Gentian Zyberi

An institutional approach to the responsibility to protect

Part I. Theoretical and Practical Perspectives on the Responsibility to Protect: 1. The coining and evolution of responsibility to protect: the protection responsibilities of the state Diana Amneus 2. Non-state actors Raphael van Steenberghe 3. Peacekeeping operations Susan C. Breau Part II. The United Nations System: 4. The Security Council Terry D. Gill 5. The General Assembly Cedric Ryngaert and Hanne Cuyckens 6. The Secretary-General Nicholas Turner 7. The UN Human Rights Council Lyal S. Sunga 8. The International Law Commission Arnold Pronto Part III. Regional and Security Organisations: 9. The European Union Daniel Fiott and Marie Vincent 10. The African Union Solomon A. Dersso 11. The Association of Southeast Asian Nations Noel M. Morada 12. The Organisation of American States Paulo de Tarso Lugon Arantes 13. The Arab League Mahasen Aljaghoub, Ibrahim M. Aljazy and Maysa S. Bydoon 14. The Organisation for Security and Cooperation in Europe Dennis J. D. Sandole 15. The North Atlantic Treaty Organisation Jody M. Prescott Part IV. International Courts and Tribunals: 16. The International Court of Justice Gentian Zyberi 17. The United Nations Criminal Tribunals for Yugoslavia and for Rwanda Niki Frencken and Goran Sluiter 18. The International Criminal Court Michael Contarino and Melinda Negron-Gonzales Part V. Regional Human Rights Protection Mechanisms: 19. The European System of Human Rights Rhona Smith and Conall Mallory 20. The Inter-American System of Human Rights O. Hilaire Sobers 21. The African System of Human Rights Frans Viljoen Part VI. Concluding Remarks: 22. Sharing the responsibility to protect: getting from promise to practice Gentian Zyberi.

Provisional Measures of the International Court of Justice in Armed Conflict Situations

This article critically assesses the role of provisional measures indicated by the International Court of Justice in protecting populations during armed conflict situations and the legal consequences attached to the violation of such measures. A number of relevant cases, including the most recent Georgia v. Russia case, are dealt with. Provisional measures aimed at protecting populations affected by armed conflict have been increasingly requested in the last two decades by states finding themselves at a military disadvantage. Questions remain, however, with regard to the suitability of these incidental proceedings to deal with major political controversies resulting in armed conflict between states. That notwithstanding, it is submitted that although compliance with such orders of the Court remains unsatisfactory, in the long term provisional measures can eventually strengthen state compliance with commonly agreed international human rights and humanitarian law standards.

Self-Determination Through the Lens of the International Court of Justice

This article shall focus on the role and contribution of the International Court of Justice (ICJ or Court) to developing and interpreting the right of peoples to self-determination. The most relevant cases decided by the Court so far, briefly noted here, fall broadly speaking within the decolonization context, save for the ongoing advisory proceedings in the Kosovo case. This simple taxonomy is based on a broad separation of the Court’s case law in two main categories, namely that pertaining to decolonization and that pertaining to secession. The analysis of the place of secession under current international law serves to put into perspective the inquiry into whether any of the main principles applicable to the decolonization process, as elaborated by the Court, continue to be valid in the case of secession of a part of a State from an existing independent State. The article ends with a number of concluding remarks on the contribution of the Court to clarifying the right of peoples to self-determination as part of the corpus of international human rights law.

The Development and Interpretation of International Human Rights and Humanitarian Law Rules and Principles through the Case-Law of the International Court of Justice

The contribution of the International Court of Justice (ICJ) to the interpretation and development of international human rights and humanitarian law rules and principles is a topic of growing interest and importance. Claims of breaches of norms of both these branches of law have been raised in a considerable number of cases brought before the ICJ in the last two decades. By clarifying the complementary application of international human rights and humanitarian law and by awarding natural and legal persons a right to reparations vis-à-vis the State the ICJ has rendered a valuable contribution to a better protection of individual rights under the general framework of international law. This contribution of the Court is illustrated by focusing mainly on the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the Armed Activities on the Territory of the Congo case. That not only for reasons of space constraints, but also because of the considerable leaps forward made through these cases.

Transitional Justice Processes and Reconciliation in the Former Yugoslavia: Challenges and Prospects

This article aims to assess the achievements and challenges facing the transitional justice processes that have taken place in the countries most affected by the armed conflicts resulting in the violent dissolution of the former Yugoslavia and whether, and to what extent, these processes have furthered inter-ethnic reconciliation. The two variables used for this purpose are the scope of individual criminal accountability for war crimes and the scope of reparations provided to victims of the armed conflicts occurring throughout the 1990s and in the early 2000s. The following analysis combines an assessment of relevant international and domestic efforts. Thus, first, the article analyses the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY or tribunal) in the transitional justice processes in Croatia, Bosnia and Herzegovina (Bosnia or BiH), the former Yugoslav Republic of Macedonia (Macedonia), Serbia, and Kosovo. Over the last 20 years the tribunal has investigated and prosecuted a considerable number of individuals for mass atrocity crimes. Subsequently, the focus shifts to assessing the domestic efforts surrounding the prosecution of war crimes and awarding of reparations for victims of the armed conflicts in these countries. The article argues that lack of sufficient coordination and close cooperation between international stakeholders and a general reticence on the part of the national authorities to engage meaningfully with past wrongs have resulted in a situation where many perpetrators of war crimes remain unpunished and individual victims have barely received any reparations. The article holds that for the ongoing transitional justice processes to meaningfully further inter-ethnic reconciliation in the republics emerging from the former Yugoslavia, continued legal reforms and a pluralistic public discourse, which embrace a strong focus on the rights of victims of war crimes, are necessary.

An Institutional Approach to the Responsibility to Protect: Sharing the responsibility to protect: taking stock and moving forward

Instead of providing a summary of the previous discussions, this last chapter sets out to discuss a number of selected issues which are of importance to RtoP’s current status and further development. First, the chapter provides a brief discussion of specific aspects of core crimes falling under RtoP. A number of theoretical and practical issues are addressed in turn, including the multi-layered nature of RtoP obligations, early warning and assessment capabilities, entrenching a culture of accountability, timely and decisive response mechanisms and uncertainties and problems arising from sharing RtoP obligations among the different levels and relevant actors.

An Institutional Approach to the Responsibility to Protect: The International Court of Justice

In spite of considerable literature on different aspects of the responsibility to protect and related institutions, little attention has been paid to the important role a key international judicial institution as the International Court of Justice (ICJ or Court) can play in interpreting and developing the scope of State and non-State actors’ obligations under the responsibility to protect (RtoP), as well as enforcing those obligations in cases brought before it. This chapter examines the contribution of the ICJ to interpreting and developing legal obligations incumbent upon States which fall under RtoP. At the same time, an effort is made to expose also the possibilities and limitations of the Court in implementing RtoP. To that aim, the relevance of the ICJ’s jurisdiction with regard to ensuring international responsibility for violations of legal obligations arising under the responsibility to protect is dealt with first. In turn, the chapter provides a detailed analysis of relevant findings of the ICJ with regard to the different components of RtoP which interpret and develop their legal basis. Among those notions are the duty to prevent genocide and other serious international crimes, the duty to co-operate with international tribunals established to prosecute the alleged perpetrators and making reparations for gross violations of human rights and serious violations of the law of armed conflict.

United Nations – related criminal courts and tribunals: fleeting mirages of transitional justice or a piecemeal approach to cosmopolitan justice?

ABSTRACT By analysing the mandate and the work of UN-related criminal courts and tribunals in investigating and prosecuting those most responsible for mass atrocity crimes and in supporting related domestic transitional justice efforts, this article aims at assessing whether these efforts are just fleeting mirages of transitional justice or a piecemeal approach towards building a cosmopolitan justice model. To that aim, the article evaluates the role and contribution of key UN-related criminal courts and tribunals towards developing a commonly shared concept and model of cosmopolitan justice which furthers peace and ensures the protection of populations from mass atrocity crimes, namely genocide, war crimes and crimes against humanity. The theoretical approach is based on Focarellis argument that international law, seen as a social construct, can contribute in some measure to global justice. Ratners standard of global justice, based on peace and human rights protection, is used as a general benchmark for the assessment of the activity of these international judicial institutions.

The Place and Application of International Law in the Albanian Legal System

This chapter aims to explore and analyse the place of international law in the Albanian legal system and its application by Albanian courts. First, the chapter addresses the status of international law under the 1998 Albanian Constitution and its interaction with other sources of law within the Albanian legal system. Subsequently, a number of important domestic cases are analysed so as to illustrate the approach taken by Albanian courts towards international law. The chapter focuses on issues concerning the place and application of human rights, European law, and international criminal law and related mechanisms in the Albanian legal system.