Yoram Dinstein

Israel Yearbook on Human Rights.

List of Participants. Articles. I. Belligerent and Non-Belligerent Occupation. II. Armed Conflict: International and Internal. III. Specific Problems of Human Rights. Judicial Decisions. Book Reviews. Special Supplement.

Direct Participation in Hostilities

This is the text of a lecture, presented by Professor Yoram Dinstein at Tilburg University, outlining some key aspects of international humanitarian law as regards the principle of distinction; the principle of proportionality; direct participation in hostilities; drones; human shields; and private military contractors.

War Crimes in International Law.

Introduction Y. Dinstein. War Crimes: Offences and Responsibility. The Distinctions between War Crimes and Crimes Against Peace Y. Dinstein. Crimes under the I.L.C. 1995 Draft Code L.C. Green. Crimes Against the Peace and Security of Mankind and the Recalcitrant Third State C. Tomuschat. War Crimes and State Responsibility S. Rosenne. Ethnic Cleansing N. Lerner. Violations of Human Rights in Time of War as War Crimes H.S. Levie. The Modern Pattern of War Criminality G.I.A.D. Draper. War Crimes and Punishment. The Establishment of an International Criminal Court B. Broms. A Review and Critique of the Statute of the International Tribunal J.J. Shestack. The Normative Impact on International Law of the International Tribunal for Former Yugoslavia T. Meron. The Decentralized Prosecution of International Offences through National Courts R. Wolfrum. Defences in War Crime Trials A. Eser. War Crimes in Special Situations. Some Issues Relating to War Crimes in Air and Sea Warfare E. Roucounas. War Crimes in Non-International Armed Conflicts M. Bothe. Treatment of War Crimes in Peace Settlements - Prosecution or Amnesty? F. Domb. The Demjanjuk Trial. The Demjanjuk Case M. Kremnitzer. Hearsay Evidence in War Crimes Trials K. Mann. Appendices. Indices.

International Criminal Law

The individual human being is manifestly the object of every legal system on this planet, and consequently also of international law. The ordinary subject of international law is the international corporate entity: first and foremost (though not exclusively) the State. Yet, the corporate entity is not a tangible res that exists in reality, but an abstract notion, moulded through legal manipulation by and within the ambit of a superior legal system. When the veil is pierced, one can see that behind the legal personality of the State (or any other international corporate entity) there are natural persons: flesh-and-blood human beings. In the final analysis, Westlake was indubitably right when he stated:n The duties and rights of States are only the duties and rights of the men who compose them. That is to say, in actuality, the international rights and duties of States devolve on human beings, albeit indirectly and collectively. In other words, the individual human being is not merely the object of international law, but indirectly also its subject, notwithstanding the fact that, ostensibly, the subject is the international corporate entity.

Criminal Jurisdiction Over Aircraft Hijacking

Aircraft hijacking projects a vexing problem of criminal jurisdiction. In order to comprehend the ramifications of the problem fully let us take a model case. Suppose that the control over a commercial aircraft—registered in Brazil and leased to an Israeli airline—is forcibly seized, in the course of flight over France, by an Arab nationalist who is a citizen of Jordan, and the aircraft is hijacked to Algeria. The act described is an international offence, as defined by Article 1 of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft: Any person who on board an aircraft in flight: (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act commits an offence (hereinafter referred to as ‘the offence’).

The Progression of International Law

[This volume was produced to celebrate the fortieth anniversary of the Israel Yearbook on Human Rights. Forty years have yielded an impressive forty annual volumes. When it was started in 1971, the Yearbook was the first of its kind anywhere in the world. It has always understood its mandate as transcending the narrow borders of the discipline of either national or international human rights. From the outset, international humanitarian law and international criminal law were understood as coming within the proper framework of the Yearbook, as were on occasion articles on diverse freedoms that may seem out of bounds to a strict interpreter of the phrase “human rights”., This volume was produced to celebrate the fortieth anniversary of the Israel Yearbook on Human Rights. Forty years have yielded an impressive forty annual volumes. When it was started in 1971, the Yearbook was the first of its kind anywhere in the world. It has always understood its mandate as transcending the narrow borders of the discipline of either national or international human rights. From the outset, international humanitarian law and international criminal law were understood as coming within the proper framework of the Yearbook, as were on occasion articles on diverse freedoms that may seem out of bounds to a strict interpreter of the phrase “human rights”.]

Par in Parem non Habet Imperium.

Lawyers in general, and international lawyers in particular, seem to suffer from what may be termed “the Latin formula syndrome”. In almost every branch of international law, one is faced with well-known epigrams of sententiousness drawn from the cornucopian source of ancient Latin phraseology. These venerable maxims, a legacy of the immense influence that Roman and Ecclesiastical law wielded on the fathers of modern international law, are in many respects very useful. In a few choice words, they epitomize fundamental ideas that may otherwise require verbose explanations, and they serve as a beacon for those groping their way in the legal dark. Unfortunately, however, laconic adages in general tend to be over-simplified, and, what is worse, as a result of constant and mechanical repetition, they are apt to lose their contact with reality and become petrified. If the law of nations is to be not merely “the law of notions”, but also the law of motion and animation, the epitaphs reflecting its major precepts must be reexamined every so often, else the mortmain of once flourishing but now barren concepts will keep it in a strangle-hold. One of the more important of the Latin maxims that abound in international law is the general principle par in parem non habet imperium . This principle is commonly regarded as the starting-point for any venture into the field of State immunities, and it has even been said that “There is no principle of international law more fundamental or more universally accepted than this”.

The International Military Tribunal at Nuremberg

It is impossible to overestimate the contribution of the International Military Tribunal (IMT) at Nuremberg to the development of international criminal law. The IMT was a far cry from a military court. It was composed of four Judges and four Alternates: one from each of the four Big Allied Powers (the United States, the United Kingdom, the USSR and France). The Nuremberg trial of 1945/1946 has set the stage for the establishment of the permanent International Criminal Court (ICC) in the Rome Statute of 1998. Sixteen of the defendants in the Nuremberg trial were convicted of traditional war crimes. It is true that, in certain respects, the state of the law has undergone some important changes in the Rome Statute, but the statute does not follow in the footsteps of Nuremberg. Keywords:International Criminal Court (ICC); international criminal law; International Military Tribunal (IMT); Nuremberg; Rome Statute; traditional war crimes

Protection of the civilian population under belligerent occupation

Freedom from genocide and the right to life The prohibition of genocide 344. Every national group – including the civilian population of an occupied territory – has a basic right to existence (i.e., to life) protecting it from genocide. Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide asseverates: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent or to punish. The wording appears at first sight to relate to acts perpetrated by actors other than the Contracting Parties themselves. But in the 2007 Genocide Convention case (Bosnia/Serbia), the International Court of Justice held that – although ‘[t]he article does not expressis verbis require States to refrain from themselves committing genocide’ – such a prohibition follows from the obligation to prevent the commission of genocide. As the Court put it, ‘[i]t would be paradoxical’ if States ‘were not forbidden to commit such acts through their organs’ while they are under obligation to prevent genocide. The Judgment added that the obligation not to commit genocide applies ‘to a State wherever it may be acting or may be able to act’, in a manner that is not limited by territorial bounds. This patently covers occupied territories.

The ‘War On Terrorism’

The expression war on terrorism is merely a metaphor. Sometimes the war on terrorism does get integrated into a real inter-State war. The multipartite attack against the US on 9/11 was launched by non-State actors: Al-Qaeda terrorists acting on their own initiative. Terrorism must not be confused with guerrilla warfare. Whereas terrorists habitually employ hit-and-run tactics of guerrilla warfare, it is important to bear in mind that guerrilla warfare can be conducted without indulging in terrorism, and in that case it need not be tainted with any particular odium. Terrorism is by no means a new phenomenon. The word itself probably goes back to the Jacobean Reign of Terror in the course of the French Revolution. Terrorism, by its very nature and purpose, is inconsistent with the principle of distinction. Keywords: Al-Qaeda; guerrilla warfare; war on terrorism