In the aftermath of conflict and gross human rights violations, victims have a right to know what happened to their loved ones. Such a right is compromised if mass graves are not adequately protected to preserve evidence, facilitate identification and repatriation of the dead and enable a full and effective investigation to be conducted. Despite guidelines for investigations of the missing, and legal obligations under international law, it is not expressly clear how these mass graves are best legally protected and by whom. This article asks why, to date, there are no unified mass-grave protection guidelines that could serve as a model for states, authorities or international bodies when faced with gross human rights violations or armed conflicts resulting in mass graves. The paper suggests a practical agenda for working towards a more comprehensive set of legal guidelines to protect mass graves.
International Military Tribunals at Nuremberg and Tokyo and the International Tribunals for the former Yugoslavia and for Rwanda. It also looks to future trials that could take place before the Permanent International Criminal Court. Any trial can be viewed as a drama.2 However, it is never an abstract drama. A trial or series of trials has to be localised in a system of criminal law and justice. International trials have to be localised in ‘systems’ of ‘international criminal law’ and ‘international criminal justice’. However, the very existence of such ‘systems’ has been
The book explores the relationship between violence against women on one hand, and the rights to health and reproductive health on the other. It argues that violation of the right to health is a consequence of violence, and that (state) health policies might be a cause of – or create the conditions for – violence against women. It significantly contributes to feminist and international human rights legal scholarship by conceptualising a new ground-breaking idea, violence against women’s health (VAWH), using the Hippocratic paradigm as the backbone of the analysis. The two dimensions of violence at the core of the book – the horizontal, ‘interpersonal’ dimension and the vertical ‘state policies’ dimension – are investigated through around 70 decisions of domestic, regional and international judicial or quasi-judicial bodies (the anamnesis). The concept of VAWH, drawn from the anamnesis, enriches the traditional concept of violence against women with a human rights-based approach to autonomy and a reflection on the pervasiveness of patterns of discrimination (diagnosis). VAWH as theorised in the book allows the reconceptualisation of states’ obligations in an innovative way, by identifying for both dimensions obligations of result, due diligence obligations, and obligations to progressively take steps (treatment). The book eventually asks whether it is not international law itself that is the ultimate cause of VAWH (prognosis).
3 The human body: victim, witness and evidence of mass violence1 Caroline Fournet Introduction In the context of international criminal law and case law, the fact that the individual, as a human being, is the target of criminals against humanity and génocidaires alike is a legal reality that raises no doubt or controversy.2 The definition of a crime against humanity protects ‘any civilian population’,3 while that of genocide refers to the victim ‘group’.4 Further, both definitions protect the physical and moral integrity of the individual – although the text of
specifically assigned to them. The jurists Sévane Garibian and Caroline Fournet have tackled this task in chapters 2 and 3. The former is concerned with the possibility that law allows to embody the disappeared and the latter with the place international criminal law gives to the body. The criminologist Jon Shute in chapter 4 ponders the fact that criminology – the science of crime – has for so long ignored mass crime, even though the link between the corpse and the criminal is one of the fundamentals of the discipline. Alex Korb for his part has chosen a different approach
of bodies – and the legal status of the bodies themselves – with respect to both international criminal law and national legal systems. They also investigate the role played by corpses in the legal prosecution of perpetrators of mass violence, that is, as evidence of a crime; and when corpses are absent, legal issues arise regarding the status of the dead. Anthropologists, for their part, have addressed not only the question of how the destruction of bodies is integrated into the symbolic and social space of the societies in question, but also that of the
on the crimes of genocide, crimes against humanity and the crime of aggression. Article 23 of part 3 112 DISCIPLINES of the Statute covering the ICC incorporates the basic fundamental principles of the criminal law. A person is not criminally liable unless his conduct constitutes a crime under an existing law. This principle builds on the general principles to be found in international criminal law, which in turn reflects the Anglo-common law approach in defining judge-made law. The developing jurisprudence of the international court will undoubtedly draw on the
individuals responded to belated top-down attempts to put a check on mass murders – through humanitarian military interventions, the formulation of a Responsibility to Protect, the extension of the concepts of genocide and crimes against humanity in international criminal law, the institution of international criminal courts, etc. – left us wondering how the idea of progress could be defended or resurrected from the bottom up. As we moved into the new
discrimination’, namely the ‘pattern of discrimination’ that can be found in both dimensions of violence.94 I am not discussing here the concept of intent in criminal law, which goes beyond the scope of this book, and would require a comparative analysis of different legal systems and of international criminal law.95 Intention, in a very simple and clearly non-exhaustive summary, is related to the purpose of an action. It is the ‘guilty mind’ of the perpetrator.96 It could be said that the purpose of VAWH is to discriminate against women because they are women. Nonetheless
each other, were all informed by the common sense that human beings need protection from the violence of which the modern state has shown itself capable. These were very important innovations in International Criminal Law. They represented, as Karl Jaspers put it, the hint of a cosmopolitanism to come – ‘a feeble, ambiguous harbinger of a world order the need of which mankind is beginning to feel’. 9 However, they were considerably marginalised with the onset