International Regulation of the procedural limitations: Article 2 of the 1899

Convention for the Pacific Settlement of

Use of Force International Disputes:
“to have recourse, as far as circumstances
allow’, to peaceful settlements of disputes before
The UN Charter and the prohibition on the use ‘an appeal to arms”
of force

1919 post-First World War Covenant of the

1945 UN Charter League of Nations - member states agreed to
 created the UN with the primary submit a dispute ‘likely to lead to a rupture’ to
purpose of upholding international either arbitration, judicial settlement or inquiry
peace and security and avoiding yet by the League’s Council and agreed that resort
another major conflict to war had to wait ‘until three months after the
award by the arbitrators or the judicial decision,
 entered into force on 24 October 1945 or the report by the Council

 UN is about:
Adoption in Paris in 1928 of the General
Treaty for Renunciation of War as an
o securing stability,
Instrument of National Policy (aka Kellogg–
Briand Pact) - first effort to limit the substantive
o preventing the use of unilateral
right of states to resort to war, in which the
force parties renounced war as an instrument of
dispute settlement.
o save succeeding generations
from the scourge of war

 NOT an inherently pacifistic document

THE PROHIBITION OF THE USE OF
o Rather than outlawing the use of FORCE
force as a means of dispute
settlement, the Charter simply
collectivizes it. Article 2(4) of the UN Charter:
all members of the UN shall refrain in their
o establishes a system whereby international relations from the threat or use of
the international community, force against the territorial integrity or political
acting through the Security independence of any state, or in any other
Council, can take the measures manner inconsistent with the Purposes of the
required to keep or restore United Nations
international peace and security

 “force should be used only in the  Many rejected the reading that this
common interests of the international article’s prohibitions refers only to the
community” use of force directed at territorial
integrity and political independence

legal attempts were made to curtail the freedom  Better view is that the prohibition covers
of states to use force against other states ALL use of force
through:
“force” – the prevailing view is that it is limited determined that an ongoing dispute
to armed measures. constitute a threat to the peace

Nicaragua v. United States, supra. Only 15 states have a seat on the Council

 The five most powerful states in the

ICJ stated that the use of force is regulated in
1945 world (China, France, the Soviet
both the UN Charter and in customary
Union (today Russia), the UK and the
international law
United States) are permanent
and that the content of the two sources of law members.
are not identical in all relevant aspects

Decisions of a non-procedural nature – made by

HOWEVER, in practice, the principles an affirmative vote of nine members; and the
on the use of force in the Charter, including the concurring votes of the permanent members
ban on the use of force, correspond to those
 any of the five permanent members can
found in customary international law
block significant initiatives by the
Council (right of veto)
NOTE: Why do the permanent members have the right
The use of force on the basis of consent of veto?
(invitation) from a host state is not prescribed
by article 2(4)
 due to the fact they won the Second
World War
 Valid consent precludes the
wrongfulness of an act otherwise in  due to a belief that the efforts to
violation of an international obligation. maintain international peace and
security are best served by ascertaining
The Security Council and the maintenance of that the five states agree on resort to the
international peace and security use of force

Security Council – given by the UN Charter a NOTE:

primary responsibility for the maintenance of
international peace and security The whole idea of establishing the Security
Council was based on the belief that not all
states are of equal importance
 use of force authorized by the Council
does not violate the prohibition on the
use of force in article 2(4) Article 25 stipulates that member states agree to
carry out the decisions of the Council and under
 can adopt non-coercive and nonbinding article 103 obligations undertaken under the
measures under to settle disputes that Charter—including those stemming from
may lead to a situation where Security Council resolutions—prevail over
international peace and security are other international obligations
threatened

 authorized to adopt binding measures

that can include coercive measures if
Determinations under Article 39 of the UN The Security Council may take ‘measures not
Charter involving the use of force and it may make
binding calls upon’ the members of the United
Nations to ‘apply such measures
Article 39 of the UN Charter - specifies that
the Security Council shall initially determine the
existence of ‘any threat to the peace, breach of
the peace, or act of aggression

How the Security Council used Article 41:

In practice, as long as a matter can be
reasonably tied to international peace and
security, the Council has the authority to use its  relied on article 41 for establishing
powers under Chapter VII international tribunals to prosecute
international criminals, and for referring
situations to the International Criminal
Provisional measures under Article 40 of the Court (ICC)
UN Charter
 used to restrict trade in certain goods

Article 40 of the UN Charter - authorizes the  in adopting ‘legislative’ resolutions

Security Council to call on the parties to a where it imposes general and more
dispute to comply with such provisional abstract obligations on states
measures it may deem necessary to ‘prevent an
aggravation of the situation
NOTE:

 The measures in question must,

however, be temporary in nature and In its resolutions, the Council does not focus on
leave the legal positions of the parties to a particular country or entity but instead on a
the dispute unaffected ‘phenomenon’ or a range of activities it deems
inherently threatening to international peace

However, in PRACTICE, although the wording

of article 40 indicates that provisional measures
are only recommendations, the measures may Enforcement under Article 42 of the UN
be binding Charter

Article 42 – gives the Security Council the

Non-forcible measures under Article 41 of the authority to go even further and mandate ‘such
UN Charter action by air, sea, or land forces as may be
necessary’, when non-coercive measures are
insufficient to uphold or restore international
Article 41 - provide the Council with the peace and security
authority they need to resolve a matter in order
that international peace and security is
maintained  enforcement measures do not depend on
consent from the home state
Orig Idea: the UN members would put forces at  the procedure for drafting resolutions is
the disposal of the Security Council which could different from that governing the
then rely on such ‘UN forces drafting of treaties

 the words and terms contained in a

In practice: the Council instead relies on resolution often reflect hard-won
‘coalitions of the willing’ or on regional political compromises and the end result
organizations may be that certain terms are
The decision by the Security Council to adopt a intentionally left vague and open-ended
resolution under Chapter VII despite the
existence of consent was motivated by:  Interpretation of a Security Council
resolution should take its point of
departure as the ordinary meaning of the
 It ensures that a UN-mandated operation text of the resolution and the terms used.
can continue even if the host state
decides to withdraw its consent. o Interpretation should also take
account of the context of the
 the Council may need to refer to Chapter resolution, as well as the object
VII to create binding obligations on the and purpose of the resolution
member states and of the Charter as a whole

it may be difficult to determine if a Council

Limits on the Security Council’s Authority resolution is intended to be binding
 tends to rely on terms like ‘decide’ and
‘demand’ or specify that it is ‘acting
 the Council can only deal with threats to under Chapter VII’ when it intends its
international peace and security resolutions to be binding

 the Council cannot oblige states to  In non-binding resolutions, it often

disregard norms of a jus relies on the terms ‘call upon’,
cogens/peremptory character ‘recommend’ or ‘appeal’

 the implementation of sanctions must  some resolutions contains both binding

respect human rights law, refugee law and non-binding provisions
and international humanitarian law

Office of the Ombudsperson – created to serve Regional Organizations

as an independent and impartial entity for
reviewing the cases of individuals on the
sanctions list Article 53 of the Charter stipulates that the
Interpretation of Security Council resolutions Security Council may utilize ‘regional
arrangements or agencies for enforcement action
under its authority’
How the Council’s resolution and treaties differ?
 instead of authorizing member states to
enforce its resolutions adopted under
Chapter VII in their individual capacity,
 the Council may request states to do so The right to self-defence is triggered by an
under the framework of a regional ‘armed attack’
organization
 the attack must be of a certain intensity
to trigger a right to self-defence and not
 regional enforcement is contingent on
all uses of force prescribed by article
Council authorization
2(4) qualify

the ‘provision of weapons or logistical or other

THE UNILATERAL USE OF FORCE BY support’ to rebels77 as well as ‘a mere frontier
STATES incident’ fall outside the ambit of article 51
(Nicaragua)
The Right to Self-defense
(Nuclear Weapons case) the rules on the use of
force in the Charter do NOT refer to any
The use of force in self-defence constitutes an ‘specific weapons’, but ‘apply to any use of
EXCEPTION to the prohibition on the use of force, regardless of the weapons employed
force in article 2(4)

NOTE: only acts producing or likely to produce

Article 51 of the Charter: very serious consequences, such as territorial
Nothing in the present Charter shall impair the invasions, human fatalities or massive
inherent right of individual or collective self- destruction of property, will suffice to constitute
defence if an armed attack occurs against a an armed attack that triggers a right to self-
Member of the United Nations, until the Security defence
Council has taken measures necessary to
maintain international peace and security.
Measures taken by Members in the exercise of If an attack perpetrated through cyberspace
this right of self-defence shall be immediately causes such consequences in a direct and
reported to the Security Council and shall not in foreseeable manner, it may also constitute an
any way affect the authority and responsibility armed attack.
of the Security Council under the present
Charter to take at any time such action as it
deems necessary in order to maintain or restore Accumulation of Events Doctrine
international peace and security. Some argue that a series of small-scale attacks
not individually sufficiently grave to constitute
an armed attack may be weighed cumulatively.
“inherent” right to self-defence
 the term testifies to the existence of a
right to self-defence under customary 9/11 response - shows that under certain
international law that exists alongside conditions there is indeed a right to self-defence
article 51 against non-state actors for terrorist attacks

-paved way to:

The Notion of an Armed Attack

‘unable or unwilling’ doctrine - whereby a
state may be entitled to resort to measures of
self-defence against a private actor, such as a (2) anticipatory self-defence must be
terrorist organization, located in another state if distinguished from pre-emptive or
the host state does not have the ability or preventive self-defence
willingness to stop the private actor’s activities

o Unlike the former, pre-

If the level of gravity is sufficient, an attack on emptive/preventive self-
objects or individuals located on the territory of defense is not exercised in
a state or on a state’s military installations response to an imminent threat
and/ or military personnel may constitute an of attack but instead to remove
armed attack on the state a potential threat of attack or
 the same holds true for attacks on a to eliminate the possibility of a
state’s diplomatic missions and/or future attack by another state
diplomatic representatives abroad
(Teheran Hostages case)  Violates Article 51

 AKA ‘Bush doctrine’ -

the emergence of a new
set of threats creates a
The Initiation of Self-defense need to ‘adapt the
concept of imminent
threat to the capabilities
While a state that fears a potential attack from and objectives of
another state may make its own military today’s adversaries
preparations in anticipation of the attack and
bring the matter to the attention of the Security
Council, it may not resort to any measures of
self-defence until the attack actually takes Necessity and Proportionality
place.

To be lawful, self-defence must be necessary

 However, there is an overall agreement and proportionate
that a state may be entitled to resort to
anticipatory self-defence against an
expected assault when the threat is requirement of necessity - means that a state
imminent must ascertain if other, more peaceful, means
of redress are available before resorting to the
Conditions: use of force in self-defence
(1) a right to anticipatory self-defence
must be strictly interpreted and only Caroline Case:
relied on in exceptional
circumstances the state alleging a right to use self-defence is
under an obligation to ‘show a necessity of self-
o The earlier a state is allowed to defence, instant, overwhelming, leaving no
defend itself against potential choice of means, and no moment for
threats, the harder it is to deliberation’
maintain international peace and
stability
SELF-DEFENSE = USE OF FORCE
AS A LAST RESORT
Requirement of IMMEDIACY How to properly assess the proportionality of
use of force?
 the response to an armed attack should
be undertaken either while the attack is
still in progress or at least not too long
(1) identify the legitimate aim of the use of
thereafter
force
 must be interpreted with a certain degree
(2) determine if the amount of force is
of flexibility
either necessary or excessive in order to
achieve that aim
o because it may take some time
for a victim state to determine
the perpetrator of an armed
attack, it may need some time
Why are proportionality assessments of
for preparation before launching
instances of alleged self-defence notoriously
a response and it must also be
difficult to make?
allowed some time to explore
whether a peaceful resolution to due to a lack of consensus in the
the situation is possible international community on the underlying
purpose of the right to self-defence
o before resorting to the use of
force against a private actor in
another state, the victim state Limitations to the right of self-defense:
ought to request the host state limited to offering a state under attack
to intervene and stop the the legal justification to use force to halt and
actor’s activities (by virtue of repel the attack for the time necessary for the
the unable/unwilling doctrine) UN Security Council to have the opportunity
to take control of the situation and offer the
Principle of Proportionality - requires the victim state the protection needed
victim state to strike a fair balance between the
armed attack and the measures taken to stop it
 Accordingly, if there is a need for
additional force beyond that deemed
Caroline formula - it is for the victim state to necessary to halt and repel the armed
show that it ‘did nothing unreasonable or attack, such force must be authorized by
excessive; since the act, justified by the the Security Council
necessity of self-defence, must be limited by that
necessity, and kept clearly within it’
Assessing the proportionality of self-defence
against international terrorism:
HOWEVER, proportionality does NOT mean
that the victim state can never resort to more
force than that used in the armed attack,  Usually, the act of self-defence occurs
after the terrorist attack has taken
NOR does it necessarily preclude a state place and it is therefore open to criticism
from responding to an armed attack by for a number of reasons:
exercising its right to self-defence in more than
one state.
(1) since the response comes after the
attack it appears punitive rather than
 aimed at preventing a threat against NOTE:
the state
 Assistance MUST be given with the
consent of the state under attack
 may resemble an armed
reprisal which is
 resort to collective self-defence under
unlawful under
customary international law
international law
REQUIRES the attacked state to
declare itself under attack and make a
(2) the armed response may appear to
request for assistance (ICJ)
be unlawful pre-emptive or even
preventive use of force applied in
order to protect against future
attacks

(3) the response may appear

disproportionate if it is employed
against a fairly small-scale terrorist
attack

9/11 attack - The overwhelming

The relationship between the Security Council
international support for the US claim
and the exercise of self-defence
that it was entitled to rely on a right to
self-defence in response to the terrorist
attacks, illustrates that the international
‘The right to self-defence can only be exercised
community may be willing to accept a
‘until the Security Council has taken measures
delayed response in the exercise of
necessary to maintain international peace and
necessary and proportionate self-defence
security’ (Art. 51)
against specific terrorist attacks.

collective security and the wish to centralize the

use of force overrides the exercise of unilateral
Collective Self-defense measures in self-defence

Article 51 also permits collective self-defense right to self-defence is subject to the powers of
the Security Council
 a state may therefore be entitled to use
force in the defence of another state
that has been the victim of an armed
In order to enable the Council to fulfil its role,
attack article 51 requires member states to report any
measures taken in self-defence to the Council
not necessary for the assisting state to also have
been attacked or that the exercise of such
 not reporting it does not necessarily
collective self-defence is triggered by a treaty- mean that the non-reporting state has not
based obligation
acted in legitimate self-defence
(Article 5 of the NATO Treaty)
 o However, it may indicate that
the state is not itself satisfied
that it is acting in lawful self-
defence

Collective Security and Self-defense

The Security Council may respond to an armed

attack on a member state by authorizing the use
of force under Chapter VII. INTERNATIONAL
CRIMINAL LAW
If the state under attack requests assistance from
other states, two separate authorities for the
use of force will then exist: Seeks to ensure that perpetrators of certain
heinous acts are criminally liable for their acts
either before national or international criminal
(1) based on collective self-defence courts or tribunals

(2) based on an authorization from the

Security Council The Nuremberg trials famously established
that international law imposes obligations
directly on individuals without the need for the
The drafting and the terms adopted in the interposition of national law
authorization from the Council generally
determine if the material content of the two
authorities differs.
Two ad hoc criminal tribunals
(1) International Criminal Tribunal for the
former Yugoslavia (ICTY)

(2) International Criminal Tribunal for

Rwanda (ICTR)

International Court - if a court derives its

existence and legal authority from an instrument
of international law

National Court - if its existence is derived from

an instrument of national law
Sources of international criminal law
 e.g. presumption of innocence
according to which the burden
(1) TREATIES that establish the of proof rests upon the
international courts (primary source) prosecution.
o E.g. 1945 London Agreement
that created the IMT at
Nuremberg and the 1998 Statute (4) LEGAL PRINCIPLES borrowed from
of the ICC the national criminal systems of states

o 1949 Geneva Conventions and  as a supplement to general

the 1977 Additional Protocols I principles of international
and II, the universal human criminal law
rights conventions and the 1948
Genocide Convention
(5) RELEVANT CASE LAW &
SEMINAL TRIALS
(2) CUSTOMARY INTERNATIONAL
LAW (6) JUDICIAL DECISIONS

 prosecution of international crimes

before international criminal courts
is based on the premise that the INTERNATIONAL CRIMINAL COURTS
crimes are prescribed under
customary international law
Ad hoc international criminal courts
 frequently relied on by international
and national criminal courts when
determining how to define an IMT In Nuremberg
international crime
 Established through the adoption of the
London Charter

 criminally prosecuted some of the

(3) GENERAL PRINCIPLES OF
major war criminals of the Axis
INTERNATIONAL LAW
powers

 typically derived from domestic  had jurisdiction over crimes against

legal systems peace, crimes against humanity and
war crimes and it made a number of
 recognized as principles of the important contributions to the
international legal system. development of international criminal
law
 e.g. disallowance of the
application of ex post facto law  famously articulated the principle that
whereby an individual is individuals may be held criminally
punished for an act that was not responsible directly under
criminalized when the act was international law.
performed (nullum crimen sine
lege;  criticized, however, for violating the
prohibition against applying ex post
 facto law in relation to (at least) crimes International Criminal Tribunal for Rwanda
against peace (ICTR)

 set up by the Security Council for

1946 Tokyo International Military Tribunal prosecuting the horrendous crimes
committed in 1994 in Rwanda

 created to prosecute those with the  given jurisdiction over genocide, crimes
greatest responsibility for the Japanese against humanity and certain war
atrocities in the Eastern theatre of the crimes, namely violations of Common
Second World War article 3 of the Geneva Conventions and
of Additional Protocol II.
 had jurisdiction over crimes against
peace, crimes against humanity and war  Given primacy over national courts
crimes.
International Residual Mechanism for
 concluded that aggressive war
Criminal Tribunals (IRMCT) – AKA
constituted a crime under international
Mechanism for International Criminal
law at the time
Tribunals—MICT
 criticized as a particularly clear example  Established by the council to take over
of ‘victor’s justice’ and finish the remaining tasks of the
ICTY and the ICTR
o Refers to the prosecution of
the defeated party's acts in a  cannot issue new indictments
conflict by the victorious
party. Victor's justice  can prosecute already indicted
generally involves individuals arrested after the completion
excessive or unjustified of the mandate of the ‘old’ courts
punishment of defeated
parties and /////// light  supervise the enforcement of the
punishment or clemency sentences rendered and make decisions
for offenses committed by on pardons
victors Special Court for Sierra Leone (SCSL)

ICTY in the Hague, Netherlands  set up in 2002 to prosecute crimes

 Established by the UN Security Council committed in Sierra Leone from 1996
due to the atrocities committed in the
war in Yugoslavia  jurisdiction over crimes against
 Given jurisdiction over a range of war humanity and certain war crimes,
crimes, the crime of genocide and namely violations of Common article 3
crimes against humanity of the Geneva Conventions and of
Additional Protocol II as well as certain
 afforded primacy over national courts in other serious violations of international
the sense that it could oblige states to humanitarian law
defer criminal proceedings to the ICTY.
 operated from July 2002 until December
2013 when its essential functions were
 taken over by a Residual Special (p. (1) 3 divisions:
312) Court for Sierra Leone (RSCSL)
a. Pre-trial division
 contributed to the development of
international criminal law by b. Trial division
concluding that the enlistment of child
soldiers is a war crime under c. Appeals Division
customary international law.
(2) Office of the Prosecutor

The Special Tribunal for Lebanon (STL) (3) Registry

 set up by the UN Security Council to
prosecute those responsible for the  jurisdiction over genocide, crimes
February 2005 assassination of former against humanity, war crimes and—at
prime minister of Lebanon, Rafiq Hariri, some point in the not too distant future
and a number of other individuals —aggression

 noteworthy because its jurisdiction o but the jurisdiction of the Court

covers crimes under Lebanese criminal is limited to crimes committed
law, most notably certain acts of after the entry into force of
terrorism the Statute (july 1, 2022)

o With regard to states that have

subsequently become parties
to the Statute, the Court can
only exercise jurisdiction for
crimes committed AFTER
INTERNATIONAL CRIMINAL COURT Statute entered into force for
(ICC) that state;

 is a permanent international court for  XPN: unless the latter

criminally prosecuting the ‘most serious has declared its
crimes of international concern acceptance of the
Court’s exercise of
 entered into force on July 1, 2002 jurisdiction in relation
to a particular crime
 has 124 state parties
 the ICC has NOT been given primacy
 based in Hague, the Netherlands over national courts and the Court
cannot therefore oblige states to defer
 Primary Legal Instruments: criminal proceedings to it.
o Statute o a case is inadmissible if it is
being investigated or prosecuted
o Elements of Crime by a state that has jurisdiction
over it
o Rules of Procedure and
Evidence  XPN: unless the State is
unwilling or unable
 Primary Organs: genuinely to carry out
 the investigation or
prosecution’.

o Principle of Complementarity INTERNATIONAL CRIMES

- means that national criminal
jurisdiction takes precedence
over the jurisdiction of the ICC LEGAL BASIS for criminal prosecutions
before international courts:
the prosecuted crimes are directly
 The Prosecutor can initiate an applicable to individuals in customary
investigation of potential crimes under international law without the need for
the Court’s jurisdiction the interposition of national law and
o Article 13: the Prosecutor may domestic criminal laws
initiate an investigation in three
situations: Four Crimes considered to be directly
binding on individuals under customary
(1) First, a state party may refer a international law:
‘situation’ to the Prosecutor and
request the latter to investigate
(1) GENOCIDE
(2) Secondly, the UN Security (2) CRIMES AGAINST HUMANITY
Council may rely on its powers (3) WAR CRIMES
under Chapter VII of the UN (4) AGGRESSION
Charter and refer a situation to
the Prosecutor (art. 13(b)).
“crime” consists of both:
(3) Thirdly, the Prosecutor may (1) Physical element – actus reus –
initiate an investigation on his conduct itself
or her own initiative (proprio
motu) provided they obtain e.g. physical act of
authorization from a pre-trial killing another human
chamber (art. 13(c)). being.

 If, however, the case is referred to the (2) Mental element - mens rea - the
Prosecutor by the Security Council, psychological state of
the Court may exercise its jurisdiction mind of the offender
REGARDLESS of where the alleged required for the conduct
crime was committed and the nationality to be subject to
of the suspected offender punishment (the ‘guilty
mind’).
o Rationale: Security Council’s
powers under Chapter VII of the
UN Charter to uphold NOTE: piracy is not a crime under customary
international peace and security international law
 There is however, both a treaty-based
rule (p. 316) in the 1982 UN Law of the
Sea Convention and a principle in
customary international law whereby all
states may assert universal prescriptive
jurisdiction over the crime of piracy.
 genocide is limited to acts that seek
the ‘physical or biological destruction
GENOCIDE
of all or part of the group

 prohibition against genocide is o requirement that the conduct in

recognized as jus cogens question forms part of a
‘manifest pattern of similar
 article II of the 1948 Genocide conduct’ directed at the group
Convention: in question or that the conduct
in itself is able to bring about
the destruction of the group
genocide means any of the
following acts committed with intent  SUBJECTIVE element: mens rea -
to destroy, in whole or in part, a what sets it apart from other crimes
national, ethnical, racial or
religious group, as such: o Distinguishing feature:
(a) Killing members of the
group;  ‘genocidal intent’

(b) Causing serious bodily or  intention to ‘destroy, in

mental harm to members of the whole or in part,’
group;
NOTE:
(c) Deliberately inflicting on the
group conditions of life o The intention to destroy the
calculated to bring about its group need not be realized —
physical destruction in whole or the intention suffices
in part;
o The intention need only be to
(d) Imposing measures intended destroy the group ‘in part,’ such
to prevent births within the as within a limited geographical
group; area

(e) Forcibly transferring o The victims must be chosen due

children of the group to another to their membership of the
group. group whose destruction is
sought

 OBJECTIVE element - Actus reus - o what is important is not whether

the intentional killing of other human an individual actually belongs to
being is the most straightforward way to the groups in question, but
perpetrate the crime of genocide whether the perpetrator
believes that that is the case
 Can still be committed by other means
such as: causing serious bodily harm or
deliberately inflicting conditions that
may bring about the destruction of life CRIMES AGAINST HUMANITY

 ICTY concluded that the

CUSTOMARY DEFINITION of
 crimes against humanity can be geographic location of the
committed both in times of armed population is decisive
conflict and in peacetime
o “civilian” – ordinary people;
 The ICTY, the ICTR, the ICC and the excludes members of the armed
SCSL all have jurisdiction over crimes forces of a state and members of
against humanity, but the definition of certain organized resistance
the crime is not identical movements

 PHYSICAL element – actus reus - acts  Two relevant MENTAL elements

of serious violence committed during (mens rea)that must be fulfilled:
a large-scale or systematic attack
against a civilian population. o mental element required for the
underlying offence (murder,
 Under the Rome Statute, the physical torture, rape etc.)
element consists of any of the following o an awareness of the context of
acts: murder, extermination, which the offence is part
enslavement, deportation or forcible
transfer of populations, imprisonment or  NOT a requirement that the perpetrator
other severe deprivation of physical agrees with a policy that may or may not
liberty in violation of fundamental rules provide the rationale for the overall
of international law, torture, rape, sexual attack on the civilian population and a
slavery, enforced prostitution, forced crime against humanity may therefore
pregnancy, enforced sterilization, or any be committed for purely personal ends
other form of sexual violence of
comparable gravity, persecution,  It is the “CONTEXT IN WHICH THE
enforced disappearance of persons, the ACTS OCCUR” that elevates the acts
crime of apartheid or other inhumane to crimes against humanity under
acts of a similar character international law
intentionally causing great suffering,
or serious injury to body or to mental
or physical health
WAR CRIMES
 REQUIREMENT: that the physical act
forms part of a more widespread or
systematic pattern of violent acts against  classic’ international crime and has been
a civilian population included in the jurisdiction of all the
international criminal courts with the
o means that the perpetrator of the exception of the Special Tribunal for
act must be aware of the Lebanon
existence of the widespread or
systematic practice of violence  ‘must constitute a breach of a rule
against a civilian population and protecting important values’
that his or her acts constitute a
part thereof.  covers the so-called ‘grave breaches’ of
the four 1949 Geneva Conventions and
o “civilian population” - any the 1977 Additional Protocol I78 and
civilian population and neither other serious violations of the regulation
the nationality not the of means and methods of warfare in
international armed conflict, such as the
 1899 and 1907 Hague Regulations as SECURITY OF MANKIND - an individual
well as the 1977 Additional Protocol I shall be held responsible for an international
crime when he or she:
 Certain acts committed in non- (a) intentionally commits such a crime;
international armed conflicts may also
constitute war crimes giving rise to (b) orders the commission of the crime;
individual criminal responsibility under (c) under certain circumstances fails to prevent
customary international law or repress the crime;
 In Tadić, the ICTY concluded that (d) knowingly aids, abets or otherwise assists in
customary international law imposes the commission of the crime;
criminal liability for ‘serious violations (e) directly participates in the planning or
of common Article 3, as supplemented conspiring to commit the crime;
by other general principles and rules on
the protection of victims of internal (f) directly and publicly incites another
armed conflict, and for breaching certain individual to commit the crime which then in
fundamental principles and rules fact occurs; or
regarding means and methods of (g) attempts to commit such a crime.
combat in civil strife

JOINT CRIMINAL ENTERPRISE (JCE)

AGGRESSION  A form of international criminal liability

 where more than one person is involved

 was prosecuted as a ‘crime against the in the commission of an offence.
peace’ at the Nuremberg and Tokyo
IMTs  Rationale: anyone who takes part in a
common criminal act with an awareness
 DEFINED as the ‘planning, of its purpose and who shares its
preparation, initiation or execution’ ‘of requisite criminal intent must share the
an act of aggression which, by its criminal liability
character, gravity and scale, constitutes
a manifest violation of the Charter of the  conviction for a JCE requires:
United Nations (a) the existence of more than
one individual involved in the
 The Court can only exercise commission of the crime;
jurisdiction over alleged acts of
aggression that are committed one year (b) a common plan; and
after the ratification or acceptance of
the aggression amendments by 30 state (c) that the accused made a
parties. significant contribution to the
crime
o In July 2016, 28 states had
ratified the amendments.
The United Nations

The Charter and the organs of the United

ARTICLE 2 OF THE 1996 DRAFT CODE Nations
OF CRIMES AGAINST THE PEACE AND
The Charter of the United Nations that the parties seek an agreement by peaceful
means. In some cases, the Council itself
 founding document of the United
investigates and mediates. It may appoint special
Nations.
representatives or request the Secretary-General
to do so, or to use his good offices. It may set
 It was signed on 26 June 1945, in San
forth principles for a peaceful settlement.
Francisco, at the conclusion of the
United Nations Conference on
International Organization, and
When a dispute leads to fighting, the Council's
first concern is to end it as soon as possible. On
 came into force on 24 October 1945
many occasions, the Council has issued
ceasefire directives, which have helped to
 The United Nations can take action on a
prevent major hostilities. It also deploys UN
wide variety of issues due to its unique
peacekeeping operations to reduce tensions in
international character and the powers
troubled areas, keep opposing forces apart, and
vested in its Charter, which is
create conditions for sustainable peace after
considered an international treaty.
settlements have been reached. The Council may
decide on enforcement measures, economic
 the UN Charter is an instrument of sanctions (such as trade embargoes) or collective
international law, and UN Member military action.
States are bound by it.

 The UN Charter codifies the major

principles of international relations,
from sovereign equality of States to the General Assembly
prohibition of the use of force in According to the Charter, the General Assembly
international relations. can make recommendations on the general
principles of cooperation for maintaining
international peace and security, including
PRINCIPAL ORGANS of the United Nations: disarmament, and for the peaceful settlement of
(1) a General Assembly, any situation that might impair friendly relations
(2) a Security Council, among nations. The General Assembly may also
(3) an Economic and Social Council, discuss any question relating to international
(4) a Trusteeship Council, peace and security and make recommendations
(5) an International Court of Justice and the Security Council is not currently discussing
(6) a Secretariat the issue.

Pursuant to its “Uniting for Peace” resolution of

November 1950 (resolution 377 (V)), the
The United Nations and peace and security General Assembly may also take action if the
Security Council fails to act, owing to the
negative vote of a Permanent Member, in a case
Security Council
where there appears to be a threat to, or breach
Over the decades, the UN has helped to end of peace, or an act of aggression. The Assembly
numerous conflicts, often through actions of the can consider the matter immediately in order to
Security Council — the organ with primary make recommendations to Members for
responsibility, under the United Nations Charter, collective measures to maintain, or restore,
for the maintenance of international peace and international peace and security.
security. When it receives a complaint about a
threat to peace, the Council first recommends
Secretary-General of an overall peace agreement. Destroying
yesterday’s weapons prevents their use in
The Charter empowers the Secretary-General to
tomorrow’s wars.
"bring to the attention of the Security Council
any matter which in his opinion may threaten the
maintenance of international peace and
security." One of the most vital roles played by
the Secretary-General is the use of his "good
offices" – steps taken publicly and in private that
draw upon his independence, impartiality and
integrity to prevent international disputes from
arising, escalating or spreading.

Conflict Prevention
The main strategies to prevent disputes from
escalating into conflict, and to prevent the
recurrence of conflict, are preventive diplomacy
and preventive disarmament. Preventive
diplomacy refers to action taken to prevent
disputes from arising or escalating into conflicts,
and to limit the spread of conflicts as they arise.
It may take the form of mediation, conciliation
or negotiation.

Preventive diplomacy
Early warning is an essential component of
prevention, and the United Nations carefully
monitors developments around the world to
detect threats to international peace and security,
thereby enabling the Security Council and the
Secretary-General to carry out preventive action.
Envoys and special representatives of the
Secretary-General are engaged in mediation and
preventive diplomacy throughout the world. In
some trouble spots, the mere presence of a
skilled envoy can prevent the escalation of
tension. These envoys often cooperate with
regional organizations.

Preventive disarmament
Complementing preventive diplomacy is
preventive disarmament, which seeks to reduce
the number of small arms in conflict-prone
regions. In El Salvador, Liberia, Sierra Leone,
Timor-Leste and elsewhere, this has entailed
demobilizing combat forces, as well as
collecting and destroying their weapons as part