International Human Rights Law And Practice
Ilias Bantekas / Lutz Oette
"Traditional international human rights law, with its focus on the state both as protector and (potential) violator, lacks an important dimension, namely individual criminal liability and mechanisms to ensure accountability in order to respond to serious human rights violations. This was seen as an evident weakness of the system that had remained unaddressed since the Nuremberg...
Sinopsis
"Traditional international human rights law, with its focus on the state both as protector and (potential) violator, lacks an important dimension, namely individual criminal liability and mechanisms to ensure accountability in order to respond to serious human rights violations. This was seen as an evident weakness of the system that had remained unaddressed since the Nuremberg and Tokyo trials. However, a change in political constellations following the end of the Cold War, the establishment of ad hoc tribunals by the UN Security Council (UNSC) in the 1990s in response to the conflict in the former Yugoslavia and the genocide in Rwanda, strong NGO movements, and the leadership of several states resulted in the reemergence of international criminal justice efforts. This culminated in the establishment of the International Criminal Court (ICC) in 1998 and led to the setting up of several mixed/hybrid courts, such as those in East Timor, Cambodia and Sierra Leone.74 In an important broadening of the scope of international criminal law, the statutes of international tribunals recognise that war crimes can 73 See on relevant developments and jurisprudence, Chapter 8.6. 74 See on international criminal law generally, A. Cassese, International Criminal Law, 3rd edn (Oxford University Press, 2012); R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, Introduction to International Criminal Law and Procedure, 2nd edn (Cambridge University Press, 2010); I. Bantekas, International Criminal Law, 4th edn (Hart, 2010); and for resources on tribunals and hybrid courts, www.monash.edu/law/research/projects/icjp/compilationproject/ general/tribunals-hybrid-courts. 151 also be committed in internal armed conflicts.75 In parallel, several human rights treaty bodies, the International Court of Justice (ICJ) and others have recognised the applicability of human rights in the course of armed conflicts.76 These developments have resulted in the growing convergence of international human rights law, international humanitarian law and international criminal law, in particular when addressing violations in internal armed conflicts. International human rights law has also become increasingly important in the context of international refugee law, such as in respect of the interpretation of the notion of persecution, immigration detention, and the scope of the prohibition of refoulement.77 At the national level, meanwhile, the end of conflicts and/or authoritarian systems has triggered complex processes often referred to as transitional justice.78 These processes are characterised by the agreed upon need to address legacies of violations in times of transition. This includes having to determine what should be done in respect of 75 See arts. 5-8 ICC Rome Statute 1998, particularly para. (2)(c)-(f). 76 See Chapters 16.4 and 16.5. 77 See Chapter 13.3.6, and V. Chetail, 'Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law' in R. Rubio-Marin (ed.), Human Rights and Immigration (Oxford University Press, 2014) 1972"-
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