimes was introduced and enforced
• Subsequent international courts include the International Criminal Court (ICC)

Post-World War II and the Cold War

• The formation of the United Nations (1945) and Charter Article 2(4) codified the prohibition on force except for self-defense (Art. 51)
• Security Council-approved actions are permitted under Art. 42
• Critical treaties were adopted
• The 1948 Genocide Convention codified genocide as a crime with individual criminal responsibility
• The 1949 Geneva Conventions codified war crimes and introduced universal jurisdiction for grave breaches
• Additional multilateral treaties established the aut dedere aut judicare principle: prosecute or extradite offenders
• In 1947, The UN directed the International Law Commission (ILC) to consider creating a permanent international criminal court
• Cold War deadlock delayed establishment due to disagreements on defining the crime of aggression

Human Rights Framework

• The Universal Declaration of Human Rights (1948) paved the way for the 1966 twin covenants covering Civil and Political Rights alongside Economic, Social, and Cultural Rights
• Human rights treaties evolved to address protections for women, children, and marginalized groups, forming the basis of international cross-fertilization of norms
• Work on creating a permanent court stalled as a result of the Cold war
• Focus shifted to norm-setting over enforcement, resulting in a rights-remedy gap
• Limited prosecutions occurred at the domestic level such as the Adolf Eichmann Trial in Israel

Overarching Themes

• The development of International Criminal Law is reactive, new atrocities often spur legal responses, however enforcement mechanisms lag
• Institutional gaps: Despite treaty proliferation, lack of strong judicial institutions limited accountability for international crimes until the 1990s
• Legal development was heavily influenced by major geopolitical factors such as the Cold War
• National interests often undermined international collaboration on trials Shift from state accountability to universal jurisdiction and individual criminal responsibility

Advances in Jurisdiction

• Growing recognition of war crimes, crimes against humanity, and genocide emerges
• High ranking officials could be held accountable for actions taken as heads of state

The Genesis of ICL

• International criminal proceedings after WWII marked the beginning of the contemporary International Criminal Law regime
• Historical roots drew on Just War Theory and a transition from theological to secular origins
• Anti-Piracy efforts were one of the earliest recognized international crimes
• Slave Trade and Slavery Regulations addressed crimes reflecting universal moral values
• International Humanitarian Law was focused on the rules governing the conduct of war

Developmental Features of ICL

• Norms Preceded Enforcement Mechanisms: Rules existed before institutions to enforce them
• Reactive Design: Developed ad hoc in response to global crises
• Incursions into Sovereignty: Gradual international regulation of states' actions, including treatment of citizens
• Transition from jus ad bellum (just causes for war) to jus in bello (regulating war conduct)

Theory Background

• Early Christian theology emphasized pacifism
• St. Augustine and St. Thomas Aquinas articulated conditions for just war: Sovereign Authorization, Just Cause, Right Intention
• By the 16th century, recognition that both sides might claim just war
• By WWI, war viewed as sovereign prerogative and policy tool
• Attempts to outlaw war, e.g., Kellogg-Briand Pact, failed to curb WWII aggression
• Emphasis remained on jus in bello with emerging relevance of jus ad bellum in crimes like aggression and terrorism

Penal Antecedents

• Piracy was widespread in the 18th-19th centuries within international waters
• Universal jurisdiction was introduced, allowing prosecution regardless of nationality or territory
• Slave Trade and Slavery marked the shift to prosecuting crimes against universal moral values
• International Criminal Law was extended beyond interstate conflict to address private actors operating in spaces beyond national sovereignty

Key Themes of ICL Development

• Reactive nature: ICL often advances in response to major crises rather than proactive legal evolution
• Institutional gaps: historical absence of enforcement mechanisms led to delays in implementing norms
• Expansion of jurisdiction transitioned from regulating inter-state conflicts to addressing non-state actors and violations of universal principles
• Central to early ICL are universal principles like piracy and slavery, paving the way for norms like genocide and crimes against humanity

The Hague Track

• The Hague track focuses on the means and methods of warfare and governs the conduct of hostilities
• Key treaties include The Hague Conventions (1899, 1907) which established regulations on permissible military tactics and weaponry
• There were other protocols restricting certain weapons (e.g., chemical weapons bans)
• Key principles include distinction, proportionality, necessity, and prohibition of unnecessary suffering

The Geneva Track

• The Geneva track focuses on the humane treatment of persons and is concerned with the protection of individuals, particularly non-combatants(civilians, prisoners of war,and the wounded)
• Key treaties include The Geneva Conventions (1864, 1906, 1929, 1949) and their Additional Protocols (1977, 2005)
• The First Convention (1864) pioneered protections for wounded soldiers
• Later conventions expanded to cover prisoners of war and civilians in occupied territories
• Key principles include protection of the sick and wounded, prisoner of war (POW) rights, civilian protection, and prohibition of collective punishment & hostage-taking

ICL & Sovereignty

• International Criminal Law implicates the principle of state sovereignty, as states have historically resisted international scrutiny over events within their territory or involving their nationals
• International criminal tribunals have become more common especially since the 1990s, leading to a reinterpretation of sovereignty

Adjudication

• International Criminal Law is adjudicated through domestic, international, and hybrid judicial institutions
• Domestic courts were historically the primary venues for prosecuting international crimes
• These tribunals arise through state consent (e.g., ICC, SCSL) or coercive actions by the UN Security Council (e.g., ICTY, ICTR)
• Domestic courts remain significant, particularly given the increasing use of extraterritorial jurisdiction

Frameworks of ICL Institutions

• The origins and jurisdictional frameworks of ICL institutions are complex
• Frameworks involve prescriptive, adjudicative, and enforcement jurisdiction, as well as classic bases like territoriality, nationality, protectivity, and universality
• States impose structural limitations on these tribunals to maintain control
• International criminal tribunals often emerge through treaties

About the ICC

• The Rome Treaty established the ICC, an example of a multilateral treaty-based institution
• Hybrid tribunals, created through bilateral agreements, offer advantages like greater state buy-in but may be weaker due to structural limitations imposed by participating states
• The ICC, established by the Rome Treaty in 1998, entered into force in 2002 As of 2020, 123 states are parties to the treaty, though key powers like China, Russia, and the U.S. have not joined
• The ICC prosecutes individuals for genocide, crimes against humanity, and war crimes when committed in a state party's territory or by its nationals
• Rome Treaty negotiations involved debates over the Court's jurisdiction and its relationship with domestic courts

Preconditions for the Exercise of Jurisdiction for the ICC

• The ICC asserts jurisdiction over individuals suspected of genocide, crimes against humanity, or war crimes where the act was committed within the territory of a state party, or the individual is a national of a state party
• The ICC is also constrained by admissibility requirements under Article 17 of the Rome Treaty
• The ICC operates under complementarity, meaning it defers to domestic proceedings unless a state is unwilling or unable to prosecute

Understanding Admissibility for the ICC

• A case is inadmissible if: a) A state with jurisdiction is investigating or prosecuting it unless the state is unwilling or unable to proceed genuinely, b) A state investigated the case but chose not to prosecute unless the decision was due to unwillingness or inability, c) The suspect has already been tried for the same conduct (ne bis in idem), d) The case lacks sufficient gravity
• The ICC applies a two-prong test for admissibility, 1) Whether a domestic investigation or prosecution covers the same person and conduct as the ICC case, 2) If so, whether the state is unwilling or unable to prosecute genuinely
• The Libya cases illustrate the complexities of complementarity
• The Court ruled inconsistently on the admissibility of cases against Saif Gaddafi and Abdullah Al Senussi, raising concerns about fairness and due process
• The Bemba case highlighted states that may decline to prosecute because they prefer ICC intervention, complicating the principle of complementarity
• The ICC's evolving admissibility jurisprudence shapes its relationship with state parties
• A restrictive approach may limit accountability, while an expansive approach risks overreach and discouraging national prosecutions

Consensual Hybrid Tribunals

• Hybrid tribunals, developed after ICTY and ICTR, blend national and international elements
• They are established within the host state, staffed by both domestic and international personnel, and apply a mix of domestic and international law
• Advantages of hybrid tribunals include greater legitimacy among domestic and international communities, lower startup costs, increased acceptance of international legal standards, proximity to evidence, witnesses, and affected populations, and skill and experience transfer between local and international professionals

Challenges for Consensual Hybrid Tribunals

• Effectiveness depends on the strength of the domestic legal system
• Hybrid tribunals must navigate political and legal complexities unique to each host country
• International Criminal Law continues to evolve as it balances state sovereignty with the need for accountability
• Creatures of coercion: international and hybrid tribunals are established through the exercise of sovereign power, either domestic sovereign power or international sovereign power

Domestic Sovereign Power & Sovereign Power

• Domestic Sovereign Power: a nation-state creates a tribunal within its own legal system
• Domestic Sovereign Power is generally uncontroversial because states retain the right to determine how they engage with international law
• International Sovereign Power: international organizations, mainly the U.N. Security Council, establish tribunals
• International Sovereign Power is more controversial because it involves coercive power, potentially overriding state sovereignty and imposing institutions that do not necessarily reflect the interests of affected states

Nuremberg & Tokyo Tribunals

• These were the first international criminal tribunals and were established by the victorious Allied powers after World War II
• The Nuremberg Tribunal (1945) was created through the London Agreement signed by France, the Soviet Union, the U.K., and the U.S.
• The Nuremberg Tribunal was the first tribunal to prosecute war crimes, crimes against humanity, and crimes against peace committed by Nazi leaders
• The tribunal's legitimacy stemmed from the collective power of the Allied victors, effectively imposing justice on Germany and the international community
• The Tokyo Tribunal (1946) was created unilaterally by the U.S. through a proclamation issued by General Douglas MacArthur, Supreme Allied Commander of the Far East
• The other Allied states accepted this decision but did not play a direct role in its creation
• The Tokyo tribunal prosecuted Japanese leaders for war crimes, but its legitimacy was sometimes questioned due to its unilateral establishment

Key Characteristics of The Nuremberg & Tokyo Tribunals

• Victor's justice was imposed by the victorious nations, raising concerns about impartiality
• These tribunals were the first attempts at International Criminal Law which established foundational legal principles for future tribunals
• They set the precedent for future tribunals, but their structure would not be replicated until the 1990s
• Nearly 50 years passed before another international tribunal was created
• Unlike Nuremberg and Tokyo, these tribunals were not imposed after a military victory but were established in response to ongoing conflicts and humanitarian crises

International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993)

• Created by the U.N. Security Council under Chapter VII of the U.N. Charter
• The ICTY granted the UN the power to take measures to restore international peace and security
• The ICTY was established to prosecute war crimes, genocide, and crimes against humanity during the violent breakup of Yugoslavia in the early 1990s
• The conflict involved mass atrocities, including ethnic cleansing, mass rape, and genocide, reminiscent of Nazi war crimes

International Criminal Tribunal for Rwanda (ICTR) (1994)

• The ICTR was established to prosecute individuals responsible for genocide and crimes against humanity during the Rwandan Genocide of 1994
• The ICTR targeted key figures involved in the systematic killing of Tutsi minorities and moderate Hutus

Reasons The Security Council Used Chapter VII Powers

• Lack of Consent from Yugoslavia, The Federal Republic of Yugoslavia and its breakaway republics were unwilling to subject their citizens to an international tribunal
• By acting under Chapter VII, the Security Council bypassed the need for consent, ensuring that war criminals could be prosecuted
• With Urgency and Deterrence, negotiating and ratifying an international treaty would have taken years
• The ICTY was created quickly to exert a deterrent effect and prevent further atrocities
• Political Pressure on Western Powers The U.S. and European nations faced public and diplomatic pressure to take action against ethnic cleansing in Europe
• They did not want to commit military forces to stop the atrocities
• Creating the ICTY allowed action without direct military intervention

Key Legal Challenge

• Duško Tadić, a Bosnian Serb accused of war crimes, challenged the legality of the ICTY
• Tadić argued that the U.N. Security Council did not have the authority to establish a criminal tribunal
• The Trial Chamber dismissed his challenge, stating it lacked the power to determine its own legitimacy
• The ruling affirmed the legitimacy of the Security Council's power to create international tribunals under Chapter VII

Broader Implications

• The ICTY and ICTR set important legal precedents that influenced the creation of the International Criminal Court (ICC) in 2002
• These tribunals expanded the scope of international criminal law, solidifying the idea that individuals (rather than just states) could be held accountable for war crimes and crimes against humanity
• The use of coercive power by the U.N. Security Council to establish these tribunals raised questions about the balance between state sovereignty and international justice

Domestic Legal Systems

• Historically, domestic courts, civilian and military, have been the primary venue for prosecuting international crimes
• Most International Criminal Law treaties assume that signatory states will enforce international crimes through their own domestic legal systems
• Domestic courts remain central to ICL enforcement even with the rise of international tribunals
• The ICC's complementarity principle reinforces this role, meaning the ICC steps in only when domestic courts are unwilling or unable to prosecute crimes
• Many states have updated their laws to align with the Rome Statute, criminalizing international crimes within their jurisdictions Some legal scholars argue that there is a duty to prosecute grave international crimes, citing human rights jurisprudence

Bases of Jurisdiction

• Domestic courts can prosecute international crimes based on territoriality, nationality, protectivity and universality

Universal Jurisdiction Overview

• Universal Jurisdiction is most relevant to ICL because it allows states to prosecute crimes with no direct connection to them
• Universal Jurisdiction is justified by the exceptional moral gravity of crimes such as genocide, war crimes, and crimes against humanity
• Universal jurisdiction also serves as a tool to fill enforcement gaps, ensuring accountability even when territorial or national jurisdiction does not apply

Origins of the Idea of Universal Jurisdiction

• Universal jurisdiction emerged to combat piracy in the 18th and 19th centuries
• Pirates operated on the high seas, outside national territories, making prosecution under traditional jurisdiction principles difficult
• Any state could prosecute a pirate, even if its citizens were not directly harmed

Application of Universal Jurisdiction

• Those responsible for the gravest violations of ICL are considered "enemies of all humankind," similar to pirates
• Crimes commonly subject to universal jurisdiction include: genocide, war crimes, crimes against humanity, slavery, human trafficking, torture, and transnational terrorism
• Universal jurisdiction over these offenses is based on treaties and customary international law

Universal Jurisdiction

• Some treaties require states to prosecute offenders found within their borders e.g., aut dedere aut judicare – "extradite or prosecute"
• Without a treaty obligation, universal jurisdiction is usually permissive Custodial Jurisdiction: A state exercises universal jurisdiction only if the suspect is physically present in its territory

Pure Universal Jurisdiction

• Some states claim the right to prosecute offenders even if they are not present in their territory
• Some civil law countries allow trials in absentia, without the accused present

Challenges and Controversies with Universality

• Political sensitivities: Universal jurisdiction cases can strain diplomatic relations
• Selective Prosecution: Some states apply universal jurisdiction inconsistently, often influenced by political or strategic interests
• Enforcement Issues: Securing extradition, custody, or cooperation from other states can be difficult
• Courts martial prosecute members of the armed forces for violations of military law, including the laws of war
• Courts martial may also prosecute enemy prisoners of war (POWs) for war crimes
• In the United States, trials by courts martial are governed by the Uniform Code of Military Justice (UCMJ)

The ICC

• ICC jurisdiction includes Member state actor, UNSC and State consent
• Regarding referrals, member states, UNSC or ICC prosecutor are relevant
• With Complementarity and Gravity, admissibility is a condition and responsible states cannot not investigate and prosecute
• Further, the ICC only covers the most serious crimes
• Many domestic systems do not allow in absentia trials, making custody of the accused essential for prosecution
• Domestic legal systems play a key role in transferring suspects to other states or international tribunals
• Highly coercive methods, including international abduction, have been used in some cases

Extradition Overview

• It is a process by which one state (requested state) transfers a suspect to another state (requesting state) for prosecution
• Governance is typically regulated by bilateral treaties and the EU has a multilateral treaty for intra-European transfers
• It facilitates international cooperation in criminal law enforcement
• The Double criminality rule states the act must be a crime in both states

Exceptions to Extradition

• Extradition is denied for political crimes through the Political Offense Exception
• States may refuse to extradite their own nationals due to the Nationality Exception
• Humanitarian Concerns of health, age, or due process can block extradition
• A Case study includes the Augusto Pinochet case, where the U.K. refused extradition to Spain on humanitarian grounds (age/health)
• Chile opposed extradition, likely to shield him from accountability
• The case mobilized victims and civil society in Chile even though Pinochet avoided extradition
• Pinochet was later indicted in Chile and died under house arrest

Transfer and Surrender, Transfer With International Tribunals

• A definition is when a state hands over a suspect to an international tribunal, termed surrender rather than extradition
• Legal basis is covered by tribunals' statutes and UN Chapter VII obligations
• Take the ICTR, or the International Criminal Tribunal for Rwanda, as an example
• Article 28 states that states must cooperate in arrests, detentions, and transfers Rule 58 states that Tribunal's requests override national laws and treaties

Challenges to Compliance

• Non-compliance could result in UN Security Council sanctions
• However, even Security Council backing did not ensure full state cooperation
• Take the case of Elizaphan Ntakirutimana
• The U.S. had an executive agreement to transfer suspects to ICTR, but Ntakirutimana sued the U.S,, arguing the transfer was unconstitutional
• After legal battles, the 5th Circuit upheld the transfer, and he was convicted
• ICTY Resistance arose as Serbia and Croatia initially resisted handing over suspects

ICC Cooperation

• Rome Statute Obligation states that ICC member states must cooperate in making suspects available
• Challenges to cooperation includes how the ICC lacks coercive power unless backed by the Security Council
• The ICC may be avoided as even with referrals, states sometimes refuse to cooperate
• This is seen in the example with Omar Al Bashir of Sudan, who was subject to an ICC arrest warrant and traveled to ICC member states and Russia without arrest and avoided prosecution because some states argued head-of-state immunity applied However, the ICC Appeals Chamber ruled such immunity does not apply

Example of Strong Cross Border Cooperation

• Take the Jean-Pierre Bemba Case as an example
• Article 70 of the ICC Statute deals with offenses against the administration of justice
• Bemba's legal team was convicted of witness tampering via joint arrest operations from Belgium, France, Netherlands, DRC
• Bemba's legal team was convicted of witness tampering via Evidence from Western Union records and phone intercepts
• The case remains controversial however since Bemba was acquitted of original charges
• The U.S. has had its part in ICC Transfers, the U.S. has transferred suspects despite not being an ICC member.
• Bosco Ntaganda surrendered at U.S. embassy in Kigali, Rwanda in 2013
• Dominic Ongwen was captured by U.S. special forces in Central Africa in 2015

War Crimes Reward Program

• The U.S. initially implemented the War Crimes Reward Program for Yugoslav, Rwandan, and Sierra Leone tribunals
• Overtime, it expanded to ICC cases and Syria war crimes suspects
• Abduction and Rendition includes the extrajudicial capture of individuals to bring them into custody

Abduction for Prosecution

• Has famously occurred as seen in the Case of Adolf Eichmann
• Eichmann was kidnapped by Israeli agents in Argentina in 1960 and was Tried, convicted, and executed in Israel for Holocaust crimes
• With U.S. Practice of Abduction, the Supreme Court upheld that courts retain personal jurisdiction over forcibly abducted individuals, even if the abduction violated international law
• However, serious mistreatment of the accused before transfer could affect jurisdiction
• Abduction for Detention & Interrogation sometimes occurs in parallel to Extraordinary Rendition
• Overtime, the U.S. transferred individuals to offshore prisons or allied states for coercive interrogation
• Some practices constituted torture, causing European courts and human rights bodies to rule such renditions violated multiple legal codes

Ethical & Legal Debates

• Concerns legality towards Abductions for prosecution i.e. the Eichmann trials
• These cases may be more justifiable than those for indefinite detention without trial
• A focus on the internationalization of crime exists with the Object and Purpose through
• Raises concerns about state power and human rights violations A focus on the internationalization of crime may also come with a Jurisdictional approach

Overview of the Subjective Legal Framework

• A primary, explanation exists for a way towards differentiating between international and domestic crimes is jurisdictional
• International crimes can be and often are prosecuted before international tribunals or in domestic courts pursuant to extraordinary jurisdictional bases
• However, a question remains about how to categorize the crimes as "international”
• Thin approaches interpret actions across a literal crossing of international boundaries, or the direct interaction between the nationals of one state with the nationals of another
• The failed state approach consists of Sovereign nations and their "Responsibility to Protect”.
• 1. States bear the primary responsibility to protect their population from genocide, war crimes, crimes against humanity, and ethnic cleansing (including incitement thereto)
• 2. The international community must assist states in fulfilling these protection obligations This may require a state's participation and willingness to take appropriate collective action through the UN Security Council following a Nexus approach
• These approaches vary and may include Under this hypothesis, if a crime becomes international because of its relationship to a set of circumstances such as a armed conflict
• In Identity and the victim Approach the crime has to be in a nexus of international events and against those protected
• A crime may have to be of International concern if it exceeds a minimum gravity threshold with respect to the extent to which it violates human dignity, just as in bellow can take place
• Predicate elements exists and must be in furtherance of under the guise of armed conflict
• Classification of armed conflicts take place and in the analysis, Armed conflicts and international humanitarian law come to play

Application

• The victim should be a protected person of certain definitions
• Modern conflicts (e.g., former Yugoslavia), Ethnicity (the victim) can determine allegiance instead of nationality
• Key factors for protection should consider the victims Allegiance to a party in the conflict and Control by that party over the territory
• the analysis should focus aligns with the purpose of international humanitarian law to protect those affected by conflict, regardless of nationality
• Irregular Unlawful Combatants includes People who commit war crimes

Distinctions

• Civilians have protections in occupation in armed conflict
• Lawful combatants must Targetable so long as the means and methods do not violate the law of war
• Remember however, the is need to Identify enumerated war crime, The Rome statue gives the elements
• Armed Conflicts happen when States use armed force against each other, or There is ongoing intense violence between government forces and organized armed groups, or between these groups within a country
• The international humanitarian law applies From the start of the conflict until a full peace agreement is reached or in internal conflicts, IHL applies until a peaceful resolution is achieved

Limitations

• The IHL is in effect throughout the entire territory of the countries at war or the areas controlled by the fighting groups, even if no active combat is happening in certain areas
• This law does not apply to Internal disturbances like riots, brief acts of violence, or similar events, as they are not considered armed conflicts or attacks
• Attacks shall be limited strictly to military objectives to objects make an effective contribution to military action and a definite military of advantage comes with their partial destruction
• With Attacks limited to military objectives, Objects must contribute effectively to military action due to their Nature,Location, Purpose or Use and the Destruction, capture, or neutralization of the target must provide a definite military advantage at that time
• 4 IHL Principles: Necessity, Distinction, Proportionality and Precaution

Global Prohibition of Terrorism Under International Law

• No universal treaty or international instrument defines terrorism and codifying terrorism as a global crime have been ongoing for decades
• The League of Nations' Attempt prompted The Convention for the Prevention and Punishment of Terrorism
• League of Nations' Attempt to deter the 1934 assassination of King Alexander of Yugoslavia by Croatian separatists, Definition of Terrorism - "All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public." - The effort was limited as only 24 states signed, only india ratified
• World War II halted progress, and the treaty was not revived after the League of Nations dissolved
• Specific treaties targeting manifestations of terrorism like Offenses on board aircraft, Crimes against internationally protected persons, Hostage taking and Maritime navigation crimes formed Disjointed International approach
• Many penal definitions of specific terrorist exist with obligations for state parties
• states need to Extradite or prosecute offenders using broad principles of extraterritorial jurisdiction, including universal jurisdiction within the penal codes which come through conventions

War on Terror

• Most instruments limit application to terrorism by nonstate actors, excluding state terrorism
• International terrorism is often the focus, excluding substate terrorism within a state and their is conflict on defining state vs non state terrorism
• No established definition of terrorism under customary international law due to varied international definitions, only many Common structural elements
• Common structural elements include Perpetration of violence, Targeting of innocent civilians or government infrastructure involvingIntent to cause violence or disregard for consequences
• The intent and Mentaltaly is to cause fear and Intimidating a political military purpose
• 1999 International Convention for the Suppression of the Financing of Terrorism by incorporating prior treaties in its annex to create Unifies definitions
• Lack of capacity led to the U.N. Security Council's action using Chapter VII powers to create the Resolution on Incitement and Justification of Terrorism:Prohibits law incitement, Denies safe havens, Requires strengthened international border security and to promote tolerance

Analysis

• Criticisms range with issues focusing too heavily onviolence when other mass violence forms can be involved with Neglection while neglecting core international crimes and Reinforces power imbalances
• Ad hoc tribunals generally not empowered to prosecute terrorism as a stand-alone crime and the few exceptions include the International Criminal Tribunal for Rwanda and The Special Tribunal for Lebanon which gave jurisdiction based on Lebanese domestic law

Crimes Against Humanity and Genocide

Defines terrorism as acts creating a state of alarm using dangerous means (e.g., explosives) With Mens rea however, STL's jurisprudence could influence future international terrorism cases

• Two Sets of Elements: Chapeau which are the General requirements and acts which are Prohibited conduct
• Key Differences vary when concerning Victim Group, the Mens Rea because they apply differently
• The Courts use multiple steps to show an Attacks part of a of Civilian plan or that it is linked to armed conflisct
• Remember that with Genocide: The ClosedList of Protected Groups includes Nationality, Ethnicity, Race and Religion
• There is a large differences in how intent for genocide must show a "specific intent (dolus specialis) to destroy a protected group"
• Crimes Against Humanity involves looking at A Two-Tiered Mens Rea which does not need the same criteria
• Scale & systematic nature are factors to Consider, however there will always be an Analysis surrounding Accomplic Liability