The setting of international law

International law is not just the law dealing with war and peace or genocide and human right

 It also encompassed with rules on the protection of the environment, shipping, protection
of refugees and human rights

We have to make a distinction between

 Private international law  individual conduct with transboundary element

 Public international law relationship between states  the body of rules governing the
relation between states and other international actors

All the international lawyers utilized some theory of international law

 Pragmatic theory  international law exist to serve peaceful relation between states
 Should be regarded as a technical discipline providing tools for statement
 Cosmopolitan outlook  international law beacon of hope to bring a better world
 Sophisticated and politically self conscious theory  international law is seen as
handmaiden of global capitalism
 Instrument of oppression
 It has to be regarded with critical eyes
 Non cosmopolitan outlook  sovereignty is seen as a good shield
 Nationalist theory  the main point is the interest of the nation 
 International law is seen as an intruder, undermining the decision of nation
 Not cosmopolitan outlook  sovereignty is seen as a good shield

International legal system

The absence of a single overarch authority is the most worthy characteristic of international law
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  For the ones who insisted on the fact that law is made by a sovereign , international al law
should not create law because there will be no sense to create it with the possibility of
break it
 John Austin  international law can be seen as a positive morality, it’s considered so
as a matter of morality and not a matter of law
 Luis Henkin  unless something dramatic happened states will continue to do what
they’re used to and this can help the international law

How does international law play ?

 Reciprocity favors, benefits or penalties that are granted by one state to the citizens of
another should be returned in kind
 It cannot be applied in every field because it would be unuseful
 Legitimacy  a rule that is generally perceived as useful and create in proper manner may
be seen as legitimate
 Mechanism for dealing with violations of law  states have to interact with other to have a
good reputation, there are some sanction in place to stimulate internationals behavior
 Retorsion : a state is not satisfact to another state behavior
 Inademipmenti non es adempium  is a violation of a treaty is made by state A, state
B could do the same

International legal theory

Is international law legally binding and if it is where the law comes from ?

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  Natural law earlier thinkers, law is given by GOD  the one having a different faith could
reach to different conclusion
 Positivistic approach  law is manmade, the content of law should see the behavior of the
states
 Compromise between naturalism and positivism  that is structurally impossible since
international law is not capable to reach both at the same time
 International law is the continue of politics, it always offers a framework and
vocabulary for conduct, but it cannot offers any conclusion
 We have to appeal to every day practice  international lawyer, what count is not just
the rules, but also the characters of individual applying them

International law in international relations theory

 Realism  global politics is about power and self interest
 International law is seen as largely irrelevant
 States will only respect it when they have interest to do so
 Liberal institutionalism law can be of relevance
 International law can be helpful to create certainty and stable expectation
 Ambition of state are needed
 Economic approach  states are ration actors, and they act to maximize their profits
 They might be incline to respect some rules to do so
 Main approach on the US system
 Risk  abrogate the normative part of law
 Constructive approach  law doesn’t just forbid thing, but it also help to facilitate behavior
 Conclude alliances
 Helps channel politics dialogue

Making of international law

International law is prominently made by states and it’s often said to be a consensual system

 Not a specific document explaining the correct way to making it

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  Statute of ICJ  article 38  sources of law, instrument that court may apply in deciding
cases
 Article 38  it doesn’t established a rigid hierarchy of sources and it just have a
subsidiary means since court cannot make law, but only apply it, the main function is
so to fill the gaps where no treaty or rule of customary international law are present
o International convention
o International custom
o General principle recognized by civil nations
o Judicial decision

Lotus case
On the second day of August two ships, Kourt and Lotus collide on the high seas of Turkish coast

 Eight Turkish national died and the Turkish authorities started to criminal proceeding the
officer of Lotus and Captain of Boz
 The French authorities claimed that the French authorities had not requirement to
prosecute an estranger
 Court  Turkish had no violate law, since there was no rule prohibiting its behavior
 International law is a permissive system, not valid for Jus cogens rules

Wimbledon case
 After WWII the two victorious powers negotiated the Versaille treaty and obliged Germany
to consent the passage on the Kiel canal  an international waterway
 When Germany refused to access the steamer Wimbledon, some of the victorious powers
start to proceed against her
 Court  concluding a treaty could place restriction on the exercise of sovereignty
 International law and sovereignty are not inconceivable. But they goes hand to hand
 Treaty  if states wants to make a deal the only instrument is a treaty
o Especially during the 20 th century, treaty is the dominant source of
international law  states should express their consens to be bind

Customary law
Based on social practice

 Important role on international law  absence of a legislator

 When treaty was a rare event, much of the law was based on social practice
 There must be a general principle accepted by law and accompanied by opinion iuris
and a legal sense of obligation
o Vattel  general practiceconsacreted by long use

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 o ICJ  the long use can be widespread even without the passage of any time

Paquete Habana case

Paquete Habana and Lola were Cuban fishing vessels

 Since Cuba was still ruled by Spain, the worst enemy of US he sold the ships
 The original owner of it claimed that US had no right to seize a foreign vessel, even in time
of war
 The court found an order of Henry IV which says the fishing vessel couldn’t be seized
in war time and a similar order was found in other countries
 The ships had to be restored to the original owner

The customary international law is based on the consent of states  if a state notices that a new
rule is in process to be created and it feels unable to accept it should make its opposition known

 Objecting with insistence he could granted the avoiding on such a rule

Customary rules owes its recognition to the circumstances that it reflects

Nicaragua case
 Nicaragua brought a claim against US for unlawfully military and paramilitary activities
against their territories
 US appealed to the principle of using force for self defense, assuming that Nicaragua
attached them on territories of El Salvador, Costa Rica and Honduras
 The court assumed that united states were unlawfully exercising the power of self
defense  it must be found that Nicaragua was engaged in n attached against them,
but there was no existence of such attach
 US also violated a rule of customary law intervening in another’s state affairs using
force and supporting the Nicaragua’s rebel

On law breaking, on law making

 When president Truman issued a proclamation about the continent shelf of US coast falling
under US jurisdiction it had the potential of violating an existing international rule
 Grotius  high seas cannot fall under any jurisdiction
 Other states decided they wanted to do the same, starting similar proclamation
o The potential law breaking Truman proclamation give the rise of a new rule
law

Unilateral declarations

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  The world court has on several occasion suggested that unilateral declarations statement
by states may come to bind them
 Nuclear test case

Other possible sources and renewal of them

The two major sources of international law

 Custom
 Treaty

the states can act thought formally designed organs and representative agreement, having legal
effects

 The making of international law could be subject to the democracy scrutiny and the most
democratic states, assumed the conclusion of treaty with a parliament approval, in
particular treaty regarding the domestic legal orders

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International law lack on criteria to distinguish law and not law  traditionally the only
requirement was the consent of state, but when political action are not the only prerogative of
states different criteria of validity are required

 Behavioral criteria  normative statement are law when they are respected
 The matter is not what is law, but whether transgression provokes some kind of community
reaction

We have to distinguish soft law by hard law

 Soft law  recommendation of state without any binding force  practice of state
 Lacks of analytical criterion
 Hard law  binding law made by certain authorities with the power to do so and following
certain procedures

The law of treaties

Treaties  concluded in the moment there were entities engaged in international relation

 The best considered to bind an obligation  pacta sunt servanda

 Pacta sunt servanda  agreement giving rise to an obligation  it would be unuseful
to conclude a treaty without any binding force
 Rules concerning on making treaties grew up, forming the basis of VLCT, which reflects
customary international law
 Vienna convention  leading instrument on the law of treaties, limits its scope to
treaty concluded by states, the ones concluded by entities are not ruled by Vienna
convention
o They reflect a contractual perspective

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 o They concentrate the treaty attention on the form and no the substance of
them, formalizing norms in term of signature and ratification  treaties need
to be on a written form

Treaties could be

 Constituent
 Universal or regional
 Multilateral
 Open or closed
 We have to distinguish treaties by MOU, no binding force  flexibility and
circumventing parliamentary participation on the conclusion of a treaty

The law of treaties is based on two fundamental principle

 Logical corollary  concept of state sovereignty, so treaties need to be based on the

consents of the states
 Freedom of state is not unlimited  when the consents is expressed and the treaty entered
in force  parties shall follows it  if it’s contrary to domestic affair is not a valid excuse to
failing the performance of an obligation

Conclusion of treaties
States are abstraction and they need people to perform the legally relevant acts

 Personification of the state on the representatives or other accredited by full powers

 The two main ways to express the bound of treaties  signature and ratifications
 Signature  consent of state for act of little importance and the first step for
ratification for more important ones
 Nowdays if a treaty need a ratification is important to cite the ICJ, but if not
provision is made the signature suffices

Reservations
Unilateral statement

 Excluding the application of one or more provision

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  Placing certain interpretation of them

The states can place reservation at the time of ratification of treaty, unless

 It’s prohibited by the treaty itself

 Incompatible whit its object and purpose

When the reservation is made up to exclude the applicability of a certain provision the treaty
applied unless for the excluded provision

 If the reservation is inadmissible it can be considered null or void, at least for the part
incompatible

Interpretation of a treaty
Once a treaty enter in force, we have to look up at the right way to interpret it

 Textual approach  discovering the objective means of the treaty is the only way to
elucidate the objective means of the text
 Presupposed that every word has inherent meaning on their own
 Every part, If not in accordance can give the treaty their own meaning
 Historical method  interpretation is about discovering what the drafter of the treaty had
on mind when he drafted it
 Everything is static  in a different year there could be different meaning
 It may rule out of political desire and ambitions of the states
 Teleological approach  the interpretation concerned on the goals of the drafter
 A only teleological approach has the risk to lose the legal validity
 Vienna convention proposed a compromise between the textual and teleological approach,
meanwhile historical approach can only be used to general rules, which leaves the meaning
unclear
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Treaty revision
Revision  changing the treaties

 The most formal way to do so is through amendment involves the parties of original
treaty if they wanted to revise this regime
 It can operate as long as it doesn’t deprive other from the right to the original
version and it’s compatible with its object and purpose

The states can assert their jurisdiction on the basis of 5 principles

 These principle are not written in multilateral treaties or found in national legislation
 The main legal question arose in the moment that an amendment is ratified by the most of
the parties, but not by all
 Modification only if everyone had accepted
 Modification for those who accepted  not possible since it creates two law from
the same treaty
 Modification for everyone if accepted to the most

Validity and invalidity

The Vienna convention assumed that if there is a defect on the state’s consent to be bound the
treaty might be invalidate

 Article 46 -50  not automatic

 Errors occurred on the conclusion or negotiation of the treaty
 Bad faith
 Violation of domestic treaty making rules
 Article 51-53  automatic
 Coercion
 Military and economical pressure
 Problem of substance

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Ius cogens rule
In 1960 the socialist and developing countries claimed that certain norms governing relationship
between states should have an higher status and rank than ordinary rules, deriving from treaties
and custom

Vienna convention

 Jus cogens rules are norm accepted and recognized by international community in which no
derogation is permitted
 Agreeing to the article 66 of the Vienna convention, peremptory norm can only take
shape if the most important and representatives state consent them, but the
ultimate consent is to be given by the majority of community
 There also are some rules in which no consent is needed because they apply
zoning out from it  essential for the protection of fundamental interest

Ius cogens can only be invoked by a state part of the Vienna convention, but any state affected by a
treaty contrary to a peremptory norm may invoke the invalidity of such a treaty

Hierarchy of the sources of law

A later law  derogate an earlier one

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A specific law  derogate a general one

Jurisdiction powers and immunities

The state, being sovereign may legislate on their territories and prosecute anyone who violates
their law in the country

 It’s true that state sometimes have to compete whit other states to be able to pursue the
same objective
 In addition the customary law of state
 Member of one state cannot be subject to the jurisdiction of another

Territoriality
The states can exercise authority over all the action that take place on their territories, thought
their own legislation and prosecuting anyone who violates their law

 Things can become more difficult when more than one state is involved  shooting on the
border line
 both states can assert their competence
 on the high seas the jurisdiction compete to the owner of the ship or the state of
nationality of the accused citizens

Nationality
The states can claim authority over their citizens, no matter where they are

 citizens of US has to pay taxes on US even if residing elsewhere

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  the most common field is the criminal law  a Ducth suspicious of a murder committed in
Japan can be prosecuted by Dutch authorities
 in the case of double nationality  there’s always a dominant one

Protection
The state can claim jurisdiction over activities which put them at risk, even if they take place
elsewhere and are attributed to foreigners

 a group of Russian printing counterfeit dollars in Germany could be subjected to the

American authority

Passive personality
A state can prosecute those who harm its citizens

 if the principle of nationality is based on the nationality of the suspects, the principle of
passive personality is based on the nationality of the victim
 hurting an individual of the nation it’s a way to hurt the nation itself

Universality
Some crimes are so abhorrent that all the states can legislate and pursue against them, ignoring
the involvement of their citizens or territory

FILARTIGA CASE
The son of Filartiga was kidnapped and tortured to death by Pena Irala, the inspector of police in
the capital of Paraguay

 Filartiga brought the murder case against the police in Paraguay but the case went nowhere
 Filartiga and Irala went to NY and Filartiga continued to persecuted Irala against the US
authorities
 US authorities claimed to have no jurisdiction on this case, since it involved the Paraguay
 Filartiga appealed to the court receiving jurisdiction, since according to the alien tort, the
torture was a violation of the law of nations

Universal jurisdiction sounds as a wonderful idea, helping to give an end to impunity for violation
of human rights, but it can bring some disadvantages
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  Exercise of universal jurisdiction risk to becoming an exercise of political dominant country
 more economical possibilities to prosecute
 Risk of becoming states who looks back in anger

Extraterritorial jurisdiction
The states sometimes can claim jurisdiction over events occurring outside their boundaries, but
sometimes the exercise of extraterritorial jurisdiction can be problematic

 The antitrust law of US  Us court started to assumed jurisdiction over acts committed
elsewhere and influencing the market of united states
 European countries  resisted for a while to this practice, but in the end they assumed the
same behavior, becoming aggressive, an important example was the one of the wood pulp
case in which the ECJ fined the four larger wood pulp producers for violating European
competion rules, even if they all four, where located outside Europe
 Of increasingly political relevance was the reach of human rights law  article one of the
ECHR everyone within their jurisdiction
 Problematic when military troops abroad become involved in common crimes
o Competence of host state  strong interest on maintaining peace and
orders
o Sending state  legitimate interest on having jurisdiction over military law

Concurrent jurisdiction
If the states can assert their jurisdiction on the basis of different principle, then it’s possible to say
that jurisdiction can be invoked by different states over an individual act

 Difficult to figure out the strongest jurisdiction

 In the normal course of event the best card is held by the state holding the suspect in
custody
 Impossible for a state to proceed without a suspect
 For the treaty of safe haven  obligation for a state to prosecute an individual if the
offense is committed in its territory

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Powers of international organizations
States can exercise the authority on the basis of population and territory

 International organizations lack of territory and population, so they’re authorities must find
a different foundation
 Main theory is about international organization established in a functional way 
the authority might derived from its functions
 The members of the states can create organization to perform certain function and
in order to implement them the organization must be able to exercise some
authority
 Member of the state can explicitly indicate the organization’s power and it’s organs
and to reach these powers, organization might also had some implicit ones

Sovereign immunity
Negotiation would be extremely difficult if every time a states send in another state a negotiator
he was put in prison or killed

 Recognition of the protection of state’s authorities

 For century this immunity was absolute and it works till the 20 th century, when states began
to acquire power also in economical activities
 Immunity, in that case opened the possibility of denying a contract, with impunity
 Impunity for governmental act, buy not commercial ones
o If the act is for the public good  governmental one, but almost all the act can
have a public purpose, so this could bring again to a complete immunity
o Nature of operation  if the nature of operation is a business transaction it can
be considered as a commercial act

The state leaders, even when leaving the offices they continue to have immunity for the acts
performed while charging

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Diplomatic privileges and immunity
The diplomats represents their state abroad and to do so they must be free from arrest and
harassment

 Diplomats enjoyed certain privileges and immunities

 They’re immune for legal proceeding
 If suspected of crime might be deported
 Diplomats as well as the staff on their services are exempt from taxes in the states where
they are, because they have to pay the ones on the state they’re originated from

Individual in international law

For centuries international law has though to individuals in the abstract sense, as object of law, not
as individual capable of rights and obligations

 Since the peace of Westphalia  states have been sovereign entities, which means that
they were not subjected to any political authority  what matters within their boundaries
was a matter of domestic jurisdiction

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From slavery to human rights
In the earlier 19th century, different states enacted a law abolishing the slave trade

 Humanitarian field
 Because the slavery led to a global competition

In the 188, the general act of the Berlin conference “ scramble for Africa “ assumed that slavery
was banned from African territories and they couldn’t be used as a market of transit for the trade
of them

 In the 1926 a convention on slavery, concluded under the auspices of the league of nation
condemn slavery and slave trade
 The same society of nation was crucial to create the first instrument of protection of
human right, as a result of the peace of Versailles after WWI
 This provide a group protection, still far from thinking individual as subject of law
 There was a belief that bad people had to be locked in the way to prevent other
crimes

Only in the period preceding the WWII there was a change on the attitude and the human began
to be seen as full individual

 In a system of totalitarism the main idea was to protect the individual from the
governments the rules on human rights were applied on relationship between individual
and government

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Universal declaration of human rights
Of main importance, on the field of human rights was the Universal declaration of human right, in
1948

 Soft law instrument  containing mostly customary rules, but also some jus cogens ones
 In practice it wasn’t a binding instrument, but it gains its strength as a recommendation
tools, which appeared to have a huge influence

This universal declaration contains a set of universal rights, based on two treaties

 Civil and political rights  they don’t need any governmental action since such a right, just
implied the abstention of states from torture and the freedom of religion
 Social and cultural rights  required the setting up of economic policies since tese rights
implied the housing or education

Treating protecting specifics group

 Convention on eliminating Any forms of discriminations against woman
 Convention on the right of child
 Convention on the right of migrant, workers and member of family
 Convention on the right of person with disabilities
 Convention against torture and other cruel punishment
 Convention on the elimination of any forms of ratial discrimination
 Convention ion the protection of people from enforced disappearance

They are established under treaties

They can be represents by a committee of 10 or 23 experts replaced every four years

 Elected by secret ballot from list of person of high moral standing and competences in the
field of such convention
 Equitably geography distribution and representation of the principle legal systems

What does committee do ?

 Considered State report

 Make Suggestion and recommendation
 Considered Individual and states complaints
 Conduct Inquiries

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The human right council
The main united nations intergovernmental body of human rights

 Replaced the commission in human rights

 Composed by 47 states member
 Council  responsible on promoting the universal respect for the protection of all human
rights and fundamental freedom
 It provides human right educations, as well as technical assistance
 It serves as a form of dialogue on thematic issued
 Recommendation to the general assembly for further development of human rights
obligations
 Contribute through dialogue and cooperation to the prevention of human rights
violation

The human right mechanism

The main human right mechanisms can be subdivide as follows

 Conventional  treaty based system

 Set up as a result of legally binding human right treaties
 Extra conventional  charter based system
 Established by resolution of the human right council
 Appointed by president or secretary –general

Institutionalization of human rights

Every human being are capable of human rights, by virtue of their dignity
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  However some human treaties weren’t able to prevent terrible carnage in places like
Rwanda, Argentina and Yugoslavia

The most developed protection system of human rights were offered by the ECHR

 One judge from each member of its states, appointed for a term of 6 years
 Individuals could submit a petition to the court, if they considered to be victim of a
violation of human rights granted by protocol or the convention
 Subsidiary  if they have exhausted the local remedies
 The application cannot be presented in anonymous and unfounded form since
meaningless statement will be eliminated

The convention guarantees the right to life. Protection against retroactive criminality and classic
freedom on opinion, religion and life

 A suspension of right can be guaranteed by the convention if states declare the state of
emergency

The convention has proved to be a living instrument in two ways

 By means of protocols, it added a number of human rights, binding states which ratified
them
 The scope of protection of human right increased in 1975 with the case of Golder “ the
court established that the right of a fair trial would include the access to the tribunals “

Human right are less institutionalized outside Europe

 America  American court of human right had the power to legislate in individual cases,
accepting individual petition
 Africa  the main instrument for right’s protection the Banjul card “the abilioty to focus
also in the right of a group “

Application of human rights

Historically human rights were born to protect individuals from their government

 Now the government could benefits from human rights, since acting in accordance with
them, could confer it a strong legitimacy
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  Human rights are often said to be universal and absolute, since no adverse behavior can be
tolerated

When two human rights collide the court must find the right balance

 Right can rarely be absolute since the balance could place some restriction ion the rights
 We can also talk about the doctrine of the margin of appreciation acceptance of decision
made by authorities with regard to local condition
 It place a leeway on how to behave
 Case  British publisher prosecuted for obscene publication, although other
countries considered such a publication accepted

Group rights
Individual rights  based on individual dignity, since every individual needs to be protected

 A strong line of criticism is based on the idea that individual exist as a definition of the
group where they belong
 Focused on individual will cause an alienation of them from their communities
 The remedy is to integrate individual right with the collectives one
 The first manifestation of group right came after WWI whit the abolition of slavery
and after WWII with the abolition of genocide

Self determination
Since the moment individual draw identity from the groups they belonged to such group could
apply for protection

 A minority group abused from a majority one may need some legal protection
 One of the main example could be identified as the individual self deciding how to
politically organize their group. But this can represent some problems
 Identification of the group will move to subjective factors
 It could destabilize the global order

Nationality
Most of the individual are citizens of a single state

The international law granted citizenship on the way of two methods

 Ius sanguinis
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  Ius soli

In a globalized world it’s increasingly likely that children could born within a double nationality, but
state can considered this theory as controversial, since the dual citizenship can be seen as the lack
of loyalty of an individual to a state

 Western Europe
 If people emigrates, taking the citizenship of another state they will automatically
lose their original one
 Exception to EU

The right to have right

The German political theorist  Arendt

 Human right often depends on the notion of citizenship

 Human right are often granted to a citizens of a state
 Stateless person are not considered members of community so they’re no
considered to have rights, or at least they have them less
 One way to solve this problem  any person, under the jurisdiction of a state has to
be under its jurisdiction

In 1967 was introduced the prohibition of non refoulment, expulsion or let turn back a refugee

 States can escape this placing barriers on the high seas

The law of responsibility

Responsibility is the term used by international lawyers to indicate the idea that some entities may
be blamed for unwanted behavior

 The main shape in field of responsibility  the one of states, confirmed by the Chorzow
state, the possibility of being accountable was the price to pay for participating in
international law
 Only established set of rules was referred to the responsibility of the member

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Codification
For a long time responsibility  took the form of a detailed body of customary rules

 After WWI  thought to include these rules in a tidy and clean convention on the liability
of states
 Crawford  was the final form, it was abandoned the idea of an actual coding, but there
were a series of rules brought to the attention of general assembly and approved by it

An important point of analysis is based on the distinction between primary and secondary rules

 Primary rules  substantive obligation of states

 Secondary rules  determining how to create the primary ones

State responsibility
The general articles on the responsibility of a state are based on two fundamental principles

 Responsible for act which can be attribute to them

 State can also be responsible for acts committed by its organs and officials, even
when they’re acting in excess of power, since is a prerogative of states to control its
organs
 Obviously the state cannot control the organ in their spare time
 Responsible only for international crimes

It is the state to be considered responsible and not the official who materially infringed the rule

Aggravated responsibility
It arises when a state violates a rule laying down in a community obligation

 Either customary or erga omens

 Another state whether or not is damage can invoke the responsibility, pursuing a
community interest

International wrongful acts

States can only be held responsible for act violating their international legal obligations

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  In the case of an allegation to a treaty it must be presupposed that the state is part of this
treaty, unless it cannot be held responsible
 In other word the international law doesn’t utilize a system of strict liability, the wrongful
act is an essential requirement, but there are some exceptions
 Cause economic damages to another state or damage it by the use of space object

Responsibility and private acts

As mentioned state cannot be considered liable for purely private acts of their citizens, but there
are situations in which the state may run into indirect responsibility

 If a person is acting under the control of a state

 Hostages in Teheran  in 1979 militant student took part on the Iranian revolution,
occupying and holding as an hostage for more than one year the US embassy in Teheran
and the consulate of US
 The Iranian state was claimed responsible, not for the takeover of the embassy, but
for a number of acts related to this
 Iranian authorities had an obligation to provide protection to the embassy
 Iranian leader found a benefits on the hostages, using this as a way to put
some pressure on the US

Insurrectionary movement
Organs of state definition  group of individual acting with the purpose of overthrow a state or
being separated from it

 Their behavior it’s unlikely attribute to the state

 International law states that the responsibility could be proved is the insurgency
succeed, regaining the status of a state or creating a new one
 If there’s not success the responsibility of state mu be grounded on a different base
Circumstances precluding wrongfulness
In domestic law there may be circumstances that help to justify behavior, otherwise unlawful

 State consent
 Principle of self defense
 Force majorhas to be distinguish from anguish and need
 Anguish  situation in which there are some alternatives, but they required a
sacrifices for the actor
 Need  justified an unlawfully conduct  it must meet strict conditions and vital
interest

24
Consequences on responsibility
Traditionally there were three possible ways to repair injuries

 Restitution and restore  the main form of reparation is to restore the situation quo ante
 Released of illegally seized prisoners and property
 If the prisoner of property were killed or destroyed there was an impossibility to
return to situation quo ante, so they had to proceed with compensation
 Compensation  the purpose of compensation is to deal with losses, it should also include
the loss of profits, but since international responsibility has not a punitive function
damages are not covered by it
 Satisfaction  it consisted on the recognition of violation made and a formal apologies in
respect of it

Responsible to whom
25
Law of state responsibility think primarily in terms of bilateral obligations

 Sometimes the situation is different, as in the case of human right treaties  interest arose
on the entire international community
 Ius cogens idea  obligation erga omens
 One of the problem coming from the idea of international intervention to stop big injustice
 Is a way to confer to big states powers the possibility of establish domination in the
name of community values
 Idea that a state can be held responsible for criminal act
 Unthinkable that states can go to jail or being prosecuted

Individual responsibility
The basic theory of such a responsibility was formulate d by the Nuremberg tribunal  states are
abstraction and they act to individual to which we have to assigned responsibility for their conduct

 Individual should be held responsible for crimes committed under international law
 Requirement  mens rea

Shared responsibility
Often individual cannot work in isolation  many acts only take place because of the existence of
an institutionalized system of terror

 Sometimes the framework facilitates the commission of serious crimes

There is a risk to oscillate between states and individual responsibility at the point that no one is
held responsible

Courts and tribunals

The sovereignty of states is difficult to be submitted on the court control

 Immunity of process  state cannot be held accountable to a judge for their actions
 States tend to prefer settling their dispute by a political means, while the judges
have a subsidiary meaning

26
Dispute resolution
The charter of United nation obliged states member to solve their dispute peacefully

 No use of force

Negotiation typically involved two parties, trying to solve a dispute or achieve some agreements

 If the two parties are unable to reach such agreement a third party is needed
 Third country or a person of trust whose involvement can take different forms
o Parties refuse to communicate  the third party can provide a
communicative channel
o Disagreement between parties  parties are not agreeing on what
happened and the third party should figure it out, giving an authoritative
version leading to the dispute
o Mediation  the third parties, in a negotiation can take the role of mediator,
presenting possible solutions
o Conciliation  the third party work almost as a court, but the
recommendation of it is not binding

27
The lawyers can use two main methods to solve dispute peacefully

 Arbitration

 Judgment

They need the consent of the state to do so  the parties will usually have some influence on the
composition of the college and the law applied to it

Arbitration
Modern arbitration in international law  traced back to the 1794 treaty Jay

 The treaty followed an earlier agreement between Britain and the former colonies of US,
after they acquired independence
 Still some question not answered as the border with Canada, still part of Britain and
the damages to citizens of both states
 Border issued  resolve by a commission composed by three member
( Britannic majesty, Britain president and two commissioner )
 Damages question  the composition was similar the border one, but there
were a majority of two members

We can here see that the arbitration doesn’t deal just with matter of life and death

An important case of arbitration, reside on the Alabama claims, in which the usefulness of this
arbitration led to a creation of the first permanent court of arbitration ( PCA)

 Is not a real court, but it assumed the form of an international organization facility
arbitration
 The individual can accept in advantage to speed up the arbitration process
28
  Once accepted in advantage, they cannot refused anymore
 Some important cases are solved by it “island of Palmas”

With the creation of PCJ and ACJ this permanent court fell into a disuse for a while it took back
activities in the last years for decision related to the war between Ethiopia and Eritrea
 An important field where it work is the investment complain between society and states

Each party could exercise some influence on the composition of the arbitration
 The parties could appoint one or more arbitrator, designating the composition of the court
 The parties sometimes could also appoint the law which the court should apply, unless it
have to follow a specific convention

Award and international court of justice

The first ever existed international tribunal was the central justice American court ( CJAC)
 Short live cause it didn’t survive at the outbreak of the WWI even thought it decide for a
huge number of cases involving mostly the border case of American justice
 The jurisdiction of CJAC legally restricted to central American disputes

The first universal court PCIJ  main importance for the combination of two reasons
 Universal  it can solve dispute related to any country
 General jurisdiction  it can solve dispute related to any matters

In addition to international court we can find some regional ones whose jurisdiction is limited to
question arising from their founding treaties
 Anyone has its own rules and can exercise its own jurisdiction

29
International court of justice
ICJ preceded by the PCIJ ( permanent court of international justice )
 PCJ was based on the statute and it was vaguely related to the society of nations
 The statute conferred it two main functions decision on dispute between state and
consultation for organizations
 It didn’t survive to the outbreak of WWII, ceasing to exist on 1946

The ICJ, unlike the PCIJ was one of the main organs of the society of nations
 It’s based on AIA and its composition is made of 15 titular judges
 No nationality requirement  if not the one that there’s no possibility to have 2 judges of
the same nationality
 The five permanent members of the security council  a member of its nationality as a
judge of ICJ
 The parties involved in a dispute may appoint a judge of their nationality if there’s no one
principle of equal treatment
 The judges must be of high moral consideration lawyer qualified on high jurisdiction
functions of their states and jurist recognized with international competences
 Judges are appointed by the general assembly and the security council following a
complicate procedure explained in none less than 9 articles of the ICS
( international court statute)
 Judges are appointed for a period of 9 years and a possible reappointment is
possible for the same period
 Election are made up every three years, staggered, so they could avoid the
replacement of all the judges at the same time
 Judges could decide in an individual base and it the votes are tied the president’s
one will count as the decisive one
 Judges may differ with the opinion of majority but agree with the outcome of the case or
defer with the outcome itself
 Sometimes their decision can take the same authority of majority

30
The international court can only hear cases between states

 There’s a problematic in regard to the international organizations  they can exercise the
same power of states, but they cannot be involved in legal proceeding through the court

 NATO and bombing of Belgrade

Jurisdiction
In international law there’s not a compulsory jurisdiction

 Need the consents of state to go under it

 In some cases the adherence of a regime  incorporation on it of the adherence to its

jurisdiction

 But In the majority of cases the think is not to submit states on automatically
jurisdiction

 There are different ways in which a state could proclaim to accept the international
court jurisdiction and they are appointed on the article 36

All cases referring to the court

The easiest way for international court to take jurisdiction is whether the parties agree to submit
the dispute to it, concluding a precedent agreement between them

 If only a part bring a case on the jurisdiction of the court admitting an agreement , the
court itself has to verify the existence of such

 If a state is not sure to submit the dispute to the court is not likely that it would
follow the court decision

 Important example  case of Aegean platform involving Greece and Turkey, with
their dispute regarding to the state of water and the continental shelf, surrounding
the Greek Island off to the Turkish coast

CASE OF EAGEAN PLATFORM

The Turkey started to distribute oil concession to companies placed on the territory that Greece
claimed to be its own

31
  On 1975 the parties had made an agreement providing the possibilities to bring the dispute
to ICJ of the had some

 This agreement led Greece to bring unilaterally the case to the court

 Court gave legal bound to this treaty admitting that it acted like an agreement of the
Turkey, also if she was trying to deny it

All matter specifically provided by the paper

When the charter of US was drafted, it was thought useful to order the state to submit dispute on
its jurisdiction

 It didn’t work  many states were afraid to be forced to AIA and the communist saw the
court as a servant of global capitalism, rejecting its jurisdiction

Option clause
The drafter of the statute  world a better place if the dispute were obligatory competence of the
ICJ

 States thought to insert some option clauses, excluding the jurisdiction of ICJ

 American  multilateral treatuies

 Problematic  reservations  state declared to accept the jurisdiction of the court, unless
for questions related to national security and competences

 Huge discretion

Prorogatum forum
In the 1940 the British ships, off to Albanian coast, stumbled into a minefield, losing human life and
provoking damages

 Great Britain started to proceed against Albania, who had never accepted to be submitted
to the ICJ

 However Albania decide to go ahead with the process, depositing memories and
mentioning its own judge

 Article 38  possible to proceed against a state, who has no yet accepted the
jurisdiction of the court if he accept the invitation of it
32
Admissibility
Statute of the court of justice contains a little information on the account of admissibility
complaints since the court’s jurisdiction is based on the consent of the states

 International law, even thought recognized certain limitation on the jurisdiction of the court

 Subsidiary source

 Rectify things before bring them to international level

 Prevent the clogging of diplomatic channel

 The state could only bring claim on the behalf of their citizens and companies

Precautionary measures
Sometimes it can happen that the court has to ask a state to stop acting in such way  avoiding
the breach of any law before the court decision

 Case  a Paraguayan citizens was condemn by American to execution, the Paraguay argued
that he didn’t have the benefits of consular assistance as to agreement and he couldn’t be
executed

 To protect the Paraguayan right the court order an emergency measure to stop the
American unlawful behavior

Compensation
When the court finds out that a states had violated its international obligations has the possibility
to order the compensation for losses incurred

 Sometimes the court is limited to issue a declaratory judgment including the mere fact of
the violation by one side

33
  Other time the court could help the parties to negotiate and reach an agreement

No appearance
It’s considered smart for the parties appeared before the court

 They can enforce their cause and brings all the legal considerations related to the case

 There’s not a real obligation to appear  court has to assure an equal process also in the
case of not appearance

Third parties and the court

International legal dispute are typically conceived as bilateral one, binds only for the parties

 It should not affect third parties

 If it has effect to third parties, the court need the consent of that to proceed

34
Sanction countermeasures and community
International law  according to customary think  not a sanction system

 Not having a sovereign authority and not accepting the use of force, it cannot be
considered legal, but it could be considered as a positive morals

 It would also be considered mistaken to see the law as not having penalties or see it not
serious for the lack of them

 International law could have some behaviors in which penalties could be traced back

Inademplenti no est inademplum

It’s a well known principle of contract law

 A breach of an obligation to a party of a treaty can dissolve the obligation for the other
parties

 This principle is limited to bilateral treaty, since the multilateral ones, has a different
mode of applications

 The main question is if both parties considered the resolution of that treaty as the
best solution  but if the goal if parties were to solve the treaty there were
different and simpler mechanism to do it so

 The most likely situation is when a party wants to solve that treaty, but the
other one wants the application of it

Retorsion
The most powerful sanction of international law

 An hostile act in response to a prejudicial one buy another state

 Breach of a diplomatic relations

 Recall of an ambassador

 The point characterizing the retorsion is the legality on the response

35
Reprisal and countermeasures
The absence of legality on the response is what differed them from the retalion

 For the countermeasures  illegal act become justified as a response of a violation on the
counterparty

 Historically they had been known as reprisal  they could include or not the use of force,
but on the 20 th century the use of it become illegal on every circumstances and belligerent
reprisal become illegal to

REPRISAL AND NAULILA CASE

in 1914 a Portuguese soldiers had accidentally killed an officer and two roman soldiers

 The German troops attached the Portuguese fortress

 When the Portuguese complained the court examining the German behavior admitted that
this couldn’t be classified as a reprisal

 Legitimate only if preceding by an unlawful act

 It has to be preceded by a request of injury elimination

 It has to remain proportional

36
Collective security
After WWII the covenant of league of nations, established a collective security mechanism

 Article 11  every war or menace of it had to be considered a cause of concern for all the
league

 This article didn’t specify which organ of the league should provide an action and
what kind of measure should be put in place

 Because of this  mechanism of a little success

 Article 16  also determined that state members of the league could take economic
sanction against the state attackers

 Left the decision making and execution of them to state themselves

 Didn’t work well

Exception

 Article 51 individual or collective self defense against an armed attacked  the security
council has immediately to be informed

In time of drafting of the charter of united nations the international community has created a
more effective system “ security council of united nations “

 Main role  adoption of measures against threat against peace and aggression

 Provisory measure to safeguarding the parties rights

 Measures not involving the use of force

37
Collective actions
The collective system is activated if the council identify some acts contrary to the SCUN

The security council was vested with the power to

 Determine the existence of a threat, the breach of a peace and the act of aggression

 Adopt measures to prevent an aggravation on the situations

 Article 41  measures not involving the use of armed force

 Article 51 right to individual self defense

Is left to the council a regime of maneuver

 After ascertaining that peace is not just absence of armed conflict, the council
suggested that also sources of instability in social, humanitarian and economical
fields have become menace to peace and security

 Is expected that some events could automatically be considered as aggression, but

the risk is to condemn event without caring about the circumstances and intention
behind them

There’s no an obligation for the council to identify an attacked or menace to peace, but a
possibility and power to do so

38
The role of general assembly
 After the 1950 and the UN authorized action in Koreas, without the vote of UR grew a
feeling that the general assembly should develop an intervention mechanism also in the
event that obstacle of veto are declared

 The assembly cannot order peace operation, but it can recommend them

 The council can brought action against a state member even if it’s not consensual to
it, but we have to considered the consents of the state concerned

 In 1956 Egypt had announced the closure of Suez canal and it was attached by
France and United Kingdom

 The Egyptian general secretary asked for the resolution of peace and it
recommended to send troops to maintained so  the troops remained in the
territory till Egypt declared they was no longer allowed

 We can here see that peacekeeping is

 Temporary action

 Impartial

 It need the consent of the host country

The biggest political problem doesn’t arise for the maintenance of peace itself, but for the finance
of it

 From the regular budget on UN

39
Peace keeping operations
The peacekeeping operation can be divided in

 During the cold war period

 Limited operations containing armed conflicts

 Lightly armed military presence

 After the cold war period

 Mix of military police and civilian capabilities to support the implementation of a

peace process

The peacekeeping needs

 Consent of the parties

 Impartiality

 Non use of force except in the case of self defense

40
Individual sanctions
Since the moment that UN is an international organization, made up of state member, its decision
should be primarily concerned on those member states

 In a classical conception UN had no authority on the state’s member, but he had to request
the consents to presume the bound

 On 1990 it began to refer also to state no members  rebellions Angolan

movement were under the sanction of UN cause of part of the Angola

The most common form of sanction currently affects individuals

 Criticism  no formal guarantees for an individual fair process

 The suspect of being involved  suffices

KADI CASE

Often individual sanction are related to the fight against terrorism

 Kadi was accused for terrorism and its account was frozen as regulation, but there were no
real evidence of it

 Kadi  appealed to the ECJ which had stated that the sanction should be taken in
compliance with European constitutional standards and the measures against Kadi were
violating the fundamental human rights

41
Terrorism
We can find some difficulties on the definition of terrorism and the adoption of general treaty
against it

 Many specifically multilateral conventions deal with specific types of terrorists act

 1970  suppression of unlawful seizure of aircraft

 1979  suppression of hostages

 1988 suppression of terrorist bombings

The sanctions are countermeasures recommended or decided by the security council against a
state or an individual

The international crimes of terrorism

International terrorism can constitute

 A discrete crime  the acts constitute a crime under national law, they’re aimed to spread
terror among civilians or influence the policy of a government

 A war crime

 A crime against humanity

The subjective element of a crime  mens rea, specific intent to perpetrate terror

Response to terrorism
The states should cooperate trough international treaties dealing with specific form of terrorism

The response could be

 Peaceful responses  we can find some difficulties in adopting a general treaty against
terrorism

 Forcible responses  a state may condone the presence of a terrorist group in a territory,
but states may be unable to control part of the territory in which the terrorist group
operates

Attack of terrorism  may fall into self defense  need of an active assistance of the states and
forcible action to aircraft and ships

42
Fight against terrorism
Since a comprehensive definition of terrorism remained out of reach, the international community
has aspired to fight it in two ways

 It focused on the act of terrorism, instead of whether motivation behind them

 Focused not so much on terrorist activities, but on the act related to improve their
effectiveness

The world trade center attack suggested that there were still gaps allowing terrorist to operate in a
huge number of states

 State member of UN has the obligation to prevent e repress the financing of terroristic
attack and criminalizing the collection of funds with the freeze of god

 Security council series of legal obligation for member states outside what seems to be its
competence  breaking the classical idea of no acting without the consents, since the
adherence to the UN is an agreed to be bound on her

The use of force

43
When the general Von Clausewitz, after the Napoleonic war on the 19th century, declared that war
was the continue of politics, it had a purpose

 Over centuries the war had been conducted without legal obstacles because there was a
strong feeling about the legality of it

 Many theological and lawyers had made a distinction between just and injust war,
but the state had proved to be reticent about that

 This concept presupposed a conception of justice, and since justice was a

challenged feeling in that period there couldn’t be any argument of a
unreasonable war

The first generation of international lawyers made a distinction between wear and peace

 Now the war is prohibited and in the paper of nations, there’s a total ban on the use of
force, with the exception of recognized event of collective security  use of force

Abolish war
On 1899 the first Hague peace conference took place in a Dutch town Hague and it took a great
importance for a huge number of reasons

 One of the first universal conferences

 First conference which saw the adoption of treaty related to the control of the means of
doing war

 Second conference leading instrument which aim is to regulate the recourse to war

 Convention dragon porter the parties agreed not to go on war in order to

regulate the debts of citizens  too fragile grounds to justify the use of force in a
larger scale

 Second treaties  war cannot begin without a reasonable statement  it had the
opposite effect, stimulating the release of declaration of war in order to ensure a
material advantage

A further step came with the establishment of the international community  establishing a
system of collective security and creating obligations for member states to bring dispute against
arbitration

 Aggressive states  withdrew from the league, escaping those obligations

The charter of UN

44
Already during WWII the allied government have held that the use of force must be outlawed

 Atlantic paper of 1941  policy statement issued by Roosevelt, president of US and

Churchill, prime British minister

 States should abandoned the use of force

The charter of UN  almost absolute ban of force

 Member shall refrain from use of force or menace of it to preserve independence and
integrity of every states

 This prohibition  found almost immediately he consents of the ICJ

CORFU CHANNEL CASE

The Corfu’s mines, under Albanian jurisdiction led to life of different Britain’s sailors

 The Britain action to sweep these mines  condemned by the court even despite two
justifications

 Demining had the function of collecting evidences

 Self protections

 Both were rejected cause they violated the Albanian integrity

The prohibition of force  not only related to state members, but it’s applied on every state just in
relation of International relation

 The internal use of force  for a legal question cannot be condemn by the UN charter 
whether happens in a state, don’t concern international law

On 1945 become clear the recognition of the right of self defense

 International court of justice, rarely had the opportunity to declare about the use of force
and self defense  declaring to not have the competence to do so or to have restriction
on its jurisdiction

Self defense
45
The charter of UN  creation of a system of collective security, led by the security council

 Smaller state feared that the permanent member of security council would have used the
veto power to turn back to the 19th century Monroe doctrine

 These small states  form of guaranteed from the impossibility to act in self defense

Webster definition of self defense  no preventive self defense since it would give to states almost
an unlimited license for the use of force  the main element to act in order to self defense

 Necessity

 Urgency

Self defense could be brought when a state invades another or on event on a less larger scales,
even if the court suggested that there was no international relevance when the menace was
internal

 Controversial question whether a state had the possibility of defense in the case of finding
its own merchant ships subjected to an attack or the case of an embassy building

 Even more controversial question is about the terroristic attack

 Since the moment the responsibility of a state should be activates only by an act
relating to it, could be argued that the attack not relating to a state actors may not
triggered the right of self defense

 It could be also possible an idea of self defense as pertaining to the state victim and
not the aggressor one

Sometimes self defense can also take the form of an attempts to rescue citizens abroad

The article 51 allowed the creation of self defense alliances as we can see the

 NATO  set up to defend West against soviet threat  attack against a member is
considered as an attack to all of them

 Alliances ad hoc organized in advanced  to ensure collective self defense activities

Humanitarian intervention

46
Sometimes even if the court doesn’t specify the possibility of using force for humanitarian reasons,
this can be seen in the intervention of NATO in Yugoslavia

 Forcing Serbia to stop committing atrocities against the Kosovo populations

Humanitarian intervention can be very controversial

 Sometimes state are in a better position of other to intervene and this can led to the
possibility of exercise power

 Canadian international commission launched the idea that states have responsibility on
protecting oppressed people against their government, but when they fail to do so there’s a
right to intervene of other state

End of armed conflict

Not every conflict end with a treaty of peace

 Some my ceased with negotiations, truces and often there may be a formal surrendered, as
we can see in Germany and Netherland

 There’s always the possibility of a resolution by the security council stating the legal
consequences which came from it

The law of armed conflict

47
We can differ

 Law related to the right of making war Jus ad bellum

 Law relates to the rule on using force during war  jus in bello

International humanitarian law

The law of armed conflicts is often divided in two main groups

 First group instrument containing restriction on the conduction of hostilities

 Second group  law of armed conflict  measures to protect victims who don’t
participate actively in war

 The body of rules also includes some protocols on non armed international conflict
and limitation of different types of weapons

 Law of armed conflict  realization of them a bit less burdensome on humanity

 Vattel ideology  inevitability of war, but no possibility of causing unnecessary damages

 Respect of enemy’s life

 Weapons not poisoning

 Decent treatment of prisoner of war

 Civilian might not be object of attack

A first attempt to codify these laws  Columbia’s university professor Lieber, influencing
considerably the law of war

The most remarkable features of humanitarian law  trying to form a system of rules with no
gaps, but this proved to be impossible, since the drafter are not omniscient

 MARTENS  clause claiming that in the case of non covering by these system of rules,
populations remained under the protection and principles of international law

These conventions applied even if not every parties was part of the convention

International and non international conflicts

48
Distinction between international and non international armed conflict have been of great
importance for a long time

 International law couldn’t expect much authority in the event of civil war

 States also feared that applying international law to subject not relating to state would have
legitimate them as such

Distinction between international and non international conflict had always been problematic

 Some civil wars contained international elements

 Civil conflict could be followed by international ones

 Considering the humanitarian mission of international law, innocent bystanders wont care
about the origin of the conflict, as long as some protection is assured

The article 3 of Geneva convention provided some basics protections in the case of non
international conflict  mini convention

 These protection is extended to civil and ones not in war, while the status of combat is not
covered

Proportionality and military necessity

The main task of international law lies on the legitimacy of military violence, banning certain acts,
and letting other being acceptable

 Many provisions come with the caveat  banned if not dictated by military necessity

 It’s also generally accepted that behavior during armed conflict should follow a
proportionality regime  law provides the existence of a balance between military needs
and protection of human life

 Unlike necessity, which can be considered a flexible concept, proportionality cannot

be conceived in abstract

Weapons
Over years states have reached an agreement on the banning of different weapons
49
  One of the biggest problem was based on the confidence that other states would have
done the same

 Chemical weapons  inspection in its member parties at the request of another

parties of the convention

 Biological weapons  lack of mechanism for checking

 Nuclear weapons  unmatched destructive potential

 Currently a debate over the use of drones  if the use of drones in the course of an
armed conflict may be legal, un likely it would be banned out from this context

International humanitarian law and international humanitarian

organizations
It’s increasingly common for international organizations to play a role in armed conflict, both as
peacekeepers and aggressiveness brake

 The institute of international law on 1975 called the UN to provide a declaration in which
they admitted to be bound to the Geneva convention

 It lists a number of basic principles and suggest that UN has to act in accordance to

International humanitarian law and privatization

Similar problem may come when the war is conducted by private entities

 Traditionally they were mercenaries  individual fighting for a prince or king’s disposition
in exchange of a sum of money

 They could not invoked to have loyalty on the king or price, since they acted for
profit-purpose

 They weren’t protected by international law

 Nowadays most common than mercenary is the use of military private companies,
which tend to be engaged not so much in battle, but better to have responsibility
for protection of conveys and security of prison’s camp

Foreign occupation
Hostilities may temporary stops in the case of foreign occupation

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  Law of occupation continues as long as the occupation itself doesn’t ceased to exist or
become normalized

 Occupation is usually related to was but it can also derived from menace of using
force

 What counts is the way of taking control, but the actual suspension of sovereign
power

 The occupant power must respect some rules towards civil population and relating
to the article 43 of AJA it has to adopt all the measures for restore and guaranteed
order and security, in accordance with the nation’s rule

Jus posta bellum  the law after conflict

Governing post conflict  based on the idea that after a conflict the area is better governed under
the protection of international law

 A new state need to be build and thing s needs to work impartially

International law also take a main role when a dictatorship comes to an end  the state will need
a new system of private law, but to do so it must be accompanied by a change of ideologies

 International law  offering advises thought political ramifications

Use of drones in armed conflicts

Drones are mainly used by United States, Israel and United Kingdom

 Attacks were reported in Afghanistan, Pakistan, Yemen, Libya, Iraq, Somalia and Gaza
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  A fundamental problem was the lack of transparency

International law governing the extraterritorial use of force

Yemen the consent is obtain on a case by case basis

Pakistan  since the election in Pakistan of 2013, was admitted that drones were
counterproductive, contrary to international law, a violation of Pakistani sovereignty and territorial
integrity  it has to cease immediately

International criminal law

Thought history it has often happened that when the war ended, leaders of victorious powers
inflicted justice to enemy’s leaders ordering exile

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  This is sometimes applicable in civil war case Wirz, commander of a confederate camp,
during the civil war, mistreated the war prisoner, he was later judged by a military
commission on Washington and hanged on 1685

 Sometimes can be considered possible to prosecute individual for crimes committed

during the war  a set of rules applicable to state more than to individuals themselves

 The most important innovation in this field is given by the Nuremberg tribunal after WWII
set up after the war the four allied power, dedicated to prosecute come of the major Nazi
criminals  these criminals were prosecuted on three possible fields

 War crimes  the less problematic category, since there was the thought they
could be committed by individuals

 Crimes against peace  he was considered unhortodox

 Crimes against humanity  it could interfere on the possibility of state to threat its
citizens on the way they wanted to  it wasn’t just considered law between states,
but law on human life

The Nuremberg’s tribunal idea to create a permanent international criminal tribunal remained for
many years not successful

 After May LY massacre, in Vietnam, the creation of this tribunal became out of reach

 This changed on 1990 when the security council of UN has created a tribunal to deal with
atrocities in Yugoslavia and Rwanda

 At the same time was suggested to create a tribunal dealing with international crimes, such
us drug trafficking  in 1998 a number of states concluded the Rome Statute of penal
court, comprehensive of 120 states

The jurisdiction of them came to include 4 main categories

 Genocide

 War crimes

 War against humanity

 Crime of aggression

To all these categories had be given a detailed definition  individual must to know at all times
what they’re called to respond for

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  The jurisdiction of these court was limited to its citizens, and universal jurisdiction was
launched with negotiation at the end of the conflict, according the US worrying about its
soldiers actives world wide

The court competence could be activated in three ways

 States of the statute could refer a situation to the procurator

 Security council can refer a situation to the procurator

 Procurator could individually starts the investigation obtaining the go ahead of penal
international court

While the court is the only international tribunal there also are some special ones

 Sometimes it’s also used the alternative of a truth commission the basic idea is not to
process individuals, but to find the truth and achieve a national reconciliation

Core crimes

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It’s generally recognized that the jurisdiction of ICC ( international criminal court) includes what are
often defined core crimes

 For the most they’re group crimes, but the court was created with the aim to prosecute the
individuals

International legal prohibition of genocide  1948  preceding the SHOA, there was no just an
intention to kill people, but an intention to kill a group as such

 Difficult to demonstrate

 Crimes against humanity  novelty introduced by Nuremberg tribunal

Humanitarian and international criminal law  met in the category of war crimes

 What that count  criminal intention

 In order to process legal certainty  assemble drown up a long list containing the elements
of the various crimes

 Aggression  use of force in violation of the Charter of UN

Genocide
Originally included on the field of crime against humanity

 Purpose of genocide  acts committed with the intention to commit with intention to
destroy a group

 Actus reus

 Mens rea

Crimes against humanity

Crimes against humanity are such when committed as part of systematic attack, directed against
the civil population, with the intention to do so

War crimes
Violation of law of war

Crime of aggression  planning preparation and initialization by a person in a position to exercise

control over a military or political action of a state

Individual responsibility
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Traditionally according to international law if something had been wrong the state could be held
liable for it

 This responsibility was usually ineffective  states were abstraction acting thought
individuals

 Statute aim is to identify the individuals responsible to such acts

 Individuals had to be held liable and they had to prosecute for being on the head of
groups committing crimes

 Orders can help to mitigate or even defense from punishment

In the light of increasingly nature of conflicts the use of force is utilize by groups working in
collusion with states but not under the effective control of it

 Tadic case  the general control suffices to attribute responsibility to the state

 Nicaragua  there must be effective control

 Nowdays  everyone is innocent until proven guilty

Transboudary police cooperation

The control of national crimes have always been considered as a national affair referred to the
state

 Although is not miss the international cooperation, led in majority on the US, whose
hegemony is given by the international crime control

 The control of international crime is better given by practioners, than politics initiatives

 This control is usually decentralized cause there are different treaties involving
different arguments

 Drugs control provide an example on how the crime control can be arranged 
convention against illicit traffic of stupefacency substances and psychicotrope ones

 For some treaties such as extradition  better judicial assistance, it could be

refused if justified by security and public orders reasons

Extradition

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One of the tools available to those engaged on international crime control is the extradition

 Transfer of an individual to a state on another with the aim of process him

 Is typically a formalized process involved diplomatic services of the states and its
authorities

 The major treaties about extradition  bilateral form, but sometimes they contained
analogues disposition  principle of double incrimination

 Extradition only called to cover the most common crimes

 Recent innovation on the field of death penalty, humanitarian reasons and aggrieved
healthy situations

Abduction and deportation

 Expulsure

 Seizure  illegal

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