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War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli Edward Elgar, 2013, 416 pp, $155 hb ISBN 978 1 78195 591 8
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War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli Edward Elgar, 2013, 416 pp, $155 hb ISBN 978 1 78195 591 8
Published online by Cambridge University Press: 29 January 2015
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References
1 Meron, Theodor, ‘Is International Law Moving towards Criminalization?’ (1998) 9 European Journal of International Law 18CrossRefGoogle Scholar; Cassese, Antonio and Gaeta, Paola (eds), Cassese's International Criminal Law (3rd edn, Oxford University Press 2013) 5–6.CrossRefGoogle Scholar
2 Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808(1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993) (ICTY Statute).
3 The chief editor of the book, with the main responsibility for the research project, Fausto Pocar, is Professor Emeritus and a renowned scholar of international law, judge and past President of the International Tribunal for the former Yugoslavia.
4 Pocar, Fausto, ‘The Criminalization of the Violations of International Humanitarian Law from Nuremberg to the Rome Statute’, in Pocar, Fausto, Pedrazzi, Marco and Frulli, Micaela (eds), War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (Edward Elgar 2013) 3.CrossRefGoogle Scholar
5 Paola Gaeta, ‘Serious Violations of the Law on the Conduct of Hostilities: A Neglected Class of War Crimes?’ in Pocar, Pedrazzi and Frulli (n 4) 20.
6 Edoardo Greppi, ‘To What Extent do the International Rules on Human Rights Matter?’ in Pocar, Pedrazzi and Frulli (n 4) 38.
7 ‘Violations of the Principles of Distinction, Proportionality and Precaution’ (Part II), ‘Violations of the Rules Protecting Particular Categories of Persons’ (Part III), ‘Violations of the Rules on Means of Warfare’ (Part IV), including Chapters 4 to 13 in Pocar, Pedrazzi and Frulli (n 4).
8 Gaeta (n 5) 21.
9 Stahn, Carsten and van den Herik, Larissa, ‘“Fragmentation”, Diversification and “3D” Legal Pluralism: International Criminal Law as the Jack-in-the-Box?’ in van den Herik, Larissa and Stahn, Carsten (eds), The Diversification and Fragmentation of International Criminal Law (Martinus Nijhoff 2012) 21, 23–25.Google Scholar
10 ICTY, Prosecutor v Blaškić, Judgment, IT-95-14-T, Trial Chamber, 3 March 2000, [180]; ICTY, Prosecutor v Kordić and Čerkez, Judgment, IT-95-14/2-T, Trial Chamber, 26 February 2001, [326]–[328]; ICTY, Prosecutor v Galić Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [27]–[31], [57]–[59].
11 Francesco Moneta, ‘Direct Attacks on Civilians and Indiscriminate Attacks as War Crimes’ in Pocar, Pedrazzi and Frulli (n 4) 59, 73–76.
12 Marco Pedrazzi, ‘Using Human Shields as a War Crime’ in Pocar, Pedrazzi and Frulli (n 4) 98, 115.
13 United States of America v Wilhelm List and Others (Hostage Case), American Military Tribunal, Nuremberg, 18 February 1948 in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (United States Government Printing Office, Vol XI), 1253–54; Blaškić (n 10) [183]; Kordić and Čerkez (n 10) [346]–[347].
14 Andrea Carcano, ‘The Criminalization and Prosecution of Attacks against Cultural Property’ in Pocar, Pedrazzi and Frulli (n 4) 78, 95.
15 Notably, diverging criteria are proposed by Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009)Google Scholar and Schmitt, Michael N, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42 New York University Journal of International Law and Politics 697.Google Scholar
16 For example, ICTY, Prosecutor v Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008, [177]; SCSL, Prosecutor v Taylor, Judgment, SCSL-03-01-T, Trial Chamber, 18 May 2012, [1565].
17 Alberto Oddenino, ‘The Enlistment, Conscription and Use of Child Soldiers as War Crimes’ in Pocar, Pedrazzi and Frulli (n 4) 119.
18 Ludovica Poli, ‘Criminalizing Rape and Sexual Violence as Methods of Warfare’ in Pocar, Pedrazzi and Frulli, ibid 136.
19 Andrea Spagnolo, ‘The Crime of Attacking Peacekeepers’ in Pocar, Pedrazzi and Frulli, ibid 153.
20 Cases related to child soldiers and those involving sexual violence are aptly reviewed and examined by Oddenino (n 17) 126–31, and Poli (n 18) 142–49.
21 Convention on the Safety of United Nations and Associated Personnel (entered into force 15 January 1999) 2051 UNTS 363.
22 ICTR, Prosecutor v Bagosora, Judgment, ICTR-98-41-T, Trial Chamber, 18 December 2008, [185]; SCSL, Prosecutor v RUF, Judgment, SCSL-04-15-T, Trial Chamber, 2 March 2009, [68]; ICC, Prosecutor v Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-trial Chamber I, 8 February 2010, [74].
23 Cassese and Gaeta (n 1) 39–40.
24 See generally Schabas, William A, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’ (2003) 37 New England Law Review 1015.Google Scholar
25 International Committee of the Red Cross, ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare’, January 2006, 10, http://www.icrc.org/eng/assets/files/other/icrc_002_0902.pdf.
26 Blaškić (n 10) [512]; ICTY, Prosecutor v Galić, Judgment, IT-98-29-A, Appeal Chamber, 30 November 2006, [132]; Prosecutor v Martić, Decision, IT-95-11/R61, Trial Chamber, 8 March 1996, [18].
27 Andrea Cannone, ‘The Use of Prohibited Weapons and War Crimes’ in Pocar, Pedrazzi and Frulli (n 4) 173; Marina Castellaneta, ‘New Weapons, Old Crimes?’ in Pocar, Pedrazzi and Frulli, ibid 194; Annita Larissa Sciacovelli, ‘The Criminalization of the Use of Biological and Chemical Weapons’ in Pocar, Pedrazzi and Frulli, ibid 211; Antonio Leandro, ‘Arms Transfer and Complicity in War Crimes’ in Pocar, Pedrazzi and Frulli, ibid 225.
28 See especially the accurate case law survey by Leandro, ibid 229–39.
29 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (entered into force 25 March 1975) 1015 UNTS 163.
30 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (entered into force 29 April 1997) 1974 UNTS 45.
31 It required a judgment from the US Supreme Court to rule that the federal act implementing the Chemical Weapons Convention did not reach the conduct of an individual for a local assault using a chemical irritant: see Bond v United States, 572 US1 (2014).
32 The ICTY in Galić (n 26) [85] determined that the latter prohibition is of a customary nature.
33 Julinda Beqiraj, ‘Terror and Terrorism in Armed Conflicts: Developments in International Criminal Law’ in Pocar, Pedrazzi and Frulli (n 4) 257.
34 Marco Pertile, ‘Fighting Terror with the Law? Terrorism, Counterterrorism and Military Occupation’ in Pocar, Pedrazzi and Frulli, ibid 276.
35 Antonino Alì, ‘The Relevance of International Humanitarian Law in National Case Law on Terrorism’ in Pocar, Pedrazzi and Frulli, ibid 293.
36 Giuseppe Nesi, ‘International Terrorism, the Law of War and the Negotiation of a UN Comprehensive Convention’ in Pocar, Pedrazzi and Frulli, ibid 243.
37 Stephen Wilkinson, ‘The Challenges of Establishing the Facts in Relation to “Hague Law” Violations’ in Pocar, Pedrazzi and Frulli, ibid 313.
38 Micaela Frulli, ‘UN Fact-Finding Commissions and the Prosecution of War Crimes: An Evolution towards Justice-oriented Missions?’ in Pocar, Pedrazzi and Frulli, ibid 331.
39 Simone Vezzani, ‘Fact-finding by International Human Rights Institutions and Criminal Prosecution’ in Pocar, Pedrazzi and Frulli, ibid 349.
40 Anderson, Kenneth, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’ (2009) 20 The European Journal of International Law 331, 346–49.CrossRefGoogle Scholar