Crimes against Humanity ：Historical Evolution and Contemporary Application

Publication subTitle ：Historical Evolution and Contemporary Application

Author： M. Cherif Bassiouni;

Publisher： Cambridge University Press‎

Publication year： 2011

E-ISBN: 9781316962237

P-ISBN(Paperback): 9781107001152

P-ISBN(Hardback): 9781107001152

Subject： D997.9 International criminal law

Keyword：法律

Language： ENG

Access to resources Favorite

Disclaimer: Any content in publications that violate the sovereignty, the constitution or regulations of the PRC is not accepted or approved by CNPIEC.

Description

This book retraces the evolution of crimes against humanity and their application in terms of both historic legal analysis and subject-matter content. This book retraces the evolution of crimes against humanity and their application in terms of both historic legal analysis and subject-matter content. A list of all countries that have enacted legislation directed at CAH is collected, along with all of the prosecutions that have occurred under national legislation. This book retraces the evolution of crimes against humanity and their application in terms of both historic legal analysis and subject-matter content. A list of all countries that have enacted legislation directed at CAH is collected, along with all of the prosecutions that have occurred under national legislation. This book traces the evolution of crimes against humanity (CAH) and their application from the end of World War I to the present day, in terms of both historic legal analysis and subject-matter content. The first part of the book addresses general issues pertaining to the categorization of CAH in normative jurisprudential and doctrinal terms. This is followed by an analysis of the specific contents of CAH, describing its historic phases going through international criminal tribunals, mixed model tribunals and the International Criminal Court. The book examines the general parts and defenses of the crime, along with the history and jurisprudence of both international and national prosecutions. For the first time, a list of all countries that have enacted national legislation specifically directed at CAH is collected, along with all of the national prosecutions that have occurred under national legislation up to 2010. 1. Legal nature; 2. Phenomenological considerations; 3. Emergence in positive international law; 4. Post-charter developments; 5. The principles of legality in the London charter and post-charter developments; 6. Specific contents; 7. Ratione personae and elements of criminal responsibility; 8. Defenses and exonerations; 9. A survey of national legislation and prosecutions for international crimes and crimes against humanity; 10. Concluding assessment. "The book constitutes a unique and comprehensive treatment of all legal and historical aspects pertaining to crimes against humanity in a single definitive volume."

- Jacob Katz Cogan, International Law Reporter

Chapter

Table of Abbreviations

Introduction

1 Legal Nature

Introduction

§1. The Characteristics of International Crimes and Their Applicability to CAH

§2. The Concept and Relevance of State Policy

§3. The Legal Elements that Characterize CAH as an International Crime

§4. The Protected Civilian Population under CAH

§4.1. The Distinguishing Element of an Attack against a Civilian Population

§5. CAHs Historical Connection to War

§6. Imputability of Individual Conduct to the Responsibility of the State

§7. The Policy Requirement for Nonstate Actors

§8. Some Philosophical Considerations

§9. Policy Considerations

2 Phenomenological Considerations

Introduction

§1. Etiology and Phenomenological Characteristics

§1.1. The Protagonists

§1.2. Neutralization

§1.3. Apathy, Indifference, and Passivity

§1.4. Dehumanization, Subhumanization, and Objectification

§1.5. The “Banality of Evil”

§1.6. Euphemisms and Rationalizations

§1.7. Motivation

§2. Legal Controls

§2.1. Considerations on Legal Philosophy

§2.2. International and Domestic Criminal Law Considerations

§2.2.1. ICL Considerations

§2.2.2. International Human Rights Law

§3. The Enforcement Gap

Conclusion

3 Emergence in Positive International Law

§1. Early History

§2. The Concept of “Laws of Humanity” in the History of the Law of Armed Conflicts

§3. The Law of the London Charter: Crimes Against Humanity Acquires Its Own Identity

§4. The Legislative History of the London Charters Article 6(c)

§5. Law and Policy Considerations in the Making of the Charter

§6. Post-World War II Formulations Arising out of the London Charter: The IMTFE and Control Council Law No. 10

Article II

§7. The War-Connecting Link in the London Charter

§8. The London Charter as Declarative of Customary International Law and Subsequent Affirmations Confirming CAH as an International Crime

§9. Post-World War II Prosecutions Pursuant to the London Charter and the Tokyo Statute

§10. The Allied Prosecutions of the CCL 10 Proceedings in the European and Far Eastern Theaters

Conclusion

4 Post-Charter Developments

Introduction

Part A: substantive developments

§1. The ILCs Codification Efforts: 1947–1996

§2. The Security Councils Codifications: The Statutes of the ICTY and the ICTR

§3. The Prosecutions for CAH at the ICTY and the ICTR

§4. The Rome Statute of the ICC

§5. The Status of CAH Prosecutions before the ICC

§6. Other Normative Proscriptions Applicable to the Same Protected Human Interests

§6.1 1948 Genocide Convention

§6.2. The 1949 Geneva Conventions and 1977 Protocols

§6.3. 1973 Apartheid Convention

§6.4. 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

§6.5. International Convention for the Protection of All Persons from Enforced Disappearance

§6.6. The International Human Rights Law Regime

§7. The Mixed Model Tribunals

§7.1. Kosovo

§7.2. Bosnia and Herzegovina

§7.3. Sierra Leone

§7.4. Timor-Leste

§7.5. Cambodia

§8. Crimes Against Humanity as Part of Jus Cogens

Part B: Procedural development

§1. Aut Dedere aut Judicare

§2. The Post-Charter Duty to Prosecute or Extradite

§3. Nonapplicability of Statutes of Limitation

§4. Universal Jurisdiction

Conclusion

5 The Principles of Legality in the London Charter and Post-Charter Developments

Introduction

§1. Principles of Legality in International Criminal Law

§2. The London Charters Approach

§2.1. Pragmatism Prevails

§2.2. The German Legal System

§3. The Prosecutions Treatment of the Question under the London Charter, the IMTFE, and Control Council No. 10

§4. Assessment of Legality Issues in Post-World War II Prosecutions

§5. The Principles of Legality in Post-Charter Developments

§5.1. The ICTY and the ICTR

§5.2. The ICC

§5.3. Principles of Legality in Other Post-Charter Legal Developments

Conclusion

6 Specific Contents

§1. Introduction

§2. Identifying the Specific Crimes Contained in the Four Primary Formulations of Crimes Against Humanity: Article 6(c) of the London Charter, Article 5 of the ICTY Statute, Article 3 of the ICTR Statute, and Article 7 of the ICC Statute

§2.1. Murder and Extermination

§2.2. Enslavement

§2.3. Deportation

§2.4. Persecution

§2.5. Other Inhumane Acts

§2.6 Torture

§2.7. Unlawful Human Experimentation

§2.8. Rape and Sexual Violence

§2.9. Imprisonment

§3. The Additional Crimes of Article 7 of the Rome Statute

§3.1. Apartheid

§3.2. Enforced Disappearance of Persons

§4. Normative Overlap

§5. “General Principles of Law”: Meaning, Method, and Function

§5.1. The Worlds Major Legal Systems

§5.2. Identifying Legal Principles

§5.3. Correlation Between the Sources of Law to Be Consulted and the Principle Sought to Be Identified

Conclusion

7 The Theories and Elements of Criminal Responsibility

Introduction

§1. International Criminal Responsibility of Individuals

§1.1. Doctrinal Differences in International Law and National Criminal Law Related to Individual, Group, and State Responsibility: General Considerations

§1.2. Responsibility for the Conduct of Another and Group Responsibility in the Law of the IMT, IMTFE, and CCL 10: The Foundations of Contemporary Notions

§2. Criminal Responsibility and the “General Part”: From the IMT to the ICC

§2.1. National Legal Norms and Standards and Their Relevance to International Criminal Law

§2.2. Problems in Identifying the Contents of the “General Part” of International Criminal Law: From the London Charter to the Rome Statute

§2.3. The Jurisprudential Application of the “General Part”: From the IMT to the ICC

§3. Knowledge of the Law and Intent

§4. The Jurisprudence of the ICTY and ICTR on Individual Criminal Responsibility

§4.1. Planning, Instigating, Ordering, and Committing

§4.2. Aiding and Abetting

§5. Command Responsibility: Policy Considerations

§5.1. The Evolution of Command Responsibility in the Law of Armed Conflicts as Reflected in the Law and Jurisprudence of the ICTY, the ICTR, and the ICC

§5.2. Civilian Command Responsibility in the ICTY, the ICTR, and the ICC

§6. Joint Criminal Enterprise: The ICTYs New Doctrine and Its Extended Influence

§6.1. Organisationsherrschaft

Conclusion

8 Defenses and Exonerations

Introduction

§1. Obedience to Superior Orders

§1.1. Rationale

§1.2. Policy Considerations

§1.3. Scholarly Views

§1.4. The Judgments of Tribunals

§1.5. Post-Charter Developments

§1.6. Conclusion

§2. Coercion (Compulsion and Duress) and Necessity

§3. Reprisals

§3.1. Introduction

§3.2. Historical Evolution

§4. Tu Quoque

§5. Nonapplicability of Reprisals and Tu Quoque to Crimes Against Humanity

§6. Immunity of Heads of State

Conclusion

9 A Survey of National Legislation and Prosecutions for Crimes Against Humanity

Introduction

§1. Pre-World War I National Prosecutions for International Crimes

§2. Post-World War I Prosecutions

§3. National Legislation and National Prosecutions for CAH after World War II

§3.1. National Legislation Criminalizing CAH

§3.2. Post-World War II Major National Prosecutions for CAH

§3.2.1. Germany

§3.2.2. Austria

§3.2.3. Israel

§3.2.4. France

§3.2.5. Italy

§3.2.6. Canada

§3.2.7. Spain

§3.2.8. Argentina

§3.2.9. Indonesia

§3.2.10. Iraq

§4. Other Recent Developments and National Prosecutions for CAH

§5. Selective Enforcement

Conclusion

10 Concluding Assessment: The Need for an International Convention

Table of Authorities

Books

Articles

Table of Cases

Index

The users who browse this book also browse