International Review of the Red Cross, 2008, No. 870 – Sanctions
Sanctions are an integral part of every coherent legal system, and the threat of an effective sanction has a dissuasive effect. The culture of war – and the constant assault on the ethical norms and conventions of war – has produced a demand for justice among both combatants and non-combatants. This Review examines the part played by sanctions in obtaining greater respect for international humanitarian law and the form that citizens expect justice to take, i.e. what kind of punishment, what it should be based on and who should sit in judgment.
Issue No. 870 - 2008
Table of contents
Editorial - IRRC June 2008 No 870
Address by General Jean-René Bachelet
General Jean-René Bachelet gave the following opening address at the Interregional Meeting on the Role of Sanctions in Ensuring Greater Respect for International Humanitarian Law, held in Geneva on 15–17 November 2007.
Sanctions as a means of obtaining greater respect for humanitarian law: a review of their effectiveness
Anne-Marie La Rosa
There are several aspects to reviewing the role of punishment in ensuring greater respect for international humanitarian law. First, the question of improving compliance with the law; second, focus on the punishment itself; and third, characteristics of the perpetrators.
The definition of traditional sanctions: their scope and characteristics
For more than 30 years the codification of state responsibility has been the main task of the International Law Commission, which has placed greater emphasis on financial reparations than on criminal sanctions. Since the 1990s, however, the responsibility of individuals for gross violations of humanitarian law has been one of the main topics in international law.
Social identification processes, group dynamics and the behaviour of combatants
Emanuele Castano, Bernhard Leidner and Patrycja Slawuta
In this article, respect for international humanitarian law among combatants is considered from a social psychological perspective. The authors argue that group identities are particularly salient in combat situations, and that they have a profound influence on combatants’ decisions to respect or violate international humanitarian law.
The mass crimes in the former Yugoslavia: participation, punishment and prevention?
This article discusses sanctions for and the prevention of mass violence by non-state perpetrators. The author's reflections are based on case studies of four former Serbian militiamen who took part in mass violence in the former Yugoslavia. He argues that it is of the utmost importance to consider the typical grassroots relationship between these local players and their own community, so as to maximize the effect of sanctions and perhaps prevent further offences by potential future perpetrators.
Crime prevention and control: Western beliefs vs. traditional legal practices
First, the paper deals with the current idea that punishment – conceived as the loss of liberty – has an effect in preventing unlawful behaviour. It shows that, in general, sanctions have a poor individual preventive effect and that general prevention depends on a variety of factors. The second question is that of the feasibility of non-stigmatizing ways to cope with crime. The authos looks at two examples borrowed from legal anthropology which seem to indicate that viable alternatives exist.
Some considerations on command responsibility and criminal liability
Jamie Allan Williamson
Under international humanitarian law, commanders have been entrusted with the task of ensuring respect for that body of law by their subordinates. The following article reviews some of the issues arising from the application and development of this form of responsibility, from both a practical and legal perspective.
The impact of military disciplinary sanctions on compliance with international humanitarian law
This article assesses the impact of disciplinary military sanctions on respect for international humanitarian law. Whereas the armed forces rely on a strong principle of obedience, respect for international humanitarian law depends essentially on the superior officer whose responsibility is subject to sanctions imposed by international criminal judges within a judicial system which aims to make sanctions an effective means of ensuring respect for international humanitarian law.
Armed groups, sanctions and the implementation of international humanitarian law
Anne-Marie La Rosa and Carolin Wuerzner
This article examines the obligations of armed groups to impose sanctions and their possibilities for doing so. It discusses characteristics of armed groups that influence their willingness and ability to comply with IHL and to punish those of their members who commit violations and it analyses the different methods of punishment, including disciplinary sanctions, penal sanctions imposed by the State and penal sanctions imposed by the group itself.
A few thoughts on guaranties inherent to the rule of law as applied to sanctions and the prosecution and punishment of war crimes
War crimes are among the most serious crimes; that is why international courts and tribunals have jurisdiction to prosecute and punish them. The author considers that, when the perpetrators of war crimes are prosecuted and punished, criteria inherent to the rule of law such as those applied by the European Court of Human Rights (legality, proportionality, etc.) must be met.
Sanctions for violations of international humanitarian law: the problem of the division of competences between national authorities and between national and international authorities
This article seeks to explore the reasons why sanctions for international humanitarian law violations are so difficult to put into effect. The implementation of sanctions is too often seen solely through the prism of international law, without paying enough attention to the complexity and diversity of municipal legal systems. The author discusses the influence of the sharing of competencies within the State on the implementation of sanctions, the broad interpretation of their powers by regional or international human rights bodies and the creation of new or specific bodies in charge of dealing with and if necessary punishing gross violations of humanitarian law.
Transitional justice and sanctions
Transitional justice aims at once to restore victims’ dignity, build confidence between warring groups, and foster the institutional changes needed to bring about a new relationship within the population, in order to usher in the rule of law without endorsing practices that amount to total or partial impunity. In situations of post-conflict, however, governments are also faced with other pressing needs. This article explores the relationship between these needs and transitional justice mechanisms and critically evaluates their influence on the forms justice has taken in post-conflict situations.
The nature of sanctions: the case of Morocco's Equity and Reconciliation Commission
Using the case of Morocco’s Equity and Reconciliation Commission as an example, this article analyses how transitional justice is by definition the place where ethics and reasons of State, the will to see justice done and the balance of power meet. Therein lie both the strength and ambiguity of transitional justice.
Aspects of victim participation in the proceedings of the International Criminal Court
Participation of victims in criminal proceedings is generally a rather new phenomenon. The drafters of the ICC Statute chose to design a rather broad victim participation scheme. Some of the most significant issues are discussed in this article, including the question whether and how victim participation may influence sentencing and punishment.
Victims and international criminal justice: a vexed question?
Mina Rauschenbach and Damien Scalia
Despite the growing attention being paid to "victims" in the framework of criminal proceedings, this attention does not seem to be meeting their needs under either national criminal justice systems or the international regime. In the latter, the difficulties encountered by the victims are aggravated by factors specifically arising from prosecution and punishment of mass crimes at the international level. This has prompted authors to point out that the prime purpose of criminal law is to convict or acquit the accused, and to suggest that the task of attending to the victims should perhaps be left to other entities.
Analysis of the punishments applicable to international crimes (war crimes, crimes against humanity and genocide) in domestic law and practice
This analysis of the punishments applicable to international crimes (war crimes, crimes against humanity and genocide) covers 64 countries. The sample is satisfactory in terms of geographical distribution and covers countries with a Romano-Germanic (civil law) tradition and others with a common law tradition.
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