International criminal law


International criminal law
This article is about international criminal law and crimes against international law. For crimes that have actual or potential effect across national borders, see Transnational crime.

International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against humanity as well as the War of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law.

"Classical" international law governs the relationships, rights, and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation of those prohibition imposed by individual states. International criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals.

The International Criminal Court in The Hague
The Lebanon Tribunal in Leidschendam, Netherlands

Contents

History

Some precedents in international criminal law can be found in the time before the First World War. However, it was only after the war that a truly international criminal tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After the Second World War, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The International Military Tribunal for the Far East). It operated from 1946 to 1948.

After the beginning of the war in Bosnia, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission had commenced preparatory work for the establishment of a permanent International Criminal Court in 1993; in 1998, at a Diplomatic Conference in Rome, the Rome Statute establishing the ICC was signed. The ICC issued its first arrest warrants in 2005.

Sources of International Criminal Law

International criminal law is a subset of international law. As such, its sources are the same as those that comprise international law. The classical enumeration of those sources is in Article 38(1) of the 1946 Statute of the International Court of Justice and comprise: treaties, customary international law, general principles of law(and as a subsidiary measure judicial decisions and the most highly qualified juristic writings.) The ICC statute contains an analogous, though not identical, set of sources that the ICC may rely on.

The importance of prosecuting international crimes

The prosecution of severe international crimes—including as genocide, crimes against humanity, and war crimes—is a necessary to enforce international criminal law and deliver justice to victims.

This is an important component of transitional justice, or the process of transforming societies into rights-respecting democracies and addressing past human rights violations.

Investigations and trials of leaders who have committed crimes and caused mass political or military atrocities is a key demand of victims of human rights abuses. Prosecution of such criminals can play a key role in restoring dignity to victims, and restoring trusting relationships in society.[1]

The International Criminal Court, as described below, can play an important role in prosecuting international crimes in cases where domestic courts are unwilling or unable to do so.

Institutions of international criminal law

Today, the most important institution is the International Criminal Court (ICC), as well as several ad hoc tribunals:

Apart from these institutions, some 'hybrid' courts and tribunals exist—judicial bodies with both international and national judges. They are:

International Criminal Court

The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt)[2] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).[3][4]

The court's creation perhaps constitutes the most significant reform of international law since 1945. It gives authority to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.

It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force[5]—and it can only prosecute crimes committed on or after that date.[6] The court's official seat is in The Hague, Netherlands, but its proceedings may take place anywhere.[7]

As of November 2011, 117 states are states parties to the Statute of the Court, including all of South America, nearly all of Europe and roughly half the countries in Africa.[8] The Statute will enter into force for its 118th state party, the Maldives, on 1 December 2011, and its 119th, Cape Verde, on 1 January 2012.[9][10] A further 32 countries, including Russia, have signed but not ratified the Rome Statute[8]; one of them, Côte d'Ivoire, has accepted the Court's jurisdiction.[11] The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty.[12] Three of these states—Israel, Sudan and the United States—have "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their former representatives' signature of the Statute.[8][13] 43 United Nations member states have neither signed nor ratified or acceded to the Rome Statute; some of them, including China and India, are critical of the Court.[14][15] The Palestinian National Authority, which neither is nor represents a United Nations member state, has formally accepted the jurisdiction of the Court.[16] It is unclear, however, if this acceptance is legally valid.[17]

The court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council.[18] It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.[19][20] Primary responsibility to investigate and punish crimes is therefore left to individual states.[21]

To date, the Court has opened investigations into seven situations: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya and the Republic of Côte d'Ivoire.[22][23] Of these seven, three were referred to the Court by the states parties (Uganda, Democratic Republic of the Congo and the Central African Republic), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire).

It publicly indicted 26 people, proceedings against 24 of whom are ongoing. The ICC has issued arrest warrants for 17 individuals and summonses to nine others. Five individuals are in custody and are being tried while eleven individuals remain at large as fugitives (although two are reported to have died). Proceedings against two individuals have finished following the death of one and the dismissal of charges against the other.

As of March 2011, three trials against four people are underway: two trials regarding the situation in the Democratic Republic of the Congo and one trial regarding the Central African Republic. Another two people have been committed to a fourth trial in the situation of Darfur, Sudan. One confirmation of charges hearing (against one person in the situation of the DR Congo) is to start in July 2011 while two new cases (against a total of six persons in the situation of Kenya) will begin with the suspects' first appearances in April 2011.

International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pénal international pour le Rwanda (TPIR), is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.[24]

In 1995 it became located in Arusha, Tanzania, under Resolution 977.[25] (From 2006, Arusha also became the location of the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was expanded in Resolution 1165.[26] Through several resolutions, the Security Council called on the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 2012.[27]

The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva Conventions (dealing with war crimes committed during internal conflicts).

So far, the Tribunal has finished 50 trials and convicted 29 accused persons. Another 11 trials are in progress. 14 individuals are awaiting trial in detention; but the prosecutor intends to transfer 5 to national jurisdiction for trial. 13 others are still at large, some suspected to be dead.[28] The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty. According to the ICTR's Completion Strategy, in accordance with Security Council Resolution 1503, all first-instance cases were to have completed trial by the end of 2008 (this date was later extended to the end of 2009[29])

On 1 July 2012, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTR. The ICTR has been called upon by the United Nations Security Council to finish its work by 31 December 2014 and to prepare its closure and transition of cases to the Mechanism.

International Criminal Tribunal for the former Yugoslavia

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands.

The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences. The last indictment was issued 15 March 2004. The Tribunal aims to complete all trials by the middle of 2011 and all appeals by 2013, with the exception of Radovan Karadžić whose trial is expected to end in 2012 and the appeal to be heard by February 2014.[30] Goran Hadžić has been charged, however is still at large and thus do not fall within the court's completion strategy.[31]

On 1 July 2013, an International Residual Mechanism for Criminal Tribunals will begin functioning with respect to the work begun by the ICTY. The ICTY has been called upon by the United Nations Security Council to finish its work by 31 December 2014 and to prepare its closure and transition of cases to the Mechanism.

Recognition of International Criminal Law in Domestic Jurisdictions

United Kingdom

Under section 51(1) of the International Criminal Court Act 2001, genocide and crimes against humanity committed either in the United Kingdom or by United Kingdom nationals abroad can be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the United Kingdom has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is presumed territorial in the absence of express words and based on the presence of the accused within the jurisdiction. There are a number of statutes that impose criminal liability on UK and/or non-UK nationals who commit particular acts outside the jurisdiction, but this can only be exercised where the individual is present or visits the United Kingdom, otherwise the United Kingdom government would need to seek extradition from the state in which he is located.

Legal person's criminal liability

It is a rule of statutory interpretation that unless a contrary intention appears, the word "person" includes any body of persons corporate or unincorporated. Thus, once the principle of corporate liability for the form of legal entity is accepted, the entity can be charged with any international offence no matter where it was committed in the same way as a natural person.

Legal person's liability in tort

Under the Rules of the Supreme Court, a court can accept claims against a corporation for a tort arising out of an international crime committed outside the jurisdiction so long as there is some real connection with the UK (see forum shopping and forum non conveniens). This liability is usually based on some activity committed within the jurisdiction or on the fact that profits from the tortious activity have been received within the jurisdiction. Similarly, most breaches of international human rights would be tortious, e.g. torture could be trespass to the person, etc. Civil proceedings may be served on a person who is physically present within the jurisdiction, even if only temporarily. Proceedings may also be served outside the jurisdiction with the permission of the court. This will be usually be granted for defendants resident in the lex loci solutionis (the Latin tag for "the law of the place of performance whether in contract or tort), the lex situs (the Latin tag for "the law of the place where the property is located") or the proper law state.

United States

Natural and legal persons

Because the U.S. courts do not subscribe to the doctrine of universal jurisdiction, the relevant international law must have been incorporated directly into U.S. criminal law through Congressional legislation. Congress has enacted statutes covering genocide, war crimes, torture, piracy, slavery, and trafficking in women and children to meet the U.S. obligations under international agreements. If a criminal act is commenced in one U.S. state, but the defendant has fled, the first state must seek extradition and return for trial.

Legal person's liability in tort

Although U.S. federal courts do not apply the doctrine of universal jurisdiction, Joel & Dolly M. E. Filártiga v Américo Norberto Peña-Irala 630 F.2d 876 (2d Cir., June 30, 1980), interpreted the Alien Tort Statute, 28 U.S.C., which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The Filartiga ruling allows a range of tort claims for alleged breaches of the "law of nations". Companies may also be liable for the illegal exploitation of resources abroad under the National Stolen Properties Act and the Racketeering Influenced Corrupt Organizations Act (RICO), and the courts have allowed claims for forced labour and personal injuries when employed as a slave labourer, and claims by citizens of "foreign" countries for injuries inflicted by security forces employed by a subsidiary of U.S. corporations. U.S. courts have in personam (the Latin tag for "personal jurisdiction") over a corporation if:

  1. the corporation is organized in a US state jurisdiction;
  2. the corporation is doing business in a jurisdiction;
  3. the corporation has consented to be sued; or
  4. the corporation appears in court to defend the action without specifying that the purpose of the appearance is a special appearance.

In personam jurisdiction over a corporation may be "general", i.e. a suit may be brought for any cause of action over which the forum court has subject matter jurisdiction and is a proper venue; or "specific", i.e. the suit may address only those activities which gave rise to the cause of action. Even if the jurisdiction and venue are proper, a federal court has a discretion to dismiss the suit under the act of state doctrine or one of its related doctrines, such as comity or political question.

Canada

Natural persons

In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes, breach of responsibility by a military commander or a superior (usually a civilian superior), offences against the administration of justice of the International Criminal Court, and possession or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary international law.

Legal persons

Companies are not expressly included or excluded from prosecution for international crimes under CAHW. but all the standard remedies in tort are available against corporations for activities committed outside the jurisdiction. For civil jurisdiction, the court requires a "real and substantial connection" with the subject matter of the case (i.e. the forum conveniens rule).

France

Natural persons

The new Criminal Code includes a series of provisions describing crimes against humanity in considerable detail, including genocide and aggravated war crimes. A limited number of international crimes have equivalents in French domestic law, e.g. forced labour is the equivalent of illegal confinement. Extraterritorial jurisdiction is based on a connection with France through:

  • the nationality of the perpetrator (active personality jurisdiction) of the crime or the victim (passive personality jurisdiction);
  • the events constituting the crime represent a connected series of acts or an indivisible act occurring both in France and another state, or where there were acts of complicity in France for a crime committed abroad, if the acts are criminal under all relevant systems of law; or
  • the concept of universality where French public policy interests are affected.

Legal persons

In French law, a civil action can be brought jointly with a penal action before a criminal court. Corporate liability is covered in Articles 121/2 of the new Criminal Code which provide that legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides that legal persons may incur criminal liability for all crimes against humanity.

Norway

Natural persons

Norwegian municipal law incorporates specific areas of international law, but there must be a matching penal provision in the domestic criminal law as a precondition to enforcement. Norway is a signatory to the International Criminal Court which has complementary jurisdiction to municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Norway prosecutes international crimes using domestic penal law, e.g. genocide can be treated as homicide, torture as an offence against the person, etc. Norwegian criminal law is applicable to acts committed abroad by any Norwegian national or any person domiciled in Norway when the act is a felony under the law of the country in which it is committed. There is a general discretion to decline a prosecution which occurred in a case brought against the Israeli Prime Minister.

Legal persons

If a business entity domiciled in Norway is involved in unlawful activity committed outside the jurisdiction, both civil and criminal actions are available subject to the rule of "double actionability", i.e. the activity must have been unlawful under the laws of both Norway and the country of commission. The Norwegian Code of Compensation allows actions for damages for the loss and damage arising from the breach of international law. Civil jurisdiction is based on residence or temporary personal presence for natural persons and the place where the board of directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in Norway. The court must be conveniens, i.e. objectively competent in a local and functional way and, in some cases, this requires the defendant's consent.

See also

Notes

  1. ^ "Criminal Justice", International Center for Transitional Justice
  2. ^ International Criminal Court is sometimes abbreviated as ICCt to distinguish it from several other organisations abbreviated as ICC. However, the more common abbreviation ICC is used in this article.
  3. ^ Article 5 of the Rome Statute. Accessed 20 March 2008.
  4. ^ United Nations Department of Public Information, December 2002. The International Criminal Court. Accessed 5 December 2006.
  5. ^ Amnesty International (11 April 2002). "The International Criminal Court – A Historic Development in the Fight for Justice". Retrieved 20 March 2008.
  6. ^ Article 11 of the Rome Statute. Accessed 20 March 2008.
  7. ^ Article 3 of the Rome Statute. Accessed 20 March 2008.
  8. ^ a b c United Nations Treaty Database entry regarding the Rome Statute of the International Criminal Court. Retrieved 10 March 2010.
  9. ^ "Maldives becomes latest country to endorse International Criminal Court". United Nations. 2011-09-21. http://www.un.org/apps/news/story.asp?NewsID=39669. Retrieved 2011-09-22. 
  10. ^ ICC press release on the deposit of the instrument of ratification. Retrieved 30 August 2011.
  11. ^ ICC press release on Côte d'Ivoire's acception of jurisdiction. Retrieved 6 April 2011.
  12. ^ The 1969 Vienna Convention on the Law of Treaties, Article 18. Accessed 23 November 2006.
  13. ^ John R Bolton, 6 May 2002. International Criminal Court: Letter to UN Secretary General Kofi Annan. US Department of State. Accessed 23 November 2006.
  14. ^China's Attitude Towards the ICC”, Lu Jianping and Wang Zhixiang, Journal of International Criminal Justice, 2005-07-06.
  15. ^ India and the ICC, Usha Ramanathan, Journal of International Criminal Law, 2005.
  16. ^ "Declaration by the Palestinian National Authority Accepting the Jurisdiction of the International Criminal Court" (PDF). International Criminal Court. 2009-01-21. http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf. Retrieved 2011-04-06. 
  17. ^ Simons, Marlise (2009-02-10). "War court asked to examine Gaza war". The New York Times. http://www.nytimes.com/2009/02/10/world/africa/10iht-hague.4.20086185.html. Retrieved 2011-04-06. 
  18. ^ Articles 12 & 13 of the Rome Statute. Accessed 20 March 2008.
  19. ^ Article 17 of the "Rome Statute". Retrieved 20 March 2008.
  20. ^ Article 20 of the "Rome Statute". Retrieved 20 March 2008.
  21. ^ International Criminal Court. Office of the Prosecutor. Accessed 21 July 2007.
  22. ^ "All Situations". International Criminal Court. http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/. Retrieved 2011-05-20. 
  23. ^ ICC press release on Pre-Trial Chamber III authorizing the investigation. Retrieved 3 October 2011.
  24. ^ United Nations Security Council Resolution 955 S-RES-955(1994) on 8 November 1994 (retrieved 2008-07-23)
  25. ^ United Nations Security Council Resolution 977 S-RES-977(1995) on 22 February 1995 (retrieved 2008-07-23)
  26. ^ United Nations Security Council Resolution 1165 S-RES-1165(1998) on 30 April 1998 (retrieved 2008-07-23)
  27. ^ United Nations Security Council Resolution 1824 S-RES-1824(2008) page 1 on 18 July 2008 (retrieved 2008-07-23)
  28. ^ [1]
  29. ^ [2] Reuters (July 29, 2008)
  30. ^ Completion Strategy
  31. ^ [3]

References

  • John E. Ackerman and Eugene O'Sullivan, Practice and Procedure of the International Criminal Tribunal for the Former Yugoslavia with selected materials from the International Criminal Tribunal for Rwanda. The Hague etc.: Kluwer Law International, 2002, xxi + 555 pp. ISBN 90-411-1478-5
  • Ilias Bantekas, Susan Nash, Mark Mackarel, International Criminal Law. London etc.: Cavendish, 2001, lvi + 323 pp. ISBN 1-85941-557-1
  • M. Cherif Bassiouni, Introduction to International Criminal Law. Ardsley, NY: Transnational Publishers, 2003, xxxvi + 823 pp. ISBN 1-57105-286-0
  • Yves Beigbeder, Judging War Criminals. The Politics of International Justice. Basingstoke: Macmillan, 1999, xvii + 230 pp. ISBN 0-333-68153-3
  • Kriangsak Kittichaisaree, International Criminal Law. Oxford etc.: Oxford University Press, 2002, xxxi + 482 pp. ISBN 0-19-876577-0
  • Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads, Vienna / New York: Springer, 2003, ix + 449 pp. ISBN 3-211-00795-4
  • Helmut Kreicker: Immunität und IStGH: Zur Bedeutung völkerrechtlicher Exemtionen für den Internationalen Strafgerichtshof. In: Zeitschrift für internationale Strafrechtsdogmatik (ZIS), vol 7/2009, available at Zis-online.com.Zis-online.com
  • Helmut Kreicker: Völkerrechtliche Exemtionen: Grundlagen und Grenzen völkerrechtlicher Immunitäten und ihre Wirkungen im Strafrecht. 2 vol., Berlin 2007, ISBN 978-3-86113-868-6.MPICC.de
  • Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation. Kluwer, 1997, 508 pp. ISBN 90-411-0472-0
  • Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations. Nijhoff, 1992, 252 pp. ISBN 0-7923-1453-0
  • Alexander Zahar and Goran Sluiter, International Criminal Law: A Critical Introduction. Oxford: Oxford University Press, 2007, xlviii + 530 pp. ISBN 978-0-40-695904-1

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