Kupreskic Et Al Case Legal and Social Environment - Research Paper Example

Kupreskic et al., Trial Chamber, Judgment, 14 January 2000, Case no. IT-95-16-T 1. Introduction In the context of the international law, there are specific criteria on which the various legal rules are based; often, these criteria are inadequate to meet the needs of individuals and states worldwide. This problem is made more intensive in areas where human rights are violated and the national law does not provide the protection required; because of such phenomena, power has been given to the International Courts to intervene in order to resolve such crises. However, often the solution is not clear; the relevant rules of international law may not regulate clearly the issue under examination; it is also possible that the approach used by the national law on the specific issue is differentiated. At this case, the International Court before which the case is brought has to examine the conditions of the events under examination; international customary law should be preferred – instead of the national law – when fundamental human rights are violated. Such problem has appeared in the case Kupreskic et al; the Court has accepted that international customary law in regard to the humanitarian law should be preferred, a decision that has to be considered as justified even if the past case law of the Court on such issues has been differentiated. 2. Kupreskic et al., Case no. IT-95-16-T - evaluation of the Court’s decision 2.1 Kupreskic et al case - Legal and social environment The decision of the Court in the specific case has been based on a series of rules and ethical values; the existing legal framework in regard to the crimes of such form has been evaluated using the international customary law – especially the humanitarian law. For this reason, the approaches used by the Court in the specific decision can be understood only if referring to the legal and social environment in which the case was discussed. 2.1.1 International customary law International customary law has been established in order to serve a specific scope: to ensure the development of fair Court decisions when the actions under examination are not clearly regulated by the existing laws – either at national or international level. It is also possible that such rules exist – either in the national or international law – but their interpretation can be differentiated – especially in case of existing contradictory case law. International customary role should be considered as being in superior position compared to the common – written – international law; at least this approach should be adopted by the International Courts when such issue occurs; this practice was also adopted by the ICTY in the case under examination; the various aspects of this Court’s practice will be analytically explained below. 2.1.2 Humanitarian law in the context of the international customary law Humanitarian law is considered as a fundamental part of the international law; however, the application of its rules is often problematic. The fact that humanitarian law refers to the needs of people who are threatened in regard to their life or their health can explain the above phenomenon. International organizations have developed a series of initiatives for the promotion of humanitarian law – including the establishment of a series of strict rules, usually in the form of Treaties; however, when these rules need to be applied in practice then obstacles and delays are likely to appear. The most common justification for such problems is the fact that national law is not identical with the international law; certain issues are regulated differently.1 Moreover, national law aims to protect the interests of the state – while international law addresses the needs of the international community; at this point their conflict can be considered as justified. On the other hand, there are certain issues on which no differentiation can be tolerated – for instance, the case of reprisals, which are against the existing rules of the international humanitarian law. At this point, the following problem exists: the rules of national law regarding reprisals may be different from the humanitarian’s law approach; in this case, which rule should be applied? Would the superiority of national law – as a state’s governing legal framework – be respected? Or the rules of international law should be rather adopted? The potential existence of contradictory case law – as in the case of reprisals – in the context of international law would be an additional problem when trying to reach a fair but also legally valid solution on this problem. Furthermore, the legislation on which humanitarian law is based – either directly or indirectly – leads often to opposite directions. An indicative example is the Rome Statute; the article 33 of this Treaty uses ‘conditional liability approach with regard to war crimes’; however, this practice is not in accordance with the international customary law.2 When this rule will be used in the evaluation of a relevant case, the Court need to identify the hierarchy of rules and values in the context of international law. At this point, the precedent of the Court would be of particular importance in order for the appropriate interpretation to be adopted. 2.2 Main aspects of the Kupreskic et al case The Kupreskic et al case refers to the reprisals developed in former Yugoslavia during the 1990s; the ICTY Trial Chamber was asked to evaluate where reprisals that took place during the relevant military conflict are prohibited by the international law or not; since the rules of national law should be primarily applied, the following problem had to be resolved: would be possible for the humanitarian law to be applied through a customary process? The Court held that such a prospect would be possible; in fact, the Court held that such a practice could be followed ‘under the pressure of the demands of humanity’ (Kupreskic et al). 2.3 Evaluation of the Court’s decision on the Kupreskic et al case – reference to the comments under examination The decision of the Court in regard to the Kupreskic case need to be evaluated using specific criteria; first, the decision refers to an issue of critical importance for the international criminal law – the phenomenon of reprisals is common in countries where similar military conflicts have been developed; secondly, the specific decision is expected to affect the Court’s decisions on similar cases in the future;3 in this way, an important precedent is established for individuals/ victims of such actions worldwide; in fact, this target has been already achieved; already, reprisals are considered to be illegal in most such cases brought before the International Criminal Court.4 Furthermore, the ruling of the same Court in the past was slightly contradicting; reprisals were permitted under certain conditions, as revealed through the case law of that period. Because of the above issues, the Court had to balance the interests of the parties; also, the appropriate legal basis for the development of the ruling had to be located. Reprisals are prohibited in the context of international law;5 therefore, the legislative framework for the development of the Court’s ruling existed; however, in the case under examination another problem appeared: could the humanitarian law be used through a customary process? It seems that the use of customary process in the context of international law is not well established; the existence of opposite interests – those of the state and those of the individual – result to this phenomenon. When the Court has to decide on the legality of reprisals it has to examine the following criteria: whether reprisals were justified in terms of necessity and proportionality.6 In the case under examination, the Court makes clear that reprisals are related with the humanitarian law; in fact reprisals are characterized as ‘a blatant infringement of the most fundamental principles of human rights’;7 therefore, the issue emerged was whether humanitarian law could be applied – despite the potential opposite national law. Regarding this issue, the Court held that ‘a high number of states have already verified the First Protocol’;8 this trend proves that the criminal character of reprisals is recognized in the context of the international community;9 furthermore, the Draft Articles on State Responsibility – of the Law Commission – emphasize on the lack of any legal justification for reprisals – even if they are developed in internal armed conflicts.10 The Court justified its decision by referring to the Martens Clause11 which introduces the concept of the ‘elementary considerations of humanity’;12 Martens Clause was used for first time in the Corfu Channel case and can justify the intervention of the ICTY but also on the development of a series of measures for the protection of individuals against reprisals – since the application of humanitarian law is established.13 In the Martic case the Court followed a different practice, being based on the potential existence of lawful reprisals – instead of accepting that all reprisals are unlawful.14 The issue of ‘quality of arms’ has been another point examined by the ICTY in regard to reprisals.15 In accordance with the Court the above term may be interpreted differently than the national courts. The decision of the ICTY in the Kupreskic et al case was further verified by the Court’s practice on another similar case: in the case of the collective punishment practices developed in the context of military conflicts across Sierra Leone the Court convicted ‘several individuals for the war crime of collective punishment’,16 a decision that helps to the standardization of reprisals as crime in the context of the international community. Such prospect is possibly opposite with the traditional character of reprisals as ‘responses to violations of humanitarian law’;17 in this context, the importance of the Kupreskic et al case is high leading to the change of international customary law regarding the legality of reprisals.18 3. Summary The decision of the Court in the Kupreskic et al case reflects and important trend: the change in the criteria on which the evaluation of crimes is based. The interests of individuals may be considered as more important from the interests of states under the terms that human rights are violated.19 Apart from its value in the context of international law, the Court’s decision on this case has also important social effects – affecting the potential response of states when similar conditions exist.20 On the other hand, the following comment should be made: despite the fact that the ICTY has tried to introduce an approach fairer for individuals, still its practices would be improved providing equal chances to all individuals to ask for the protection of their rights in the context of humanitarian law; moreover, the involvement of the Court in such events should be better planned so that all violations of human rights to be appropriately punished. The fact that the ICTY was not involved in the conflict developed between the relatives of victims in the ‘NATO bombing of Radio Televizije Srbiijre (RTS) in 1999’ proves the necessity for changes in the Court’s role in the international community. Bibliography A. Books F. Bouchet-Saulnier, Brav, L., Olivier, C. The practical guide to humanitarian law. (2007) M. Byers, Nolte, G. United States hegemony and the foundations of international law. (2003) R. Cryer, Friman, H., Robinson, D. An Introduction to International Criminal Law and Procedure. (2010) Y. Dinstein. War, aggression and self-defence. (2005) Y. Dinstein. The conduct of hostilities under the law of international armed conflict. (2004) H. Hensel. The legitimate use of military force: the just war tradition and the customary law of armed conflict. Ashgate Publishing F. Kalshoven. Reflections on the law of war: collected essays. (2007) G. Knoops. Defenses in contemporary international criminal law. (2008) E. Lauterpacht. Greenwood, C. International Law Reports. (2008) G. McDonald, G., Swaak-Goldman, O. Substantive and procedural aspects of international criminal law: the experience of international and national courts. (2000) H. Olasolo. Unlawful attacks in combat situations: from the ICTY's case law to the Rome Statute. (2008) C. Tomuschat, Thouvenin, J. The fundamental rules of the international legal order: Jus Cogens and obligations Erga Omnes. (2006) B. Journals Anderson, K. (2009). ‘The Rise of International Criminal Law: Intended and Unintended Consequences’ European Journal of International Law, 20 (2): 331-358. Darcy, S. (2010). ‘Prosecuting the War Crime of Collective Punishment. Is It Time to Amend the Rome Statute?’ Journal of International Criminal Justice, 8 (1): 29-51. Dingwall, J. 2004. ‘Unlawful confinement as a war crime: the jurisprudence of the Yugoslav Tribunal and the common core of international humanitarian law applicable to contemporary armed conflicts’ Journal of Conflict & Security Law, 9 (2): 133-179. Frulli, M. (2003) ‘When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law?’ The Marković Case. Journal of International Criminal Justice, 1 (2): 406-427. Gaeta, P. (1999). ‘The defence of superior orders: the statute of International Criminal Court versus customary international law’ European Journal of International Law, 10 (1): 172-191. Ochoa-Ruiz, N., Aguado, E. (2005). ‘Exploring the Limits of International Law relating to the Use of Force in Self-defence’ European Journal of International Law, 16 (3): 499-524. Pinzauti, G. (2008). ‘The European Court of Human Rights' Incidental Application of International Criminal Law and Humanitarian Law’ A Critical Discussion of Kononov v. Latvia. Journal of International Criminal Justice, 6 (5): 1043-1060. Sutter, P. (2008). ‘The Continuing Role for Belligerent Reprisals’ Journal of Conflict Security Law, 13 (1): 93-122. C. Case law Erdemovic, ICTY, 1998 (January 12) Martic, ICTY, 2007 (July 12), par. 464-468 Naulilaa Case (Portugal v. Germany) Portuguese-German Mixed Arbitral Tribunal, 1928 Prosecutor v. Milan Milutinovic, ICTY, 2003 (May 21) Seselj, ICTY, 2006 (August 21) Tadic, ICTY, 1999 (July 15) Read More