Abstract
The protection regimes of international human rights law (IHRL) and international humanitarian law (IHL) partially overlap. Certain unwanted conduct may therefore violate both human rights norms, which – subject to derogation – apply at all times, and humanitarian law rules, which only apply during armed conflicts. Under international criminal law, such conduct may therefore amount to both a crime against humanity and a war crime. The present contribution briefly sets out the role of human rights law in safeguarding the rights of accused persons before international criminal courts and tribunals, and thereafter analyses the impact of the interplay between IHRL and IHL on the application of the crimes against humanity and war crimes regimes. The author highlights problems that may arise in case of crimes against humanity charges for conduct that took place during an international or non-international armed conflict, and stresses the need to keep the two regimes separate and ensure a good understanding of IHL, also in cases where – as a result of prosecutorial discretion – no war crimes are charged.
This chapter is an updated and considerably expanded version of Rogier Bartels, “The Interplay between International Human Rights Law and International Humanitarian Law during International Criminal Trials,” 12 (2018) Journal of Human Rights & International Legal Discourse, pp. 44-61.
Notes
- 1.
The ICTY, ICTR, and ICC statutes, for example, refer explicitly to the Geneva Conventions of 1949 (in Article 2 of the ICTY Statute, Article 4 of the ICTR Statute and Article 8(2)(a) and (c) of the Rome Statute, respectively) and further use the phrases “violations of the laws and customs of war” and “serious violations of the laws and customs applicable in [international armed conflict/armed conflicts not of an international character]” (see Articles 3 of the ICTY Statute, and 8(2)(b) and (e) of the Rome Statute, respectively). For some of the war crimes included in the Rome Statute, the language, despite often being somewhat archaic, was taken verbatim from, e.g., the Hague Regulations annexed to the Hague Convention (IV) respecting the Laws and Customs of War on Land of 1907. For example, Article 8(2)(b)(vi), (xi), (xii), (xiii), (xiv), and (xv) take their wording from Article 23(c), (b), (d), (f), and (h), respectively, of the Hague Regulations, and Article 8(2)(b)(xvi) repeats the wording of Article 28 of the Hague Regulations.
References
Akhavan P (2008) Reconciling crimes against humanity with the laws of war: human rights, armed conflict, and the limits of progressive jurisprudence. J Inter Crim Just 6:21–37
Ashfort A (2006) Principles of criminal law, 5th edn. Oxford University Press, Oxford
Bartels R (2013) Dealing with the principle of proportionality in armed conflict in retrospect: the application of the principle in international criminal trials. Israel Law Rev 46:271–315
Bartels R (2015) Denying humanitarian access as an international crime in times of non-international armed conflict: the challenges to prosecute and some proposals for the future. Israel Law Rev 48:281–307
Bartels R (2020) The classification of armed conflicts by International Criminal Courts and Tribunals. International Criminal Law Review 20: 595-668
Bassiouni MC (1997) International criminal law conventions and their penal provisions. Transnational Publishers, New York
Cassese A (2013) International criminal law, 3rd edn. Oxford University Press, Oxford
Cryer R (2009) The interplay of human rights and humanitarian law: the approach of the ICTY. J Confl Securit Law 14:511–527
Cryer R et al (2010) An introduction to international criminal law and procedure, 2nd edn. Cambridge University Press, Cambridge
De Souza Dias T (2018) Recharacterisation of crimes and the principle of fair labelling in international criminal law. Int Crim Law Rev 18:788–821
Droege C (2007) The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Rev 40:310–355
Erdei I (2011) Cumulative convictions in international criminal law: reconsideration of a seemingly settled issue. Suffolk Trans Law Rev 34:317–345
Fenrick WJ (2004) Crimes in combat: the relationship between crimes against humanity and war crimes, Paper for Guest Lecture Series of the ICC Office of the Prosecutor (5 Mar 2004). Available at https://www.icc-cpi.int/NR/rdonlyres/E7C759C8-C5A4-4AD3-8AB5-EF6ED68AC1D4/0/Fenrick.pdf
Guilfoyle D (2016) International criminal law. Oxford University Press, Oxford
International Law Commission (1991) Report on the work of its forty-third session, UN Doc A/46/10 102
Jenks C (2013) Law as shield, law as sword: the ICC’s Lubanga decision, child soldiers and the perverse mutualism of direct participation in hostilities. Univ Miami Nat Securit Armed Conf Law Rev 3:106–124
McGuinness P (2006) Churchill on war crimes trials. Opinio Juris (23 Jan 2006)
Perez-Leon-Acevedo JP and J Nicholson (2020) (eds) Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights (Routledge)
Pictet J (1966) The principles of international humanitarian law. International Committee of the Red Cross, Geneva
Roberts C (2017) On the definition of crimes against humanity and other widespread or systematic human rights violations. Univ Pa J Law Soc Change 20:1–27
Robinson D (1999) Crimes Against Humanity: Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience. In: Lattanzi F, Schabas WA (eds) Essays on the Rome Statute of the International Criminal Court: Volume I (Ripa di Fagnano Alto: Il Sirente)
Robinson D (2008) The identity crisis of international criminal law. Leiden J Int Law 21:925–963
Sadat LN (2012) Crimes against humanity in the modern age. Am J Int Law 107:334–377
Sadat LN (2017) Putting peacetime first: crimes against humanity and the civilian population requirement. Emory Int Law Rev 31:197–269
Schabas WA (2003) Criminal responsibility for violations of human rights. In: Symonides J (ed) Human rights, international protection, monitoring, enforcement. Routledge, London
Simpson GJ (1997) War crimes: a critical introduction. In: McCormack TLH, Simpson GJ (eds) The law of war crimes. Kluwer Law International, The Hague
The War Crimes Research Office at American University Washington College of Law (2011) Amicus curiae submission as part of Special Tribunal for Lebanon, The Prosecutor v. Ayyash et al, Case No. STL-II-01/I/AC/R176bis, The Practice of Cumulative Charging before International Criminal Bodies (10 Feb 2011)
Van Schaack B (1999) The definition of crimes against humanity: resolving the incoherence. Columbia J Trans Law 37:787–850
Vinciguerra T (2006) The private thoughts of a public man. The New York Times (22 Jan 2006)
Wald PM (2007) Genocide and crimes against humanity. Washington Univ Global Stud Law Rev 6:621–633
Wuerzner C (2008) Mission impossible? Bringing charges for the crime of attacking civilians or civilian objects before international criminal tribunals. Int Rev Red Cross 90:907–930
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Bartels, R. (2021). The Interplay Between International Humanitarian and Human Rights Law When Applied During International Criminal Trials. In: Rogers, D. (eds) Human Rights in War. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-15-5202-1_8-1
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