神戸大学附属図書館デジタルアーカイブ
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https://doi.org/10.24546/00181279
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2024-04-26
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00181279 (fulltext)
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メタデータID
00181279
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open access
出版タイプ
Version of Record
タイトル
旧ユーゴスラヴィア国際刑事裁判所の事項的管轄権
キュウユーゴスラヴィア コクサイ ケイジ サイバンショ ノ ジコウテキ カンカツケン
その他のタイトル
The Jurisdiction Ratione Materiae of International Criminal Tribunal for the Former Yugoslavia
著者
著者名
大西, 央子
Ohnishi, Nakako
オオニシ, ナカコ
所属機関名
神戸大学大学院国際協力研究科
収録物名
国際協力論集
巻(号)
6(2)
ページ
137-164
出版者
神戸大学大学院国際協力研究科
刊行日
1998-12
公開日
2007-05-22
抄録
The International Criminal Tribunal for the Former Yugoslavia describes jurisdiction concerning punishable crimes under its competence: the jurisdiction ratione materiae (subject-matter jurisdiction). The punishable crimes, based on the principle of nullum crimen sine lege, are provided from Article 2 to Article 5 under the Statute of the International Tribunal. These four Articles embody the rules of international humanitarian law of the tribunal. This article focuses on the problems of the jurisdiction ratione materiae, examines scopes and interpretations of applicable law through jurisprudence of the Tribunal, and assesses the work of the Tribunal. It is about. for five years that the United Nations Security Council, through its resolution 808 and 827 under Chapter 7 of the United Nations Charter, has established the ad hoc Tribunal to prosecute and judge persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991. The Security Council has expressed that the appalling violations of human rights in the former Yugoslavia constitute a threat to international peace and security. Therefore, the establishment of the Tribunal, as an enforcement measure, has been regarded as the only measure to protect human rights and to restore and maintain international peace and security expeditiously and effectively. Seventy-seven persons have been indicted so far, although, only two per-sons, Erdemovic and Tadic, have been pronounced judgements and imposed sentences and penalties. Particularly, the latter case, Tadic trial , sets a precedent for other proceedings or trials in which chambers, the first trial and the appeals, made two decisions on its jurisdiction challenged by the accused on the three grounds. Two decisions on jurisdiction, the one rendered by the trial chamber on 10 August 1995 , and the appeals chamber on 2 October 1996, stand different positions to interpret the scope of the jurisdiction ratione materiae. The appellant claimed that Articles 2, 3 and 5 could apply only to the crimes committed in the context of international armed conflict. The trial chamber concluded that Article 2 was a self-contained provision for which the international armed conflict wasn't necessary condition, and Articles 3 and 5 could apply both in internal and international armed conflict. The appeals chamber, however, denied the afore-mentioned decision, concluding that Article 2 solely applies to the offences committed in international armed conflict , and that Article 3, including Common Article 3 of the Geneva Conventions in 1949, has the jurisdiction over the crimes committed both in internal and international armed conflict. Moreover, the appeals chamber set general requirements to be fulfilled for Articles 2 and 3 to become applicable, which were invoked as the threshold standards in the other proceedings such as Martic or Rajic case. In considering the causes of these issues , we may have the clue from the arguments by the members of the Security Council or by international lawyers at the establishment of the Tribunal. There made different interpretations on the jurisdiction even at that time, and consequently they have been reflected on the stage of the actual trial. At the adoption of the resolution 827, members of the Security Council in-tended not to legitimate new norms or precedent of international law, but to apply the existing international law. However, it can be said that through the trials , the Tribunal not only has rearranged the jurisdiction ratione materiae, but also has developed progressively existing international humanitarian law by giving new interpretation to it. In my view, the discrimination, which the Tadic trial brought in , would be undesirable for the Tribunal between the crimes committed in internal armed conflict and ones committed in international conflict in order to examine the applicability of the rules of international humanitarian law. By the decision of the appeals chamber, the Tribunal would have to deal with an additional task, that is , a task to find the character of an armed conflict to apply Articles. Rather, the decision of the trial chamber could be supportable because it would serve the original purpose of the Tribunal: to deter the violations of human rights as the grave breaches of international humanitarian law and prosecutes persons who committed such crimes, regardless the nature of the conflict. This purpose also provides a special character to the Tribunal: a character with prompt and ad hoc to respond to such situations immediately in order to save the victims on the territory of the Former Yugoslavia. In conclusion, the scope and the content of the jurisdiction ratione materiae have been redefined in the trials; the work of the Tribunal shows that the Tribunal would evolve the norms of the international humanitarian law through its own interpretations on the rules in future.
カテゴリ
国際協力研究科
国際協力論集
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6巻
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6巻2号(1998-12)
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資源タイプ
departmental bulletin paper
言語
Japanese (日本語)
ISSN
0919-8636
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NCID
AN10418744
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NAID
110000551535
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URI
http://www.research.kobe-u.ac.jp/gsics-publication/jics/
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