遠東國際軍事法庭與國際刑法

The International Military Tribunal for the Far East and international criminal law

 

依法追究刑事責任，是指在特定意義上的自由、財產(chǎn)、生命等權(quán)利的法律，違反刑法義務(wù)，在刑法的侵權(quán)行為規(guī)范實施后，由法律制裁承擔刑事責任。ONS國際刑事責任是指根據(jù)國際刑法和相關(guān)國家的國內(nèi)刑法對非法國際主體的刑事責任。換言之，行為人實施國際犯罪行為，應(yīng)當受到國際刑法的消極評價和相應(yīng)的法律后果。

 

Introduction 簡介

Criminal responsibility according to the law is the law in the sense of a kind of rights such as freedom, property or life by the particular burden, which violates criminal law obligation, implemented after the infringement behavior norms of criminal law, the offender shall bear by the legal sanctions. International criminal responsibility refers to the criminal liability of illegal international subjects according to the international criminal law and the domestic criminal law of relevant countries. In other words, the actor carries out international criminal ACTS and should be subject to the negative evaluation of international criminal law and the corresponding legal consequences.

 

"War is a violent act that forces the enemy to obey our will." "war is a political act." "war is nothing but the continuation of politics by another means." It is the classic definition of war by the famous military theorist Clausewitz. The definition indicates that war is an act of violence. The initial motive for the war was political, in the pursuit of national interest; the direct aim is to destroy each other and make the enemy powerless to resist. "War in international law mainly refers to the armed conflict and the resulting legal status resulting from the use of force by two or more countries." In international law, war is a fact of armed conflict and a state of law. The subject of war is the state, whose purpose is to carry out national policies using force. Humans' war there was a gradual understanding of the process and restrictions, in addition to the decision-making mechanism within countries.  The international community is also guarded against violence and war restriction mechanism, for example, in the global political, diplomatic coordination, multilateral international conference, defense group form a collective security system, etc.; At the legal level, international law is a meaningful way to regulate war. The norms of international law against the war have gone through the process of limiting to fundamental denial. The first international law had specific rules for regulating conflict, mainly about war and the practice of war. In the late middle ages, the feudal states of Europe gradually gained their independence and exercised their sovereignty, and international law began to sprout, and a group of scholars of international law emerged, and they put forward the doctrine of international law concerning the war. The Spanish scholar Victoria inherited the idea of Aquinas and put forward the principle of "just war." #p#分頁標題#e#

 

The background of the international criminal law 國際刑法的背景

In modern international law, the recognition of sovereignty also recognizes that national states have the right to wage war according to their national interests, which is to acknowledge that the state has the right to battle. But after the ravages of war, the international community recognized that the war should be limited to international law. The war is still the focus of the scholars of modern international law. They inherit and carry forward the theory of just war and argue that war should be justified. The Dutch scholar Gerhold, who laid the foundation of modern international law with the law of war and peace, is known as the "father of international law."  He inherited and played the theory of just war, arguing that the key to the separation of the battle of justice and the unjust war was to conform to natural law and other laws. In August 1864, the 12 countries held an international conference in Geneva to sign the convention on the betterment of the army (Geneva convention) . Since then, the international community has organized numerous international conferences and signed international agreements on the prevention of war and the reduction of war damage . More important were the two Hague peace conferences. For easing international tensions, peaceful settlement of international disputes is to reduce the rules of war damage. From may to July 1899, 26 countries held in the Hague peace conference, discuss the peaceful settlement of international disputes, arms limitation and the problem of martial law, the meeting finally passed the principles of the Geneva convention applicable adaptation to the conference. The agreement on Marine laws and regulations and protocols, the convention on the peaceful settlement of international disputes and three weapons and fighting method declaration. From June to October 1907, 44 countries held in the Hague peace conference for the second time, the meeting adopted the convention on the peaceful settlement of international disputes; the debt limit the use of force for contract convention, and the agreement on about the war began, 13 of the assembly. Over both the peaceful settlement of international disputes convention, states parties should try to use peaceful means to resolve international disputes, in case of severe discussion, before the use of force, should be asked one or more friendly countries to mediate or the mediation. The two conventions, though a provision of the peaceful settlement of international disputes is a mandatory obligation of the parties, more not ban war, but the conference advocates the peaceful settlement of international disputes. Provisions for the use of force should be first to use peaceful solution, is to the right to resort to war a significant limitation.

 

The state is not the subject of international criminal responsibility

The state cannot constitute an international crime, nor can it become the main body of the international crime, nor can it be held accountable for the global criminal responsibility of the state. Only the individual is the subject of international crime. Some scholars believe that the country is the subject of international law, but not the subject of global corruption . The state is an abstract entity, no consciousness, there is no intent or negligence of the issue, so it does not have international crime constitution important document, so could not become the subject of global crime, countries'. Therefore, the state cannot bear the international criminal responsibility. Some scholars also believe that the state is the main body of international law on, but it is not the main body of the international crime, constitutive crime requirements, the countries don't have and the lack of criminal responsibility, only personal is the main body of the international crime. Other scholars believe that countries as consisting of all its people's society, according to the "social crime" motto, accused of countries, including the overall sense of the people, crime, and criminal responsibility is questionable. Moreover, even if the concept of national crime was established, there was no basic mechanism for the international community to try and punish the criminal state. In such a reality, the international criminal court should not and cannot exercise jurisdiction and adjudication of the state as the subject of criminal responsibility of international crimes. Of early British and international law, in its written by the international law pointed out: "the international illegal ACTS is not a crime, „ international law as between sovereign nations, rather than a country above the laws of nature.Ruled out because of an international illegal ACTS and punished the possibility of a country . At the same time, also ruled out to look at the possibility of this kind of behavior from the Angle of the crime." this theory not only denied the state international criminal responsibility main body qualifications but also deny the state as the main body of the international crime. This argument is based on: because the country does not have the crime constitution important document, so nations cannot serve as the main body of the international crime, and thus concluded that states couldn't afford the global criminal responsibility.#p#分頁標題#e#

 

The individual is the subject of international criminal responsibility

The global criminal responsibility of the individual refers to the legal consequences of the perpetrator's international crimes to be carried out and the negative comments made by the international community by international criminal law. Any individuals with criminal responsibility ability must treat their global crime criminal responsibility, this is the international society and in the international norms of unlawful constitution embodies the fundamental principle, fully embodies the rule of law of the spirit of the international criminal law in front everyone is equal . According to international conventions and customs, the international community will pursue global criminal responsibility for individuals who meet the following conditions. First, natural persons over the age of 18; Secondly, in the case of conventional crime, the status and role of the accomplice should be carried out, so long as it is involved in the implementation of international severe crimes, individual criminal responsibility should be assumed as co-perpetrator. Again, the individual to the behavior of all sorts of intentional crime form shall bear criminal responsibility, of joint-crime participation behavior in any type shall take criminal liability, but suspended crime and except effectively prevents the consequences of the sin from occurring. Finally, whether or not the criminal actor belongs to the accomplice, there should be sufficient evidence to prove that the parties are intentional in the process of establishing their international criminal responsibility. Criminal liability, as a result, those who have an ability to a natural person, during the continuation of life, as long as the implementation of the international crime, as long as its actions by relevant international crime constitutive requirements.  It will naturally become the main body of the international crime, and it shall bear criminal responsibility by the applicable provisions of the international criminal law .

 

The individual bears the practical basis of international criminal responsibility

On January 19, 1946, the allied supreme commander headquarters issued a "set up the international military tribunal special notice" (from now on referred to as "notice, ') and its accessories (from now on referred to as the charter of the far east international military tribunalcharter). Set up the international military tribunal in Tokyo, the Japanese fascist war criminals on trial. The above special notice and charter were drawn up under the authorization of Allies and, moreover, the international military tribunal consists of China, the former Soviet Union, the United States, Britain, France, the Netherlands, India, Canada, New Zealand, the Philippines and Australia and other countries in n judges. In fact, it is an international agreement among Allies that has the force of a treaty . According to article 5 of the charter, the tribunal shall have the right to adjudicate and punish various crimes committed by individual or group members, and the individual shall be solely responsible. On April 29, 1946, the international military court of the Far East formally accepted the prosecution of 28 war criminals, including dongba, and began the trial on May 3. As a result, of the 28 people on trial, ` except two people died during the trial, one person incapacity, the rest of the 25 people, seven people were sentenced to hang, 16 people were sentenced to life imprisonment, two people were each sentenced to 20 years and seven years in prison. In Nuremberg and Tokyo trial, the defendant and their lawyers  are too perfect alibi, cited by the traditional theory of international law against personal responsibility: #p#分頁標題#e#

(1) the invasion war is "national," liability shall be borne by the state, and participate in the war just obey or implement national policies and orders; they don't have a "personal responsibility"; 

(2) the war of aggression is a crime under international law, and the subject of international law is the state rather than the individual, so the individual violation of international law should not be punished;

 (3) International law stipulates sanctions against states that violate international law, but does not impose sanctions on individuals in violation of international law;

(4) the criminal subject must have the intention of "criminal intent" to participate in the war without the intention of committing a crime. 

The court argued that "crimes are against the international law were made by individuals rather than abstract collectives (states); only individuals who have imposed these international crimes have been punished.

 

To enable effective implementation of the provisions of international law; and international law punishes individuals with numerous precedents, such as piracy and human trafficking, which are considered crimes of international law. Any country can arrest and punish them by international law. For those who violate international law, the captors or the adjudicators may have the right to the death penalty, according to the view of the international law . The ignorance of the present law and the stupidity of the current law cannot be used as a reason to exonerate everyone who knows and obeys all the requirements of the present law, including international law.

The international military tribunal for Europe and the far east international military court in its judgment, unanimously concluded: "people can be punished due to the violation of international law" and "of crimes against international law to choose a suitable textbook is made up of individuals rather than the abstract entities. Therefore, only punish the implementation of these wicked people, to implement the provisions of international law".

 

Case study 案例分析

The first principles and practices of international law that govern individuals' commitment to international criminal responsibility can be traced back to the treaty of Versailles. 5 for the first time in January 1919, the victors of world war ii, the United States, Britain, France, Italy, and Japan's foreign minister, held a meeting at Versailles, prepare the draft of contract (the Versailles treaty). At the same time, several committees were appointed to deal with the problem of fish. The second chamber dealt with the responsibility of the war actors and the criminal law. The committee recommends that any individual, who is responsible for war, regardless of his or her office, including the head of state, should bear criminal responsibility. According to the provisions of article 227 of the Versailles treaty, the allied unit, and its countries publicly accused the Kaiser Wilhelm ii destroyed before the international convention on moral and the dignity of serious crimes.It has set up a by the United States, Britain, France, Italy and Japan, the tribunal composed of five countries. The special court has the right to determine the penalty it should apply. Article 228 and 229 of the treaty of Versailles also stipulate that Germany acknowledges that the Allies have the right to judge the German nationals at war crimes and to bear the obligation to give the prisoners to a military tribunal composed of the Allies . However, since Wilhelm ii fled to the Netherlands and received asylum from the Dutch government, the trial of the war criminals was ultimately unfulfilled. But, the Versailles treaty officially established only international criminal responsibility principles of international law, namely, personal as perpetrators of international crimes. In the implementation of international crime, no matter what their identity, and whether it is in the name of the country or the name of the country on behalf of the behavior, should bear a criminal responsibility that can meet the needs of its unlawful conduct.#p#分頁標題#e#

 

The earliest example of a personal responsibility for war was the trial of PeetrvnoHagenbach in 1474. The Austrian archduke ordered a special court to hear the bloody ruler. The 28 judges of the tribunal were selected from these United Nations and towns. From then in Europe, the Holy Roman Empire was in decline, the realm of the relationship between each entity represents a feature of international, so can be concluded that this is a genuinely global trial. Despite the defendant's execution of the duke's order, the court considered the defendant guilty and deprived him of his title and related privileges and executed him. It could be the first example of a person taking international criminal responsibility. Personal can be punished due to a violation of international law" and "of crimes against international law to choose a suitable textbook is made up of individuals rather than the abstract entities, therefore, only punish the implementation of these criminal people, to make the implementation of the provisions of international law .

 

The establishment and trial practice of the European international military tribunal and the far east international military tribunal reaffirmed and reaffirmed the principles of international law for individuals to undertake global criminal responsibility . On October 30, 1943, The Three Kingdoms, the United States and the United States, issued the Moscow declaration on the severe punishment of war criminals in Moscow and decided to prosecute and investigate the criminal responsibility of German war criminals. On August 8, 1945, the United States, the Soviet Union, Britain, and France signed on the accused and punishment of the axis major war criminals of agreement (from now on referred to as "agreement"). Its accessories are in the charter of the international military tribunal in Europe (from now on referred to as the "charter, '). The European international military tribunal was established in Nuremberg, Germany, and the German fascist war criminals were tried. According to article 6 of the charter, the tribunal shall have the right to adjudicate and punish individuals who have committed crimes for the interests of the axis states as individuals or as members of the group. The criminal should be personally responsible . On October 18 of that year, the international military tribunal accepted the prosecution of 24 war criminals, such as Goering and Hess. In October 1946, an international military tribunal ruled that 12 war criminals were sentenced to death and three convicted war criminals were sentenced to life imprisonment, and four war criminals were sentenced to 10 years to a year in prison. Three people were acquitted, and two others died in the trial. On July 26, 1945, China, the United States and Britain issued the Potsdam Proclamation, which led to the surrender of Japan. The Potsdam proclamation provided for conditions that must be accepted in Japan's surrender and decided to impose severe legal sanctions on Japanese war criminals.#p#分頁標題#e#

 

The loss to humankind of the first world war was incomparable to that of any previous war, and the significant damage of war led to the realization that action must be taken to stop the fight . In January 1919, in Paris, a peace conference was held to resolve the postwar peace treaty, which was adopted by the league of nations, as part of the deal of Versailles. "The international union for the covenant" further limits the right of the country's war, according to the preface: "the contracting countries, to promote international cooperation and keep the peace and safety, special obligation not to engage in war. Scale and damage of the second world war were more than all previous war, after the war, to punish invasions of prisoners of war, the international military tribunal in Nuremberg, Germany's main war criminals for the trial, the far east international military tribunal for trial for Japan's top war criminals . Nuremberg and Tokyo trials started the precedent of criminal responsibility shall be investigated for war criminals personal, namely except countries want to assume the responsibility of the war, the individual also should assume liability to launch a war of aggression and violation of the laws of war. It is a further denial from another level of conflict. To maintain international peace and security after world war ii the United Nations charter, not only is no war, and it will prohibit expanded to use threats and force, the war against the state rights to make the new specifications. Charter of the United Nations says in the preface to set up the UN's aim is: "the human desire to avoid later this generation twice those of jasmine miserably unbearable speech," "guarantee for the public interest, not the use of force." Article 1 states: "the purposes of the United Nations are: one, to maintain international peace and security.  And for this purpose: to adopt an effective collective approach to prevent and eliminate the threat of peace, to stop ACTS of aggression or other peaceful destruction. By peaceful means and by the principles of justice and international law, to adjust or resolve international disputes or situations that are sufficient to undermine peace . Article 2, paragraph 4, establishes the principles of international law that "shall not be threatened by force or force" in international relations. On April 14, 1974, the United Nations general assembly passed a resolution on the definition of aggression; the decision has been clear about the meaning of attack and war to the country's most often explained, further the fight to make contrary rights provisions of the state.

 

Application 應(yīng)用

The issue of humanitarian intervention and its legality has been a controversial issue in international legal theory and practice. The study of humanitarian intervention and its legitimacy has always been a hot topic in western international jurisprudence. The humanitarian response involves only international law and includes international politics and international relations. However, from the perspective of international law, individual humanitarian intervention conflicts with the current global law. In the history of international relations, there have been many cases of humanitarian intervention in universal practice. It quoted as one of the earliest examples of humanitarian intervention is in 1827, Britain, Russia and France to the interference of the Ottoman empire. When the revolutionary war between Greece and Turkey of the brutality of the public opinion to shock, Britain, France, Russia has carried on the intervention, the 19th-century humanitarian response or in the name of humanitarian intervention is widespread. After the 20th century, with the development of international relations, some changes have taken place in international law. Especially after the end of World War I and the birth of the League of Nations, the state's right to resort to force began to be mainly restricted. After World War II, the UN charter banned the unilateral use of force by the state . However, in international practice, military operations in the name of humanitarianism still abound. In 1948, for example, the Arab states' military action against Israel and the 1983 U.S. intervention were in the United States of Greenland. These military operations or based on humanitarian grounds, generally or publicly branded as humanitarian intervention, some even though not as humanitarian intervention, but the so-called "humanitarian" factors. In particular, on the eve of the human society entering the 21st century, NATO to humanitarian name, without the authorized by the United Nations security council, unilaterally to the more than 70 days of bombing of Yugoslavia, evoke a strong repercussion among the international community and serious . The Kosovo war was billed and excited as a model of humanitarian intervention by western opinion circles. After the Kosovo war, the western international law had an upsurge of discussion of humanitarian intervention and its legality, or to find the basis. From the habit of international law scholars, think that humanitarian intervention has been formed for the habits of international law, or from the charter provisions for the basis.  Think that the provisions of the charter of human rights imply the rights of humanitarian intervention, or that the human rights situation constitutes a threat to international peace and security, so the international community has the right to take compulsory measures, etc. The heads of government of some western countries and even the secretary-general of the United Nations are pushing for a "new interventionism" that is based on humanitarian intervention. But these claims were opposed by most developing countries, as the former Yugoslavia and the international law and war crimes court judge. Historical experience has shown that when the "humanitarian intervention" is individual countries as a right against another country to exercise, it will be misused because these countries tend to be to achieve the selfish purpose," for the sake of humanity "or" human rights "is just camouflage. Therefore, the view that the state has the right to "humanitarian intervention" is very dangerous and therefore has been denied by most countries in the world. For the international community to safeguard human rights, to prevent large-scale serious human rights abuses caused by the global or regional intervention, not interference, more can't exemplify in support of the so-called "humanitarian intervention" rights or principles .#p#分頁標題#e#

After the September 11 incident, the United States carried out counterterrorism operations, including the war in Afghanistan, which had an impact on the existing rules of international law. First, the war in international law is the act of the state. But, unlike in response to other countries' armed attack, terrorist attacks on the United States also has caused the United States declared war on other countries' behavior, and joint and several legal liabilities by individuals, organizations to the country. Second, other countries are required to support, and opposition must make a choice, otherwise, it has been labeled as a terrorist or support terrorism, and in actually denied the traditional legislation . Third, the concept of the right to self-defense in international law has been expanded. By international law, self-defense is by the conditions of the armed attack (not including the threat of force) in other countries. However, the U.S. government has proposed the concept of preventive self-defense and has been supported by some countries such as Australia. The biggest problem, however, is the challenge to the United Nations and its mechanisms. From Paris in 1928, the convention and other international documents, the formation of the charter of the United Nations in 1945, the war was not as an instrument of national policy, banning the use of force or threat of force has become a principle of international law . At present, according to international law, the relevant exceptions are only the self-defense of the state and the military action authorized by the United Nations security council. On November 8, 2002, by the UN security council resolution 1441 on Iraq, no "automatic trigger force action," that is to say, even if Iraq a serious violation of the UN resolution, automatic did not allow the use of force against Iraq. The United States believes that the charter of the United Nations was a product of the 1940s when arrangements for international peace and security were outdated and could not reflect the need for new anti-terrorist situations; At the same time, the UN is too weak to do anything. So it did not appeal to the United Nations during the military strike against Afghanistan, or even the NATO alliance, as it did in Kosovo . Now the United States has joined only a handful of Allies to take unilateral action against Iraq. The United Nations is established, the joint United defeated fascist countries, especially power creates a peaceful, so countries, especially the big powers of United can safeguard the world peace. As a result, the United Nations security council was endowed with the major responsibility for maintenance of international peace and security and is the only agency has the right to take action, including force, and the permanent members of the security council have the double veto, have more responsibilities than other countries. Despite the criticism, the new world war has not been fought since the founding of the United Nations. The reason is various, in particular, the United Nations center for harmonizing actions of multilateral diplomacy and play an irreplaceable, more and more important role, for indeed made the great contribution to world peace and security. Now, the United States in Iraq has once again put aside the United Nations. It is dangerous to the political and legal consequences: the credibility of the United Nations will discount, the collective security system will lose its luster, and by the charter of the United Nations of the relevant rules of international law. Especially, considering in recent years, the us-led NATO military action in Kosovo, the American military strikes in Afghanistan without prior authorization of the United Nations, all the consequences arising out of the military force in Iraq will be more and more serious . It should note that the law does not equal the creation of law, and the international community should continue to uphold the existing international law and the authority of the United Nations. America's violation of the rules of law does not negate the validity of the rule of law. Although international law theory also has international habits, international habit formation requires long-term practice and legal recognition of all countries, is not to say that there is a precedent is a new rule of law. The interpretation and assertion of international law by the United States unilaterally or in a few countries cannot change the existing international law. The challenges that the United States has posed to international law, and the challenges or violations of international law, do not mean that the rules of international law have changed . On the other hand, the official statements of governments are of legal significance in international law. According to the principle of prohibition, a country's own recognized legal rules and facts may have the effect of not repenting. So, clear in time and showed his position and views on related issues, can hinder his opposition or do not wish to accept the formation of the rule of law, put an end to the rules in their effectiveness in the form of the international custom. Therefore, each member should express you clearly in a united represented by the United Nations charter prohibits the use of force principle of respect and abide by international law rules, such as maintenance of the UN Security Council as the only international institution with legal force action of the authority. In fact, America's isolation and passivity in its approach to Iraq have shown that it is difficult for the United States to "carry out the fight against terrorism"; Most countries in the international community remain committed to upholding the authority of the United Nations, limiting us to pursue its unilateralism .#p#分頁標題#e#

 

Conclusion 結(jié)論

In summary, the trial practice and international legislation of contemporary international law reaffirmed the principle of international law of global criminal responsibility. The problem of the former Yugoslavia international court statute and section 7 (1) the Rwanda is the foreign criminal court statute are stated explicitly. 6 (1) of all plans, instigated, command, guilty of or to assist in law or incite others to plan, prepare, or crime involved. Individuals should take personal responsibility for their crimes.