International Human Rights Law - Final Exam
Intergenerational Rights
Concept or idea of fairness or justice between generations. The concept can be applied fairness in dynamics between children, youth, adults and seniors, in terms treatment and interactions.
Complementary Jurisdiction
Definition: States have the jurisdiction and the primary obligation to investigate, punish, and prevent genocide, crimes against humanity, war crimes and the crime of aggression. Only have jurisdiction over cases that other courts have not tried EG: International Criminal Court (ICC)
Domestic Enforcement
Most international law is enforced domestically States sign and ratify treaties but their own courts enforce them domestically
Traditional Criteria for Determining Jurisdiction*
Territory, Nationality whether a court can hear a case on a particular subject
UN Charter Article 2 (4): Use of Force
- Controlled by both customary international law and by treaty law - Has the effect of banning the use of armed force except for two situations authorized by the UN Charter 1) the Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. 2) a right of self-defence under customary international law, as the International Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force.
International Criminal Tribunal for the Former Yugoslavia (ICTY)
- Created by the Security Council in 1993 - Located in The Hague (Netherlands). - Jurisdiction was territorial and subject matter. Crimes had to be committed in the former Yugoslavia - Crimes had to rise to the level of war crimes and crimes against humanity or genocide (as defined by the Geneva Conventions 1949 Articles 3,4,5). - Limited Double Jeopardy --> once tried by the ICTY defendant could not be tried by national courts. - Reverse was true though, if tried in national courts and trial was found wanting defendant could be tried by ICTY. Problems: - In order for the ICTY to happen initially, many key political figures had to be exempted - Trial of Milosovic despite his earlier exemption may act as a further disincentive for leaders to seek peace rather than keep fighting. Positives: - Contributed to international jurisprudence for international criminal law. - Helped to lay the groundwork for the ICTR.
International Criminal Tribunal for Rwanda (ICTR)
- Jurisdiction similar to ICTY - Created by the Sec. Council - Shared Resources with ICTY (Judges and Prosecutors) - Has tried a smaller number of individuals than ICTY to date (around 50-60 cases) Criticisms: - Funding was severely limited, resources were constantly a problem. - Highlighted the world's emphasis on Europe.
Omar Al-Bashir
- President of Sudan 2008 - Accused by the ICC of individual criminal responsibility for genocide, crimes against humanity, and war crimes committed since 2003 in Darfur Sudan is not a state party to the Rome Statute establishing the ICC, and thus claims that it does not have to execute the warrant. However, United Nations Security Council Resolution 1593 (2005) referred Sudan to the ICC, which gives the Court jurisdiction over international crimes committed in Sudan and obligates the State to cooperate with the ICC, and therefore the Court, Amnesty International and others insist that Sudan must comply with the arrest warrant of the International Criminal Court. Amnesty International stated that al-Bashir must turn himself in to face the charges, and that the Sudanese authorities must detain him and turn him over to the ICC if he refuses.
Rasul v. Bush
- Rejected administration's claim that it could unilaterally declare persons as "enemy combatants" and hold them at Guantanamo indefinitely American exceptionalism - US ignores Inter-American Commissions saying military tribunals are insufficient for this process Idea that the Geneva conventions protect everybody and enemy combatants was this way to circumvent that...and important component about how war or humanitarian, any type of intervention, how that war has to get waged and what protections the people have under those circumstance
Declaration on the Right to Development*
- The right to development was first recognized in 1981 in Article 22 of the African Charter on Human and Peoples' Rights as a definitive individual and collective right - The declaration seeks to ensure people's right to personal and financial improvement and progress. - The Right to Development is based on human dignity and implies the right to self-determination and full sovereignty over wealth and natural resources. - Anxieties in industrially developed countries that the Right to Development could be seen as a "right to everything."
Hybrid Courts
- They are composed of independent judges, working on the basis of predetermined rules of procedure, and rendering binding decisions. - The UN played a key-role in their creation. - Like the ICTY and the ICTR, they are ad hoc institutions, created to address particular situations, for a limited amount of time, and are the result of singular political and historical circumstances. - Some other features set them apart. In some cases they are part of the judiciary of a given country, while in others, they have been grafted onto the local judicial system. - In all cases their nature is mixed, incorporating at the same time international and national features. They are all composed of international and local staff, and apply a compound of international and national substantial and procedural law, hence the term "internationalized" or "hybrid" tribunals.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- UN Convention - Commits its members to the elimination of racial discrimination and the promotion of understanding among all races - Controversially, the Convention also requires its parties to outlaw hate speech and criminalize membership in racist organizations - The Convention also includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led to the development of a limited jurisprudence on the interpretation and implementation of the Convention. - The Convention has gained near-universal acceptance by the international community, with fewer than twenty (mostly small) states yet to become parties - The Convention has had a significant impact on national legislation, with many states adopting legislation outlawing racial discrimination by the state, in the workplace, or in the provision of services such as housing and education
Kadic v. Karadzic
1993-2000 - Citizens of Bosnia-Herzegovina sued Radovan Karadzic, in the Southern District Court of New York for: "...various atrocities, including brutal acts of rape, forced prostitution, forced impregnation, torture and summary execution...." Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). District court initially claimed it had no jurisdiction due to defendant not being a gov't official at the time. 2nd Circuit (Again) ruled that it did have jurisdiction "...especially when violations of customary international law are egregious, the ATCA confers federal subject matter jurisdiction even on private actors—that is individual persons." Kadic, 70 F.3d at 236. In related cases Doe v. Karadizc (A&B): Plaintiffs were awarded 745million and 3.8 billion in damages. Importance: Private actors can fall under ATS
Sosa v. Alvarez-Machain
A United States Supreme Court case involving the Alien Tort Statute and the Federal Tort Claims Act Upheld core of Filartiga: that foreigners could sue for violations of an international law norm under the ACTA. Reinforced that the ACTA needs no legislative cause of action. Limits: Established 3 part test for satisfaction under the ACTA. The plaintiff must (1) be an alien, (2) allege a tort, and (3) demonstrate that the defendant committed the tort in violation of the law of nations or a treaty of the United States. The Court unanimously ruled that the ATS did not create a separate ground of suit for violations of the law of nations.
Article 43 of the Arab Charter on Human Rights
Addresses the interaction between the Arab Charter on Human Rights and the domestic laws of Arab states. It also addresses the relationship between the Charter and international law. *Regional human rights conventions have a unique potential to contribute to the realization of human rights.
Truth Commissions
Advantages - No prosecutions leads to greater participation. - Not restricted by rules of evidence - A fuller picture of what happened. - Based on forgiveness helps population to move on. - Cathartic for victims. - Not as large an obstacle for peace. Disadvantages - No punishment so many see no justice victims. - No 3rd party (judges) to determine what is the "real truth." - Not a deterrent for future atrocities.
United Nations Framework Convention on Climate Change (UNFCCC)*
An international environmental treaty negotiated at the Earth Summit in Rio de Janeiro from 3 to 14 June 1992, then entered into force on 21 March 1994.
Guantanamo
Ban on torture not fully met Call for reform post 9/11 Unlawful and inhumane acts United States military prison located within Guantanamo Bay Naval Base, inmates detained indefinitely without trial and several inmates were severely tortured, this camp is considered as a major breach of human rights
Doe v. Unocal
Case Facts: - September 1996, four Burmese villagers filed suit against Unocal and its parent company, the Union Oil Company of California under the Alien Tort Claims Act - The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma Significance: The Court ruled that corporations and their executive officers can be held legally responsible under the Alien Tort Claims Act for violations of international human rights norms in foreign countries, and that U.S. courts have the authority to adjudicate such claims.
Belgium v. Spain
Case Facts:The government of Spain under Franco in the 1960s placed restrictions on foreigners doing business in Spain. The Belgian stockholders in Barcelona Traction lost money and wanted to sue in the International Court of Justice, but in the court Judge Fornier ruled on the side of Spain, holding that only the state in which the corporation was incorporated (Canada) can sue. Significance: Determined that corporations are people separate from shareholders and have the right to be represented in int'l law as members of native state.
Hamdan v. Rumsfield
Case in which the Supreme Court of the US held that military commissions set up to try detainees at Guantanamo Bay lack "the power to proceed because structures and procedures violate both the uniform code of military justice and the four Geneva conventions signed. The ruling stated that common article 3 of the Geneva Conventions was violated
Geneva Conventions
Comprises four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. Basic rights of wartime prisoners (civilians and military personnel); established protections for the wounded and sick; and established protections for the civilians in and around a war-zone.
Human Rights Council
Created in 2006 —> replaces old HR Commission Responsible for promoting and protecting human rights around the world
Ex Parte Quirin
Definition: A case of the United States Supreme Court during World War II that upheld the jurisdiction of a United States military tribunal over the trial of eight German saboteurs in the United States. Significance: Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.
Transpacific Partnership
Definition: Signed 4 February 2016 The pact aimed to deepen economic ties between these nations, slashing tariffs and fostering trade to boost growth. Members had also hoped to foster a closer relationship on economic policies and regulation The agreement was designed so that it could eventually create a new single market (like the EU) Significance: Can't come into effect without the support of the US --> US withdrew January 23 2017 - This particular deal would have bolstered America's position in the Asia-Pacific region, where China is growing in influence - US opponents have characterised the TPP as a secretive deal that favoured big business and other countries at the expense of American jobs and national sovereignty
Unitary Executive
Definition: The unitary executive theory is a theory of American constitutional law holding that the President possesses the power to control the entire executive branch Significance: - Some argue that Congress's power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress - Others agree that the Constitution requires a unitary executive, but believe this to be a bad thing, and propose its abolition by constitutional amendment
Truth and Reconciliation Commission (TRC)
Definition: A court-like restorative justice[1] body assembled in South Africa after the abolition of apartheid in 1994 Significance: The reconciliatory approach was seen as a successful way of dealing with human-rights violations after political change, either from internal or external factors.
Responsibility to Protect (R2P)
Definition: A global political commitment which was endorsed by all member states of the United Nations at the 2005 World Summit to prevent genocide, war crimes, ethnic cleansing and crimes against humanity Significance: The principle is based on a respect for the norms and principles of international law, especially the underlying principles of law relating to sovereignty, peace and security, human rights, and armed conflict Provides a framework for employing measures that already exist (i.e., mediation, early warning mechanisms, economic sanctions, and chapter VII powers) to prevent atrocity crimes and to protect civilians from their occurrence The authority to employ the use of force under the framework of the Responsibility to Protect rests solely with United Nations Security Council and is considered a measure of last resort Related to the responsibility to protect, international law ought also recognize a right for populations to offer militarily organized resistance to protect themselves against genocide, crimes against humanity and war crimes on a massive scale
Lord's Resistance Army (also known as Lord's Resistance Movement)
Definition: A rebel group and heterodox Christian cult which operates in northern Uganda, South Sudan, the Central African Republic, and the Democratic Republic of the Congo --> first people to be indicted by the court Significance: The ICC charged four LRA leaders (including Joseph Kony) with crimes against humanity and war crimes, including murder, rape, and sexual slavery The first warrants issued by the ICC since it was established in 2002
Bybee Memos* (also known as The Torture Memos)
Definition: A set of legal memos drafted by John Yoo Advised the CIA, the US Department of Defense, and the president on the use of enhanced interrogation techniques Stated that such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during the "War on Terror" Circumvents the Geneva Convention using unlawful combatant argument
Schengen Area
Definition: An area comprising 26 European states that have officially abolished passport and any other type of border control at their mutual borders Significance: Relevant to the current migration crisis The migration crisis has exposed the flawed logic of setting up a common travel area without a functioning common asylum and immigration policy.
The Political Question Doctrine
Definition: An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials Significance: closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question
Enemy Unlawful Combatant
Definition: An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war. Significance: An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action, subject of course to international treaties on justice and human rights.
Filártiga v. Peña-Irala
Definition: Set the precedent for United States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation of public international law (the law of nations) or any treaties to which the United States is a party Significance: extends the jurisdiction of United States courts to tortious acts committed around the world Case Facts: - The Filártiga family contended that on March 29, 1976, their seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by Américo Norberto Peña Irala. - All parties were living in Paraguay at the time - Filártiga brought murder charges against Peña and the police in Paraguay, but the case went nowhere - Filártiga and Peña Irala both came to the US in 1978 - Filártiga family brought charges against Peña - After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law - Petitioner claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been "committed in violation of the law of nations or a treaty of the United States"
Humanitarian Law
Definition: The law that regulates the conduct of war (jus in bello) Significance: seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities (civilians), and by restricting and regulating the means and methods of warfare available to combatants.
Surveillance State
Definition: a country where the government engages in pervasive surveillance of large numbers of its citizens and visitors. Significance: Think about the issues raised in the presentation around mass surveillance and privacy , if we do have privacy where does it come from is it a frontier to international law --> yes
Environmental Kuznet Curve
Definition: a hypothesized relationship between environmental quality and economic development: various indicators of environmental degradation tend to get worse as modern economic growth occurs until average income reaches a certain point over the course of development Significance: implies that as a nation undergoes industrialization, the center of the nation's economy will shift to the cities. As internal migration by farmers looking for better-paying jobs in urban hubs causes a significant rural-urban inequality gap, rural populations decrease as urban populations increase. Inequality is then expected to decrease when a certain level of average income is reached and the processes of industrialization - democratization and the rise of the welfare state - allow for the trickle-down of the benefits from rapid growth, and increase the per-capita income.
Habeas Corpus
Definition: a legal action that a person can bring in order to seek relief against arbitrary and unlawful detention Significance: represents the idea that the king or the President, may not, at his whim, detain whomever he wants without allowing the detainee the opportunity to stand before a fair court to hear the charges against him or her and to have an opportunity to answer the charges. Filing a petition for a writ of habeas corpus is a legal challenge to the government's ability to detain an individual. Imp. For Guantanamo Bay detainees
Enemy Combatant
Definition: a person who, either lawfully or unlawfully, directly engages in hostilities for an enemy state or non-state actor in an armed conflict. Significance: After the September 11 attacks, the term "enemy combatant" was used by the George W. Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. However, unlike unlawful combatants who qualify for some protections under the Fourth Geneva Convention, enemy combatants, under the Bush administration, were not covered by the Geneva Convention.
Nuremberg Trials
Definition: a series of military tribunals, held by the Allied forces after World War II, which were most notable for the prosecution of prominent leaders of Nazi Germany who planned, carried out, or otherwise participated in the Holocaust and other war crimes. Significance: The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court. This movement was brought about because during the trials, there were conflicting court methods between the German court system and the U.S. court system.
Torture Victim Protections Act (TVPA) of 1991
Definition: a statute that allows for the filing of civil suits in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killing. Significance: The TVPA has been used by victims of terrorism to sue foreign states that have been designated by the U.S. as state sponsors of terrorism
Alien Tort Claims Act (ATCA) or Aliens Tort Statute (ATS)
Definition: allows foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States Significance: Primary purpose was to avoid conflict with other states Cases are filed here in the U.S. because survivors of human rights abuses often have no way to seek justice in their home countries. Additional Information: - Corporate liability --> aim to hold multinational corporations accountable for complicity in human rights abuses. - The first case brought under the ATS for human rights abuses was Filartiga v. Peña-Irala. - A number of ATS cases have been filed against the U.S. government and its officials for the torture and abuse of detainees in the "war on terror". The majority of these cases have been dismissed on various grounds
Military Commission Act of 2006
Definition: an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes" Significance: a controversy over whether this law affects the rights of habeas corpus for United States citizens. no habeas corpus for enemy combatants, only president can determine it affects the role of U.S. courts in protecting the fundamental rights of detainees, the implementation of the Geneva Conventions under U.S. law, and the prosecution of abuses by U.S. officials. Additional Info: - drafted following the Supreme Court's decision on Hamdan v. Rumsfeld (2006)
Preemptive War
Definition: commenced in an attempt to repel or defeat a perceived imminent offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war shortly before that attack materializes A preemptive war is launched in anticipation of immediate aggression by another party. Significance: The initiation of armed conflict is not permitted by the UN Charter, unless authorized by the UN Security Council as an enforcement action The intention with a preemptive strike is to gain the advantage of initiative and to harm the enemy at a moment of minimal protection The concept is controversial because it can be used as a justification to start a war on questionable grounds
Military Tribunals
Definition: military courts designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings Significance: Rarely follow IHRL perfectly A military tribunal, or commission, is different from a regular civilian criminal court. In a tribunal, military officers act as both judge and jury. After a hearing, guilt is determined by a vote of the commissioners. Unlike a criminal jury, the decision does not have to be unanimous.
14 Princeton Principles of Universal Jurisdiction
Definition: principles to guide the prosecution of war crimes and other serious crimes under international law when there are no traditional jurisdictional links to the victims or perpetrators Significance: The principles are intended to legitimize the controversial idea that ordinary national courts should be able to hear charges against anyone found within their jurisdiction who is alleged to have committed a serious crime under international law
Jus Ad Bellum
Definition: refers to the conditions under which States may resort to war or to the use of armed force in general. a set of criteria that are to be consulted before engaging in war in order to determine whether entering into war is permissible, that is, whether it is a just war. The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, Article 2
American Exceptionalism
Definition: refers to the special character of the United States as a uniquely free nation based on democratic ideals and personal liberty
Subject Matter Jurisdiction
Definition: the authority of a court to hear cases of a particular type or cases relating to a specific subject matter the requirement that a given court have power to hear the specific kind of claim that is brought to that court. Significance: means that the court can only assume power over a claim that the laws of the jurisdiction authorize it to hear Subject-matter jurisdiction takes on international political significance as parties must decide the degree to which a supranational tribunal can affect persons traditionally subject to domestic law
Sovereignty
Definition: the authority of a state to govern itself or another state "Extraterritorial jurisdiction" is usually seen as a violation of the principle of sovereignty and international law.
Corporate Accountability
Definition: the concept that businesses should be held responsible for the impacts of their actions. Significance: - How the ATS (alien tort claims) was seen as a tool for holding non state actors accountable when it come to HR, multi national operate across borders and argument is that holding them accountable for creating conditions or directly violating human rights is big towards creating a broader human rights mechanism - Corporations are rarely accused of directly harming people. - Businesses should be held responsible for the impact of their actions- Governments do not have broad authority to regulate corporations except when specific legislation has been passed
Impunity
Definition: the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress Especially common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities Truth and reconciliation commissions are frequently established by nations emerging from periods marked by human rights violations - coups d'état, military dictatorships, civil wars, etc. - in order to cast light on the events of the past. While such mechanisms can assist in the ultimate prosecution of crimes and punishment of the guilty, they have often been criticised for perpetuating impunity by enabling violators to seek protection of concurrently adopted amnesty laws. The primary goal of the Rome Statute of the International Criminal Court, "to put an end to impunity for the perpetrators ... of the most serious crimes of concern to the international community as a whole".
Extraordinary Rendition
Definition: the government-sponsored abduction and extrajudicial transfer of a person from one country to another (usually to be tortured) that has predominantly been carried out by the United States government with the consent of other countries Significance: The United Nations considers one nation abducting the citizens of another a crime against humanity The prohibition against torture is universally recognized as a principle of customary international law. The international law prohibition of torture is absolute and non-derogable --> no exceptional circumstances or emergencies may be used to justify torture, including terrorism and national security concerns.
Principle of Proportionality
Definition: the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective. Significance: In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a nonmilitary objective. Derogations of rights require the satisfaction of two tests. • 1) situation must truly threaten life of the state. • 2) that measures taken in consequence of such an emergency are 'strictly required by the exigencies of the situation'
Jus In Bello
Definition: the law that governs the way in which warfare is conducted --> conduct of parties engaged in an armed conflict. IHL is synonymous with jus in bello Significance: it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible.
Extradition
Definition: the procedure by which a state or nation, upon receipt of a formal request by another state or nation, turns over to that second jurisdiction an individual charged with or convicted of a crime in that jurisdiction Significance: - HR violations likely --> Requesting state may been seen as violating human rights (e.g. Soering) - Political Offense --> States support or agree with crime committed. Additional Notes: States have no duty to surrender an individual to another nation (although states can obviously choose it) Regulated by bi-lateral or multi-lateral treaties or "irregular alternatives" - deportation, kidnapping
The Office of the Prosecutor
Duties include the investigation and prosecution of the crimes under the jurisdiction of the International Criminal Court, namely genocide, crimes against humanity and war crimes as well as the crime of aggression once that crime comes under the Court's jurisdiction
Adolf Eichmann
Eichmann (1961) - Prosecuted by Israel under the their Nazi Collaboration Punishment Law Invoked Universal Jurisdiction because: Not in territory Not a national Victims not nationals
Emergent Rights
Emerging rights are responses to emerging threats.....like right to a green future Some rights even though they aren't explicitly spelled out are required for ensuring human dignity, no explicit right to clean environment, emergent human right is the right to a clean environment, list can change, if there is a threat there should be a right to rule against that threat Internet access --> hard to function without, could be emergent right
Drummond Case
Estate of Rodriquez v. Drummond Co. Case Facts: Union organizers in Colombia killed by paramilitary groups. Argued that Drummond was complicit in this. Importance: First case brought under the Alien Tort Statute against a multinational corporation to go to trial to be decided on its merits. Outcome: Drummond Co. found not guilty, largely due to lack of evidence.
Yerodia Ndombasi
Foreign Minister of the Democratic Republic of Congo in late 90s and a Vice President in early 2000s. 1998 - Encouraged population to kill members of the rebellion against the government (ethnic Tutsis). 2000 - Belgium attempted to prosecute under its own Universal Jurisdiction Law. 2000 - DRC counters by bringing a case to the ICJ claiming that Belgium has no jurisdiction due to sovereign immunity. Warrant Case: ICJ decides in DRC's favor arguing that sovereign immunity constitutes customary international law. Belgium had violated international law and must "respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo"
ICCPR Article 12 - Freedom of Movement
Freedom of Movement Freedom of movement has two main components: an internal aspect, relating to freedom of movement within a country and an external aspect comprising freedom of movement between States. The latter includes the right to leave one's country, and the right to enter one's "own country". Every individual who has maintained "genuine and effective links" with the territories in question should enjoy the right to return, regardless of whether he or she is a refugee, that is, someone who fled persecution.
Abu Ghraib
Human rights violations against detainees in the Abu Ghraib prison in Iraq started global investigation of prisoner camps and call for reform in IHRL and ban on torture
Common Law vs. Civil Law
In common law, past legal precedents or judicial rulings are used to decide cases at hand Under civil law, codified statutes and ordinances rule the land
Right to Self Defense
International law recognizes a right of self-defence, as the International Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force Article 51 of the UN Charter Perspective 1: the legitimate use of self-defence in situations when an armed attack has not actually occurred is still permitted. It is also to be noted that not every act of violence will constitute an armed attack. Perspective 2: the effect of Article 51 is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4)
Kyoto Protocol
International treaty which extends the 1992 United Nations Framework Convention on Climate Change (UNFCCC) that commits State Parties to reduce greenhouse gas emissions, based on the premise that (a) global warming exists and (b) human-made CO2 emissions have caused it.
Clean Power Plan*
Obama administration put in place to bring US into line with paris agreement Trump administration cancelled it
London Charter (also known as the Nuremberg Charter)
Officially: The Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis Signed in London on August 8, 1945 Definition: - Designed for the just and prompt trial and punishment of the major war criminals of the European Axis. - Three categories of crimes were defined: crimes against peace, war crimes, and crimes against humanity. - Article 8 of the charter also stated that holding an official position was no defense to war crimes. Obedience to orders could only be considered in mitigation of punishment if the Tribunal determined that justice so required. Significance: Clarifies Right to war (Jus ad Bellum) States may not use or threaten to use force States may use force defensively when there is an armed attack The UN security council possesses the legal monopoly on the use of force
Genocide Convention
Officially: The Convention on the Prevention and Punishment of the Crime of Genocide Definition: Adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260 Significance: - Defines genocide in legal terms - All participating countries are advised to prevent and punish actions of genocide in war and in peacetime
Augusto Pinochet
Pinochet (1998) - Arrested in the UK in 1998 under an international arrest warrant issued by Spain. 1999 - House of Lords debate on Sovereign Immunity Act of 1978. 1999 - Determined he had violated the UN CAT and could be prosecuted. 2000 - Sent back to Chile on grounds of ill-health. 2001 - 2004 Temporarily granted immunity in Chile but then immunity was revoked and he was placed under house arrest. 2006 - Ultimately determined he could stand trial after a long battle, but died a few days after his indictment.
Article 51 of the UN Charter
Provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack (including cyber attacks)
Types of Justice
Retributive Justice: a system of criminal justice based on the punishment of offenders rather than on rehabilitation. Restorative Justice: a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and the community at large. Reparative Justice: personalizes the crime by having the victims and the offenders mediate a restitution agreement to the satisfaction of each, as well as involving the community.
Social Mobilization
Social mobilization is the primary step of community development for recovery from conflicts and disasters. A process that engages and motivates a wide range of partners and allies at national and local levels to raise awareness of and demand for a particular development objective through dialogue. Seeks to facilitate change through a range of players engaged in interrelated and complementary efforts.
International Criminal Court (ICC)
States sign and ratify the "Rome Statute" (1998) to join the ICC; 100 members to date Prosecutes INDIVIDUAL PEOPLE for the following: - crimes against humanity, genocide, serious war crime - crimes that occurred within the territory of a state party - crimes that were committed by a national of a state party, where the crime took place Complimentary Jurisdiction —> Court of last resort Only when national criminal justice systems are unwilling or unable to act would the ICC take up those cases Courts have the jurisdiction and primary obligation to investigate Members can prosecute people from other member states only. Can only prosecute crimes committed AFTER July 2002 For member states who have signed the Rome Statute, the ICC has complementary and compulsory jurisdiction Limitations include: - evidence - lack of existing jurisprudence - lack of impartial enforcement
Naming and Shaming
Strategy to enforce international human rights norms and laws Reputations are important to countries Trade: skepticism of companies to operate in countries with low levels of HR protection Developmental aid and international loans are dependent on HR protection
Mass Incarceration
Substantial increase in the number of incarcerated people in United States' prisons over the past forty years. Guantanamo
Wang Xiaoning v. Yahoo!
Surveillance and right to privacy, yahoo turned over info to chinese governments of browsing habits, those people were then in prison and sued Yahoo that they were harmed by their actions, yahoo settled out of court for a lot of money
Convention Relating to the Status of Stateless Persons
The 1954 Convention relating to the Status of Stateless Persons - defines stateless person - every stateless person has rights and duties of state they are in - non-discrimination - freedom to practice religion - time within state is consider legal residence - access to courts - cannot expel except in times of national emergency - must do everything possible to facilitate naturalization 1961 Convention on the Reduction of Statelessness (Few states have ratified either)
Security Council Referral (ICC)
The Council can refer situations in which one or more such crimes appears to have been committed in any State, regardless of whether it has ratified the Statute of the Court, under Chapter VII of the Charter of the United Nations This avenue was considered necessary to end impunity and to provide the Council with the ability to use the ICC instead of having to set up new ad hoc tribunals in situations where international crimes were taking place outside the Rome Statute system and no domestic investigation of these crimes was taking place. The Council has twice made use of its powers to refer situations in non-Party States to the ICC: in Sudan (Darfur) in 2005, and in Libya in 2011.
Paris Climate Agreement
The Paris Agreement's central aim is to strengthen the global response to the threat of climate change The Paris Agreement builds upon the Convention and - for the first time - brings all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so.
Kiobal v. Royal Dutch Petroleum (Shell)
The court found that the Alien Tort Claims Act presumptively does not apply extraterritorially Brought by late wife of a member of the "Ogoni Nine" who were hanged by the Nigerian military junta in November 1995. Shell was complicit according to allegations. 2nd Circuit Ruled in 2010 that corporations could not be held liable due to complicit actions because no clear obligations exist under international law Supreme court upheld and went further: Unanimous decision in April 2013. That U.S. only has jurisdiction in ATS cases when underlying the abuse must "touch and concern" the United States with "sufficient force
The Doctrine of International Comity
The principle that one sovereign nation voluntarily adopts or enforces the laws of another sovereign nation out of deference, mutuality, and respect. Under comity, a reviewing court does not reopen cases that have already been heard in other courts; instead, it examines the foreign judicial system. After considering factors (such as fairness and impartiality of that foreign system, the foreign court's personal jurisdiction over the defendant, the existence of subject matter jurisdiction, and the presence of fraud), the reviewing court might choose to respect and enforce that foreign court's judgments.
Transitional Justice
The pursuit of accountability for mass atrocities or former human rights abuse. Linked to quest for institutional reform to address injustices of the past - and prevent future abuses. Goal is to avoid another round of human rights abuses committed this time by those that were victims before. Integral to the transition from authoritarianism to democracy.
Rome Statute
The treaty that established the International Criminal Court (ICC) Established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression Primary goal of the Rome Statute was to put an end to impunity
The Caroline Case*
United States, Britain, and the Canadian independence movement. Canadian rebels, commanding the ship Caroline, British forces then boarded the ship, killed an American crew member in the fighting, and then burned the ship and sent it over Niagara Falls. This action outraged the United States. In retaliations, a group of American and Canadian raiders attacked a British ship and destroyed it Because of this --> Caroline test: Preemptive self-defense --> instant, overwhelming, and leaving no choice of means, and no moment for deliberation Establishes right of "anticipatory self-defense": Response must be necessary (no option for peaceful solution) and proportional
