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Military v. Civilian Criminal Justice for Core International Crimes

Oslo, 23 August 2010

Seminar concept and programme | Documents

A considerable number of states have seen investigations and prosecutions of war crimes, crimes against humanity and genocide (core international crimes) during the past decades. The level of preparedness for such prosecutions differs between countries. In terms of national legislation criminalizing such conduct, some states prosecute the cases on the basis of ordinary crimes in the national criminal code (for example, as regular murder rather than murder as a crime against humanity), whereas other states have imported the core international crimes into their national criminal law. In terms of national institutional capacity, many states have no specialized units or mechanisms to investigate, prosecute and adjudicate core international crimes cases, whereas other states have dedicated institutional arrangements or at least investigative and legal expertise available for such cases. But this last cluster of countries is not a coherent group: some states have military courts and prosecution and investigation services responsible for core international crimes cases; other states have a purely civilian criminal justice mechanism; and a third group of states have military elements in their system, such as military investigators, prosecutors or jury participation, often depending on whether there is an armed conflict or not.

Many international lawyers assume that there is a decisive historic shift away from military to civilian criminal justice for core international crimes. Is that correct? What is the factual comparative basis for such an assumption? Furthermore, what are the strengths and weaknesses of various military components in criminal justice for atrocities? How does this assessment differ between the perspectives of military lawyers, civilian public prosecutors, international humanitarian law experts, and those advocating national implementation of international humanitarian law? Can states that have reduced the military components in their criminal justice for atrocities mechanisms (such as the Netherlands and Norway) learn something from the solutions and practices of states that have stronger military justice elements for such crimes (such as Israel, the United Kingdom and the United States), and vice versa? These were among the questions discussed at this seminar.

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