Notes International Humanitarian Law

International Criminal Law
● ICL focuses on IHRL, war crimes, and crimes of aggression (this branch
of law is new)
● However the ideas of trying individuals for international crimes and the
mere existence of “international crimes”are not new
○ The earliest/oldest international crime are piracy (like being an
actual pirate) and slavery
Penal antecedents:
● Piracy and slavery (first international crimes)
○ First time individuals are being tried for crimes that are seen as
international
○ Trying individuals is DIFFERENT than trying States for violations
of international law
● Piracy
○ affected the ability of states to operate
○ considered a crime of universal jurisdiction (there was no
constituted court, so any country that caught pirates could try
them, even if their piracy had been against other countries o sea
no el que lo los atrapas pero aun así el atrapador podía juzgarlo)
● Slavery came to violate the world’s moral codes
○ APLICA LO MISMO QUE EN PIRACY EN CÓMO SE JUZGABAN,
AUNQUE TE CACHARAN TRAFICANDO GENTE QUE NO ERA DEL
PAÍS QUE TE ATRAPO TE PODIAN JUZGAR
○ Various treaties going back to 1815 called for the abolition of
slavery and slave trade
Background and history
● Enforcing ICL in armed conflict
○ William Wallace 1305 (earliest recorded trial for war crimes), tried
by the English for wagging war against England and “sparing
neither age, nor sex, monk, nor nun (killing even children and
women)
● Brussels Conference 1874 (never ratified): first treaty that stated that an
individual would be tried if that individual broke international custom
and law in regards to war
● MODERN ICL
○ Martens Clause (1889): indirectly suggest that use of courts to
enforce ihl (STILL THIS CITES NATIONAL COURTS)
○ 1994 GENEVA CONVENTIONS: POST WW2, HOLDS BOTH STATES
AND INDIVIDUALS FOR GRAVE BREACHES OF WHAT THE
GENEVA CONVENTIONS STATE
■ iNCLUDE THE PROTECTION OF PHYSICAL AND MENTAL
INTEGRITY OF PPL AND CORE DUE PROCESS RIGHTS
ALL OF THE PREVIOUS ARE THE BASIS OF ICL
ENFORCING ICL IN ARMED CONFLICT
● WORLD WAR I (1914-1919)
○ German and ottoman empires committed widespread atrocities
during the war, ex: the armenian genocide
○ Commission on the Responsibility of the authors of war (kind of
antecedente a una corte especializada en cosa de crimen
internacional): supposed to determine whether individuals should
be tried
■ There was lots of opposition to this idea bc of state
sovereignity (checar presentacion para completar)
■ This comission leads to the creation of the term crimes
against hummanity (diferentes a los crimenes de guerra)
■ Also introduced the idea of limiting the war actions of
States
■ FINAL REPORT OF THE COMISION: WE SHOULD HAVE AN
INTERNATIONAL COURT THAT TRIES INDIVDUALS AND
CRIMES OF AGRESSION SHOULD BE TRIED (IN THE
FUTURE)
● CONSIDERED THE START OF THE CURRENT
PROHIBITION ON THE USE OF ARMED FORCE
■ OBJECTIONS MADE THE US:
● copiar presentacion
Treaty of Versailles (THE BIRTH OF THE IDEA OF A SPECIALIZED COURT
FOR WAR CRIMES AND CRIMES AGAINTS HUMANITY, ALSO THE BIRTH OF
THE IDEA THAT WAR SHOULD HAVE A SET OF RULES AND THE MILITARY
ACTIONS OF STATES SHOULD BE LIMITED)
● first treaty to ever include war crime trials
● kaiser willhem was supposed to be tried by an international court by UK,
US, FRENCH, ITALIAN AND JAPANESE JUDGES (OTHER OFFICIALS
WERE ALSO TRIED), HOWEVER THE KAISER WAS NEVER TRIED AND
THE NETHERLANDS GAVE HIM POLITICAL ASYLUM AND NO OTHER
INDIVIDUALS WERE TRIED UNDER THE VERSAILLE TREATY AND THE
WW1 WAR TRIVUNALES NEVER EXISTED, SOME INDIVIDUALS WERE
TRIED IN NATIONAL COURTS (EX: GERMANY) HOWEVER THEY WERE
NOT HELD ACCOUNTABLE
INTERWAR YEARS (1919-1939)

● During the developement of the league of nations (pre-ONU) the
creations of an international criminal court was suggested
○ This would be an addition to the Permanent Court of Justice
COPIA LO DE LA PRESENTACION
WORLD WAR II (1939-1945)

● 1945 IS TRULY WHERE MODERN CIL IS BORN
● twor criminal courts were created:
○ International Military Tribunal of German Major War criminals
■ created by the london agreement
■ known as nuremberg
○ Internationational Military tribunal for the far east
■ The tokyo tribunal
■ created by an order of the supreme allied commander of the
far east
BOTH TRIBUNALS HAD JURISDICTION OVER CRIMES WITH NO PARTICULAR
GEOGRAPHIC LOCALIZATION (anywhere where the nazis had been the
tribunal had jurisdiction)
this time the US was in favor of stablishing the tribunals
crimes established in nuremberg (first legal definitions were steblished):

● crimes against the peace: planning, preparation, or wagging war of
agression (use of armed forces), or awar in violation of international
treaties (Ex: treaties of neutrality)
● war crimes: murder, deportation of civiliams from occupied territory,
slave labor, mistreating POWSs, killing hostages, plunder of private
property
● crimes against humanity: muerder, extermination, ensalvemet,
deportation and other inhumane acts comitted against any civilian
population
before or after the war
persecutions on political (este copialo de la presentacion)
International Criminal Courts

how have courts been established?
● how have int’l courts been established?
○ International treaties: ex→ Nuremberg court, The ICC
○ Proclamation of a Joint Organ of States: ex→ Tokyo IMFTE
○ Bilateral treaty between a State and an Int’l Organization: ex→
Special Court of Sierra Leone (between the UN and Sierra Leone)
○ Security Council acting on Chapter VII of the UN Charter: ex→
ICTY, ICTR, Special Tribunal for Lebanon
Lo que pueda o no hacer una corte internacional/nacional esta limitado por lo

que dice el derecho internacional, ex: la corte internacional NO PUEDE
VIOLAR EL PRINCIPIO DE SOBERANIA DE UN PAÍS
SIDE NOTE: MIXED TRIBUNALS TIENEN JUECES NACIONALES E

INTERNACIONALES, LA BANCADA DE JUECES TAMBIEN ES MIXTA DE
NACIONAL E INTERNACIONAL
CAI
CANI
DIFERENCIA ENTRE DERECHOS HUMANOS Y IHL
HUMAN RIGHTS: THEY RECOGNIEZ RIGHTS TO PEOPLE, THE PERSONA IS
THE ONE THAT HAS THE ABILITY OF EXERCISE THE RIGHT AND THE STATE
HAS TO RESPECT THE RIGHT
IHL: DOES NOT GIVE NOR RECOGNIE NOR GIVE RIGHTS TO INDIVIDUALS,
THEY JUST IMPOSE THE OBLIGATIONS THAT STATE MUST FOLLOW, IN IHL
(DURING WAR, TIMES OR TURMOIL) HUMAN RIGHTS CAN BE SUSPENDED,
LIMITED OR TAKEN AWAY, IHL ALWAYS HAS APPLICABILITY IT CAN’T BE
SUSPENDED NOR LIMITED,
-HUMAN RIGHTS (IN THEORY) APPLIES EVERYWHERE
-IHL: ONLY APPLIES IN CERTAIN PLACES UNDER CERTAIN
CIRCUMSTANCES
COMMON ARTICLE 2 (DEFINES CAI)
COMMON ARTICLE 3 (DEFINES CANI)
ORGANIZATION OF THE GROUP (MINIMUM LEVEL OF ORGANIZATION)
INTENSITY OF THE VIOLENCE (MINIMUM LEVEL OF VIOLENCE)
SI NO ES CANI ES INTERNAL DISTURBANCE (AQUI NO APLICA EL DIH, SOLO
APLICA DERECHO INTERNACIONAL DE DERECHOS HUMANOS Y EL
DOMESTICO)
RULES TO CANIS (ONLY COMMON ARTICL3 OF THE GENEVA (AN THEIR
COMENTARIES) CONVENTIONS AND ADDITIONAL PROTOCOL 2 (FOR IT TO
APPLY YOU NEED TO ACREDITAR UN TERCER ELEMENTO QUE EL GRUPO
ARMADO CONTROLA CIERTO TERRITORIO, SI NO SE ACREDITA ESTE
ELEMTNO ESTE PROTOCOLO NO APLICA Y AL CANI SOLO LE APLICA EL
ARTICULO COMUN3 Y EL PROTOCOLO SOLO APLICA EL LAS PARTES LO
RATIFICARON SOLO EL ARTICULO 3 COMUN ES UNIVERSAL)) AND CAIS
(GENEVA COVENTIONS AND ADDITIONAL PROTOCOL 1)
THE FIRST 24 RULES OF CUSTOMARY LAW

MEANS (WEAPONS) AND METHODS (HOW WEAPONS ARE USED) OF WAR
TALLIENN MANNUAL
THE USE OF AUTONOMOUS WEAPONS
CHILDREN

Notes International Humanitarian Law

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International Criminal Law

INTERWAR YEARS (1919-1939)

WORLD WAR II (1939-1945)

crimes established in nuremberg (first legal definitions were steblished):

International Criminal Courts

Lo que pueda o no hacer una corte internacional/nacional esta limitado por lo

SIDE NOTE: MIXED TRIBUNALS TIENEN JUECES NACIONALES E

THE FIRST 24 RULES OF CUSTOMARY LAW

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