Wyniki wyszukiwania - Biblioteka Nauki

1

State immunity – ICJ judgment in Ferrini

100%

Menkes M.

Studia Prawnicze

|

2012

|

nr 2 (191)

33-65

EN

On February 2010 International Court of Justice decided that an Italian appeals court sentence Ferrini violated jurisdictional immunity of Germany, to which it is entitled in respect of acts de iure imperii. Adopting a restrictive approach Judges stated that procedural nature of the immunity shall be viewed separately from substantive provisions, according to which conduct of German armed forced had been qualified as war crimes. Accordingly enjoying protection of jurisdictional immunities does not, at the current stage of international law development, contradict protection of fundamental rights. This narrow perception of the problem and certain inconsistencies in legal reasoning between the Court and its judges will probably diminish importance of the judgment as a point of referral in further debates concerning the scope and nature of the jurisdictional immunities. At the same time complex factual and legal context of the proceedings allows to conjecture at to the reasons behind such a ruling.

2

When ownership hurts: Remembering the in-group wrongdoings after a long lasting collective amnesia

100%

Leone G. , Sarrica M.

Human Affairs

|

2012

|

tom 22

|

nr 4

603-612

EN

This study explores the effects of two different kinds of text addressed to young Italian students, which convey past in-group war-crimes either in a detailed or in an evasive way. After completing a first questionnaire (and confirming the social amnesia on these crimes) a sample of Italian university students (number: 103; average age: 21.79) read two versions (factual vs. evasive) of a same historical text on Italian invasion of Ethiopia (1935–36). The results show that participants reading a detailed text feel react more emotionally and feel more involved. However, the more negative reactions linked to the detailed text were also associated to a stronger will to repair intergroup relations with the descendents of ancient victims of the in-group crimes. Positive consequences of negative emotions linked to detailed text that challenge a widespread collective amnesia of war crimes are discussed.

3

ZBRODNIE W SREBRENICY I SARAJEWIE PRZED MIĘDZYNARODOWYM TRYBUNAŁEM KARNYM DS. ZBRODNI W B. JUGOSŁAWII. CASUS RATKO MLADICIA

89%

Szpak A.

Ruch Prawniczy, Ekonomiczny i Socjologiczny

|

2012

|

tom 74

|

nr 4

79-91

EN

The aim of this paper is to present the prognosis of the judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Ratko Mladic´ case. Mladic´, who served as a general of the Bosnian Serb army, is responsible for the crimes committed in Srebrenica and Sarajevo. Based on the list of charges against Mladic´, and taking into account the previous ICTY judgments, the authoress makes an attempts to prove that Mladic´ will be convicted for crimes of genocide as well as unlawful attacks and terrorising the civilian population (the latter ones being war crimes). Moreover, General Mladic´ as the chief of staff of the Bosnian Serb army was giving orders to his subordinates including generals Krstic´ and Galic´. An analysis of their cases has also been made for the purpose of the paper, to the extent useful and meaningful to the Mladic´ case. It is then concluded that having been the Krtic´’s and Galic´’s commander, Mladic´ should also be found guilty of the same crimes they have been found to have committed.

PL

Celem artykułu jest przedstawienie prognozy wyroku Międzynarodowego Trybunału Karnego ds. Zbrodni w b. Jugosławii (MTKJ) w sprawie Ratko Mladicia, generała armii bośniackich Serbów odpowiedzialnego za zbrodnie popełnione w Srebrenicy oraz Sarajewie. Po wskazaniu stawianych mu zarzutów autorka próbuje wykazać, że – biorąc pod uwagę dotychczasowe orzecznictwo MTKJ – Mladić zostanie uznany winnym zbrodni ludobójstwa w Srebrenicy oraz bezprawnych ataków i terroryzowania ludności cywilnej (te ostatnie jako zbrodnie wojenne). Mladić jako szef sztabu głównego armii bośniackich Serbów wydawał rozkazy swoim podwładnym (m.in. generałom Krsticiowi i Galiciowi). W artykule zostały przeanalizowane ich sprawy w takim zakresie, w jakim mają znaczenie dla sprawy Mladicia. Ten ostatni jako ich przełożony wydający im rozkazy powinien zostać uznany winnym takich samych zbrodni jak oni, to jest tych wymienionych wyżej.

4

Calling a Spade a Spade: How to Unwrap a Genocidal Essence from the Kremlin Anti-Ukrainian Rhetoric

88%

Riabchuk M.

Eidos. A Journal for Philosophy of Culture

|

2022

|

tom 6

|

nr 4

8-20

EN

The sheer number and scale of the war crimes and crimes against humanity committed by the Russian military in Ukraine since the beginning of their all-out invasion, has prompted many experts and politicians to define this brutality as a genocide and seek for the prosecution of perpetrators under international law. The lawyers are cautious in this regard, however, maintaining that crucial element of the criminal case – the clear-cut proof of a genocidal intent on the side of the Russian leadership – might be missing or largely unprovable in the court. This article provides an overview of the ongoing debate on the alleged Russian genocide in Ukraine and argues that the Kremlin’s genocidal intent can be proved if the anti-Ukrainian rhetoric of Russian officials, pundits, and propagandists is systemically scrutinized, deconstructed, and contextualized.

5

Forced Passportization and the Problem of Its Criminalization in the International Law

88%

Pylypenko V.

Teka Komisji Prawniczej

|

2024

|

tom 17

|

nr 2

397-407

EN

The article analyses the problem of forced passportization of Ukrainian citizens in the temporarily occupied territories of Ukraine by the Russian occupation authorities during Russia’s armed aggression against Ukraine. This process began as early as the period of the illegal occupation of Crimea and its scale significantly increased with the beginning of the full-scale invasion on February 24, 2022. It is stressed that the forcing of Ukrainians to obtain Russian citizenship is carried out as part of the Russian authorities’ policy. In this context, we analyse the latest legislation of the Russian Federation which relates to the procedure for granting Russian citizenship by the Russian occupation authorities. Examples of forcing Ukrainians living in the occupied territories to obtain citizenship of the Russian Federation through intimidation, threats, and deprivation of basic human rights and freedoms are cited. Forced passportization in the occupied territories of Ukraine, carried out by the Russian authorities, is a violation of the International Humanitarian Law, in particular Article 4 of the IV Geneva Convention of 1949 “On the Protection of the Civilian Persons in the time of war” and Article 4 of the IV Hague Convention of 1907, which prohibits forcing the inhabitants to swear allegiance to the occupying power. It has been established that in contemporary international law, coercion to obtain citizenship of the occupying power does not constitute an independent component of a war crime. It is concluded that such violations of International Humanitarian Law may constitute a war crime and it indicates the need for the criminalization of forced passportization by amending the Rome Statute of the International Criminal Court. It is proposed to constitute a new war crime by adding to Paragraph 2 (b) of Article 8 of the Statute of the International Criminal Court a new war crime: forcing the inhabitants of the occupied territories to obtain citizenship of the occupying state.

6

Dekret Prezydenta Rzeczypospolitej Polskiej o odpowiedzialności karnej za zbrodnie wojenne z dnia 30 marca 1943 roku

88%

Uczkiewicz D.

Studia nad Autorytaryzmem i Totalitaryzmem

|

2019

|

tom 41

|

nr 2

79-123

EN

On 30 March 1943 the Decree of the President of the Polish Republic on Criminal Liability for War Crimes, the first normative act setting down the legal basis for persecution of war criminals issued by one of the Allies during the Second World War, was proclaimed. The promulgation of the decree can be considered as the turning point in the Polish government-in-exile’s policy towards the problem of the prosecution and punishment of Nazi criminals, which started in autumn 1939. After the announcement of the draft decree, developed by the Polish minister of justice, professor of state law, Wacław Komarnicki and by an international lawyer, professor of criminal law, Stefan Glaser in the spring of 1942, a fierce discussion on the legal act’s concept broke out in the Polish government and lasted until November 1942. Although all Polish politicians agreed on the need to define the principles of individual criminal liability for war crimes, the proposal to promulgate criminal legislation with retroactive effect aroused much controversy. However, as the course of these debates shows, the critical point was not the mere fact of violating the lex retro non agit principle. The scepticism of some Polish politicians towards this idea resulted from purely pragmatic reasons and was caused by lack of support from the American and British governments for the proposal to define legal frames for the future trials of war criminals (this attitude changed only in spring 1945). This article presents the genesis and provisions of the Decree of the President of the Polish Republic on Criminal Liability for War Crimes of 30 March 1943 in the context of international debates on international criminal law and individual liability for war crimes. It argues that the legislative works on the decree and its proclamation in March 1943 mark an important point in the process of shaping the concept of prosecution and punishment of war criminals during the Second World War.

7

President before the court? A legal analysis of the implications of the issuance by the International Criminal Court of an arrest warrant for Omar Al-Bashir and Muammar Al-Gaddafi

88%

Rogala M.

Studia Prawnicze

|

2011

|

nr 3-4 (189)

35-61

EN

One of the most frightening aspects of the crime of genocide, war crimes or crimes against humanity is not so much their scale as their relationship with the sovereign power of the state, which either condone, or even participate in their making. It happens when the theoretically unlimited sovereign state power, which is connected with a monopoly on the use of coercive measures, begins to be used against its own citizens. Because of such a misuse of the state functions in the second half of the 20th century international law began to be treated as an element of protection of innocent people against the unpredictable sovereign state. Providing such a protection is enshrined in the international conventions, and in the activities of various international bodies, including in particular the Security Council of the United Nations. But so far there has not been found in the international law an ideal way to solve the conflict between the need to protect fundamental individual rights and the respect of sovereignty of the state. Creation by an international treaty of the International Criminal Court can be described as a major step on the way to the final determination of the relationship between human rights and state sovereignty. Hence, the process of its creation and first years of operation was marked by a dispute between the defenders of those values. In particular this is reflected in a controversy that caused the issuing by the Court of the arrest warrant for the Sudanese President Omar al-Bashir, suspected of committing on the territory of Darfur war crimes, crimes against humanity and genocide. One of the key issues emerging in connection with the Arrest Warrant issued for the head of state is a way to determine the mutual relationship between the obligations of states towards the international court, appointed for the purpose to prevent the gravest international crimes remaining unpunished, and the norms of international law obligating respect for the state sovereignty, by ensuring the immunity of his head is being observed. This article is an attempt to analyze this relationship, regarding the provisions of the Statute of the International Criminal Court, the wording of Security Council Resolution 1593, refering to the Court situation in Darfur and the Security Council Resolution 1970 refering to the Court situation in Libya, and also appropriate rules of customary international law and decisions of international courts.

8

Obligation to comply with ICJ decisions: the "Jurisdictional Immunities" saga within the Italian legal order

75%

Kuc O.

Studia Iuridica

|

2024

|

tom 102

109-131

EN

The 2012 judgment of the International Court of Justice in "Jurisdictional Immunities" concerned the application of state immunities in Italian courts and its failure to recognize the rights of Germany in this regard. Once the ICJ found Italy in violation of international customary law and ordered that relevant judicial decisions should cease to have effect, Article 94 of the UN Charter providing for the obligation to comply with ICJ decisions began to apply. The paper tracks down attempts to implement "Jurisdictional Immunities" in the Italian legal regime, analyses different – legislative and judicial – means of compliance, and presents general observations on the complexity associated with the fulfilment of the obligation to comply.

9

The Life Course of Collective Memories: Persistency and Change in West Germany between 1950 and 1970

75%

Karstedt S.

Polish Sociological Review

|

2009

|

tom 165

|

nr 1

27-38

EN

This paper uses (West) Germany as an exemplary case to analyse the formation of collective memories over a period of more than two decades after 1945. It traces the formation of collective memories in the German public through a decade of collective amnesia, followed by a period of regaining collective memories. It argues that the formation of collective memories is embedded in social and normative change, and identifies three causal factors that were responsible for the oscillation between amnesia and memory: the absence of victims in the imminent post-war period, that promoted the ‘myth of innocence’ (Fulbrook 1999); a series of major trials that started in the 1960s; and young elites who acknowledged moral and legal guilt and supported the trials, reconciliation and compensation. Data from public opinion polls covering the period from 1950–1970 are presented.

10

Niedoceniona Komisja Narodów Zjednoczonych

75%

Grzeloński B.

Themis Polska Nova

|

2015

|

nr 2(9)

92-105

EN

The article presents, based on the archival materials, the major events that led to the creation of the United Nations War Crimes Commission (UNWCC). The author points out that the development of the international criminal law, which was in its initial stage until 1939, was the work of some outstanding laweyers. The acomplishments of the UNWCC have enabled the establishment of the International Military Tribunal in Nuremberg and Tokyo and carrying out the trials against war criminals.

11

„The dead are sleeping here” - the history, archaeology and ethnography of Chojnice’s Death Valley

75%

Kobiałka D.

Folia Praehistorica Posnaniensia

|

2023

|

tom 28

76-101

EN

Death Valley in Chojnice, Poland, is a mass murder site from World War II where Germans and various officials of the Third Reich organised and carried out mass executions of Poles. The site and the events that took place there have been the subject of scholarly research and war crimes prosecutions since 2020. This paper intends to outline three aspects of them: 1) how playing in Death Valley as a child determined the later scholarly interest in the site, 2) how reading of a book Chojnice 1939–1945, about World War II and the crimes committed in the region, drew attention to undiscovered aspects of the site, 3) the last parts present the course and preliminary results of three seasons of scientific research and prosecution of war crimes committed on the northern outskirts of the town.

12

Analiza polityczna i prawna zbrodni nacjanalistów ukraińskich w województwie rzeszowskim w latach 1944-1947

75%

Kuźniar B.

Przegląd Geopolityczny

|

2014

|

tom 8

243-258

PL

Celem artykułu jest wykazanie ideologicznych przyczyn zbrodni nacjonalistów ukraińskich w województwie rzeszowskim w latach 1944 – 1947 (a częściowo również w okresie wcześniejszym), dokonanie oceny prawnej dowodów tychże zbrodni oraz, w oparciu o zebrany materiał, udzielenie odpowiedzi na pytanie: czy OUN i UPA zasługują na miano organizacji narodowowyzwoleńczych narodu ukraińskiego?

EN

The Ukrainian nationalists committed many crimes in Poland before WW II, e.g. they murdered the Polish Minister of Interior Bronisław Pieracki. The work by Dmytro Doncow “Nacjonalizm” (published in 1926) and the work by Stepan Łenkawśkyj “The Decalogue of a Ukrainian nationalist” were very popular with them. Both of them promoted fascist ideology of the Organisation of Ukrainian Nationalists [OUN] (est. 1929). OUN collaborated with the Germans during WW II, e.g. the Ukrainian auxiliary police escorted Jews from ghettoes to the places of execution and murdered many of them. Although the Germans did not approved of their proclamation of independence and arrested the leaders of the radical fraction of OUN Stepan Bandera and Jarosław Stećko (and some others) in July 1941, they did not stop collaborating with the Germans. The Ukrainian nationalists decided to start the genocide of Polish people in Volhynia, where the Poles constituted a minority. For this reason, they established the Ukrainian Insurgent Army [UPA] in March 1943. They murdered most of their victims by deception, some of them were even killed in churches during services. Their goal was to exterminate as many Poles as possible. They tortured their victims in a very sadistic way, with no exception for infants, children, pregnant women and old men. The structures of the Polish self-defence protected people at risk from OUN and UPA. Moreover, sometimes the armed Polish secret forces, executed those Ukrainians, who collaborated with OUN and UPA, as a revenge for killing Polish civilians. Many of the Ukrainians supported OUN and UPA and supplied them with food. For this reason the Polish communist authorities, decided to relocate the Ukrainian civilians and to smash OUN and UPA in the south – eastern territories of Poland. The military operation “Vistula” achieved these goals in the summer, 1947. Regarding OUN and UPA as the Ukrainian independence movement seems to be wrong, because of their criminal activity, imposing compulsory service in UPA and murdering those Ukrainians, who did not support them.

13

Criminal Liability for Crimes Against Humanity as a Problem of International Law

75%

Diallo B. S.

Adam Mickiewicz University Law Review

|

2019

|

tom 9

77-83

EN

The article sets out the nature, the history and the general structure of the crime against humanity and provides a comprehensive analytical commentary of the elements of such crimes as a problem of international law. The contextual element determines that crimes against humanity involve either large-scale violence in relation to the number of victims or its extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental or isolated acts of violence. In addition, Article 7(2) (a) of the Rome Statute determines that crimes against humanity must be committed in furtherance of a State or organizational policy to commit an attack. The plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances. In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity.

14

Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation as a Ground for Prosecution of Crimes against Humanity, War Crimes and Crimes against Peace

75%

Wierczyńska K.

Polish Yearbook of International Law

|

2017

|

tom 37

275-286

EN

This article discusses definitions of crimes included into the Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation, and their usefulness in prosecuting individuals who committed international crimes. It is argued that the provisions of the Act cannot constitute a ground for criminal responsibility of individuals, as they violate the principle of nullum crimen sine lege certa.

15

Prosecuting War Crimes and Meeting Obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms at the Same Time – the Case of Croatia

75%

Barberić L. , Čolak D. , Dolmagić J.

Croatian International Relations Review

|

2015

|

tom 21

|

nr 74

41-61

EN

This article aims to give an overview of how human rights violations that occurred during the Homeland War in Croatia are redressed by conducting criminal prosecution in the Republic of Croatia. Namely, criminal prosecution as one of the elements of transitional justice is essential not only for establishing the accountability of war crime perpetrators, but also as a warning that such violations shall not be tolerated in the future. Moreover, drawing on the jurisprudence of the European Court of Human Rights, this article examines how the efforts made by national prosecution bodies to investigate war crimes are assessed by this court. It concludes with the idea that both prosecution of war crimes and protection of human rights, as guaranteed by The Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights, seek to achieve the same goal, i.e. protecting the most basic human rights of the war crimes victims and other individuals.

16

Problematyka ochrony dziedzictwa kulturowego w działalności międzynarodowych trybunałów karnych

71%

Stryjkowska S.

Adam Mickiewicz University Law Review

|

2016

|

tom 6

211-228

EN

The article aims to present the problem of the ineffectiveness of international legal instruments for the protection of cultural heritage. It presents examples of where such laws were violated and suggests that international criminal law can contribute to a better condition of cultural property. The author emphasizes that the International Criminal Court should play an important role in safeguarding such property from destruction in the future. In that context, the article presents inter allia the case of Ahmad Al Faqi Al Mahdi, which is claimed to be a milestone in the protection of cultural heritage.

17

The Reluctant Warrior: the Challenge to Instilling Law of War Values in Today’s Professional Warrior

63%

Austin, W. Chadwick , McKelvy S. D.

Studia Iuridica

|

2019

|

tom 82

29-52

EN

George C. Marshall, famed U.S. World War II general and eventual U.S. Secretary of State and Nobel Peace Prize winner, on his first assignment fresh out of military school, told a fellow officer: Once an army is involved in war, there is a beast in every fighting man which begins tugging at its chains. And a good officer must learn early on how to keep the beast under control, both in his men and himself Even for nations possessing a reputation for stringent compliance with the law of war, the annals of history, to include more contemporary military engagements, are littered with cases of atrocities committed by soldiers. All too often the beast wins, and because every nation has an obligation to minimize the reality described above, nations must continue to dedicate time, thought and resources to best prepare their forces for future military operations. Unrestrained warfare has a direct negative military impact on both winning the war and winning the peace. This corollary remains as true today as it has ever been. What is meant by a ‘reluctant warrior’? Put simply, a reluctant warrior is one who while ready to employ lethal force when the situation demands, is not eager to do so in “the moment”. He answers the questions: “Can I, If I, Should I”, and then takes decisive action – or employs uncommon restraint – with a goal of accomplishing the mission all the while staying true to the value imbedded in the U.S. Marines’ Hymn, “to keep our honor clean”. To fully develop the ‘reluctant warrior’ needed on today’s and tomorrow’s battlefields, this article will look at the role of legal regulation and the practice of military education and training, as well as some of the other factors that influence behavior and decisionmaking during instances of armed conflict. This article will also comment on the costs to the individual soldier and to the mission when a nation fails to prepare ‘reluctant warriors’.

18

EWOLUCJA PRAWA MIĘDZYNARODOWEGO W ASPEKCIE ZBRODNI WOJENNYCH ORAZ ZBRODNI PRZECIWKO LUDZKOŚCI

63%

Abo Saeid T.

Zeszyty Naukowe Wyższej Szkoły Finansów i Prawa w Bielsku-Białej

|

2015

|

nr 2

34-64

PL

Autor publikacji rozważa historyczny aspekt odpowiedzialności jednostki za zbrodnie przeciwko ludzkości w prawie międzynarodowym. Przybliża definicje zbrodni ludobójstwa i zbrodni wojennych. Wskazuje czynniki, które mogą przyczynić się do zwiększenia skuteczności zwalczania tego typu przestępczości.

EN

The author of the publication considers the historical aspect of individual responsibility for crimes against humanity under international law, gives definitions of genocide and war crimes and points to factors which may contribute to increase the effectiveness in combating this type of crime.

19

The Tragedy of a Whistleblower. Adamczewski’s Tragic Protest and the Case of Chelsea Manning

63%

Koltun M.

Review of International American Studies

|

2020

|

tom 13

|

nr 1

215-233

EN

Bringing most carefully guarded secrets into light, political whistleblowers deconstruct the essential oppositions upon which superpower ideologies are founded: they draw popular attention to what has been relegated to the margins of the dominant discourses. Torpedoing the reputations of the most powerful organizations in the world, and well aware of the inevitability of retaliation, they put themselves in a most precarious position. Fighting against impossible odds in the name of the greater good, facing the gravity of the consequences, they become heroes in the classical sense of the word: arguably, their dilemmas are not unlike those faced by Antigone, Hamlet and other iconic figures in history, literature and mythology. Such is the central premise of this article. The methodological frame for the analysis of the material in this study has been adopted from Zygmunt Adamczewski’s The Tragic Protest, whose theory, bringing together classical and modern approaches to tragedy, allows for the extrapolation of the principles underlying the protest of such iconic figures as Prometheus, Orestes, Faust, Hamlet, Thomas Stockman or Willy Loman to discourses outside the grand narratives of culture. His theory of the tragic protest serves as a tool facilitating the identification of the features of a quintessential tragic protester, which Adamczewski attains by means of the study of the defining traits of mythological and literary tragic heroes. It is against such a backdrop that I adapt and apply Adamczewski’s model to the study of materials related to Chelsea Manning in search of parallels that locate her own form of protest in the universal space of tragedy.

20

At the Crossroads of International Criminal Law, the Montreal Convention, International Humanitarian Law, and Human Rights: Some Remarks on the Interpretation of International Law by the Hague District Court in the MH-17 Judgments and Their Potential Legacies

63%

Gubrynowicz A.

Polish Yearbook of International Law

|

2022

|

tom 42

133-151

EN

This article seeks to answer the question of how international criminal law (ICL), the 1971 Montreal Convention, and international humanitarian law (IHL) influenced the proceedings in the MH-17 case, with particular emphasis on the Dutch Prosecutors’ line of reasoning in proceedings before the District Court in The Hague (DCiTH), as well as on the judgments that the DCiTH delivered on 17 November 2022. Notably, the analysis below aims to establish whether, by refusing to grant combatant status to the defendants, the District Court acted within the limits permissible under international law, even though this Court admitted that at the moment of the MH-17’s downing, the nature of the conflict in Eastern Ukraine was an international, not a non-international, one. In conclusion, the article argues that, firstly, even though the DCiTH’s interpretation of the IHL is not free of certain flaws, the Court’s line of reasoning and the sentences it delivered are a pragmatic attempt to bridge the gap between the proper administration of justice and the efficiency of criminal proceedings in a case where an airplane downing takes place during an international armed conflict. Secondly, although most recently the European Court on Human Rights (ECtHR) took note of the MH-17 judgments, for the reasons explained in this article the scope of their potential impact on the further development of international and domestic jurisprudence is uncertain, and remains to be seen.