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Criminal Law Forum
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Strathmore Law Journal
As part of the ongoing movement in support of the abolition of the death penalty across the world, this article presents a selection of cases brought before the United Nations Human Rights Committee (the Committee) on violations of the right to life. With a special focus on Zambian cases, the objective is to demonstrate how the Committee’s views reflect its longstanding jurisprudence that the death penalty should only be applied in the most exceptional circumstances.
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Human Rights Brief
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The rules of interpretation of the 1969 Vienna Convention on the Law of Treaties are considered customary law and have been extensively applied by different international tribunals, including in cases involving the commission of the crime of genocide, either before the International Court of Justice or before international criminal tribunals. These rules are not regarded as an exhaustive list of interpretative techniques, but rather as an umbrella set of rules that do not exclude other principles or means compatible with them, and thus, offer enough flexibility to be applied by different fora. This paper examines the manner in which, in the context of genocide cases, the International Court of Justice and international criminal tribunals have resorted to the rules of interpretation in order to identify whether all those tribunals (regardless of their jurisdiction ratione personae) have applied Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Moreover, it analyses whether those articles are equally applicable in cases where the responsibility of the State is under discussion and in criminal cases seeking to determine the responsibility of the individual. It is argued that even though international criminal law is deemed to have caused a change to the traditional paradigm of the international system by bringing the individual to its forefront and causing a rupture in the State-centric logic that had prevailed since its origins, Articles 31 and 32 have proved themselves adaptable enough in order to be applied to the realm of international criminal law.
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Why some countries comply with international norms against the death penalty while others do not. Despite public support for the death penalty, a remarkable number of countries in different parts of the world have banned capital punishment in all its forms, regardless of the nature of the crime or the criminal. Arguing that international norms are often a critical source of ideas for change in state policy, but that impact varies greatly, Sangmin Bae offers a systemic explanation of how, when, and under what conditions a country complies with international norms. She examines four countries that reached different stages of norm compliance with respect to the death penalty—Ukraine, South Africa, South Korea, and the United States. Focusing on the role of political leadership and domestic political institutions, Bae clarifies the causal mechanisms that lead to state compliance or noncompliance with the norm. “Overall Bae’s work is highly instructive. Its comprehensive, multidimensional approach presents detailed accounts of the individual case studies, their political background, history of international norm compliance, and human rights record. The chapters are highly readable, making this book appropriate for an undergraduate audience … This volume is also highly recommended to scholars of human rights, comparative politics, and political scientists in general, given the combination of methodologies and Bae’s presentation of the abolition of the death penalty as a truly multifaceted issue.” — H-Net Reviews “The author has an excellent grasp of the work done on the death penalty and has applied the main arguments to regions outside Europe that deserve more attention and exploration. Her interesting conclusions provide an important basis for further research.” — Agata Fijalkowski, Lancaster University Law School
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INTER: REVISTA DE DIREITO INTERNACIONAL E DIREITOS HUMANOS DA UFRJ
Background Last 26 January the International Court of Justice delivered its order on precautionary measures requested by South Africa in the proceedings instituted against Israel for the alleged violation of the Genocide Convention in relation to Palestines in the Gaza Strip. This is the first of two articles in which we refer first, to the arguments of both parties to the conflict and the provisional decision of the Court, and a future one in which we will analyse the use of the Genocide Convention as the only means that States have to bring before the jurisdiction of the Court, States accused of committing any of the three major international crimes (war crimes, crimes against humanity and genocide). While forms of commission basically overlap, each of the crimes has a clearly defined normative status with its own principles. The work of the Court in recent years in which the Genocide Convention was invoked, involves protecting both the lives of affected civilians and the essence of the historic instrument. At this point, the proof of the special intent to destroy a conventional protected group becomes paramount. Results Results have implications for the on-going processes at the International Court of Justice in which Myanmar, the Russia Federation, Syria and Israel are being accused of violating the Genocide Convention, as well as future situations in which civilians suffered allegedly criminal acts committed by States. Conclusions The case law that the Court is elaborating around the proof of the special intent required, as well about any precautionary measure requested, will be essential to distinguish the crime of genocide from other international instruments that are part of international humanitarian and criminal law, but do not provide - at the moment - access to the jurisdiction of the Court. Keywords: human rights / genocide / provisional measures / responsibility of States
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Term Paper with subsequent minor edits