This work provides a clear and concise account of the principles governing international crimes and an outline of intern
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OXPORD
INTERNATIONA CRIMINAL
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Antonio Cassese
INTERNATIONAL CRIMINAL LAW
Digitized by the Internet Archive in
2011
http://www.archive.org/details/internationalcriOOcass
INTERNATIONAL CRIMINAL LAW ANTONIO CASSESE
OXFORD UNIVERSITY PRESS
OXFORD UNIVERSITY PRESS Great Clarendon Street, Oxford 0x2 6dp
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Sedulo curavi, humanas actiones non ridere, non lugere, neque detestari, sed atque adeo
intelligere:
humanos
affectus, ut sunt
misericordia, et reliquae animi commotiones,
non
proprietates contemplatus sum, quae ad ipsam aestus,
tempestas, tonitru,
frigus,
sunt, necessaria
tamen
gere conamur, et
et
alia
amor, odium, ut
ita
ira, invidia, gloria,
humanae naturae
pertinent, ut ad
vitia,
sed ut
naturam
aeris
hujusmodi, quae, tametsi incommoda
eorum naturam intellicontemplatione aeque gaudet, ac earum rerum
sunt, certasque habent causas, per quas
Mens eorum
vera
cognitione, quae sensibus gratae sunt.
Spinoza, Tractatus politicus (1677),
*
'I
sedulously endeavoured neither to deride nor to pity nor to loathe
human passions— such as commotions of human soul— not as vices of human nature,
stand them. Thus
cold, tempest,
I
have regarded
what
is
§4,
28-37*
actions, but only to under-
love, hatred, wrath, envy, glory,
but as quantities that pertain to
mercy and other it,
just as
warm,
thunder and similar phenomena pertain to weather. Even when they are uncomfortable they
are nevertheless necessary. their nature.
human
I,
They
are
grounded on
And our mind draws from
agreeable to our senses.'
their true
specific causes.
Through
we try to understand much pleasure as from
these causes
apprehension and understanding
as
CONTENTS xv
Preface
Abbreviations
xvii
Table of Cases Cited
xxiii
PART 1
i:
INTRODUCTION
THE REACTION OF THE INTERNATIONAL COMMUNITY TO ATROCITIES
2
3
1.1
The
1.2
Other responses to
failure
of international sanctions by States atrocities
5
FUNDAMENTALS OF INTERNATIONAL CRIMINAL LAW
15
2.1
The notion of international criminal law
15
2.2
General features of international criminal law
16
2.3
The notion of international crimes
23
2.4
Sources of international criminal law
25
2.5
The
37
historical evolution of international crimes
PART
SUBSTANTIVE CRIMINAL LAW
III
SECTION 3
3
i:
INTERNATIONAL CRIMES
WAR CRIMES
47
3.1
The notion
3.2
The need internal)
3.3
47
for a link
armed
between the offence and an (international or 49
conflict
Establishing whether a serious violation of international
humanitarian law has been criminalized
50
3.4
The
objective elements of the crime
54
3.5
The
subjective element of the crime
57
3.6
The
definition of
war crimes
in the Statute
of the
ICC
59
CONTENTS
viii
4
5
6
CRIMES AGAINST HUMANITY 4.1
The notion
64
4.2
The
origin of the notion
67
4.3
The
objective element of the crime
74
4.4
The
subjective element of the crime
81
4.5
The
possible authors of the crime
83
4.6
The
possible victims of the crime
85
4.7
Customary international law and
Article 7 of the
ICC
Statute
91
GENOCIDE
96
5.1
The notion
96
5.2
The
objective element of the crime
98
5.3
The
subjective element of the crime
103
5.4
Genocide and crimes against humanity
106
5.5
Article 6 of the
ICC
Statute
107
OTHER INTERNATIONAL CRIMES (AGGRESSION, TORTURE, AND TERRORISM)
110
6.1
Introduction
110
6.2
Aggression: the notion
111
6.3
Objective and subjective elements of aggression
1
6.4
The
possible impact
on
14
judicial findings of the appraisal of
aggression by international political bodies
117
6.5
Torture: general
117
6.6
The emergence of a customary
6.7
rule
on
torture
1
19
Objective and subjective elements of torture
1
19
6.8
Trans-national, State-supported, or State-sponsored terrorism
120
6.9
The
125
diverse forms of terrorism
SECTION
7
64
FUNDAMENTALS OF INTERNATIONAL CRIMINAL RESPONSIBILITY
II:
GENERAL PRINCIPLES 7.1
7.2 7.3
135
Preliminary remarks
135
The principle of individual criminal responsibility
136
The
principle of legality of crimes {nullum crimen sine lege)
139
7
CONTENTS
8
9
7.4
Articulations of the principle of legality
7.5
The
11
(
145
nulla
poena
sine lege)
MENS REA
1
57
159
8.1
The methodological problem
159
8.2
General categories of mens
162
8.3
Recklessness
168
8.4
Culpable negligence
171
8.5
The ICC
176
8.6
Judicial determination of the subjective
rea: intent
Statute
element
PERPETRATION AND OTHER MODALITIES OF CRIMINAL CONDUCT
177
179
9.1
General
179
9.2
Perpetration
180
9.3
Co-perpetration
181
9.4
Participation in a
9.5
10
principle of legality of penalties
IX
common
purpose or design
181
Incitement or instigation as a form of participation in international crimes
189
9.6
Inchoate crimes: general
190
9.7
Planning
192
9.8
Ordering
193
9.9
Attempt
194
9.10
Conspiracy to commit genocide
196
9.11
Incitement to genocide
198
CRIMINAL LIABILITY FOR OMISSIONS
200
10.1
General
200
10.2
Rules imposing the positive obligation to act
201
10.3
Mens
203
10.4
The
rea
responsibility of superiors
MULTIPLICITY OF OFFENCES
203
212
11.1
General
212
11.2
Differentiating classes of multiple offences
212 2
1
2
1
1 1
.3
The
1 1
.4
The impact of multiplicity of crimes on sentencing
test
based on protected values
CONTENTS
X
12
13
14
CIRCUMSTANCES EXCLUDING CRIMINAL LIABILITY: JUSTIFICATIONS AND EXCUSES between
and excuses
12.1
The
12.2
Customary international
12.3
Self-defence
12.4
Excuses: two
12.5
Excuses based on lack of individual autonomy
224
12.6
The ICC
229
distinction
justifications
law: general
219 221
222
main
categories
Statute
OTHER EXCUSES! SUPERIOR ORDER, NECESSITY, DURESS, AND MISTAKE may
they be pleaded as a defence?
224
231
13.1
Superior orders:
13.2
Necessity and duress
242
13.3
Mistake of fact
251
13.4
Mistake of law
256
IMMUNITIES 14.1
General: various classes of immunities
14.2
Functional and personal immunities provided for in international
14.3
231
264
customary law
The customary
264
265 rule lifting functional immunities in the case of
international crimes
267
14.4
International personal immunities
271
14.5
National personal immunities
273
PART
15
219
III:
PROSECUTION AND PUNISHMENT BY NATIONAL COURTS
LEGAL GROUNDS OF JURISDICTION
277
15.1
Introduction
277
15.2
The
principle of territoriality
277
15.3
The
principle of active nationality
281
15.4
The
principle of passive nationality
282
15.5
The
universality principle
284
L5.6
Objections to universality
292
9
CONTENTS
15.7
15.8
16
Is
XI
the exercise of universal jurisdiction allowed by customary
international law?
293
Trends in the exercise of national criminal jurisdiction
295
THE IMPACT OF INTERNATIONAL LAW ON NATIONAL LEGISLATION 16.1
301
Are there international customary rules obliging States to prosecute international crimes?
16.2
301
Are there customary rules authorizing States to prosecute international crimes?
303
16.3
The
16.4
International rules imposing respect for fundamental safeguards in
limited impact of international law
on national courts
national trials
17
309
LEGAL IMPEDIMENTS TO THE EXERCISE OF NATIONAL JURISDICTION
312
17.1
Amnesty
312
17.2
Statutes of limitation
316
1
7.3
17.4
The prohibition of double jeopardy ne (
bis in
idem)
Immunities
PART
IV:
i:
GENERAL
Abortive early attempts (1919-1945)
18.2
Criminal prosecution in the aftermath of the Second World War:
Nuremberg and Tokyo Tribunals (1945-1947)
The work of the ILC (1950-1954)
The post-Cold War 'new world
order'
333
and the development of ad
hoc Tribunals (1993-1994)
The
18.6
The establishment of so-called
drafting
334
and adoption of the Statute of the ICC (1994-1998)
18.5
courts or tribunals
329
for the elaboration of the statute
of an international criminal court 18.4
327 327
18.1
18.3
1
PROSECUTION AND PUNISHMENT BY INTERNATIONAL COURTS
THE ESTABLISHMENT OF INTERNATIONAL CRIMINAL TRIBUNALS
the
3
321
SECTION 18
303
340
internationalized or mixed criminal 343
CONTENTS
Xii
19
INTERNATIONAL VERSUS NATIONAL JURISDICTION
348
19.1
Primacy and complementarity
348
19.2
The primacy ofthelCTY and the ICTR
349
19.3
The complementarity of the ICC
351
19.4
The Nuremberg scheme versus the ICC scheme
353
19.5
The need for international criminal courts and upon State co-operation
tribunals to rely 355
19.6
Models of co-operation
19.7
Co-operation of States under the
19.8
Co-operation of States under the ICC scheme
358
19.9
The question of surrender of nationals
360
355
ICTY and ICTR scheme
357
SECTION IK INTERNATIONAL CRIMINAL TRIALS 20
THE ADOPTION OF THE FUNDAMENTAL FEATURES OF THE ADVERSARIAL SYSTEM AT THE INTERNATIONAL LEVEL 20.1
The
20.2
How the two
20.3
The transposition of the
365
adversarial versus the inquisitorial system: general
models work:
a
365
comparison
adversarial
367
model on
to the international
376
legal level
20.4
20.5
21
22
The
principal elements of the inquisitorial
model incorporated
into
international procedure
386
Towards a 'mixed' procedural model
387
THE GENERAL PRINCIPLES GOVERNING INTERNATIONAL CRIMINAL TRIALS
389
21.1
The nature and
21.2
The presumption of innocence
390
21
.3
The
principle that judges
393
2
.4
The
principle of fair
21.5
The
principle that the accused
1
role of the principles
389
must be independent and impartial
and expeditious
395
trial
must be present
at his trial
400
STAGES OF INTERNATIONAL PROCEEDINGS IN
OUTLINE
(A)
PROSECUTOR'S INVESTIGATIONS AND PRE-TRIAL PROCEEDINGS
22.1
General
22.2
The
setting in
406
406
motion of international criminal investigations
406
1
CONTENTS
Xlll
22.3
Conditions the prosecutor must
22.4
Conduct of investigations by the prosecutor
409
22.5
Pre-trial proceedings
416
fulfil
before initiating an investigation 408
TRIAL PROCEEDINGS
(B)
22.6
Case presentation
418
22.7
Rules of evidence
421
22.8
Control of proceedings
425
22.9
Deliberations
425
22.10 Sentencing
427
Reparation or compensation to victims
22.1
429
APPELLATE AND REVIEW PROCEEDINGS
(C)
22.12 General
430
22.13 Appeals against interlocutory decisions
432
22.14 Appeals against
judgment or sentence
433
22.15
Review of judgment or sentence
434
22.16
Review of other
435
final decisions
ENFORCEMENT OF SENTENCES
(D)
22.17 Place of
imprisonment
436
22.18 Conditions of detention
22.19 Reduction or
commutation of sentence and pardon
22.20 Supervision of
imprisonment
437 438
THE SPECIFICITY OF INTERNATIONAL TRIALS
(E)
23
436
22.21
The unique
22.22
The merits of international criminal
22.23
The main problems of international criminal proceedings
traits
of international criminal
trials
justice
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
439 441
442
445
23.1
The importance of reacting
23.2
Current trends in the reaction to widespread atrocities
446
23.3
Resorting to improved Truth and Reconciliation Commissions
450
23.4
Enhancing the
452
23.5
National criminal judges and international courts
455
23.6
Using mixed criminal courts and tribunals for international crimes
456
to widespread atrocities
role of national courts
445
CONTENTS
XIV
23.7
Some
tentative conclusions: the
various fronts
Index
need to work for criminal
justice
on 457
459
PREFACE book
In this
have endeavoured to
I
from an immense array of
distil
both
cases,
national and international, as well as the relatively few available treaties, the funda-
mental rules proscribing inadmissible conduct as international crimes, and outlining
and punishment of such crimes.
international proceedings for the prosecution
Offences prohibited as international crimes, in particular war crimes, have for long
been stigmatized. Their alleged perpetrators have been brought to
many
manner by
in a systematic
Now
scholars.
dispense justice and the International Criminal Court
long awaited mission,
it
is
is
and
fairly to
about to commence
fulfilling
succinctly to
expound
is,
make up
am
what
give
patchwork of disparate
fairly
complete,
my purpose.
if
have tried
I
the fundamentals of both substantive and procedural inter-
national criminal law. In so doing, as possible, that
effectively
time for commentators to offer a
concise, outline of international criminal law. This has been
I
a great
two ad hoc International Tribunals
that the
former Yugoslavia and Rwanda) have proved able
(for the
its
on
trial
occasions. Nonetheless, strikingly this subject matter has never been dealt with
I
I
made an
also have
hope
is
rules, principles, concepts,
and
much
effort to conceptualize as
a coherent theoretical
framework
to the
legal constructs that at present
international criminal law.
keenly aware that this
first
attempt
is
destined to be replaced fairly soon by
more extensive and in-depth treatment of this complex matter. I would be content if book could serve as a general introduction, for both students and practitioners, to
this
this fascinating
branch of international law and
practitioners to delve deeper into I
have cited
all
its
as a stimulus to other scholars or
notions.
the national or international cases that
to a particular matter
seemed
to
me
to be relevant
under discussion. The purpose of my mentioning cases was not
only to support a specific proposition by reference to the jurisprudence relating thereto, or to
show how courts have applied a rule of law, or what interpretation they it. I have also aimed to point to the historical and human dimension of
have placed on cases.
For this purpose,
have tried as
I
court's legal findings. For,
any other,
results
for the victims
from
and
a
far as possible to
one should never
forget that this
myriad of small or great
and even the perpetrator, who, when brought tion of
life,
at worst,
rarefies the halo
one reads
a law
tragedies.
their relatives, the witnesses, the
criminal proceedings and,
if
found
guilty,
recount the facts behind the
may
to
body of
law,
Each crime
more than
is
a tragedy,
community to which they belong, trial,
will
endure the ordeal of
suffer greatly, in the
or of personal liberty, at best. Law,
it
is
well
form of depriva-
known,
filters
and
of horror and suffering surrounding crimes. As a consequence,
when
and
cruel
book or
a
judgment, one
is
led almost to forget the violent
origin of criminal law prescriptions. That origin, however, remains the rationale And
underpinning of those prescriptions. One ought not to become oblivious recall
it
may
to
it.
To
serve as a reminder of the true historical source of criminal law. This
PREFACE
XVI
is about human folly, human wickedness, and human aggressiveness. It deals with the darkest side of our nature. It also deals with how society confronts violence and viciousness and seeks to stem them as far as possible so as 'to make gentle the life on this world'. Of course the lawyer can do very little, for he is enjoined by his professional ethics neither to loathe nor to pity human conduct. He is required to remain impassive and simply extract from the chaos of
branch of law, more than any other,
conflicting standards of behaviour those that
seem
To provide the English-speaking reader with
to
him
details
to be
imposed by
law.
of cases in other languages,
I
have relied extensively upon, besides the most significant older or more recent cases in English, relevant
judgments
in
Dutch, French, German,
Italian,
and Spanish. Transla-
tions are mine, unless indicated to the contrary. In order not to divert attention
the essentials,
I
from
have cited in footnotes the cases or passages that are of relatively
minor importance. The reader may therefore ignore footnotes without missing the gist
of the reasoning.
The reader interested in consulting the treaties and other documents cited in this book may use the Oxford University Press companion web site. I am grateful to I. Pierangeli Borletti for skilfully helping I
am
set
up
chapters:
this website.
who
beholden to a few friends or colleagues
comments on some
M.
me
M. Delmas-Marty,
Papa, B. Swart. Other friends
(P.
Gaeta, John R.
kindly read and
made
insightful
S.
Manacorda,
W.
D. Jones, G. Mettraux, and
F.
Mantovani,
Zappala) read the whole book and offered helpful criticisms and suggestions.
S.
Of
course, the responsibility for any misapprehension that
may remain
rests solely
with me.
As
I
am
keenly aware of
how
vast this subject matter
overlook significant cases or miss inaccuracies,
I
would be
link
on the companion web
cassese internationalcriminallaw
site:
and how easy
grateful for
suggestions or critical remarks, which should be sent to
comments'
is
me
it
is
to
any comments,
via the 'contact
and
www.oup.com/uk/best.textbooks/law/
A
ABBREVIATIONS AILC AJCL
American International Law Cases
AJIL
American Journal of Comparative Law American Journal of International Law
Ambos, Der Allgemeine
Ambos,
K.,
Der Allgemeine
Teil des Volkerstrafrechts
Ansdtze einer Dogmatisierung (Berlin: Duncker
TeiV
—
&
Humblot, 2002) Ascensio, Decaux, Pellet,
Droit international penal
Ashworth, Principles
Ascensio, H., Decaux,
E.,
and
Pellet,
A. (eds), Droit
international penal (Paris: Pedone, 2000)
Ashworth,
A., Principles of Criminal
Law, 3rd edn
(Oxford: Oxford University Press, 1999) Bassiouni and Nanda,
A
Bassiouni
M. C, and Nanda
V.
P.
(eds),
A
Treatise
on
International Criminal Law, 2 vols (Springfield:
Treatise
Thomas, 1973)
BILC
British International
British Military
Manual
The War Part
III
Law Cases
The Law of War on Land (being of the Manual of Military Law) (London: War Office,
Office, 1958) Bull.
Crim.
Bulletin des arrets de la
Cour de
Cassation,
Chambre
criminelle (Paris)
BYIL
British Yearbook of International
Cassese, Delmas-Marty,
Cassese A., and Delmas-Marty
Juridictions nationales
Crimes internationaux Cassese, Gaeta,
and
Jones,
ICC Commentary
(eds), Juridictions
nationales et crimes internationaux (Paris: PUF, 2002)
Cassese A., and Delmas-Marty Cassese, Delmas-Marty,
Law
M.
M.
(eds),
Crimes
internationaux et juridictions Internationales (Paris:
PUF, 2002) Cassese, A., Gaeta,
Rome
P.,
Jones,
J.
R.
W. D.
(eds),
Statute of the International Criminal
Commentary (Oxford: Oxford
University Press, 2002)
CLForum
Criminal Law
CLR
Columbia Law Review
CrimLR
Criminal
CSCE
Conference on Security and Co-operation in
Donnedieu de Vabres, Proces
Donnedieu de Vabres, Traite
The
Court—
Forum
Law Review
Europe
Donnedieu de Vabres, H., 'Le proces de Nuremberg devant les principes modernes du droit penal international', 70 HR (1947-1), 477-582 Donnedieu de Vabres, et
H., Traite de droit criminel
de legislation penale comparee, 3rd edn (Paris:
Sirey,
1947)
ABBREVIATIONS
XV111
Entscheidungen des Obersten Gerichtshofes fur die
Entscheidungen
Britische
(Berlin
Zone
— Entscheidungen in Strafsachen, 3 vols
and Hamburg: Walter de Gruyter, 1949-51)
EJIL
European Journal of International
Fischer, Kress, Liider,
Fischer, H., Kress,
International
and
National Prosecution
Law
Liider, S. R. (eds), International
and National Prosecution of Crimes under International (Berlin: Berlin Verlag Arno
Law — Current Developments Spitz,
Fletcher, Basic Concepts
C,
2001)
Fletcher, G.
P.,
Basic Concepts of Criminal
York and Oxford: Oxford University Fletcher, Rethinking
Fletcher, G.
Toronto:
Friedman
FRUS
Law (Boston and Brown & Co., 1974) The Law of War— A Documentary History, Rethinking Criminal
Little,
Friedman, 2 vols
P.,
Law (New
Press, 1998)
L.,
(New
Random House,
York:
1972)
Papers relating to the Foreign Relations of the
United States
FRY
Federal Republic of Yugoslavia (Serbia and Montenegro)
GA
General Assembly of the United Nations
Glaser, Culpabilite
Glaser
HR Glaser, Introduction
S.,
'Culpabilite en droit international penal', 99
(1960-1), 473-591
Glaser
S.,
Introduction a Vetude du droit international
penal (Bruxelles, Paris
:
Bruylant-Recueil Sirey, 1954)
GP
Giustizia penale
HILJ
Harvard International Law Journal
HLR
Harvard Law Review
HR
Recueil des Cours de VAcademie de droit international de
La Haye
IACHR
Inter-American Commission of
ICC
International Criminal Court
ICJ
International Court of Justice
ICLQ ICTR ICTY
International
Human
Rights
and Comparative Law Quarterly
International Criminal Tribunal for
Rwanda
International Criminal Tribunal for the former
Yugoslavia
Law
ILR
International
IMTFE IMT
International Military Tribunal for the Far East, Tokyo International Military Tribunal for the
Criminals,
IMT
Tokyo
Reports
R.
J.
Major War
Nuremberg
Pritchard and
War Crimes
Trial
S.
Magbanua Zaide
(eds)
The Tokyo
(The Complete Transcripts of the
Proceedings of the International Military Tribunal for the Far East),
(New York and London: Garland
Publishing House, 1981)
ABBREVIATIONS
International Conference
on Military
Trials
XIX
Report of Robert H. Jackson, United States Representative International Conference on Military Trials,
to the
London 1945 (Washington DC: Department of State, 1949)
IRRC
International Review of the
Human
Red Cross
IYHR
Israeli
IYIL
Italian Yearbook of International
JAIL
Japanese Annual of International
JCP
Juris- classeur periodique (la
Jescheck, Entwicklung
Jescheck, H. H., 'Die Entwicklung des Volkerstrafrechts
Yearbook on
Rights
Law Law
semaine juridique), France
nach Niirnberg', Schweizerische
Zeitschrift fur Strafrecht
(1957), 217-48 Jescheck, Protection
Jescheck, H. H., 'La protection penale des Conventions
internationales humanitaires', 24 Revue Internationale de droit penal (1953),
Jescheck, Verantwortlichkeit
13-67
Jescheck, H. H., Die Verantwortlichkeit der Staatsorgane
Vbikerstrafrecht:
nach
Prozessen (Bonn:
eine Studie zu den Nurnberger
Ludwig Rohrscheid
Verlag,
1952) Justiz
und NS-Verbrechen
Justiz
und NS-Verbrechen, Sammlung Deutscher
Strafurteile
wegen Nationalsozialistischer
Totungsverbrechen 1945-1966, 22 vols (Amsterdam: University Press Amsterdam, 1968-75), also available
on
CD-Rom Kelsen, Principles
Kelsen, H., Principles of International
Rinehart Kirk McDonald, Swaak-
Goldman, Substantive and Procedural Aspects
Kirk
& Co.,
McDonald
Law (New York:
1952) G.,
and Swaak-Goldman O.
(eds),
and Procedural Aspects of International Criminal Law The Experience of International and
Substantive
—
National Courts,
vol.
I
(The Hague, London, Boston:
Kluwer Law International, 2000) Leiden Journal of International
LJIL
LRTWC
Law Reports
of Trials of War Criminals, 15 vols (London:
UN War Crimes Commission,
others,
1949)
Mantovani, R, Diritto penale, 4th edn (Padua:
Mantovani
May and
Law
ICTY
Procedure and Evidence
Cedam, 2001) R. May and others (eds), Essays on ICTY Procedure and Evidence— In Honour ofG. Kirk McDonald (The Hague: Kluwer, 2001)
Mettraux, Landmark Decisions
Mettraux G.
(ed.), International
Criminal Law before
National Courts— A Collection of landmark Decisions (Oxford: Oxford University Press, 2003, forthcoming)
NederJ
Nederlandse Jurisprudentie
ABBREVIATIONS
XX
NAM
Non-Aligned Movement
Law Review
NILR
Netherlands International
NSDAP NSKK
German German
PCIJ
Permanent Court of International
Pradel
Pradel,
PrepCom
Preparatory Committee on the Establishment of an
national socialist (Nazi) party
commandos
national socialist (Nazi)
J.,
Justice
Droit penal compare (Paris: Dalloz, 1995)
International Criminal Court
Quintano
Ripolles, Tratado
Quintano
Ripolles, A., Tratado de derecho penal
internacional e internacional penal, vol.
CSIC,
Istituto 'Francisco
RDPC
Revue de droit penal
RGDIP
Revue generale de
RDMDG
Revue de droit
Roling, The
Law
of War
et
(Madrid:
de Vitoria', 1955)
de criminologie
droit international public
militaire et de droit de la guerre
Roling, B. V. A., 'The
Law of War and
Jurisdiction since 1945', 100
RPE SA
I
HR
the National
(1960-11), 329-453
Rules of Procedure and Evidence
Sturm Abteilung (Nazi paramilitary
Sassoli
and Bouvier
M. in
and A. Bouvier
Sassoli
War?
(eds),
force)
How Does Law Protect
Documents and Teaching Materials,
Cases,
(Geneva: ICRC, 1999)
SC
UN Security Council
ss
Schutz
Smith and Hogan
Smith and Hogan, Criminal Law, 9th edn (London:
Staffel
(Nazi
elite
corps)
Butterworths, 1999) Trial
of the Major
War
Criminals
Trial of the
1
Triffterer,
ICC Commentary
Major War Criminals Before
Military Tribunal,
the International
Nuremberg 14 November 1945-
October 1946 (Nuremberg, 1947)
Triffterer,
O. (ed.),
Commentary on
the
Rome
Statute
of the International Criminal Court (Baden-Baden:
TWC
Nomos, 1999) Trials of War Criminals
before the Niirnberg
Military Tribunals under Control Council 12 vols (Washington,
DC: US Govt
Law
no. 10,
Printing Office,
1950)
UNMIK
United Nations Interim Administration in
UNTAET
Kosovo
United Nations Transitional Administration East
US Restatement Third
The American Law
Institute,
Third, Restatement of the
Law
in
Timor
of the United States, vol.
American Law
Restatement of the Law
Law— The Foreign I
(St. Paul,
Relations
Minn.:
Institute Publishers, 1987)
ABBREVIATIONS
Verhandlungen
XXI
Verhandlungen des Reichstags
I.
Wahlperiode 1920, Band
368, Anlagen zu den Stenographischen Berichten bis
2628
original text of the cases tried
Court
Nr 2254
(Berlin: Julius Sittenfeld, 1924): contains the
by the German Supreme
at Leipzig
Law Law Commission
YIHL
Yearbook of International Humanitarian
YILC
Yearbook of the International
1
TABLE OF CASES Germany, Supreme Court (Oberster Occupied Zone, decision of 6 September 1949, in
A.,
Gerichtshof) in the British
Entscheidungen,
II,
144-7 ... 83
I,
Akayesu (appeal, decision on the consolidation or summarization of motions not yet disposed of), ICTR, Appeals Chamber, decision of 22 August .
101,434
74,
.
...
judgment of 18 December 1996 Kuwait, United Kingdom, Court of
Appeal, decision of 12 March 1996, in 107 ILR, at
536-51 ... 449
Al-Adsani
Human
v.
United Kingdom, European Court of
Rights,
judgment of 21 November
Khalifa
AH Al-Megrahi and Lamen (Appeal), United
Kingdom,
Appeal Court, High Court of Justice, decision of 14 March 2002, on line www.scotcourts.gov.uk/html/lockerbie.asp# verdict ...
131
AH Al-Megrahi and Lamen Khalifa Fhimah, United States, US Court of Appeals for the Second
Almelo
Circuit,
judgment of 26 November US LEXIS 3061
1996, 101 F 3d 239, 1996
and others, US Military Tribunal sitting Nuremberg, judgment of 4 December 1947, TWC, iii, at 954-1201; Annual Digest 1947, 278-90 ... 73, 148, 154, 155, 197
at
in at
Angeklagter H., see H.
the Conflict in Chechnya, Russian Federation,
line:
www.icrc.org/ihl-nat.nsf ... 56
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, Preliminary Objections (Bosnia and Herzegovina
Federal Republic of Yugoslavia),
v.
International Court of Justice,
...
19,
Arlt,
The Netherlands, Special Court of Cassation, judgment of 1 1 April 1949, NederJ., 1949, at 747-51. English excerpts in Annual
Albrecht,
Aleksovski, ICTY, Trial
Kruger and others
Chamber
I,
judgment of
25 June 1999 (case no. IT-95-14/1-T) ... 188 Aleksovski (decision on Prosecutor's appeal on admissibility of evidence),
ICTY Appeals
Chamber, decision of 16 February 1999 no. IT-95-14/1-A)... 35,396
NederJ., 1950, no. 8. English
Annual Digest
ICTY Appeals Chamber, judgment of 24 March 2000 (case no.
Aleksovski (Appeal),
IT-95-14/1-A) ... 35, 37, 149, 188, 428 Alfons Gotzfrid see Gotzfrid
v. Italy,
1949,
462-4
.
summary .
.
at
1949, in in
259-60
European Court of Human Rights,
decision of 13
May
1980
..
395
.
Astiz Alfred, France, Paris Court of appeal
d'appel de Paris,
(
(
bwr
Heme Chambre d'accusation)
,
case no. 1893/89, decision 20 October 1989,
unreported (case
II,
.
.
Arnhem, decision of 7 November
Artico others, see
vol.
303
Netherlands, Special Court of Cassation
Digest 1949, at 396-8 ... 65, 155, 267
and
judgment of
Reports 1996,
Araky and others (the Tokyo Trial), IMTFE, judgment of 1 November 1948, in B.V.A. Roling and C. F. Rtiter (eds), The Tokyo Judgment, vol. I (Amsterdam: APA- University Press Amsterdam, 1977), 1-469 ... 332 Dissenting Opinion of Judge Bernard, ibid., 485-96... 383-4 Dissenting Opinion of Judge Pal, ibid., vol.11, 519-1039... 383, Dissenting Opinion of Judge Roling, ibid., 143, 205 vol.11, 1041-148
8
Alec Kruger
Sandrock and others
case, see Otto
.
...
II,
Altstotter
595-624
Fhimah
AH Al-Megrahi
Court of Assize
others, Italy, Trieste
11 July 1996, ICJ,
2001 ... 449 Al-Megrahi, see
and
223-47... 55
on
v.
Krupp
Constitutional Court, decision of 31 July 1995,
119
Al-Adsani
others, see
Applicability of the Second Additional Protocol to
Aksoyv. Turkey, European Court of Human Rights,
Alwyn Krupp and
others
1976, in Giurisprudenza di merito, 1977,
Judgment of 2 September 1998, case no. ICTR— 96-4-T ... 49,50,78,98,100-103, 118,156,168,188, 189,192,198,269,423
2000.
and
(Corte di Assise di Trieste), decision of 29 April
Augusto Pinochet Ugarte, see Pinochet
Chamber
Alfried Felix
Allers
Adolfo Francisco Scilingo, see Scilingo
Akayesu, ICTR, Trial
Alfons Klein see Klein Alfons
.
.
.
283
Astiz Alfred, France, Paris
Court of assize {Com
d'assises), case no.
1893/89, verdict of 16
1990, unreported,
mentioned
18-19 March 1990, Auditeur giniral
c.
K.,
at
9
.
.
.
in
/
e
283
Belgium, Court
Cassation, decision of 27
March
Monde
November
o\
L950, in
TABLE OF CASES
XXIV
31 Revue de droit penal et de criminologie
(1950-1), 653-6... 29,55
Augustine de La Pena, US, Opinion of the Judge-
November
Advocate-General,
Friedmann,
Auschwitz Concentration
and
Camp case, see Mulka
v.
Paul
on
www. 1 .umn.edu/hunaurts/iachr/c/
line:
te Velde), decision of 2 January 1951, NederJ 1952, no. 247, 516-25 ... 258
(Krijsraad in B.,
B.
Germany, Supreme Court (Oberster Gerichshof) in the British Occupied Zone, judgment of 25 May 1948, in Entscheidungen, 1,6-10... 83
and A.
case,
Zone, decision of 15 February 1949 in Entscheidungen,
I,
at
293-9
...
January 1920, in Takvim-i VekdyV, Supplement {Have) of 9 February 1920, #3771, at 3-6.
Decisions.
.
.
.
Republic,
etc.,
Landmark
180,328
Bankovic and others
v.
European Court of Human on admissibility, 12 December
12, 13
Barayagwiza (Appeal), ICTR, Appeals Chamber, decision of 2 November 1999 (case no.
ICTR-97-19-AR72)
...
55,155,235
...
see Josef Kramer
trial,
Birutis
and others v. Lithuania, European Court of Rights, decision of 28 June 2002
Germany, Supreme Court ( Oberster Occupied Zone, judgment of 4 May 1948, Entscheidungen, I, 1-6
..
.
Blaslcic (decision
on the defence motion for
of Rule 68), ICTY Trial Chamber I, decision of 29 April 1998 (case no. IT-95-14-T) ... 35, 51, 52, 82, 168, 192, 194, 338,
422
ICTY Trial Chamber I, judgment March 2000 (case no. IT-95-14-T) ...
Blaslcic,
of 3 35, 82,
189,208,422,428
(judgment on the request of Croatia), ICTY, Appeals Chamber, judgment of 29 October 1997 (case no. IT-95-14-AR108 bis). ... 36,
Blaslcic
82, 266, 269, 356, 359, 404, 411, Blaslcic (subpoena), see Blaslcic
Blockburger, US,
424
(judgment on the
Supreme Court, judgment of
1932, 284 US, 299
US
and Jabardo v. Spain, European Court of Human Rights, decision of 6 December 1988 395, 425, 427
Bosnia and Herzegovina
Barbera, Messegue
.
Cour de
cassation, decision of
6 October 1983, Gaz.Pal. 1983, 710 ff.. See English text in 78 ILR, 126-31 ... 82, 89, 267,
297,319
English text in 78 ILR, 132-6 ... 82, 89, 319
S.Ct. 180 ..
.
214-217
Court of Cassation, decision of 3 March 1948, in 73 Rivista Penale, II, 1 137-8 ... 210 Italy,
Yugoslavia (Serbia
v.
Federal Republic of
and Montenegro),
see
Application of the Convention on the Prevention
and punishment of the Crime of Genocide Boudarel case, see Sobanski Wladyslav Bouterse,
Cour de cassation, decision of 26 January 1984, JCP 1984, II, no. 20197. See
Barbie, France,
The Netherlands, Amsterdam Court of March 2000, on line:
Appeal, decision of 3
www.icj.org ... 8 Bouterse,
The Netherlands, Amsterdam Court of November 2000, on line:
Cour de cassation, decision of 20 December 1985, JCP 1986, II, no. 20655; Bull,
www.icj.org/objectives/decision.htm (in
crim. 1985, 1038-55. See English text in 78 ILR,
English); www.rechtspraak.nl (in Dutch)
Barbie, France,
136-47. liurbie,
.
.
France,
82,87,89
Cour de
cassation, decision
at
72, 148
Bonini,
Barbie, France,
others
... 395
ICTR, Appeals Chamber, decision of 31 March 2000 (case no. ICTR-97-19-AE72) ... 435 reconsideration),
.
and
Belsen
request of Croatia)
435
Barayagwisa (Appeal on request for review or
.
October 2002
(Bijzondere Raad van Cassatie), judgment of 20 March 1950, in NederJ, 1950, no. 305, 540-4
168,
Belgium, the Czech
Rights, decision
2001 ...
Rights, decision of 8
sanctions for the Prosecutor's repeated violations
Extraordinary Court Martial, verdict of 13
English translation in G.Mettraux,
313,318
Gerichshof) in the British
The Ottoman Empire,
§dkir,
.
Bl. case,
72, 148
Baba Masao, Australia, Military Court at Rabaul, judgment of 2 June 1947, in Annual Digest 1947,205-7... 209 Bahdeddin
.
Bellmer, Netherlands, Special Court of Cassation
Human
Germany, Supreme Court
(Oberster Gerichshof) in the British Occupied
.
United Kingdom, European Court of
v.
395
...
Court Martial
Court of judgment of 14 March 2001,
Rights,
Human B. case, Netherlands, Field
Aguirre and
Human
Beckles
Avril
v.
(Chumbipuma
Peru), Inter- American
75ing.html
others
Avril, see
Barrios Altos case others
1902, in
830-41 ... 39
I,
June 1988, JCP 1988, II, no. 21 149. See English text in 100 ILR, 330-7 ... 82, 89
Appeal, decision of 20
...
of 3
267
Bouterse,
The Netherlands, Supreme Court (Hoge
TABLE OF CASES
Raad), decision of 18 September 2001,
on
no. 00749/01
line:
.
.
Rivista Penale, 1946,
US .
Court of Cassation of
II,
84-9
.
.
205
and
Caroelli
Talic (decision
ICTY
indictment),
Trial
on the amended
Chamber
II,
others, Italian
Court of Cassation, 10
1947, unpublished handwritten text, pp. 4 (on file with the author) 237-8
decision
394,415
European Court of Human judgment of 19 December 1989 (case
v. Italy,
Rights,
no. 7/1988/151/205)... 402
Bruno Tesch and othes (Zyklon B case), British Military Court at Hamburg, verdict of 8 March 166, 188 1946, LRTWC, I, 93-103 .. .
Buck Karl and others, United Kingdom, Military Court sitting at Wuppertal, verdict of 10 May 1946, in LRTWC, vol. 5, at 39-44 ... 253 Buhler, Poland,
Supreme National Tribunal,
Cracow, judgment of 10 July 1948, in LRTWC, XIV, 23 ff., as well as in Annual Digest 1948, 680-2... 257,268 Burgholz case (No.
2),
United Kingdom, Military
Tribunal sitting at Hamburg, decision of 20
October 1948,
in Record of Proceedings.
summing up
Judge Advocate's
is
at
The
79-88. Text
Mettraux (ed.), Landmark Decisions .... 144, 166, 184 v.
.
and Against Nicaragua (Nicaragua United States of America), see Nicaragua
Activities in v.
Case Concerning the Arrest Warrant of 11 April 2000, International Court of Justice, judgment of 14 February 2002, on line: www.icjcij.un.org ... 24, 266, 270-271, 292-294, 454 Joint Separate Opinion of Judge Higgins, Kooijmans and Bauerganthal 454 .
.
.
Cavallo Ricardo Miguel, Mexico, order {auto) of 12 January 2001 issued by Judge Jesus Guadalupe Luna on the extradition of the Argentinian Captain Cavallo to Spain, on line:
www.derechos.org/nizkor/arg/epana/mex.html
210 pp.
8,268,318
..
Celebici, see Delalic
and
others,
Celebici (appeal), see Delalic
Charles
and
others (appeal)
W Keenan, US Court of Military Appeals,
judgment of 31 January 1969, 18 USCMA 1969 CMA LEXIS 787; 39 CMR 108-19 case, see Applicability of the
Second
Chechnya
to the Conflict in
Chilean state of emergency case, Chile, Supreme Court (Corte Suprema), decision of 30 January
Burns
On
1996, in Revista Estudios, 1996, 198-201.
Buzzacottv.
Hill,
decision of
1
Federal Court of Australia,
September 2000, 304, 452
(2000), 20-68
.
.
39
line (in Spanish): www.icrc.org/ihl-nat.nsf
ILM
v.
55
...
.
Nulyarimma
See also
in
Chumbipuma
Thompson
Aguirre and others
and
B., see
Ministere Public and Centre pour
Vegalite des chances et la lutte contre le racismev. C.
and
B.
Calley William
L., Jr,
United
States, Instructions
from the Military Judge to the Court Martial Members, March 1971, in Friedman, II, 1703-27 163, 226, 233-4, 235, 240, 296 .
.
.
Calley William
L.,
United
States,
US Army Court
of Military Review, decision of 16 February 1973, 46 ...
CMR
1131; 1973
Calley William
L.,
United
States,
257
1973, 22
CMR
USCMA 534; 19
.
.
.
1973
Rights, ...
CMA LEXIS 627;
55, 163, 226, 233, 235, 239,
Human
judgment of 15 November 1996
151
Cologna, (
Italy,
Bolzano Special Court of Assize
Corte speciale di Assise di Bolzano), decision of
10
December
1946, unreported,
on
file
with
the author (12 typewritten pages) ... 55
European Court of Human judgment of 12 February 1985 ..
v. Italy,
.
401,
402
US Army Court
Cantoniv. France, European Court of
Inter- American
Rights, Report of 29 September 1999 (case no. 10.951, report no. 109/99), on line: http:// heiwww.unige. ch / humanrts/ cases/ 1999/us 109-99.html ... 13
Rights,
of Military Appeals, decision of 21 December
48
Peru, see
Commission of Human
Colozza
CMR LEXIS 843
55, 163, 226, 233, 235, 252,
v.
Barrios Altos
Coard and others v. US, C.
108;
195,235
...
Chechnya
Additional Protocol
in
Burns, see United States
.
Case Concerning Military and Paramilitary
on objections by Momir Talic to the form of the amended amendment, 20 February 2001 Brozicek
209, 210
.
.
May
.
Brdanin and
.
Carl D. O'Neal, see O'Neal
Tribunal sitting at Nuremberg, judgment of 88-9, 20 August 1947, in TWC, II, 171-300
...
others, Italy,
Milan, decision of 12 July 1945, no. 41, in 71
267
.
others (Doctors' trial),
and
Cappellini
www. recgtspr aak. nl/ -
uitspraak (in Dutch), 14 pp.
Brand Karl and
XXV
240
Congo v. Belgium, see Case Concerning Warrant of 1 1 April 2000
the Arrest
Constitutional Conformity of Protocol Ih
Colombia, Constitutional Court, ruling no. C-225/95,
file
no.
LAT— 040,
translation in Sassoli ...
56
1995, English
and Bouvier, 1357-70
,
TABLE OF CASES
XXIV
31 Revue de droit penal et de criminologie
(1950-1), 653-6... 29,55
Augustine de La Pena, US, Opinion of the Judge-
November
Advocate-General,
Friedmann,
830-41
I,
...
Auschwitz Concentration
and
B.,
v.
te Velde),
on
www. 1 .umn.edu/hunaurts/iachr/c/
line:
...
decision of 2 January 1951,
NederJ 1952, no. 247, 516-25 ... 258
Germany, Supreme Court (Oberster Occupied Zone, judgment of 25 May 1948, in Entscheidungen, 1,6-10... 83
and A.
(Oberster Gerichshof) in the British Occupied
Zone, decision of 15 February 1949 in Entscheidungen, I, at 293-9 ... 72, 148
January 1920, in Takvim-i Vekayi, Supplement (Have) of 9 February 1920, #3771, at 3-6.
English translation in G.Mettraux, .
.
.
Landmark
180,328
(Bijzondere
European Court of Human Rights, decision on admissibility, 12 December etc.,
2001 ... 12,13
Barayagwiza (Appeal), ICTR, Appeals Chamber, decision of 2
November 1999
ICTR-97-19-AR72)
...
ICTR, Appeals Chamber, decision of 31 March 2000 (case no. ICTR-97-19-AE72) ... 435
and Jabardo v. Spain, European
Human
December 1988 Barbie, France,
.
Rights, decision of 6 .
.
Cour de
... 55,
155,235 see Josef Kramer
and
Belsen
trial,
Birutis
and others v. Lithuania, European Court of
...
others
Rights, decision of 28 June 2002
395
Germany, Supreme Court (Oberster Occupied Zone, judgment of 4 May 1948, Entscheidungen,
BlasTcic (decision
at
on the defence motion for
of Rule 68), ICTY Trial Chamber I, decision of 29 April 1998 (case no. IT-95-14-T) ... 35, 51,
52,82,168,192,194,338,422
ICTY Trial Chamber I, judgment of 3 March 2000 (case no. IT-95-14-T) ... 35, 82,
Blaskic,
Blasldc (judgment on the request of Croatia), ICTY,
Appeals Chamber, judgment of 29 October 1997 (case no. IT-95-14-AR108
bis).
82, 266, 269, 356, 359, 404, 411,
424
Blockburger, US,
...
36,
Supreme Court, judgment of
1932, 284 US, 299
cassation, decision of
See
S.Ct. 180 ..
.
v.
Federal Republic of
and Montenegro),
and punishment of the Crime of Genocide
297,319
Bouterse,
Cour de cassation, decision of 26 January 1984, JCP 1984, II, no. 20197. See English text in 78 ILR, 132-6 ... 82, 89, 319
Cour de cassation, decision of 20 December 1985, JCP 1986, II, no. 20655; Bull,
Barbie, France,
see
Application of the Convention on the Prevention
Boudarel case, see Sobanski Wladyslav
Barbie, France,
214-217
Italy,
Yugoslavia (Serbia
ff..
US
Court of Cassation, decision of 3 March 1948, in 73 Rivista Penale, II, 1137-8 ... 210
Bonini,
English text in 78 ILR, 126-31 ... 82, 89, 267,
The Netherlands, Amsterdam Court of
Appeal, decision of 3 March 2000, on
line:
www.icj.org ... 8 Bouterse,
The Netherlands, Amsterdam Court of November 2000, on line:
Appeal, decision of 20
www.icj.org/objectives/decision.htm (in
crim. 1985, 1038-55. See English text in 78 ILR,
English); www.rechtspraak.nl (in Dutch)
136-47... 82,87,89
...
liarbie,
I,
1-6 ... 72, 148
Bosnia and Herzegovina
395, 425, 427
6 October 1983, Gaz.Pal. 1983, 710
judgment of
request of Croatia)
reconsideration),
Court of
Cassatie),
Blaskic (subpoena), see Blaskic (judgment on the
(case no.
435
Barayagwisa (Appeal on request for review or
Barbera, Messegue
Raad van
20 March 1950, in NederJ, 1950, no. 305, 540-4
168,189,208,422,428
Bankovic and others v. Belgium, the Czech Republic,
European Court of
Rights, decision of 8 October 2002
sanctions for the Prosecutor's repeated violations
Extraordinary Court Martial, verdict of 13
Decisions.
313,318
Gerichshof) in the British
The Ottoman Empire,
§dkir,
.
Bl. case,
Baba Masao, Australia, Military Court at Rabaul, judgment of 2 June 1947, in Annual Digest 1947,205-7... 209 Bahdeddin
.
395
Human
Germany, Supreme Court
case,
.
Bellmer, Netherlands, Special Court of Cassation
Gerichshof) in the British
B.
Court of judgment of 14 March 2001,
Rights,
Human
Netherlands, Field Court Martial
Aguirre and
Human
Becklesv. United Kingdom,
Avril
v.
(Chumbipuma
Peru), Inter- American
75ing.html
Paul
(Krijsraad in
Mulka
others
Avril, see
B. case,
39 see
Barrios Altos case others
1902, in
Camp case,
June 1988, JCP 1988, II, no. 21 149. See English text in 100 ILR, 330-7 ... 82, 89
France, Cour de cassation, decision of 3
267
Bouterse,
The Netherlands, Supreme Court (Hoge
TABLE OF CASES
Raad), decision of 18 September 2001, on line: www.recgtspraak.nl/ -
Cappellini
no. 00749/01
uitspraak (in Dutch), 14 pp.
Brand Karl and
.
.
.
TWC,
II,
171-300
.
.
.
88-9,
II,
84-9
and
Caroelli
ICTY
indictment),
Trial
on the amended
Chamber
II,
decision
394,415
Brozicek
European Court of Human judgment of 19 December 1989 (case
v. Italy,
Rights,
Bruno Tesch and othes (Zyklon B case), British Military Court at Hamburg, verdict of 8 March 1946, LRTWC, I, 93-103 ... 166, 188 Buck Karl and others, United Kingdom, Military Court sitting at Wuppertal, verdict of 10 May 1946, in LRTWC, vol. 5, at 39-44 ... 253
Supreme National Tribunal,
LRTWC,
Cracow, judgment of 10 July 1948, in XIV, 23
ff.,
680-2
.
.
as well as in
Annual Digest
1948,
Burgholz case (No.
2),
Tribunal sitting at
October 1948,
United Kingdom, Military Hamburg, decision of 20
in Record of Proceedings.
summing up
Judge Advocate's
is
at
The
79-88. Text
others, Italian
Court of Cassation, 10
v.
.
.
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
United States of America), see Nicaragua
Case Concerning the Arrest Warrant of 11 April 2000, International Court of Justice, judgment of 14 February 2002, on line: www.icjcij.un.org ... 24, 266, 270-271, 292-294, 454
Opinion of Judge Higgins, Kooijmans and Bauerganthal 454 .
.
.
Cavallo Ricardo Miguel, Mexico, order (auto) of 12 January 2001 issued by Judge Jesus Guadalupe Luna on the extradition of the Argentinian Captain Cavallo to Spain, on line:
www.derechos.org/nizkor/arg/epana/mex.html
210pp... 8,268,318 Celebici, see Delalic
and
others,
Celebici (appeal), see Delalic
and
others (appeal)
W Keenan, US Court of Military Appeals,
judgment of 31 January 1969, 18 USCMA 1969 CMA LEXIS 787; 39 CMR 108-19 Second
case, see Applicability of the
to the Conflict in
Chechnya
Chilean state of emergency case, Chile, Supreme Court (Corte Supremo), decision of 30 January
Burns
On
1996, in Revista Estudios, 1996, 198-201.
Buzzacott v.
Hill,
decision of
1
Federal Court of Australia,
September 2000, .. 304,452
(2000), 20-68
C.
and
B., see
39
v.
and
ILM
le
racisme v.
B. L., Jr,
United
States, Instructions
from the Military Judge to the Court Martial Members, March 1971, in Friedman, II, 1703-27 163, 226, 233-4, 235, 240, 296 .
.
.
Calley William
L.,
United
States,
US Army Court
of Military Review, decision of 16 February 1973, 46 ...
CMR
1131; 1973
L.,
United
States,
1973, 22
CMR
Cantoni
v.
Rights, ...
USCMA 534; 19
.
.
.
1973
CMA LEXIS 627;
France, European Court of Human judgment of 15 November 1996
151
Peru, see
Italy,
Bolzano Special Court of Assize
(Corte speciale di Assise di Bolzano), decision of 10
December
1946, unreported,
on
file
with
the author (12 typewritten pages) ... 55
European Court of Human judgment of 12 February 1985 ..
v. Italy,
.
401,
402
US Army Court
55, 163, 226, 233, 235, 239,
Cologna,
Rights,
of Military Appeals, decision of 21 December
48
v.
Coard and others v. US, Inter-American Commission of Human Rights, Report of 29 September 1999 (case no. 10.951, report no. 109/99), on line: http:// heiwww.unige. ch / humanrts/ cases/ 1999/us 109-99.html ... 13
Colozza
CMR LEXIS 843
55,163,226,233,235,252,257
Calley William
others
Barrios Altos
Ministere Public and Centre pour
Calley William
55
...
Chumbipuma Aguirre and
Thompson
Vegalite des chances et la lutte contre C.
line (in Spanish): www.icrc.org/ihl-nat.nsf
.
Nulyarimma
See also
in
108;
195,235
...
Chechnya
Additional Protocol
Mettraux (ed.), Landmark Decisions .... 144, 166, 184
in
Burns, see United States
209, 210
.
1947, unpublished handwritten text, pp. 4 (on file with the author) 237-8
Charles
257, 268
.
.
Joint Separate
no. 7/1988/151/205)... 402
Buhler, Poland,
.
May
.
Talic (decision
on objections by Momir Talic to the form of the amended amendment, 20 February 2001 ..
Court of Cassation of
Carl D. O'Neal, see O'Neal
205 Brdanin and
.
others, Italy,
Rivista Penale, 1946,
US
Tribunal sitting at Nuremberg, judgment of
20 August 1947, in
and
Milan, decision of 12 July 1945, no. 41, in 71
267
others (Doctors' trial),
XXV
240
Congo v. Belgium, see Case Concerning Warrant of 1 1 April 2000 Constitutional Conformity of Protocol
the Arrest
II,
Colombia, Constitutional Court, ruling no. C-225/95,
file
no.
LAT— 040,
translation in Sassoli ...
56
1995, English
and Bouvier, 1357-70
,
TABLE OF CASES
XXVI
Constitutional Court (Conseil Constitutionnel),
and others (appeal), ICTY Appeals Chamber, judgment of 20 February 2001,
decision of 22 January 1999, in 15 Revue
no. IT-96-2 1 -A).
ICC Statute,
Constitutionality of the
Delalic
France,
francaise de droit administratif (1999), 308-13 ... 315
C.R.
Human
of
.
.
(communication no. 52/1979,
United Kingdom, European Court on Human Rights, judgment of 27 October 1995
C.R.
Demjanjuk
US Supreme Court, decision of 1 January 1993, 606 US 255; 1 13 S. Ct. 748; 122 L. Ed. 2nd 25; 1993 US LEXIS 832; 61 USLW
Crosby,
4078... 401
Supreme Court
(Oberster Gerichtshof), decision of 13 July 1994,
unreported, on
with the author (9
file
typewritten pages, in
German)
.
.
286
.
(in the
Daniel Monguya Mbenge
.
Human
Rights
UN
Committee 1991/92,
Committee views adopted on
25 March 1983, in Official records of the Human Rights Committee 1983-84, vol. II, at 492-4 ...
Dithmar and
Paracommando
author)
Belgium, Brussels
Military Court, decision of 1995,
no
Doctors'
details
being provided, unreported, translation from Dutch in Sassoli and Bouvier, 1068-71 236 .
Delalicand
others,
.
.
ICTY, Tribunal's President,
vol.
on the Prosecutor's Motion
Production of Notes,
.
.
.
.
297, 298
.
see
trial,
Brand Karl and
(case
Dokmanovic, ICTY,
Trial
November 1997 (Case
others
.
.
Chamber, Order of 28 no. IT-95-13a-PT)
... 385
49,395
.
Rights
399-401. ... 402
Doev. Lumintang, United States, US District Court for the District of Columbia, decision of 10 September 2001, on line: www.cja.org/ etimorjudgement.htm 448
no. IT-96-21-T), in ICTY, judicial Reports,
1996,11, 1379-411
at
for the
November 1996
11
II,
Boldt, see Llandovery Castle
.
decision
Human
Germany, Bayerisches Oberstes Landesgericht, judgment of 23 May 1996, 3 Strafrecht 20/96 (unreported, on file with the
(Osman Somowv. Soldier),
Rights
Djajic,
402
D. A. Maria Pierre
UN Human
Committee, views adopted on 26 March 1992, in Official records of the
et al. v. Zaire,
of).
Demjanjuk v. Petrowsky et al, United States, US Court of Appeals for the Sixth Circuit, decision of 31 October 1985 in (1985) 776 F.2d 571 (6th Cir.1985), 1985 US App. LEXIS 24541; also in 79 ILR 534-47 .. 294
Martin
case, see
12
matter of the extradition
Dieter Wolf v. Panama,
Dachau concentration camp Gottfried and others
Human
United States, US District Court for the Northern District of Ohio, Eastern Division, decision of 15 April 1985, 612 F. Supp. 544; 1985 US Dist. LEXIS 20740. ... 294
142,149
Cvjetkovic Dusko, Austria,
in
to Sixteenth Sessions) (1985), at 91
v.
...
UN Human
Uruguay,
Rights Committee, Selected Decisions (Second
142, 149
.
v.
Rights Committee, views of 29 July 1981
Rights, report of 27 June 1994
(application no. 20190/92)
(case
77, 79, 119, 205, 208, 209,
.
214-217, 227, 395, 415, 422, 428 Delia Saldias de Lopez
United Kingdom, European Commission
v.
.
.
and others (decision of the Bureau), ICTY, decision of 4 September 1998 77, 79, 1 19,
Delalic
394 Delalicand others (decision of the Bureau), ICTY, decision of 25 October 1999 ,77, 79, 1 19
and others, ICTY Trial Chamber II, judgment of 16 November 1998 (case no. IT-
Delalic
don Adolfo Francisco
Scilingo, see Scilingo
Dudley and Stephens, Great Britain, Queen's Bench Division, judgment of 9 December 1884 (1884) 14 QBD 273, in BILC, vol. 3, 599-608 ... 247
Dwarf case,
France, Conseil d'Etat, decision of
27 October 1995 (req. no. 136727), typescript of 3 pp. (on file with the author) ... 69
96-21.T). ... 31, 77, 79, 119, 135, 158, 160,
177,205,208,210,227 van
E. case,
and others (appeal, order on motion ofEsad Landzo to admit additional evidence), ICTY Appeals Chamber, order of 14 February 2000
E.
(case no. IT-96-2 1 -A).
Edwards
Delalic
Delalic
and
.
.
.
77, 79,
1
19, 208,
433
others (appeal, order on motion of
appellant, Esad Landzo, to admit evidence on
appeal),
K )TY Appeals Chamber, order of 31
May 2000
(case no. IT-96-2 -A)
119,205,208
1
77, 79,
in
Netherlands, Field Court Martial
decision of 2 January 1951, 239 NederJ 1952, no. 246, 514-6
(Krijsraad
te Velde),
.
v.
Human
.
.
United Kingdom, European Court of Rights, decision of 16
December 1992
... 395 Ehel. M.,
Germany, Supreme Court (Oberster Occupied Zone,
Gerichtshof) in the British
decision of 24
67-9
... 83
May
1949, in Entscheidungen,
II,
TABLE OF CASES
Eichmann,
Court of Jerusalem,
Israel, District
judgment of
December
12
F.,
1961, English
266, 267-270, 278, 298
Eichmann, Israel, Supreme Court, judgment of 29 May 1962, English translation in 36 ILR, 277-342 ... 7, 243, 249, 266, 285
von Falkenhausen and
November
1999, pp.
9,
on
judgment of
.
.
.
Brunswick, verdict of 29 July 1946, in
163
Court on War Criminals at Arnhem, decision of 20 February 1948, in Annual Digest 1948, 685-6 ... 257
Enkelstroth, Netherlands, Special
Enigster Yehezkel
Ben
Alish, Israel, District
Court
Co., 1949).
Advocate
is
at
The summing-up of the Judge
224-39.
LRWCT,
author (26 typewritten pages) ... 55, 66, 162
Feurstein
v.
and
others (Ponzano case), British
Erdemovic (Appeal), ICTY, Appeals Chamber, judgment of 7 October 1997 (case no. IT-96-22-A) 33,248,416 Dissenting Opinion of Judge A. Cassese 243, 248, 249, 250 Dissenting Opinion of Judge Sir Ninian Stephen ... 248
text in the British Public
Hamburg,
verdict of
24 August 1948, in Proceedings of a Military Court held at Curiohaus, Hamburg, original
Record Office, London, Kew Gardens. The summing-up of
the Judge Advocate
is in the proceedings of the Fourteenth Day (24 August 1948), pp. 1-26 ... 55, 186
.
.
Fidel Castro, Spain, Audiencia Nacional, order
(auto) of 4 March 1999 (no. 1999/2723) in CD Rom, EL DERECHO, 2002, Criminal case Law
Erhard Milch, see Milch Erhard
see
Erich Killinger
and
British Military
verdict of 3 (ed.), Trial
others (the
Court
December
Filartiga
Dulag Luft Trial),
sitting at
etc.
Cuddon
Filartiga
(London,
Edinburgh, Glasgow: William Hodge and Co., 1952). The closing speech of the Prosecutor is
and Wilhelm Mundo,
see
Mundo
US
1979, 630
v.
Pena-Irala, United States,
District
F.
2d 876
Series,
US Court
of
(
1980), v.
966-808
...
8,
1
19,
291
Pena-Irala, United States,
US
District
Court, judgment of 10 January 1984, 575 F
Ernst Neddermeier v. Director of Prosecutions, see
Neddermeier
Germany, Tribunal (Landgericht) Wiirzburg, judgment of 31 December 1953, Justiz und NS-Verbrechen, XII, 235 .. 171
Essen lynching case, see Erich Heyer
and
in
others
Ex parte Quirin, US Supreme Court, judgment of 31 July 1942, 17 AILC, 457-85 (also in 317 US1, 63 S.Ct 87 L.Ed. 3 (1942) ...
50,
310
Extradition of Charles Phillip Smith, US Court of appeals for the Tenth Circuit, judgment of 30 April 1996, no. 95-6244, in 82 F 3d 964(10th .
297
Canada, Ontario Court of Appeal, decision
of 29 April 1992 in 98 ILR, 520-663 ... 81,
.
..
Suppl. 860(1984)... 8,119,291 Finta,
Eschner,
1996)
May
1980, 630 F 2d 876 (2nd Circ. 1980), also in 19
Filartiga
Wilhelm
Cir.
Pena-Irala, United States,
Appeals, Second Circuit, decision of 30 June
ILM
223-35... 184
Erich Weiss
v.
Court, decision of 15
(2nd Cir. 1979), also in AILC, Second vol. 1,15-28... 8,119,291
Wuppertal,
1945, in E.
of Erich Killinger,
24,272,288,292
...
and others (Essen lynching case), Hayer Erich and others
Erich Heyer
at
55,
Director of Prosecutions, see
Military Court sitting at
.
...
Schwittkowski
Erdemovic (sentencing judgment), ICTY, Trial Chamber I, judgment of 29 November 1996 (case no. IT-96-22-T) ... 33, 34, 158, 398, 428
.
and 29-30
XI, 18, 23
184, 190, 194,235 Felix Schwittkowski
.
H.
(London, Edinburgh, Glasgow: William Hodge
and
Pesakim Mehoziim (1951-2), 152-80 (in Hebrew); summary in English in 18 ILR 1951, at 542. English translation on file with the 5
E.
Stevens (ed.), Trial of Nikolaus von Falkenhorst
See also
of Tel Aviv, judgment of 4 January 1951, in
.
Belgium, Brussels
von Falkenhorst Nikolaus, British Military Court for the Trial of War Criminals, sitting at
line:
www.giustiziamilitare.difesa.it/Giustizia/I
Grandi processi
others,
Court Martial (Conseil de guerre de Bruxelles), judgment of 9 March 1 95 1 in 3 1 Revue de droit penal et de criminologie ( 1950-51 ), 863-93 ... 235 ,
Einsatzgruppen case, see Ohlendorfand others
15
Germany, Supreme Court (Oberster Occupied Zone, judgment of 2 May 1950, in Justiz und NS-Verbrechen, III, 363-9 ... 170 Gerichtshof) in the British
translation in 36 ILR, 5-276 ... 97, 243, 249,
Engel, Italy, Turin Military Tribunal,
XXV11
243 Finta,
Canada, Supreme Court, decision of
24 March 1994, in [1994] 1 RCS, 81,243 also 104 ILR, 284 ..
at 837.
See
.
Flesch,
Norway, Court of Appeal of Frostating,
December 1946, Annual Digest 1947, at 307, War Crimes Reports, 6, 1948, 111... 254-5
2
and others, US Military Tribunal sitting at Nuremberg, judgment of 22 December 1947, TWC, VI, 1187-223; also Annual Digest 1947,
Flick
TABLE OF CASES
XXV111
266-74
... 73, 79, 139, 148, 155, 157, 205, 243,
Forti
v.
decision of 20 October 2000, no. 1999/05921, in
244 Suarez-Mason, United
US
States,
District
RGDIP (2001),475-6...
Gadhafi, France,
Cour de
Court for the Northern District of California,
13
March 2001,
decision of 6 October 1987, 672
de
la
1548-50 (N.D.
Cal., 1987),
US
Supp. 1531,
F.
Dist.
Frank C.Schultz, US Court of Military Appeals, judgment of 7 March 1969, 18 USCMA 133; LEXIS 563; 39 CMR 133, 136-8 1969
CMA
223,225,235
Franz Schonfeld and XI,
Friedrich Flick
64-73
and
Court
of 26 June 1946, 166, 186, 188
...
and
others, see Flick
.
..
criminelle,
and 301-2
in
RGDIP
Le Dalloz, 2001, no. 32,
at
no. IT-98-29-I) ...
ICTY,
Trial
Chamber, Decision on
the
Prosecution Request for Admission of Rule 92bis Statements, 26 July 2002 (case no. IT-98-29-T) ..
others
in Bulletin des arrets
ICTY, Indictment, 23 October 2001 (case 127
Galic,
Galic, others, British Military
sitting at Essen, verdict
LRTWC,
2631
,
no. 64, at 218-19. Also in
(2001), at 474
12941 ... 8
...
no. 1414
Cour de Cassation, Chambre
March 2001,
LEXIS
301
Cassation, decision of
127,423
.
ICTY, Trial Chamber, Decision on the Admission into Evidence of Written Statement by a Deceased Witness, 2 August 2002 (case no. IT-98-29-T) ... 127
Galic,
Fortunato Galteri and others, see Galteri Leopoldo
Fortunato
Commission Courts established under Control Council Law no. 10, Court of Appeal, judgment of 30 September 1948, in Control Commission Courts, Court of Appeal Reports, Criminal Cases, 1948, no.l, 276-82
Frohlich, Control
...
Galteri Leopoldo Fortunato, Spain, National
Criminal Court (Audiencia Nacional), Investigating Judge (Magistrato-Juez del
Juzgado
March
18
Numero
Cinco),
Leopoldo Fortunato
Court of
Fullriede case, Netherlands, Special
Cassation {Bijzondere
Raad van
Order (auto) of 25
1997, for the provisional custody of Galtieri;
on
line:
www.derechos.org/nizkor/arg/espana/
Cassatie)
autogalt.html
.
.
.
314
decision of 10 Jan. 1949, in NederJ 1949, no. 541, 985-91.
Summary
in
Annual Digest 1949,
Criminal Court (Audiencia Nacional), Bill of indictment (auto de procesamiento) of 2
548-51 ... 243
Court of Cassation, decision of 24 February 1950, in Rivista penale, 1950, II, 380 ... 245
Fumi,
Italy,
Furundzija (Formal Complaint Prosecutor), ICTY, Trial
Chamber
II,
decision
33, 55, 77, 79, 92,
1
18,
1
.
.
28, 31,
.
19, 268, 316, 318,
338,451
Chamber
Furundzija, ICTY, Trial
December 1998
166, 188,
1
judgment of
18,
19, 146, 160,
1
189,451
ICTY Appeals Chamber,
Furundzija (Appeal),
judgment of 21
July
2000 (case no.
IT-95-17/1-A) 99 77,79,92, 118,119, 393-395, 428, 433 G. case, Germany, Supreme .
.
no. 5) against Argentine military line:
commanders;
www.derechos.org/nizkor/arg/espana/
arrest.html
.
.
.
314
Garcia Jose Guillermo, and Vides Casanova Carlos II,
(case no. IT-95-17/1-T)
... 28, 31, 33, 55, 77, 79, 92,
issued by the Court of
Investigation {Juzgado Central de Instruccion
Gagnon, Supreme Court of United States, decision of 18 March 1985, 470 US 522, 105 S. Ct. 1482; 84 L. Ed. 2nd 486; 1985 US LEXIS 67; 53 USLW 3665 ... 400
unreported, cited in Furundzija, judgment
of 10 December 1998, at §15
November 1999
on
Chief
to the
of 5 June 1998 (case no. IT-95-17/1-T),
10
Galteri Leopoldo Fortunato, Spain, National
.
Court (Oberster Gerichtshof) in the British Occupied Zone, decision of 21 March 1950, Entscheidungen, II, 361-4 .. 72
Eugenio, United States, US District Court, Southern District of Florida, verdict of 23 July 2002 and order of 31 July 2002, on line: www.cja.org/RomagozaFinalJudgment.htm ... 8, 448 Instructions of the judge to the jury, on line: www.cja.org/RomagozaFinalJudgment.htm ... 448
General Jacob H.Smith, in
of 3
May
...
39, 194
.
US Court
Martial, verdict
1902, text in Friedman,
I,
799-813
General Seeger Willi mid others (Vosges case), ( /.
c
ase (Crabez Goran), Switzerland, Tribunal
militaire de division 1
I,
decision of 18 April
997, in www.icrc.org/ihl-nat
.
.
.
286
Gadhafi, France, Paris Court of appeal (Cour d'appel de Paris), Chambre d'accusaiion,
United Kingdom, Military Tribunal
sitting at
Wuppertal, decision of 18 June 1946, in Record of the Proceedings. The summing up of the Judge Advocate is at pp. 17-23. Text in Mettraux (ed.), Landmark Decisions ... 55
TABLE OF CASES
Genocide case, see Reservations
Georg Otto Sandrock and Gerbsch,
to the
Convention
The Netherlands, judgment of 28 April Annual Digest 1948, at 492; UNWCR,
Judgment of 2
Germ
of 28 March 1990.
warfare case, Japan, Tokyo District Court,
summarized in The Washington p. Al 5... 449
Post,
28 August
trial,
and
others
of Freiburg im Breisgrau (Oberlandesgericht Br), decision of 17
i.
151
.
... 261
see von Leeb
Gestapo informer case, Germany, Court of Appeal Freiburg
.
Grumpelt Gerhard (the Scuttled U-Boats case), British Military Court at Hamburg, verdict of 13 February 1946, LRTWC, V, 55-70
2002,
German High Command
235
AG and others v. Switzerland, European Court of Human Rights, judgment
227
decision of 27 August 2002, unreported,
of Review,
CMR 586. ...
July 1968, 39
Groppera Radio
1948, in
13, at 131 ...
US Army Board
Griffen Walter,
Otto Sandrock
others, see
XXIX
February 1949,
Guatemalan Generals (case of), Spain, Central Criminal Court {Audiencia Nacional), order of 13 December 2000, unreported, quoted in V. Buck, Droit espagnol, in Cassese and Delmas-Marty (eds.), Juridictions nationales, at 130 and 145... 279,287 .
in Hochstrichterliche Entscheidungen-
Sammlung
Gustav Alfred Jepsen and
und der
der Oberlandesgerichte
Obersten Gerichte in Strafsachen, 1949,
II,
200-3... 245
Gutweniger,
November 1945-1
October 1946 (Nuremberg: IMT, 1947), vol. 171-341 ... 55, 115, 138, 143, 165, 197
I,
Germany, Court of Assizes
(Landgericht), decision of 8 July 1999,
on
file
December
13
on
1946, unreported,
file
with
Guzman Mena
Farren and others, see Olvaldo
Romo
H. case, Germany, Supreme Court {Oberster
(Schwurgericht) of Stuttgart District Court typescript
Bolzano Special Court of Assize
the author (5 typewritten pages) ... 55
Criminals before the International Military
Gotzfrid,
Italy,
(Corte speciale di Assise di Bolzano), decision of
Goring and others, IMT, judgment and sentence of 1 October 1946, in Trial of the Major War Tribunal, Nuremberg, 14
and
others, see Jepsen
others
at
Gerichshof) in the British Occupied Zone, judgment of 20 April 1949 in Entscheidungen,
with the author ... 55, 163,
1,385-91
.
72,83, 148
..
180,234,243 H. case, Germany, Supreme Court
Gozawa Sadaichi and
others, British Military
Court in Singapore, verdict of 4 February 1946, in C. Sleeman (ed.), Trial of Gozawa Sadaichi and Nine Others (London, Edinburgh, Glasgow: William Hodge and Co., 1948). The closing speech of the Prosecutor
The ...
is
closing speech of the defence
at
is
judgment of
205-29
18 October 1949 in
Entscheidungen,
II,
231-46
(
Oberster Gerichshof) in the British Occupied
Zone, judgment of 5 September 1950 245 Entscheidungen, III, 121-34 .
55,202,235
72, 87, 148
...
H. and others, Germany, Supreme Court
195-205.
at
Oberster
(
Gerichshof) in the British Occupied Zone,
.
H. case, Germany, Supreme Court
Grabez Goran, see G. case, Switzerland
in
.
(
Oberster
Occupied Zone, judgment of 1 1 September 1950 in Entscheidungen, III, 134-6 ... 148 Gerichshof) in the British
Gramajo, see Xuncax Teresa
Grande
La
v.
Gramajo Hector
United Kingdom, Military Tribunal sitting at Wuppertal, decision of 21 May 1946, in Record of Proceedings. The relevant part of the Judge Advocate's summing up is at 23-7. Text in Mettraux (ed.), Landmark Decisions. ... 55 Fosse,
Green Samuel
case,
G.,
USA, US Navy Court of judgment of 19 May 1971,
Military Review,
NCMR 70-381
1,
and in Son Thang, An American Tragedy, 200-10 ... 240
Solis,
and
others,
decision of 20
March
1950, English
summary
ILR 1950,431-2... 135
in
Habre, Hissene, Senegal, Supreme Court, 20
March 2001 on
line (in French): www.icrc.org/
ihl-nat.nsf; also on:
www.hrw.org
... 9, 89,
306
unavailable, cited in Michael
A. Schwarz, 29 October 1971, at 854-5,
Greifelt
Haase, Netherlands, Special Court of Cassation,
see Klein Alfons
Hadzihasanovic and others (Decision on Challenge to Jurisdiction),
ICTY
of 7 December 2001
United States Military
Tribunal sitting at Nuremberg, judgment of 10
March 1948, in TWC, vol. 5, 88-169. Also Annual Digest, 1948, 653-6 ... 89, 96
Hadamar trial
in
.
Trial .
.
Chamber, decision
153
Hans, Norway, Court of Appeal of Eidsivating, 17 January 1947, .
.
.
253-4
Annual Digest
1947,
305-6
TABLE OF CASES
XXX
Hans, Norway, Supreme Court, in Annual Digest 1947, 306-7 and LRTWC, 5 (1948), at 82
253
...
Harlan Veit (Jud Suss case), Germany, Supreme Court (Oberster Gerichtshof) in the British Occupied Zone, judgment of 12 December 66 1949, in Entscheidungen, II, 291-312 .. .
Harlan
Veit (Jud Suss case),
Germany, Court of
Assizes (Schwurgericht) of
Hamburg, decision
of 29 April 1950, unpublished typescript of 85 pp. (on
file
with the author) ... 66, 166, 244
Hass and Priebke,
Rome
Italy
judgment of 22
Military Tribunal,
July 1997, 52 pp.,
on
line:
established under Control Council
Law
no. 10,
Court of Appeals, judgment of 8 June 1949, in Control Commission Courts, Court of Appeal Reports, Criminal Cases, 1949, no. 1, 162-6 ... 392,397 Heyer Erich and others (Essen lynching case), British Military Court sitting at Essen, verdict
LRTWC,
of 22 December 1945, in
The
full
records of the
trial
88-92.
I,
are at the Public
Record Office, London, Kew Gardens. No JudgeAdvocate was appointed in this case. The text of the Prosecutor's statement is at 65-8 of the full Record; see also LRTWC, I, 88-92 and Annual Digest 1946, 287-90 ... 55
www.giustiziamilitare.difesa.it/Giustizia/ I
Grandi processi
.
.
Heynen
232, 249
.
Karl,
Germany, Supreme Court
May
(Reichtsgericht), decision of 26
Hass and Priebke (Appeal),
Military Court of
Italy,
appeal (Corte militare di appello), judgment
of 7 March 1998, in VIndice penale, 1998, 959- 1000. On line:
Grandi processi
Hans Wickmann is
pp. 76
,
.
.
LRTWC,
in
232, 237, 267, 318
.
XV,
at
'unexecuted orders'; the
LRTWC)
Hauschildt
Human ...
v.
it is
stated there that the
mentioned elsewhere
May
Rights, decision of 24
Court
Home
.
.
Heinz Heck and others (the Peleus trial), British Military Court sitting at Hamburg, verdict of 20 October 1945, in J. Cameron (ed.), Trial of Heinz Heck etc. (the Peleus Trial) (London, Edinburgh, Glasgow: William Hodge and Co.,
The summing-up of the Judge Advocate I,
1-33
.
.
.
144, 184, 257-8,
3d 1467 (9th
US App. LEXIS
14796. Cert.
Ed. 2d 879 (1995)
L.
December
1996, 103 F.3d 789
(9th Circuit. 1996), also in AILC, Third Series, 2,
649-56
..
.
8
Dutch Special Court of Cassation, decision of 6 February 1950, in Annual Digest 1950,486-7... 260
Hirichsen,
Hinselmann and
others,
UK, Court of Appeal,
Control Commission in the British Zone of Control, acting under Control Council
Law
no.
judgment of 24 March 1947, in GermanyBritish Zone of Control, Control Commission 10,
Courts, Court of Appeal Reports, Criminal cases
1947, published by order of the
Supreme
Court, Rathaus, Herford (Bielefeld: Erich
Hipperson and
2nd edn, 52-60
others,
...
82, 174
United Kingdom,
Divisional Court, Queen's Bench Division,
427
decision of 3 July 1996, in
See also Peleus
Henry Wirz, US Military Commission, verdict of 24 October 1865, in Friedman, I, 784-98 ...
others
Marcos, United States, Circuit Court,
Vogel, 1947),
121-32
LRTWC,
F.
and
Circuit Court,
8 v.
1996, vol.
.
at
US
sitting at
Edinburgh, Glasgow: William Hodge and Co., 1950). The closing speech of the Prosecutor (Major Draper) is at 318-38 203, 234
See also
see von Leeb
Marcos, United States,
decision of 17
Brunswick, verdict of 3 April 1946, in G. Brand (ed.), Trial of Heinrich Gerike etc. (London,
is
v.
decision of 16 June 1994 25
Hilao
1989
Heinrich Gerike and others (the Velpke Baby
1948).
Command case,
...
Denmark, European Court of
British Military
UN Human Rights
Denied 115S.Ct.934, 130
385
trial),
High
Circ. 1994); 1994
in
194
...
AJIL( 1922), 674-84... 55
Committee, views adopted on 17 July 1985, in Official records of the Human Rights Committee 1985-86, vol. II, at 425-7 ... 402
Hilao
other cases in one paragraph on
case has not been
16
133 (the case
not reported but only mentioned in passing
among
Verhandlungen, 2543-7. English translation in
Hiber Conterisv. Uruguay,
www.giustiziamilitare.difesa.it/Giustizia/I
Leipzig
at
1921, in
39
...
Hirota
v.
US Court
Al-Megrahi and Lamen Khalifa I'himah, United Kingdom, High Court
United
of Justice, decision of 31 January 2001, on
January 1996, 72 F.3d 844
v.
line:
www.sc()tscourts.gov.uk/html/lockerbie.asp# verdict ...
Hermann,
(
131
)ontrol
ILR, 584-90
MacArthur, see MacArthur
Hirute Abebe-Jira and others
Her Majesty's Advocate
1 1 1
298
States,
v.
Kelbessa Negewo,
of Appeals for the
Northern District of Georgia, decision of 10 also in
AILC, Third
(1
1th Circ. 1996),
Series, vol. 2,
643-7
...
8
Hissene Habre, see Habrc
Commission
(
lourtS
Hoess Rudolf Eranz Eerdinand, Poland, Supreme
TABLE OF CASES
National Tribunal, VII, at
1 1
If.;
March
1947, in
also in Friedman,
ii,
LRTWC,
Judge Advocate
1520-36
at
Richmond)
Holzer and others, decided on 6 April 1946 by a
Canadian Military Court sitting at Aurich, Germany, Judgment of 6 April 1946, see Record of Proceedings of the Canadian Military Court of Robert Holzer and Walter Weigel and Wilhelm Ossenbach, held at Aurich, Germany, 25 March-6 April 1946, vols 2. The Judge Advocate's summing up is in vol. 1, at 335-50
Homma v.
Johann
.
186,243,249
..
Neitz, see Neitz
John Murray see Murray John v United Kingdom
John G. Schultz, see Schultz Jorgic,
Germany, Higher
Court
State
(Oberlandsgericht) of Dusseldorf judgement of
26 September 1997, 3 Strafrecht 215/98 ... 97,
100,297,298
98,
Germany, Federal High Court judgment of 30 April 1999, printed in Neue Zeitschrift fiir Strafrecht, 8 (1999) at 396-404 (with a note by K. Ambos, ibid., at 404-6 98, 100, 168
Jorgic (Appeal),
186,247
...
352-61 (original
at
is
transcripts in Public Record Office, Kew,
96
...
XXXI
Patterson, United States,
Court, decision of
1 1
(Bundesgerichtshof),
US Supreme US
February 1946, 327
759 (see also Friedman
II,
On
1624-6).
line:
.
.
.
http://caselaw.lp.findlaw.com/scripts/getcase
Germany, Federal Constitutional Court (Bundesverfassuagsgericht), judgment of 12 December 2000 on line: www.bverf.de ... 98,
Jorgic,
... 310
Hostages case, see List and others
100, 103 I.
G. Farben trial see Krauch
Ilnitskiy
and
others
Josef Kramer
Vladimir and others, France, Court of
cassation
(Chambre penale), decision of 3 May
17
1995, in Bull, crim., 1995, no. 161, 446-53
Haase
1948, in Entscheidungen,
I,
See also
May
1994 of the Paris Juge d 'instruction, quoted in the decision of the Paris Court of Appeal of 24 November 1994, at 5-10 288, .
.
.
297, 306
and others, France, Paris Court of Appeal (Cour d'Appel de Paris), Quatrieme Chambre d 'accusation, decision of 24 November 1994
Jud Suss
A 94/02071),
and March
file
unreported, typescript of 10
with the author
others, France,
.
Cour de
.
.
...
ICTY Trial Chamber I, judgment of 14 December 1999 (case no. IT-95-10-T) ... 98,
99, 102,
178,391,398,422
Jelisic (appeal,
decision on request to
decision of 15
admit
November 2000
...
Chamber, 36, 168,
214,433 (Appeal),
is
at
The summing 1
17-21 ... 184,
Harlan
194,257
and
others
(Entscheidungen,
I,
49-52) ... 82, 83
K. case (Belgium) see Auditeur general
K.
and A.,
see
c.
K.
Synagogue case
andM., Germa
ly,
Tribunal (Landgencht)
Offenburg, judgment of 4 June 1946, I,
K. W., Belgium, Brussels
65-8
...
in Justiz
169, 170
Court Martial [Cornell
de guerre de Bruxelles), decision of 8 February 1950, in 30 Revue de droit penal et de criminologie (1949-50), 562-8; English
ICTY Appeals Chamber,
judgment of 5 July 2001 (case no. IT-95-10-A) ... 36, 168, 178,214-217,391,422 Jepsen Gustav Alfred
War Crimes
case, see
und NS-Verbrechen,
additional evidence), ICTY, Appeals
1-125.
Supreme Court in the British Occupied Zone, judgment of 27 July 1948
K.
Jelisic,
at
K case, Germany,
Cassation, 26
1996, in Bull, crim., no. 132 1996,
II,
Justice case, see Alrstotter
286
379-82... 286
Jelisic
(the Belsen
Jung and Schumacher, Canada, Military Court sitting at Aurich in Germany, judgment of 25 March 1946, Record of Proceedings. The Judge Advocate's summing-up is in vol. 1, at 217-2
Javor
pages on
LRTWW,
up of the Judge Advocate 186,234,423
167-71 ... 66, 170
Javor and others, France, Order {Ordonnance) of
Javor
1945, in R. Phillips (ed.), Trial of
and Forty-Four Others
(London, Edinburgh, Glasgow: William Hodge and Co., 1949). The summing-up of the Judge Advocate is at 630-41
and R., Germany, Supreme Court in the British Occupied Zone, judgment of 16 November
(no.
others (the Belsen trial), British
Trial
In re Haase, see
6
November
Josef Kramer
... 9
J.
and
Military Court sitting at Luneburg, verdict of
and
others,
Proceedings of a
Trial held at Liineburg,
Germany
(13-23 August 1946), judgement of 24 August 1946 (the Jepsen trial). The summing up of the
partial translation in
...
ILR 1950, 388-90
29,55
Kadhafi see Gadhafi KadicS.
v.
Karadzic Radovan, United States, Court
of Appeals for the Second Circuit, decision oi 13 October 1995, 70 1.3d 232; 1993 US App.
LEXIS 28826
..
.
8,
19,448
TABLE OF CASES
XXX11
Kambanda, (judgment and sentence), ICTR, Trial Chamber, judgment and sentence of 4 September 1998 (case no. ICTR 97-23-S) .
.
.
104, 399
Glasgow: William Hodge and Co., 1949). 183-4 See also LRTWC, I, 47-54 .
.
.
Knezevic, Netherlands, District Court (Military
Division) of Arnhem, judgment of 21
ICTR, Appeals Chamber, judgment of 19 October 2000 (case no. ICTR 97-23-A)... 399
Kambanda
(Appeal),
Kambanda
(Appeal, Decision on the appellant's
motion for admission of new evidence), ICTR, Appeals Chamber, decision of 13 June 2000 (case no. ICTR 97-23-A) ... 74 Kappler and others,
Italy,
Rome
Military Tribunal
February 1996, no. 05/078505-95, §§8-9 ... 308 Knezevic, Netherlands,
Supreme Court (Hoge November 1997, in
Raad), decision of 11 NethJ, 1998, 463
Kbppelmann
Ernst,
..
.
308
Belgium, Brabant Court-
Martial (Conseil de guerre du Brabant), judgment of 22 March 1950, text
(Tribunale militare territoriale), judgment of
reproduced in
20 July 1948, no. 631, in Foro penale, 1948, 603-22. On line: www.giustiziamilitare/Igrandi
d'omission', in 29 Revue de droit penal et de
processi/html
.
Kappler (Appeal), Tribunal,
.
Italy,
Supreme Military
On line:
www.giustiziamilitare/Igrandi processi/html ...
S. v.
Koppelmann
Ernst,
decision of 16
May
beige, 1951,
Karadzic Radovan
Karadzic and others, ICTY, Trial
Chamber
1,
.
.
Belgium, Court of Cassation,
November
1950, in Pasicrisie
185-6. English
summary
in
ILR
1950,397-8... 55 I,
1995 (case no. IT-95-5-D
andIT-95-18)... 268 Karadzic and Mladic (Review of the Indictment pursuant to Rule 61 of the Rules of Procedure
Chamber, decision of 11 July 1996 (case no. IT-95-5-R61 and IT-95-18-R61) .. 99,404
and
criminologie (1949-50), at 752-4, as well as
decision of 27
236
Karadzic see Kadic
delit
.
judgment of 25 October 1952,
no. 1714, in RDI, 1953, 193-9.
Vanderveeren, 'Le
(to a larger extent) in R Speyer, 'Les crimes de guerre par omission', in 30 Revue de droit penal et de criminologie (1950), 939-49 202
236, 267
.
J.
and others, Italy, Bolzano Special Court of Assize (Corte speciale di Assise di Bolzano), decision of 24 February 1947,
Koppelstatter
unreported, on
file
with the author
(8 typewritten pages) ...
55
Evidence), ICTY, Trial
Korad Khalidv. Paracommando
soldier, see V^,
/.,
F.,J.
.
Karadzic, revised indictment of 28 April 2000 ...
Kordic and Cerkez,
ICTY
Trial
Chamber
judgment of 26 February 2001
19
III,
(case no. IT-95-
14/2-T) ... 77, 136, 178, 188, 190, 192, 193, Karl Brand and others, see Brand Karl and others Karl Buck and others, see Buck
194,208-209,223,415 Kordic and Cerkez (decision on
Karl Nadler and others, see Nadler and others
disqualification),
Kayishema and Ruzindana, ICTR, Trial Chamber II, judgment of 21 May 1999, case no.
May
ICTR-95-1-T
Kemal and
... 49, 74, 98, 101, 103, 107
Tevfik,
Extraordinary Court Martial, verdict of 8 April of 7 August 1919 #3617,
Supplement
at 1-2.
translation in G. Mettraux,
Decisions.
.
.
{Have),
Venice, verdict of 6
for disqualification), ICTY, Trial
Chamber,
178 Kordic and Cerkez (decision stating reasons for Trial Chamber's ruling of 1 June 1999 rejecting defence motion to suppress evidence), ICTY,
English
Landmark
Chamber, decision of 25 June 1999 77,136,168,188,230,411
180,328
Kesserling, British Military
Kordic and Cerkez (decision on the application decision of 8 October 1998 ... 77, 136, 168,
The Ottoman Empire,
1919, in Takvim-i Vekayi,
ICTY, Bureau, decision of 4 1998... 77,136,394
Trial
Court
sitting in
1947,
LRTWC,
May
9-14. See also Friedman,
II,
1569-72
VIII,
...
267
and others (the Hadamar trial), US Commission sitting at Wiesbaden, judgment of 15 October 1945. The bulk of the
Klein Alfons
Military
proceedings has been printed in the book: E. W. Kintner (ed.), Trial of Alfons Klein,
Adolf Wahlmann, Heinrich Ruoff, Karl Willig, Adolf Merkle, Irmgard Huber and Phiipp Blum (The Hadamar Trial), (London, Edinburgh,
Koshiro, Netherlands,
Temporary Court
.
.
.
Martial,
Makassa, Netherlands East Indies, judgment of 5 February 1947, in Annual Digest 1947, 210-1 1; also in LRTWC, XI, at
(1949),
1
... 23
Amsterdam Special Criminal Court, Chamber (Bijzondere Gerechtshof te
Kotalla,
Amsterdam, 14
eerste
December
(on
file
Kamer), judgment of
1948, typescript of 31 pp. with the author); published in
First
TABLE OF CASES
Bijlage
Handelingen Tweede Kamer der
Staten-Generaal Sitting 1971/72, pp. 1-8. Quotations are
1
Kupreskic and others (decision on defence motion
1714, n
made from
summon
the printed
Court of Cassation, Second Raad van Cassatie, Tweede Kamer), judgment of 5 December 1949,
typescript of 8 pp. (on
file
Kupreskic and others (decision on order of presentation of evidence), ICTY, Trial Chamber,
with the author);
decision of 21 January 1999 (case no.
published in Bijlage Handelingen Tweede
Kamer
IT-95-16-T) ... 27, 79, 81, 83, 88, 166, 213, 396
der Staten-Generaal Sitting 1971/72,
1 1714, n r.4, pp. 12-13. Quotations are made from the printed text ... 55, 239, 249
Commission Courts Law no. 10, British Court of Appeals, judgment of 31 March 1949, in Germany-British Zone of
Kupreskic and others (decision on limitation of scope of cross-examination of character
Kottsiepen, Control
witnesses), ICTY, Trial Chamber, decision of 26 February 1999 (case no. IT-95-16-T) ... 29, 32, 33, 79, 81, 83, 88, 213-214, 420
established under Control Council
Control, Control
Krauch and others
Kupreskic and others, ICTY, Trial Chamber,
Commission Courts, Court of
Appeal Reports, Criminal Cases, 1949, no. 108-12... 397 (I.
G. Farben
trial),
US
judgment of 14 January 2000
1,
in
TWC, VIII,
Annual Digest 1948,
at
213-214
Military
Kupreskic and others (appeal, decision on the
motion ofDrago Josipovic and
1081-210. See also
668-80
...
55,
1
Judge Paul M. Hebert, Concurring Opinion on VIII,
ICTY,
May 2001
29,31-2,33,213,434
...
Kupreskic and others (appeal), ICTY, Appeals
Chamber, judgment of 23 October 2001 ... 393,433
TWC,
1211-306... 115
Bologna Court of Appeals, decision of 4 February 1963, in 47 RDI (1964), 318-21 ... 306
Kroger,
others),
Appeals Chamber, decision of 8
15,
139, 148, 157, 165,243
the Charges of Crimes against peace,
(case no.
IT-95-16-T) ... 29, 32, 33, 35, 79, 81, 83, 88,
Tribunal sitting at Nuremberg, Judgment of
29 July 1948, in
witnesses),
213,397,414
Kotalla, Special
(Bijzondere
to
ICTY, Trial Chamber, decision of 6 October 1998 (case no. IT-95-16-T) ... 29, 79, 81, 83, 88, 158, 166,
r.4,
text... 55,225,239
Chamber
XXX111
Kurt Mayer, see Mayer Kurt
Italy,
Krombach
v. France, European Court of Human judgment of 13 February 2001 .. 400,
Germany, Federal Higher Court of Justice judgment of 21 February
Kusljic,
(Bundesgerichtshof),
2001, 3 StR 244/00, pp.13
..
.
98, 99
402
KvoCka and others, ICTY, Trial Chamber I, judgment of 2 November 2001 (case no.
ICTY, Trial Chamber, decision of 2 August 2001 (case no. IT-98-33-T) ... 19, 77, 98, 100,
KvoCka
Rights,
.
IT-98-30/1-T) ... 30, 78, 217, 228
Krstic,
(decision on defence motions for acquittal), ICTY, Trial Chamber, decision of 15 December 2000... 30,78,422
102,104,156,269 v. Commonwealth of Australia, High Court of Australia, judgment
Kruger and others Australia,
of 31 July 1997 (1997) 146
ALR
126, (1997)
K.W., Belgium, Brussels Court Martial (Conseil de guerre de Bruxelles), decision of 8 February 1950, in 30 Rev. droit penal et criminologie,
190 CLR 1, on line: h ttp://scaletext. law.gov. a ul html/highcourt/0/97/0/HC000240.htm ... 96
Krupp and others, US Military Tribunal sitting Nuremberg, judgment of 30 July 1948, in TWC, IX, 1327-484. See also Annual Digest 1948, at 620-32 ... 139, 148, 223
1949-50,562-8... 55
at L.
and
others,
Germany, Supreme Court (Oberster Occupied Zone,
Gerichtshof) in the British
judgment of 14 December 1948, in Entscheidungen, I, 229-34 ... 170
Kunarac (decision on motion for acquittal), ICTY, Trial Chamber, decision of 3 July 2000 ... 29, 75, 422
Lages case,
Kunarac and others, ICTY Trial Chamber III, judgment of 22 February 2001 (case no.
La Grande Fosse
IT-96-23-T) ... 29, 55, 75, 78, 79, 82, 88, 92, 118, 119, 160, 168, 188,213
Kupreskic and others (decision on communications
Special Court of
The Netherlands,
Cassation, decision of 12 July 1950, in Nederl.J., 1950, no.
680
case, see
Lala and Pelladoah
v.
..
.
55
Grande
Fosse,
La
The Netherlands, European
Court of Human Rights, decision of 22 September 1994 .. 402 .
(case no. IT-95-16-T) ... 29, 79, 81, 88, 158,
Bolzano Special Court of Assize (Corte speciale di Assise di Bolzano), decision of 21 March 1946, unreported, on file with the
166,168,213-217,419
author (4 typewritten pages) ... 55
between the parties and their witnesses), ICTY, Trial Chamber, decision of 21 September 1998
Lanz,
Italy,
TABLE OF CASES
XXXIV
Hans Paul Helmuth, and others, Norway, Supreme Court, decision of 3 December 1948, summary in LRTWC, vol. XIV, at 49-85
Latza,
395
...
is
others,
US
Loizidou
Turkey (preliminary objections),
v.
Nuremberg, judgment of 28 October 1948, TWC, XI, 462-697, also in Annual Digest 148, 194, 205, 238, 243, 255 1948, 376-98
in
.
.
.
Court of Cassation of Milan, judgment of 31 July 1945, in 71 Rivista penale 1946,11, 128 (no. 97)... 210
Leoni, Italy,
Legality of the Threat or Use of Nuclear Weapons,
International Court of Justice, Advisory
.
.
.
Italy,
www.giustiziamilitare.difesa.it (see: .
.
I
grandi
United States, US District Court, decision of 1 1 March 1980, 488 F. Supp. 665 (DDC 1980), also in 63 ILR, 378-90, and in AILC, Second Series, vol. 3, 356-65
Gerichtshof) in the British
November 1980
ILM
and decision of 748
F.
(Entscheidungen,
M. and
G.,
at
Hamburg, verdict of 19 December 1949, Annual Digest 1949, 509-25 ... 268
in
US Court
2d
Martial,
verdict of 22 June 1901, in Friedman,
I,
820-9
of 4 July 1949, in 29 Rev. droit penal criminologie, 1949,
others (Hostages case), at
19 February 1948,
US
Military
Nuremberg, judgment of
TWC, XI, at
1230-319. See also
632-53
...
50, 51, 148,
194,205 Llandovery Castle,
Germany, Supreme Court
others,
Zone, decision of 28 March 1950, in Entscheidungen, II, 375-81 ... 72
MacArthur,
United
1948, 338
US
of 29
F.
May
Glenn,
of
judgment of 16 July 2579-86 (English
US Court
.
Martial, verdict I,
814-9
.
.
.
39
.
Major Malinky Shmuel and
others, Israel, District
Defence Forces, decision of 16 October 1958, case no. 3/57/MR, English translation on file with the author (160 typewritten pages) ... 55,235,240 Maltauro and
others, Italy,
Milan Court of Assizes
II,
Summary
in Annual Digest 1923-4, 436-8 234,249,258
Lockerbie Case, see Al-Megrahi (appeal)
Al-Megrahi and
Fhimah
1, United Kingdom, Military Tribunal sitting at Klagenfurt, decision of
Loibl Pass case no.
October 1947, Record of Proceedings. The
relevant part of the Judge Advocate's
summing
November
1952,
172-82 ... 210
Maker Kurt
(trial of Lieutenant General Kurt Maelzer), United States, US Military
Commission
sitting in Florence, decision
14 September 1946, in
LRTWC, ...
of
XI, 53-6; 13
55
von Manstein, see von Lewinski
Markovic Dusan,
v.
Court,
Major Seward A. G., Canada, Court Martial Appeal Court of Canada, CMAC-376, decision of 27 May 1996, in Sassoli and Bouvier, 1078-83 172, 173, 194
Marcos, see Trajano
Khalifa
US Supreme
1902, in Friedman,
translation in 26 AJIL (1922), Suppl., 708-23).
10
States,
197, 69 S.Ct. 197, 93 L.Ed. 1902
1921, in Verhandlungen,
See Her Majesty's Advocate
et
235
...
Annual Digest 1946, 289-90
German Supreme Court
Leipzig (Reichsgericht),
Lamen
986-95
in 78 Riv. Pen., 1953,
Annual Digest 1948,
...
91-5) ... 83
(Corte di assise di Milano), 13
39
and
I,
Belgium, Court of Cassation, decision
Tribunal, Central Judicial District of the Israeli
von Lewinski, British Military Court sitting
Lieutenant Preston Brown,
(Oberster
Occupied Zone,
in 19
790, 798-9 (2nd Cir. 1984) ... 8
Tribunal sitting
277, 294, 303
decision of 28 September 1948
.
See also decision of 5
List
6,
M, Germany, Supreme Court
Major Edwin
Letelierv. Republic of Chile,
(1980), 1418-35
judgment of 7 September
1927, Series A, no. 10 ...
(1948), also in AILC, vol. 18, 80-97 ... 310
49
.
12
.
Turkey), Permanent Court of
(Oberster Gerichtshof) in the British Occupied
Court of Assize (Corte di assise) of S.Maria Capua Vetere, judgment of 25 October 1994, unpublished, on line:
processi), pp. 34
v.
International Justice,
M. and
Opinion, 8 July 1996, on line: www.icj-cij.un.org 302 Lehnigk and Schuster,
of 23 March 1995.. Lotus (France
Military Tribunal sitting
at
...
Landmark
Text in Mettraux (ed.),
at 1-3.
Decisions ... 184
European Court of Human Rights, judgment
Laureano Atachahua v. Peru, UN Human Rights Committee, Comments no. 540/1993 16 April 1996, UN Doc. CCPR/C/56/D/540/1993 ... 313 von Leeb and
up
v.
Italy,
Marcos, Hilao
v.
Marcos
Court of Cassation, United
Civili), order of 8 February 2002, unreported, typescript of 9 pages (in Italian) on file with the author
Sections (Sezioni Unite
...
449
Martic Milan, ICTY, Trial Chamber, decision of 8 March 1996 (case no. IT-95-11-R61) ... 404 Martic Milan (Decision on Appeal against Decision of Registry), ICTY, Trial Chamber, 2 August 2002 (case no. IT-95-11-PT) ... 397
TABLE OF CASES
Martin Gottfried and others, US General Military Government Court of the United States Zone, sitting at Dachau, verdict of 13 December 55, 186 1945, in LRTWC, XI, 5-17 .. .
Max Kottsiepen v.
Wielen and others, see Wielen
Mayer
Kurt,
Max and others
Canadian Military Court
sitting at
Aurich in Germany, verdict of 28 December 1945, Record of Proceedings (Revised), vols 2. The summing-up of the Judge Advocate is in vol. I, at 836-45 190, 194 .
McLeod, United
.
.
States,
New York Supreme
1841, 25 Wend. 483, 37 A. Dec. 328, AILCvol. 18,263-99... 266
Court,
.
Medina Ernest L., United
Milosevic Slobodan (Decision on Preliminary
ICTY Trial Chamber III, decision of November 2001 (case no. IT-99-37-PT)
Motions),
Military Appeals, decision of 9 430; 43
March
Chamber
Admit Evidence Pursuant
Application to
92bis Without Cross-Examination,
decision of
III,
(pp. 718-46) ..
.
chances et
1971,
20
166, 175, 206,
la lutte
US Court Martial, judgment CMR (NCMR, 1971), Solis,
US Navy Court
CMR LEXIS 653, at 862-3
.
of
CMR
Military Review of 29 October 1971, 45 .
235,
.
252
ihl-nat.nsf
judgment of 30 December 1954 LEXIS 363; 17 CMR
USCMA 346;
346... 225 Mignonette case, see Dudley v. Stevens Milch Erhard,
US
.
.
.
Minister of Pensions, United Kingdom, King's Bench Division, judgment of 27 July v.
racisme
C.
v.
and
B.,
.
.
56
.
US
Military
Mittermair,
Italy,
at
Bolzano Special Court of Assize
(Corte speciale di Assise di Bolzano), decision of file
with
Mitterstieler, Italy,
Bolzano Special Court of
Assize (Corte speciale di Assise di Bolzano),
decision of 11
...
December
1945, unreported,
on
with the author (8 typewritten pages) 55
v. Canada (Minister of Employment and Immigration), Canada, Court' of Appeal,
Moreno
judgment of 14 September 1993, [1994] 1.F.C.298, on line: www.canlii.org/ca/cas/fc/ 1993/1993fc78.html
..
.
182,188
Motosuke, Netherlands East Indies, Temporary Court Martial at Amboina, decision of 28 January 1948, in Annual Digest 1948,
682^
48
Mrksic, Radic
and SljivanCanin, (Review of the
to Rule 61 of the Rules of Procedure and Evidence), ICTY, Trial Chamber,
Indictment pursuant
decision of 3 April 1996 (case no.
Military Tribunal sitting at
Nuremberg, judgment of 17 April 1947, TWC, II, 773-878. See also LRTWC, VII, 27-66 ... 75,228,245 Concurring opinion of Judge Phillips 228 Miller
19
.
des
Nuremberg, decision of 12 December 1949, in TWC, 14, 308-942 ... 208
... F. Kunak,
le
27 November 1945, unreported, on
Son Thang-An American War Crime (Annapolis, Maryland: Naval Institute Press, 1997), at 44, 171, 174, 178,183... 235,251
1954, 5
.
the author (9 typewritten pages) ... 55
of 21 June 1970, 45
Michael
contre
Ministries case, United States,
file
852; 1971
.
I'egalite
December 1997. French translation from the Dutch ruling on line: www.iirc.org/
55,194
Michael A. Schwarz (Appeal),
August 2002 (case
original
with the author
reported in detail in G. D.
Rule
Trial
Belgium, Military Court, decision of 17
Menten, The Netherlands, Supreme Court {Hoge Raad), decision of 13 January 1981, in NederJ, 1981, no. 79, at 201-34; English partial translation in 75 ILR, 361-7 ... 65 Michael A. Schwarz,
1
to
ICTY
II,
Meir case, Isreal, Supreme Court sitting as High Court of Justice, decision of 27 December 1989, HCJ 425/89, in Rulings, vol. 43, Part IV (1989), 5749-50 (in Hebrew), English file
March
423
Milosevic Slobodan (Decision on Prosecution
Tribunal sitting
on
...
October 2000 and 22 November 2001
211
translation
decision of 21
III,
Ministere Public and Centre pour
US Court of
CMR 243...
Trial
2002 (case no. IT-99-37-PT)
from
States, Instructions
United States,
request to have written statements admitted),
ICTY
Milosevic Slobodan, revised indictment of 8
members, September 1971, in Friedman, 1729-37... 166,175,206,211 L.,
19,27,30,268
Milosevic Slobodan (Decision on Prosecutor's
no. IT-02-54-T) ... 423
the Military Judge to the Court Martial
Medina Ernest
372, [1948] LJR 203
425-6
Chamber
also in
MC Ruby, see Ilnitskiy Vladimir and others
USCMA,
.
...
Kottsiepen
Max
ER
1947, [1947] 2 All .
8
Director of Prosecutions, see
XXXV
IT-95-13-R61)... 385,404 Mrksic and others (Scheduling Order), ICTY, Trial Chamber II, Scheduling order of 20 November 1997 (case no. IT-95-13a-PT) ... 88 v. Minister of Citizenship and Immigration, Canada, Immigration and
Mugesera
Refugee Board (Appeal Division), decision of 6
TABLE OF CASES
XXXVI
November
1998,
summarized
in 93
Criminal cases 1947, published by order of the
AJIL
(1999), 529-33... 298
Mulka and others (Ausschwitz concentration camp case), Germany, Federal Court of Justice
...
und NS-Verbrechen XXI, 838-87 y
186
Miiller Emil,
Germany, Supreme Court
(Reichtsgericht), decision of 30
May
at Leipzig
1921, in
Verhandlungen, 2547-52. English translation in 16 AJIL (1922),
and others, Court {Com militaire de
Bruxelles), decision of
established under Control Council
Law
no. 10,
Court of Appeals, judgment of 10 March 1949, in Germany- British Zone of Control, Control Commission Courts, Court of Appeal Reports, Criminal Cases, 1949, no. 1, 58-60 ... 88
of 20 March 1946. See Record of Proceedings of the Trial by Canadian Military Court of
Johann Neitz held
1949, 242-8 ... 249 others,
.
Neitz Johann, Canada, Military Court, judgment
31 January 1949, in Journal des Tribunaux,
Midler and
.
Negewo, see Hiruta Abebe-Jira
684-96... 55 Belgium, Brussels Military
Miiller
.
429 Neddermeier, Court Commission Courts
(Bundesgerichtshof), decision of 20 February
1969, in Justiz
Supreme Court, Rathaus, Herford (Bielefeld: Erich Vogel, 1947), 2nd edn, 130-6 186,
Belgium, Court of Cassation,
March
Advocate
195-205 ...
at
is
Aurich, Germany, 15-20
at
The summing up of the Judge
1946.
50, 177
decision of 4 July 1949, in Pasicrisie beige, 1949, I,
506-19. English
summary in Annual Digest
Neubacher
Fritz,
Netherlands, Special Court of
Cassation, decision of 5
1949, 400-3 ... 249
December
1949, in
NederJ, 1950, no. 12, at 39-42 ... 235
Mundo Wilhelm and
Weiss Erich,
US
General
Government Court at Ludwigsburg, Germany, verdict of 10 November 1945, in Military
LRTWC, ...
55,
XIII, 149-50; see also XIV, 129
(case of the Rwandan priest), Cour d'appel de Nimes, decision of 20 March 1996, in 4 RGDIP (1996), 1084-9
1921, in Verhandlungen, 2552-6. English
Nicaragua (Nicaragua
France,
696-704
...
55,
Cour de
United States of America), judgment of
27 June 1986, in ICJ Reports, 1986, 14-150
297 (case of the
v.
International Court of Justice,
.
France,
at
235
Munyeshyaka
Munyeshayka
Germany, Supreme Court
Robert,
Leipzig {Reichtsgericht), decision of 2 June translation in 16 AJIL (1922),
224
... 9, 286,
Neumann
Rwandan priest),
..
113,302
Nicolic (Rule 61 Decision), ICTY, Trial
Cassation, decision of 6
Chamber,
decision of 20 October 1995 (case no.
January 1998, Bulletin crim.,1998, 3-8. See also Juris-Classeur Penal, La semaine juridique,
IT-94-2-R61, Y.Ch.l) ... 99, 404 Nikolaus von Falkenhorst see Falkenhorst
no. 41, 7 October 1998, at 1758-9, with a
comment by Roulot,
J.-F., at
1759-61, as well as
Droit penal, 1998, no. 70 (with a J.-H.Robert) ...
Murray John of
Human
v.
9,
comment by
286, 297
judgment of 25 January
www.icrc.org/ihl-nat.nsf ... 49, 298,
Cassation, judgment of 27 April 2001, text in
Chamber, judgment of 27 January 2000 (case no. ICTR-96-13-T) ...
line:
304 Niyonteze, Switzerland, Tribunal Militaire de
1996... 371
Musema, ICTR,
1A,
On
United Kingdom, European Court
Rights,
dAppel judgment of 26 May 2000, text in French running to 49 pages (on file with the author).
Niyonteze, Switzerland, Tribunal Militaire
Trial
French running to 55 pages (on
49, 50, 74, 103, 168, 188, 192, 197
Musema, ICTR, Appeals Chamber, decision of 16 November 2001 (case no. IVTR-96-13-A) ... 49,74, 103, 168
author).
On
49, 286,
304
line:
Ceriehtshof) in the British
334-7...
Nulyarimma
Occupied Zone,
decision of 18 July 1949, in Entscheidungen,
II,
72, 148
(
mnmission
in the British
/.one of Control,
acting pursuant to Control Council
Law
judgment of 12 June 1947, in Germany British /one o) Control, Control Commission Courts, Court o) Appeal Reports,
no. 10,
.
.
.
...
210
Thompson, Federal Court of Australia, decision of 1 September 1999, [1999] FCA 1192 A5 of 1999; S23 of 1999. Text 304, 452 also in 39 ILM (2000), 20-68 304, 452 See also Buzzacott v. Hill v.
.
Nadler and others, UK, Court of Appeal, Control
with the
Notomi Sueo and others, Netherlands East Indies, Temporary Court Martial at Makassar, judgment of 4 January 1947, in Annual Digest 1947,208-10
N. case, Germany, Supreme Court (Oberster
file
www.icrc.org/ihl-nat.nsf
.
Nwaoga
Pius
v.
decision of 3 Reports,
494-5. ...
I,
On
March 1,
line:
.
.
.
the State, Nigeria,
vol.
56,235
.
Supreme Court,
1972, in All Nigeria
Law
149-50; in 52 ILR, 1979,
www.icrc.org/ihl-nat.nsf
TABLE OF CASES
Germany, Supreme Court (Oberster Occupied Zone, judgment of 19 October 1948, in Entscheidungen, I, 105-10 ... 170
Paul Frohlich
O.,
Paulv. Avril,
Director of Prosecutions, see
US
District Court, S.D. Florida,
decision of 14 January 1993, 812
US
case),
v.
Frohlich
Gerichtshof) in the British
Ohlendorf and others (Einsatzgruppen
XXXV11
Military Tribunal sitting at Nuremberg, judgment of 10 April 1948, in TWC IV, 3-596. See also Annual Digest 1948, 656-68 ... 50, 73, 148,166,188,243,245,248
F.
Suppl 207
(SD Florida 1993); 1993 US Dist. LEXIS 4974. Text also in AILC, Third Series, 1993, vol. XXXVIII, 59-64 .. 8 .
Pedro Poblete Cordova, see Osvaldo
Romo Mena
UK, British Military Court sitting at Hamburg, judgment of 20 October 1945 complete records in J. Cameron (ed.), Trial of
Peleus,
O.
/.
Simpson
Simpson
case, see
O.J.
O'Neal Carl D., United States Court of Military Appeals, decision of 18 February 1966, 16 USCMA 33; 1966 CMA LEXIS 310; 36 CMR 189... 223
Osman Somowv. Paracommando
Soldier, see
D. A. Maria Pierre
Osvaldo
Romo Mena,
Supreme Court,
Chile,
.
On
Estudios, 1995, 191-8.
Osvaldo
Romo Mena,
Chile,
People
line (in Spanish):
.
.
.
56,314
Pilz,
Supreme Court,
decision of 9 September 1998.
On
.
.
.
56
Court
is
at the Public
Special
Court of Cassation, judgment
17ILR 1950,391-2... 48,89
sitting at
The Netherlands, Court of Appeal of Amsterdam, decision of 4 January 1995, English translation in NYIL 1997, 363-5 ...
Record Office, London,
307
Kew Gardens. The text of the Judge Advocate's summing up is at 70-3 of the full record 186,253
...
McLeod, see McLeod
Pinochet,
Almelo, verdict of 26 November 1945, LRTWC, I, 35-45. Full record
v.
Dutch
in
Otto Sandrock and others (the Almelo case), British Military
.
of 5 July 1959, in NederJ, 1950, no. 681, 1209-1 1; an English summary can be found
line
(in Spanish): www.icrc.org/ihl-nat.nsf
.
See also Heinz Heck and others
decision of 26 October 1995, in Revista
www.icrc.org/ihl-nat.nsf
Heinz Heck, August Hoffmann, Walter Weisspfennig, Hans Richard Lenz and Wolfgang Schwender (The Peleus Trial), (London, Edinburgh, Glasgow: William Hodge and Co., 1948). Reproduced in a shortened version in LRTWC, I, 1-33 144, 184, 257-8
Pinochet, Spain, Central Criminal Court
(Audiencia nacional), Order (auto) of 4
November 1998, no. 1998/22604, rec. 84/1998, in EL DERECHO, 8 pp 8, 288, 292, 316 .
P.,
P.,
Germany, Supreme Court (Oberster Gerichtshof) in the British Occupied Zone, judgment of 20 May 1948 in Entscheidungen, 11-18... 83
P.
17-19.
(juge d' instruction), order of 6
and
others,
November
1998,
I,
83
..
.
.
Pinochet, Belgium, Brussels Investigating Judge
Germany, Supreme Court (Oberster Gerichtshof) in the British Occupied Zone, judgment of 10 May 1949 in Entscheidungen, II,
8,
in
79 Revue de droit penal
1999,278-300...
Germany, Supreme Court (Oberster Occupied Zone,
judgment of 7 December 1948, in Entscheidungen, I, 217-29 ... 87, 171
de criminologie,
119,287
Pinochet, Spain, Central Criminal
Court
(Audiencia nacional), decision of 24 September 1999, no. 1998/28720, rec. 84/1999, in
DERECHO,
Gerichtshof) in the British
8,
et
9
pp
.
.
.
8,
119,
EL
268-270
Court of Appeal (Corte
Pinochet, Chile, Santiago
de Apelaciones), decision of 5 June 2000, 46 typewritten pp. (in Spanish) on line:
www.ua.es/up/pinochet/noticias/desafuero
Panamian
ship case, Spain Constitutional Court,
...
8,119,290,298
decision of 10 February 1997, no. 1997/56, in
EL DERECHO, CDRom, decisions
.
.
.
2002, Constitutional
Papon, France, Bordeaux Court of Appeal (Cour
Chambre
.
file
.
Papon, France, Cour de Cassation, decision of 23
January 1997, no. 502, 15 pp. (on author) 249, 297 .
.
file
with the
.
Hermann Hermann
Paul
v.
see R.
v.
Bow
Street Stipendiary
Director of Prosecutions, see
Pius
Nwaoga
v.
the State, see
Rights,
.
.
.
r
garte
Human
judgment of 23 November 1993
no. 39/1992/384/462)
I
Nwaoga
Poitrimolv. France, European Court of
a"accusation,
decision of 18 September 1996, 169 pp. (on with the author) 249 .
UK,
Magistrate and others, ex parte Pinochet
285, 288
d'appel de Bordeaux)
Pinochet,
(case
400, 402
and others, US tribunal sitting at Nuremberg, judgment of 3 November L947, TWC, V, 958- 1103... 75
Pohl
Polish prisoner ot ivarcase,
7 at 523 The convention was signed by 22 Latin or Central American countries, plus the USA and Sri Lanka. 13 See text in R. A. Friedlander (ed.), Terrorism— Documents oj International and Local Control, vol. ),
(Dobbs 14
Ferry,
NY: Oceana, 1979) 565-9.
See the writings cited in note 5 above.
8.
_
INTERNATIONAL CRIMINAL LAW
124
Furthermore, the change in the general political climate in the world community following the downfall of socialist regimes, as well as the gradual demise of wars of national liberation, led to a change in attitude towards terrorism. For instance,
Gen-
Assembly resolutions on terrorism adopted since 1991 have dropped the reference
eral
to the underlying causes of the terrorist
As
a result,
phenomenon.
broad agreement gradually evolved on a general definition of terrorism
that did not provide for any exception (in spite of the fact that, as pointed out above,
League of Arab States adopted an Arab Convention for the Suppression of
in 1998 the
A
Terrorism that in Article 2(a) envisaged that exception).
agreement. In the annexed Declaration
this
resolution passed by con-
UN General Assembly (res. 49/60, adopted on 9 December
sensus in the
it
1994) reflects
contains a provision (para. 3) stating
that:
Criminal acts intended or calculated to provoke a
group of persons or particular persons for unjustifiable,
whatever the considerations of a
ethnic, religious or
any other nature that
of terror in the general public, a
state
political
purposes are in any circumstance
political, philosophical, ideological, racial,
may be invoked
This definition in substance takes up that laid
15
to justify them.
down
in Article 1(2) of the unratified
1937 Convention, whereby terrorism encompasses 'criminal acts directed against a
and intended or calculated
State
to create a state of terror in the
persons, or a group of persons or the general public'.
not
in the
It is
minds of particular
In addition, the definition
is
from, and indeed to a large extent dovetails with, the notion of terrorism laid
far
down
16
aforementioned 1999 Convention on the financing of terrorism.
submitted in light of the above that there
clear definition of this crime,
customary
law, that
is, it is
and
exists
in addition the
no longer simply
an acceptable and
crime
sufficiently
envisaged and banned by
is
a treaty law crime.
Three main elements seem to be required for the crime of international terrorism: (i)
must
the acts
constitute a criminal offence under
most national
legal
systems (for
example, assault, murder, kidnapping, hostage-taking, extortion, bombing, torture, arson, etc.);
(ii)
they must be aimed
at
spreading terror (that
is,
fear
by means of violent action or the threat thereof directed against a particular groups of persons; ideologically motivated, that
me add
Let 15
(iii)
is
they must be
"'
or otherwise
51/210, of 16 January 1997,
In
995 the Special Rapporteur of the
res.
UN
emerging consensus on an unqualified
General Assembly, for instance
res.
49/60 of 17 February
55/158 of 30 January 2001.
res. 1
politically, religiously,
not motivated by the pursuit of private ends.
that, despite the gradually
Sec also other resolutions adopted by the
1995,
and intimidation)
State, the public, or
UN
Against the Peace and Security of Mankind,
International
Law Commission on
Mr Doudou Thiam,
the Draft
Code of Crimes
suggested the following definition for
international terrorism imputable to State officials: 'Undertaking, organising, ordering, facilitating, financing,
encouraging or tolerating acts of violence against another State directed nature
.is
to
State practice,
mentioned above,
all
national legislation, as well as the Conventions
point in the same direction. In addition to the subjective elem-
ent required for the underlying offence (serious bodily harm, murder, kidnapping,
INTERNATIONAL CRIMINAL LAW
130
arson, destruction of private or public property, etc.), there that
is,
to spread terror
among
must be
a special intent,
the population.
TREATY-BASED PROHIBITED CLASSES OF TERRORISM
6.9.5
In addition to the categories of crimes considered so into account those terrorist acts that are explicitly
one should
far,
banned by the various
also take treaties
on
27 terrorism mentioned above.
Although
my
in
opinion international crimes proper are those provided for in
international customary law
and which offend against universal values recognized
in international legal rules, these specific acts of terrorism
For the treaties
as international crimes proper.
or are indicative
of,
or have contributed
to,
at issue either restate
the
aim
manner at
in
which they
strict 'treaty
legal definition or classification
are repressed.
customary
rules
the formation of customary rules; in other
words, they have a legal value that goes beyond the matters, however, more than any
should also be characterized
What
is
dimension'.
What
of those crimes,
striking in these treaties
is
that they
is
co-ordinating the prosecution and punishment of those terrorist offences by
the contracting States. In other words, the primary purpose of those treaties
achieve the
prompt and
Each contracting State
effective
is
punishment of terrorism by national
is
to
authorities.
duty bound to co-operate in and lend assistance to the
repression of terrorism, that
the apprehension and prosecution or extradition of
is,
alleged perpetrators of terrorist acts.
No
international
body
is
entrusted with the task
of prosecuting and punishing those criminal offences.
CONCLUDING REMARKS
6.9.6
To sum up,
it
may be noted
crimes of terrorism are
that international substantive rules
fairly satisfactory. In
of terrorism, they regard as criminal
all
on
international
addition to covering most manifestations
terrorist acts
whether they emanate from
private individuals or State officials. However, in spite of the apparent trend in the
United Nations towards universal and unqualified condemnation of terrorism,
many developing 'freedom
States
still
cling to the old political doctrine
fighters' are entitled to
political
ends they pursue. This
spawned
a
On
sufficiently clear
terms
whereby so-called
avoid the stigma of terrorism on account of the
political stand has
tendency to hold the view that there
definition of terrorism.
this
emerging
still
generated
does not
much
confusion and
exist a generally
the contrary, however, international rules
at least
accepted
do cover
in
the most conspicuous and odious manifestations of
phenomenon.
Nonetheless, as usual, where international law international treaties
on
See on these treaties A. 09;
I.
fails is at
the enforcement level. Even
specific classes of terrorism are relatively disappointing as far
Panzera, Attivita terroristiche
G. Guillaume, 'Terrorisme
el
droit international',
e diritto
internazionale (Naples: Jovene, 1978),
215 Hague RecueiK 1989-11 1),
cit.,
at
330-1, 338-7
1.
A
OTHER INTERNATIONAL CRIMES
as repression
concerned, for in the event they do not impose upon contracting
is
apprehend, prosecute, and bring to justice alleged
States a clear-cut obligation to terrorists
made
on
their territory. In addition, neither national
US
exceptions (such as Israeli or particular,
terrorist acts. is
nor international courts have
of the existing potential of international legal rules, subject to a few
effective use
it is
131
courts
28
or Scottish courts in the Lockerbie case). In
ICC has not been granted
a matter of regret that the
many
Unfortunately
States
still
by use of military violence, often preferring
jurisdiction over
tend to tackle the question forcibly, that this
response to that offered by criminal
justice.
SELECT BIBLIOGRAPHY AGGRESSION
sion as a
Crime under International Law
and the Prosecution of Individuals by the
Nuremberg
'The
Glueck,
S.
Aggressive War', 59
HLR
Trial
(1946), 396-456;
remarques sur
Glaser, 'Quelques
and S.
la defini-
tion de l'agression en droit international penal', in Festschrift fiir Th. Rittler (Aalen:
1957), 383-99;
Verlag Scientia,
S.
Glaser,
Proposed
NILR
M. Dumee,
Pellet (eds), Droit international
penal, 251-64.
de l'agression en droit inter-
'Definition
national penal', 35
Revue de
droit inter-
national et de droit compare (1958), 263-
TORTURE
658; BVA. Roling, 'The question of defining
Z. Haquani,
aggression', in
1958), 314ff.;
Symbolae S.
Verzijl
B.
(The Hague,
Glaser, 'Culpabilite en droit
HR
international penal', 99 B.
1960-1, 504-5;
Ferencz, 'A Proposed Definition of
22
Lukashuk,
Compromise and ConICLQ (1973), 407-33; I. I.
by
Aggression: sensus',
in
102-6;
cit.,
crime degression', in Ascen-
'Le
Decaux,
Court',
Zimmermann,
ICC Commentary,
O. Triffterer,
sio,
Criminal
International
(1996), 321-51; A.
'International
Illegality
and
'La
Unies contre 127-55;
The
la
Convention des Nations torture',
RGDIP
(1986),
H. Burgers and H. Danelius,
J.
Convention
Nations
United
M.
Torture (Dordrecht:
against
1988); A.
Nijhoff,
Bouklesbaa, 'The Nature of the Obligations
Incurred by States under Article 2 of the
Convention Against Torture'
UN
Human
12
Criminality of Aggression', in G. Ginsburgs
Rights Q. (1990), 53-93; H. Danelius, 'Art-
and
icle
V.
N. Kudriatsev (eds), The Nuremberg
and
Trial
Law
International
(Dordrecht:
Nijhoff, 1990), 121-40; A. Carpenter, 'The
International Criminal Court
of Aggression', Nordic
223
ff;
State',
RIDP
Hogan-Doran and
For
US
International
on
of
Int.
Law, 1995,
O. Triffterer, 'Prosecution of States for
Crimes of
28
J.
and the Crime
Human
B. T.
cases, see for
and Local
(1996), 341-64;
J.
van Ginkel, 'Aggres-
example those reported
Control,
cit.,
Rights (1989), 371-97.
vol.
5',
A. Eide
in
and others
Universal Declaration of
Human
Commentary (Oslo: Scandinavian Press,
(eds),
The
Rights— University
1992), 101-10; A. Cassese, 'Prohib-
ition of Torture
and Inhuman or Degrading
Treatment
Punishment',
or
Macdonald,
F.
The European System for
in R. A. Friedlander (ed.).
2,227-317 and 369-429. For
in
R.
St.
J.
Matscher, H. Petzold (eds), the Protection of
Terrorism— Documents of
Israeli cases see, for
example,
l l
>
Israel
).
INTERNATIONAL CRIMINAL LAW
132
Human Rights (Dordrech: M.
Nijhoff, 1993),
CYIL
(1989), 87-117; G. Guillaume, 'Ter-
225-61; H. Danelius, 'Protection Against
rorisme
Torture in Europe and the World',
(1989— III), 287-416;
263-75;
N.
The
Rodley,
ibid.,
Treatment
Prisoners under International Law,
of
2nd edn
(Oxford: Clarendon Press, 1999); E. Delaplace, Pellet,
'La
torture',
in
Ascensio,
Decaux,
J.
du
terrorisme.
nouvel exemple de l'eclatement de penale. La loi
du 9 septembre
la
Un loi
1986', Recueil
Dalloz-Sirey,ChroniquesA987 p.39ft.;S.Wi\y
liams,
'International
Age Old
Law and
Terrorism:
Problems, Different Targets', 26
F.
Terrorism:
Quagmire',
ibid.,
19
39-53;
Murphy, 'Defining
A Way Out
IYHR
(1989),
Dinstein,
Y.
Crime',
International
of
13-37;
'Terrorism ibid.,
as
55-73;
Sucharitkul, 'Terrorism as an International
Crime:
Pradel, 'Les infractions
J.
HR
215
international',
K. Skubiszewski, 'Definition of Terrorism',
S.
TERRORISM
droit
International
the
an
Droit international penal 369-76.
et
Questions
Complicity', Habif,
'Le
of Responsibility
247-58; C.
ibid.,
terrorisme
and
Bourgues-
international',
in
Ascensio, Decaux, Pellet, Droit international penal, 457-66;
Crimes',
in
Commentary,
P.
Robinson, 'The Missing
Cassese, vol.
I,
Gaeta,
497-526.
Jones,
ICC
SECTION
II
FUNDAMENTALS OF INTERNATIONAL CRIMINAL RESPONSIBILITY
7
GENERAL PRINCIPLES PRELIMINARY REMARKS
7.1
In every legal order general principles are needed,
which
set
out the overall orienta-
tion of the system, provide sweeping guidelines for the proper interpretation of the
law whenever specific rules on legal construction prove insufficient or unhelpful, and also enable courts to inal law,
the gaps of written or unwritten norms. International crim-
fill
being a branch of public international law, shares of course with any other
sector of this
body of law the general
principles proper to
unique features and the overarching purpose of
on many occasions those general
supra, 2.2), assistance.
More
useful
and relevant appear
international criminal law, for they are
An
and
and
[i]t is
others Trial
Chamber
are recognised in
all
However, given the
turn out to be of scant
be the general principles proper to
more attuned
to
its specificities.
on such
principles. In
of the ICTY, after noting that these principles
III
the world's major criminal justice systems' stated that:
not certain to what extent they have been admitted as part of international legal
practice, separate tially
may
principles to
it.
corpus of legal rules (see
international court has recently questioned reliance
Delalic 'exist
this
and apart from the existence of the national
legal systems.
This
is
essen-
because of the different methods of criminalisation of conduct in national and inter-
national criminal justice systems. (§403.)
The Chamber then explained
the difference between the two levels (national and
international) as follows:
Whereas the criminalisation process legislation
which
dictates the time
in a national criminal justice
when conduct
is
prohibition, the international criminal justice system attains the treaties
and conventions, or
after a
system depends upon
prohibited and the content of such
same
objective through
customary practice of the unilateral enforcement
of a
prohibition by States. (§404.)
With
respect, this explanation
difference still
is
not compelling.
It
would seem rather
between national criminal laws and international criminal
rudimentary character of the
latter.
that the
rules lies in the
This body of law has not yet attained the
degree of sophistication proper to national legal systems.
It
follows that the principles
in question are not yet applicable at the international level in
all
their implications
INTERNATIONAL CRIMINAL LAW
136
and ramifications. Whether or not this legal justification is more cogent that the one Trial Chamber, one can however share at least the substance of the
advanced by the
conclusions reached by the Chamber.
should be added that in international criminal law there
It
not
1
specific to this
body of law,
for the
same
exist principles that are
principles can also be
found
most
in
State
we shall see, often the unique features of order and the way law takes shape therein, condition the the international legal content and scope of some of those principles. One may therefore conclude that some systems of the world. Nonetheless, as
legal
of those principles ultimately bear scant resemblance to those of municipal legal systems, for they are uniquely shaped to suit the characteristic features of the world legal order.
7.2
THE PRINCIPLE OF INDIVIDUAL CRIMINAL RESPONSIBILITY
In international criminal law the general principle applies that
no one may be held
accountable for an act he has not performed, or in the commission of which he has
not in some way participated, or for an omission that cannot be attributed to him.
The ICTY Appeals Chamber Tadic (Appeal).
2
The
fundamental principle out most
set this
principle in fact lays
down
two notions.
First,
nobody may be
held accountable for criminal offences perpetrated by other persons.
behind
this
proposition
responsibility religious
by
1
a
no longer
is
that in
modern
The
rationale
criminal law the notion of collective
acceptable. In other words, a national, ethnic, racial, or
group to which a person may belong
member
'It
from
is
clearly in
is
not accountable for acts performed
of the group in his individual capacity. By the same token, a
member
of
could be postulated, therefore, that the principles of legality in international criminal law are different
their related national legal systems
distinctive, in the
with respect to their application and standards. They appear to be
obvious objective of maintaining
a balance
between the preservation of justice and
fairness
towards the accused and taking into account the preservation of world order. To this end, the affected State or States
must take
into account the following factors, inter alia: the nature of international law; the absence of
international legislative policies
and standards; the ad hoc processes of technical
assumption that international criminal law norms
will
drafting;
and the basic
be embodied into the national criminal law of the
various States' (§405). 2
Before ascertaining whether the Appellant could be found guilty under the notion of participation in a
common in
criminal purpose,
it
stated that
'nobody may be held criminally responsible for
which he has not personally engaged or
that in international law as
much
in
some other way
as in national systems, the
participated'. 'The basic
foundation of criminal responsibility
nobody may be held criminally responsible for personally engaged or in some other way participated (nulla poena
principle of personal culpability:
he has not
systems this principle law the principle states that:
is
is
laid
laid
down
down,
An
inter alia, in Article 7(1)
"A person who planned,
[(
I
Y
[rial
(
lumber
instigated, ordered,
is
the
which
sine culpa). In national legal
of the Statute of the International Tribunal which
committed
... [a crime]
.
.
.
shall
be individually
added) (§186).
recently restated in Kordic
international level (§364).
acts or transactions in
in Constitutions, in laws, or in judicial decisions. In international criminal
responsible for the crime"' (emphasis
tin-
acts or transactions
assumption must be
and Cerkez
that this
is
a general principle applicable at
GENERAL PRINCIPLES
any such group
is
\yj
not criminally liable for acts contrary to law performed by leaders
members of the group and to which he is extraneous. The individual autonomy whereby the individual is normally endowed with
or other
the independent capacity to choose his conduct
is
he
may
he
is
somehow
and
modern criminal may only be held crimin-
firmly rooted in
law, including international criminal law. Secondly, a ally liable if
principle of free will
person
culpable for any breach of criminal rules. In other words,
only be deemed accountable
if
he entertains a frame of mind that involves, or
expresses, or implies his mental participation in the offence, or his culpably negligent
(or deliberate) omission to prevent or punish the
commission of crimes by
subordinates. As a consequence, objective criminal liability It
from the
follows
notion that
first
among
is
his
ruled out.
other things no one
may
be held
answerable for acts or omissions of organizations to which he belongs, unless he bears personal responsibility for a particular
act,
conduct, or omission.
An exception was, however, provided for in Articles 9 and IMT at Nuremberg. Article 9, paragraph 1 stipulated that: At the (in
trial
member
of any individual
of any group or organization the Tribunal
may be
connection with any act of which the individual
organization of which the individual was a
Under
10 of the Statute of the
member was
may declare
convicted) that the group or
a criminal organization.
Article 10:
In cases where a group or organization
is
declared criminal by the Tribunal, the competent
national authority of any Signatory shall have the right to bring individuals to
membership
trial for
therein before national, military, or occupation courts. In any such case the
criminal nature of the group or organization
considered proved and shall not be
is
questioned.
Thus, mere membership
in a criminal organization
was regarded as criminal whether
or not participation in that organization was voluntary. The idea behind the whole
scheme
for post-war trials for
Bernays in the
US Pentagon
Stimson, was that
'It
will
war crimes,
in 1944,
first
propounded by Colonel Murray C.
and eventually upheld by the Secretary of War
never be possible to catch and convict every Axis war
number of them, under the old concepts and procedures'. 3 Anglo-American law to some extent upholds the notion of corporate
criminal, or even any great
Given also that criminal
liability, it
was suggested that
it
was
for
an international court to adjudicate
and punish the crimes of the leaders and of the criminal organizations. Thereafter, every
member
of the Nazi Government and those organizations would be subject to
and punishment
arrest, trial,
in the national courts of each State concerned. 'Proof of
membership, without more, would conspiracy,
establish guilt of participation in the
and the individual would be punished
in the discretion
scheme was confirmed by Control Council Law no.
3
See
Memo
by Colonel Bernays of 15 September 1944,
The Documentary Record— 1944-45 (Stanford, 4
Ibid., at 36.
Cal.:
in B.
Hoover
10,
mentioned
of the court.' 4 This
of 20 December 1945, which
R Smith, The American Road
Institution Press, 1982), at 35.
to
Nuremberg—
INTERNATIONAL CRIMINAL LAW
I38
provided in Article
11(1 )(d) that acts 'recognized as a crime'
categories of a criminal
included 'membership in
group or organization declared criminal by the International
Military Tribunal'. In
its
judgment
in
Goring and others the
tions as criminal: the Leadership
IMT
eventually labelled
some organiza-
Corps of the Nazi Party; the Gestapo and the SD; the
SS.
However, the Tribunal discarded the doctrine of 'objective' or 'group responsibil-
ity'
and brought back the provisions of the Statute
law.
It
made
First,
it
held that the labelling of a group or organization as criminal should not be
based on 'arbitrary action' but on 'well-settled that 'criminal guilt
is
personal'
addition, 'the Tribunal should
manner
in a
to traditional concepts of criminal
the following qualifying points (at 255-79).
and
legal principles', chiefly the principle
mass punishments should be avoided'. In
'that
make such
declaration of criminality so far as possible
to insure that innocent persons will not be punished'.
Secondly, the Tribunal reduced the notion of 'criminal organization' to that of 'criminal conspiracy':
A
criminal organization
is
analogous to a criminal conspiracy in that the essence of both
cooperation for criminal purposes. There must be a group for a
common
bound
is
together and organized
purpose. The group must be formed or used in connection with the
commission of crimes denounced by the Charter. It
followed that one 'should exclude persons
who had no knowledge of the criminal who were drafted by the State for
purposes or acts of the organization and those
membership, unless they were personally implicated declared criminal by Article 6 of the Charter as
commission of
in the
members of the
acts
organization'.
Thirdly, the Tribunal issued three 'recommendations' to other courts with regard to penalties to be inflicted
on members of criminal
Fourthly, the Tribunal, each time similar caveat:
tion
'knowledge that
it
5
termed an organization criminal, added
it
one could hold criminally
who had had
organizations.
liable
only those
was being used
members of the
for the
a
organiza-
commission' of
inter-
national crimes, or were 'personally implicated in the commission of such crimes,
and
in addition
had not ceased
to belong to the organization prior to
1
6
September
1939 (the start of the war of aggression by Germany).
5
They were
as follows:
classifications, sanctions
'1.
That so
far as possible
throughout the four zones of occupation in Germany the
and penalties be standardized. Uniformity of treatment so
basic principle ... 2. [Control Council]
Law
no. 10
.
.
.
leaves
court even to the extent of inflicting the death penalty.
punishment
far as practical
should be a
entirely in the discretion of the trial
The De-Nazification Law of 5 March
1946, however,
passed for Bavaria, Greater- Hesse, and Wurttemberg-Baden, provides definite sentences for punishment in
recommends that in no case should imprisonment imposed under Law no. upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the De-Nazification Law. No person should be punished under both laws. 3. The Tribunal recommends to the Control Council that Law no. 10 be amended to prescribe limitations on the
each type of offense. The Tribunal 10
punishment which may be imposed for membership in a criminal group or organization so that such punishment shall not exceed the punishment prescribed by the De-Nazification Law' (at 267-7). '
Emphasis added. See
ibid., at
262, 268, 273.
GENERAL PRINCIPLES
would appear
It
German
139
that subsequent courts complied. Consequently
organizations termed criminal by the
IMT
members of
were not punished for the mere
of belonging to one of them.
fact
Furthermore, other Tribunals upheld the principle of personal responsibility laid
down by were
IMT
the
in
is
judgment. Thus,
Krupp and
in
of the Krupp industrial enterprises
officials
political, financial, industrial,
Nuremberg held
and economic
life
who
others,
where the 12 accused
occupied high positions in the
of Germany, a
US
Tribunal sitting
that the defendants could be held criminally liable only
if it
at
could be
proved that they had 'actually and personally' committed the offences charged. 7
US
Another (at
189),
1
Tribunal sitting at Nuremberg took a similar stand in Flick and others
and then
in
the 23 accused were
Krauch and others of
all officials
other things with war crimes.
I.
G. Farben
(I.
trial, at
1
108). In this latter case
among
G. Farben industrial enterprises, charged
The Tribunal took pains
to
emphasize that they did not
bear collective responsibility but could only be found guilty of individual criminal liability.
8
THE PRINCIPLE OF LEGALITY OF CRIMES (NULLUM CRIMEN SINE LEGE)
7.3
To
fully grasp the significance
and scope of this principle
a few
words of introduction
are necessary.
National legal systems tend to embrace, and ground their criminal law on either the doctrine of substantive justice or that of the legal order socially
is
must primarily aim
harmful or causes danger to
already been legally criminalized at the
7
'The mere fact without
the firm
is
more
Secundum on corporate
liability,
society,
moment
that a defendant
not sufficient [for criminal
strict legality.
was
a
whereby
officers
that
whether or not that conduct has
it is
member
liability to arise]'. It
Under the former doctrine
and punishing any conduct
at prohibiting
taken.
The paramount
interest
of the Krupp Directorate or an
official
then cited a rule of the American Corpus
is
of
Juris
of a corporation, normally not criminally responsible for
corporate acts performed by other officers or agents, are nevertheless liable
if
they actually and personally do
done by their direction or permission, so that an officer is established, or where he is the actual present and efficient actor'. The
the acts constituting the offence, or such acts are liable
'where his scienter or authority
is
Tribunal added that the same principles must apply in the case of war crimes (at 627-8). 8
It
noted the following:
'It is
appropriate here to mention that the corporate defendant, Farben,
before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings.
used the term Farben as descriptive of the instrumentality of cohesion in the acts of spoliation
were committed. But corporations
act
name of which
is
We
not
have
the enumerated
through individuals and, under the conception of
personal individual guilt to which previous reference has been made, the Prosecution, to discharge the burden
imposed upon
it
in this case,
must
establish
defendant was either a participant in the
by competent proof beyond a reasonable doubt that an individual
illegal act
or that, being aware thereof, he authorized or approved
it.
Responsibility does not automatically attach to an act proved to be criminal merely by virtue of a defendant's
membership to achieve abets.
in the Vorstand [administration board]. Conversely,
an immunity from criminal responsibility for
one may not
illegal acts
which he
utilize the
corporate structure
directs, counsels, aids, orders, or
But the evidence must establish action of the character we have indicated, with knowledge of the
essential elements of the crime' (at 1153).
INTERNATIONAL CRIMINAL LAW
140
defending society against any deviant behaviour the social
and
(favor societatis).
found
Hence
legal system.
However, one can also find some variations of
can be
this doctrine
modern democratic
this doctrine in
'objective justice' (materielle Gerechtigkeit) have
governments trampling upon fundamental
as a reaction to oppressive
rights,
over the individual
system (1918-58) or in the Nazi criminal law (1933-45).
Germany, where the principles of
human
cause damage or jeopardize
Extreme and reprehensible applications of
in the Soviet legal
been upheld
likely to
this doctrine favours society
and courts have had recourse
to the celebrated 'Radbruch's formula'.
Radbruch, the distinguished German professor of jurisprudence, formulated
up
'formula' in 1946. In terms subsequently taken
9
in
some German
cases,
9
this
he pro-
The German Federal Constitutional Court referred to that 'formula' in its judgment of 24 October 1996 and Kessler. The question at issue was whether the accused, former senior officials of the former
in Streletz
German Democratic Republic (GDR) charged with and
responsibility in ordering the shooting
killing
incitement to
commit
intentional homicide for their
by border guards of persons trying to
from the GDR,
flee
could invoke as a ground of justification the fact that their actions were legal under the law applicable in the
GDR at the material time, which did not make them liable to criminal prosecution. The defendants submitted that holding
them criminally
would run contrary
liable
German
law and Article 103(2) of the
dismissed the defendants' submissions. derived
its
justification
from the
respecting fundamental rights.
It
to the
Constitution laying
among
It
ban on the
down
retroactive application of criminal
the nullum crimen principle.
special trust reposed in criminal statutes enacted
then went on to
The Court
other things noted that the prohibition on retroactive law
state: 'This special basis
by
a
democratic legislature
of trust no longer obtains where the
other State statutorily defines certain acts as serious criminal offences while excluding the possibility of
punishment by allowing grounds of
justification covering
some of those
and even by requiring and
acts
encouraging them notwithstanding the provisions of written law, thus gravely breaching the
By such means those vested with
generally recognised by the international community.
system so contrary
to justice that
it
human
power
State
rights
up
set
can survive only for as long as the State authority which brought
it
a
into
being actually remains in existence.
wholly exceptional situation, the requirement of objective
'In this
human
respect the
to accept such justifications
.
.
which
also it
embraces the need to
impossible for a court
.
'The Federal Republic has experienced similar conflicts 'In that
justice,
by the international community, makes
rights recognised
when
dealing with the crimes of National Socialism.
connection, the Supreme Court of Justice for the British Zone, and later the Federal Court of Justice,
become punishable retroactively if a provision of written law was on account of a gross breach of higher-ranking legal principles. They took the view that there could be provisions and instructions that had to be denied the status of law, notwithstanding their claim to
ruled on the question whether an act might
disregarded
which applied
constitute law, because they infringed legal principles
by the
State,
whoever had behaved
in
irrespective of
whether they were recognised
accordance with such provisions remained punishable
.
.
.
The Federal
Constitutional Court has so far had to deal with the problem of "statutory injustice" [gesetzliches Unrecht]
only in spheres other than that of the criminal law.
It
has taken the view that in cases where positive law
intolerably inconsistent with justice the principle of legal certainty justice. In that
connection
become known
as
it
has referred to the writings of Gustav Radbruch
Radbruch's formula
.
.
.
On
that point
disapplied only in absolutely exceptional cases
unacceptable on any enlightened view, order, rule
statutory provision outset
.
.
may
and
it
legislature
.
.
and
.
.
.
it
what has
justice, that
which
is
also remains inherently conducive to
However, the period of National
was capable of imposing gross "wrong" by
was intolerably inconsistent with
in particular to
that a merely unjust piece of legislation,
nevertheless, because
statute ... so that,
Socialist
where
a
provision should be disapplied from the
.
'The Federal Court of justice has since further developed
its
case-law
Government criminality \Regierungskriminalitat\ during the SED regime disregard
.
is
that of objective
has repeatedly stressed that positive law should be
acquire legal validity and thus create legal certainty
still
had shown that the
may have to yield precedence to
a
justification
if
it
when in the
trying cases of so-called
GDR
... a court
must
purports to exonerate the intentional killing of persons who sought nothing more
GENERAL PRINCIPLES
pounded the notion
that positive law
must be regarded
applied where the inconsistency between
must
the former
legal literature.
give
way
141
statute law
to the latter. This 'formula' has
justice
is
so intolerable that
been widely accepted
the
moment when
as a criminal offence
by the relevant
criminally liable and punished
was regarded
under the applicable
if at
law. Historically, this doctrine
baronial and knightly class to the arbitrary
order
legal
political
only be held
or, in
act,
the
other words,
stems from the opposition of the
power of monarchs, and found expression
wait for the principal thinkers of the Enlightenment to find
and
may
he performed a certain
39 of Magna Charta libertatum (Magna Carta) of 1215. H
in Article
in the
10
In contrast, the doctrine of strict legality postulates that a person
act
and not
as contrary to justice
and
its
One must however
proper philosophical
underpinning. Montesquieu and then the great American proclamations
of 1774 and of the French revolution (1789) conceived of the doctrine as a way of restraining the
and the
power of the
rulers
and safeguarding the prerogatives of the
As the German criminal lawyer Franz von
judiciary.
nullum crimen sine
nulla
lege>
poena
legislature
Liszt later wrote, 'the
bulwark of the
sine lege principles are the
citizen
against the State's omnipotence; they protect the individual against the brutal force of 12
the majority, against the Leviathan'.
At present, most democratic
law countries tend to uphold the doctrine of strict
civil
an overarching principle. In
legality as
held to articulate four basic notions:
(i)
law countries the doctrine
civil
criminal offences
normally
is
may only be provided
for in
written law, namely legislation enacted by Parliament, and not in customary rules (less certain
and
definite than statutes) or
secondary legislation (which emanates from
body expressing popular
the government and not from the parliamentary principle
is
referred to
by the maxim nullum crimen
must abide by the principle of
legislation
human conduct must be
and
as specific
than to cross the intra-German border
specificity,
sine lege scripta;
whereby
criminal
rules criminalizing
clear as possible, so as to guide the
unarmed and without endangering
will); this
(ii)
behaviour
interests generally recognised as
enjoying legal protection, because such a justification, which puts the prohibition on crossing the border
above the right to
must remain
life,
elementary precepts of justice and of question that are 10
ineffective
human
on account of
rights protected
a manifest
and
so serious as to offend against the legal beliefs concerning the worth
is
common
to
all
peoples. In such a case positive law has to give
See for instance the excellent
book by G.
Vassalli,
intolerable infringement of
under international
Formula
di
way
to justice'
Radbruch
law.
The infringement
in
and dignity of human beings (emphasis added).
e diritto penale (Milan: Giuffre,
2001), in particular at 3-205, 279-319.
Of course, unjust law that
it
11
is
the notion
propounded by Radbruch could simply be termed the Natural
no law and must be disregarded. As such,
makes the law
'Nullus liber
it
Justice
view that an
might be susceptible to the criticism of
subjective, since the sense of justice varies
from person
positivists
to person.
homo capiatur vel impresonetur aut dissaisiatur aut utlegatur aut exuletur aut aloquo modo eum ibimus nee super eum mittemus nisi per legale judicium parium suorum vel per legem
destruatur nee super terrae
(it is
only through the legal judgment by his peers and on the strength of the law of the land that
freeman may be apprehended or imprisoned or disseised or outlawed or exiled or destroyed, nor 12
F.
von
may we go upon him
Liszt, 'Die
or send
in
>i
any other manner
upon him).
deterministischen Gegner der Zweckstrafe', 13 Zeitschriftfurdas gesamte Strafrechtswis-
senschaft (1893), at 357.
INTERNATIONAL CRIMINAL LAW
142
of citizens; this
expressed by the Latin tag nullum crimen sine lege stricter,
is
may not be
rules
retroactive, that
was considered criminal
is,
a person
may only be punished
for
nullum crimen sine proevia
is
criminal rules
maxim
Plainly, as stated above, the
lege;
13
analogy in applying
(iv) resort to
purpose of these principles
rei (in
to safeguard citizens as far
is
both the arbitrary power of government and possibly excessive
judicial discretion. In short, the basic
of favor
may
referred to
prohibited.
is
as possible against
late
behaviour that
time the conduct was undertaken; therefore he
at the
not be punished on the strength of a law passed subsequently; the in this case
criminal
(iii)
underpinning of this doctrine
lies in
the postu-
favour of the accused) (as opposed to favor societatis or in favour
of society). In contrast, in
embedded
firmly
common
and certainty proper
law offences are not
shown by
a tendency to
law offences
opposed
(as
to statutory
com-
new
recent English cases contemplating
of non-retroactivity, as
offences, or at v.
R. (1992),
is
any rate the extin-
which held that the
common law defence to a husband's rape of his Court of Human Rights has not regarded such cases
of marriage was no longer a
fact
wife).
14
However, the European
as questionable or at
Convention
(see
any
rate contrary to the
SW and CR v.
Thus, the condition
One
not the same in every legal system. Let us
is
is
to English law than to French,
This, however,
is
which of
see
German, Argentinean, or Chinese
not sufficient. The main problem
recently, international
The German Federal Constitutionalal Court set out the in Streletz and Kessler. In
down
Constitution, laying
the Basic
Law
and
that for a long period,
is
law has applied the doctrine of substantive justice and
mentioned decision of 24 October 1996
German
now
applied in international law.
could merely state that international law, being based on customary processes,
more akin
13
fundamental provisions of the European
United Kingdom, 1995).
the two aforementioned doctrines
the principle at issue,
it
it is
principle in admirable terms in illustrating the
its
law.
until
only
afore-
scope of Article 103(2) of the
stated the following: '(La) Article 103 §2 of
protects against retroactive modification of the assessment of the wrongfulness of an act
to the offender's detriment
.
.
could be relied on at the time
.
Accordingly,
when an
the time criminal proceedings begin, contrast to the definition of offences tive
at least
to written legislation. For another,
strictly subject to the principle
guishing of traditional defences (see, for instance, R.
is
is
adopt a qualified approach
from judge-made law and therefore may lack those requirements of
rigidity, foreseeability,
mon
is
common
one thing,
to these principles. For
offences) result
law countries, where judge-made law prevails or
in the legal system, there
it
act
it
also requires that a statutory
was committed should continue
ground of to
justification
which
be applied even where, by
has been abolished. However, where justifications are concerned, in
and
penalties, the strict reservation of Parliament's
does not apply. In the sphere of the criminal law grounds of justification
may
law-making prerogaalso be derived
from
customary law or case-law'. 11 It
would seem
that the English law used to be that a
man
could not rape his wife because, by agreeing to
marry, she had implicitly consented to sexual intercourse for
mediaeval approach. The defence existed only as a matter of judge
in R.
th.it
husband could
(1982), 732-42; K. Greenewalt, 'The Per-
Borders
plexing
Excuse', 84
CLR
of
HLR
cation
Justification
and
(1984), 1897-1927; G.
Fletcher, 'The Right
98
and
(1985), 949-54;
and Excuse
in
J.
P.
Fletcher,
CLForum
Justi-
(1997),
General Concepts,
Mantovani, 249-92, 374-402,
F.
Glaser, 'Culpabilite en droit international
stag,
HR
(1960-1), 512-25; A. L. Dien-
'Fedorenko
v.
United
States:
CLR
(1982), 120-
'"Defences" in
War Crimes
can Nationality Law, 82 83;
A.
Trials',
Eser,
24
IYHR
(1994), 201-22; Y. Din-
stein, 'Defences', in
McDonald and Swaak-
'Allgemeine Teil\ 325-30, 767-832.
Criminal
P.
War
Crimes, the Defence of Duress, and Ameri-
C. Smith, Justifi-
the
(1992), 369-400;
S.
penal', 99
Goldman
(eds),
367-88; K. Ambos, Der
Law
View of Criminal Law Defences',
CLForum
INTERNATIONAL CRIMINAL LAW
the Reasonable',
(London: Stevens, 1989); D. N. Husak, 'The Serial
P.
8
and Excuse', 24 AJCL (1976), 638-
fication
24
Thief and the Theory of
Defences',
3
H. Robinson,
ICC
Statute
A. Eser, in Cassese, Gaeta, and Jones (eds),
7CC Commentary,
I,
889-948.
13
OTHER EXCUSES! SUPERIOR ORDER, NECESSITY, DURESS, AND MISTAKE In the preceding chapter
we have
discussed,
among
other things, those classes of
excuses where the lack of mens rea derives from the agent lacking individual
autonomy and consequently being not egories of excuses derives
On
— that
is,
'imputable'.
will
now
consider other cat-
from external circumstances.
this score, the first
question to be discussed
excuses in national and international criminal legally considered,
criminal
is
whether one of the most invoked
trials,
under international criminal
that
is,
superior orders,
may be
law, as a circumstance precluding
liability.
13.1
SUPERIOR ORDERS! MAY THEY BE PLEADED AS A DEFENCE?
NOTION
13.1.1
The
We
those where the absence of the requisite subjective element
basic assumption of the
may be
whole question of superior orders
is
that a subordinate
faced with two conflicting obligations: that deriving from international law
(which would impose not to execute an unlawful order), and that stemming from the specific order issued to
national rules). In the
him (and which enjoins to perform an act contrary to interdilemma between (i) respect for military hierarchy and the
consequent principle respondeat superior (only the superior should be held accountable)
and
(ii)
the morally exacting
demand
that
whoever seriously deviates from
fundamental standards of conduct should be held responsible for
his action
even
at
the risk of jeopardizing military discipline, international law eventually opts for the
second option. As international instruments
(in particular the Statutes
International Tribunals, as well as Control Council
Law
no. 10)
of ad hoc
and national and
international case law clearly show, a customary rule has evolved in international law
whereby an international crime by
a subordinate
may
not be excused by the plea that
INTERNATIONAL CRIMINAL LAW
232
he acted upon superior orders. Wherever the conduct amounts to a serious violation of international humanitarian law or international criminal law, and whatever the
may be
category of crime
(a
war crime,
crime against humanity, or another crime
a
such as torture) the perpetrator must be held accountable. However, the acted following superior orders
The regulation ities,
may be urged
in mitigation of
just outlined applies to orders of
both military and
and whatever the rank of the superior authority, provided obey (otherwise he would not
fact that
he
punishment. civilian
author-
the subordinate
(i)
is
under a
legal obligation to
and
the authority issuing the order wields formal or substantial control over that
(ii)
face a clash of obligations),
subordinate.
THE INTERNATIONAL AND NATIONAL LAW TESTS
13.1.2
The question of superior orders legislation
Some on
often framed in different terms: both national
and national judgments frequently
cutes a superior order that
the order
is
manifestly unlawful In this respect
is
national Military Manuals also take the
this matter, starting
on 30 March 1915
whenever
state that,
contrary to international rules, he
is
responsible
one can mention national
same
2
stand. There
is
when
legislation.
1
abundant case law
with a case decided by the Austrian Supreme Military Tribunal
(case of the Russian prisoner ofwarJ.K., at 20).
This legal regulation of the matter
may appear
to
be somewhat inconsistent with
the definition of superior order set out above. However, as a conclusively demonstrated,
1
a subordinate exe-
is
3
commentator has
seeming contradiction does not
this
exist.
National
For example, the French Penal Code (Article 122-4) of 1994, the Spanish Military Criminal Code of 1985
(article 21), the
Criminal Code of Sweden (1999) (Chapter 24, Section
8),
and
the Israeli law
Israeli
Code of Military Justice (Article 19, para. 7). Manual of 1956 (§509), the Canadian Manual for Courts Martial
Defence
Forces' internal regulations, the Peruvian 2
3
US Field US Manual for Courts
See, for instance, the
16-5) and the
(1999, at
Martial (2002 edn), Rule 916(d).
Gaeta, 'The Defence of Superior Orders: the Statute of the International Criminal Court
v.
Customary
International Law' 10 EJIL (1999), at 172-91. Various courts have taken this stand. For instance, in Brussels the Brussels
Court Martial
clearly stated in 1951 that
war crime, the order may not amount
to a defence
out, 'the execution of such orders, particularly the
the
SIPO
SicherheitPolizei] at Gangelt,
and the subordinate
gruesome slaughter
is
[of Resistance fighters,
order, the
and the claim of the defendants
Court noted that Article 40 of the
whereby an order must be executed unless the Statute establishing the
down
it is
that they
had executed
Code in Time of Peace was applicable, The Court went on to state that 'Article 8 of
Italian Military Penal
manifestly
illegal.
an order, [Article
verifying the concrete manifest illegality of the order
to the jurisdiction of the Tribunal. This standard of appraisal for the
8]
that provision; indeed,
by laying
simply took away from the judge the task of
and was based on the presumption
whenever the offence ordered and executed amounted
war crimes: these crimes are envisaged
German military in and upon superior
civilians as a reprisal
Nuremberg Tribunal had not derogated from
that a superior order could not excuse
existed
by members of
as such' (at 1522).
See also Hass and Priebke (Appeal) (decision of 15 April 1998). Discussing the acts of 1943,
a
punishable. As the Court pointed
should be considered as a flagrant breach of the laws and customs of
war and the laws of humanity and should be punished
Rome in
SIPO-
whenever the execution of an order involves
to a
war crime or
at
any
that such illegality
rate to a
crime subject
was patently grounded on the very essence of
purpose of protecting fundamental values endowed with
absolute character and valid for the whole of mankind; hence they are laid
down
regardless of any particular
viewpoint, are clear in their essence and intend to criminalize highly condemnable conduct' (at 52-3).
OTHER EXCUSES
manuals and laws approach the
military
233
manner
issue in the
international crime. International rules, instead, only regulate the tion
of international crimes, and take
it
amounts
to
an
more limited ques-
any such crime
for granted that
it
because
just outlined
they intend to cover any violation of military law, whether or not
is
manifestly
commit the The only exception is where the law on a
unlawful, with the consequence that a subordinate executing an order to
crime
no
is
responsible than his superior.
less
particular matter
mistake of law In practice,
obscure or highly controversial, in which case the defence of
is
may be two
or not the plea
raised.
different approaches are taken in case law in determining
at issue
may be
whether
upheld. International courts and tribunals, applying
the customary rule outlined above, as well as the provisions of their statutes restating that rule, simply satisfy themselves that:
(i)
the act at issue
amounted
to a
war crime
or any other international crime over which the court or tribunal has jurisdiction; the order was given by a superior authority and, In contrast, national courts, relying
take a different approach.
performance of an national crime;
(ii)
the subordinate carried
it
(ii)
out.
the test of 'manifestly unlawful orders',
They ask themselves whether:
act that
and
upon
if so,
the person executing the order
the order concerned the
(i)
was undisputedly unlawful,
for
it
constituted an inter-
knew
or should have
under
this text
known
the order to be manifestly unlawful. best illustration of how a national court proceeds
The
by the Judge Advocate to
in the instructions issued
Judge Advocate
The
first
spelled out the
done
acts of a subordinate
superiors are excused and impose is
one which
know
a
man
in
test.
He noted
US Court
a
may be found
Martial in Calley.
The
that
compliance with an unlawful order given him by
no criminal
upon him
liability
his
unless the superior's order
of ordinary sense and understanding would, under the circumstances,
to be unlawful, or
if
the order in question
is
actually
known
to the accused to be
unlawful.
The Judge Advocate then [Ujnless you find directing
him
beyond
a reasonable
in substance
determine whether
Lt.
instructed the Court as follows:
and
doubt that he
Calley actually
knew
is
by evidence of
facts
from which
it
may
may be proved by justifiably
knowledge of the unlawfulness of the order which he has ing whether or not to have
Lt.
was not acting under orders
occupants of
My
Lai (4),
you must
those orders to be unlawful. Knowledge on the
part of any accused, like any other fact in issue, that
[Calley]
effect to kill unresisting
circumstantial evidence,
be inferred that
testified
Lt.
Calley had
he followed. In determin-
Calley had knowledge of the unlawfulness of any order found by you
been given, you may consider
Calley's rank, educational
background,
all
relevant facts
OCS
and circumstances, including
Lt.
schooling, other training while in the Army,
including Basic Training, and his training in Hawaii and Vietnam, his experience on prior
operations involving contact with hostile and friendly Vietnamese, his age, and any other
evidence tending to prove or disprove that on 16 March 1968, unlawful. actually
If
you find beyond reasonable doubt, on the
knew
Lt.
Calley
knew
the order was
basis of the evidence, that Lt. Calley
the order under which he asserts he operated was unlawful, the fact that the
order was given operates as no defence.
INTERNATIONAL CRIMINAL LAW
234
Unless you find beyond reasonable doubt that the accused acted with actual knowledge
was unlawful, you must proceed
that the order
man
stances, a
to determine whether,
on
unlawful. Your deliberations
this
under the circum-
known
of ordinary sense and understanding would have
question do not focus solely on
Lt.
the order was
Calley and the
manner in which he perceived the legality of the order found to have been given him. The standard is that of a man of ordinary sense and understanding under the circumstances.
Think back
you find
to the events of 15
briefing,
and during
gunship
'prep'
his
and any
and 16 March 1968. Consider
all
the information which
company briefing, at the platoon leaders' conversation with Captain Medina before lift-off. Consider the
been given
to have
Lt.
Calley at the
may
he
artillery
have observed. Consider
all
the evidence which
you find indicated what he could have heard and observed as he entered and through the
of occupants,
him
facing
where you find him
village to the point
you find him
if
at that point.
to have so acted. Consider the situation
Then determine,
whether the order, which to reach accordance with,
one which
is
be unlawful. Apply
in light of all the
this point
man
you
Lt.
way
will
which you find
have found him to be operating in
of ordinary sense and understanding would Lt.
know
known
to
Calley to have
from the evidence, beyond reasonable doubt, that
satisfied
of ordinary sense and understanding would have
you must acquit
his
surrounding circumstances,
each charged act which you have found
this to
committed. Unless you are
man
a
made
to have first acted causing the deaths
a
the order to be unlawful,
Calley for committing acts done in accordance with the order.
(1723-4.) It is
clear
from
this
and other
more cumbersome and, what
cases that the application of the national law test
is
more important,
leaves
to the judicial body. In contrast, the international test
is
more
discretionary
is
power
straightforward and easy to
apply.
Nonetheless,
we
shall see that, in practice,
both
tests
have led to the same
results.
Indeed, the national law test has mostly been applied in cases where the act performed
was
in blatant
instances
breach of universally recognized rules of international law. In those
where instead the plea of superior order has been upheld by national courts
under the national law
test,
either the courts erred, or the relevant international rules
were absolutely unclear and probably international courts and tribunals would also have reached the same conclusion.
13.1.3
CASE LAW REJECTING THE PLEA OF SUPERIOR ORDER
National courts and international courts or tribunals have dismissed this plea in
numerous
defenceless shipwrecked persons;
(i)
1
'
p.
cases, in particular in cases
Sec, for instance,
Llandovery Castle
Sec for instance Schintlholzer
and
(at
4
concerning the killing or ill-treatment
(ii)
innocent civilians in occupied territory; 5
2580-6); Peleus
(at 128-9).
others (Military Tribunal of Verona, 21 February 1989, unpublished,
44 of the typescript); Josef Kramer and others (the Belsen
Velpke
Baby Home
trial), at
of:
trial), at
631-2; Heinrich Gerike and others (the
338; Sipo-Brussels case (at 3-10); Gbtzfrid (at 62-6).
OTHER EXCUSES
prisoners of war;
(iii)
6
235
non-combatants detained
(iv)
in the
combat
area;
7
and
also in
8 cases concerning (v) the taking of illegitimate reprisals against civilians; or (vi)
unlawfully punishing civilians
enemy; 9 or
who
refusing quarter.
(vii)
are acting
on behalf of, or collaborating
with, the
10
CASE LAW UPHOLDING THE PLEA
13.1.4
In a few cases courts have upheld the plea because, in their view, either the order 11
lawful,
or the accused lacked the requisite mens rea due
judgment; or necessary
6
(ii)
mental disorder; or
to appraise
first
whether
(iii)
7
and
a generic order
was
lawful,
and then
Thomas
L.
Kinder
(at
US Court
Court, at
(at
232, 240-1,
2), Ztihlke (at
133-4), Rauter (at 157-9),
of Military Appeals,
2), Sablic
and
Zimmermann
(at
30-1), Bellmer (at
770-4), Walter Griffen (at 587-91), Frank C. Schultz (at 137), Charles W. Keenan
114-19), Michael A. Schwarz (at 859-61), William
1180-2;
it
to determine
others (at 562-3).
See for instance Lages (at
543), (at
absence of freedom of
to: (i)
mistake of law. In other cases courts found
See for instance Gozawa Sadaichi and others (at 225, 229, 231), Sumida Haruzo and others
258), Strauch
was
at
L.
Calley
(US Army Court of Military Review,
541-5), Sergeant W. (Brussels
others (at 120-1),
M. and
G. (at 989-90),
War
Council, at
3,
at
and Military
Major Shmuel Malinki and
others (at
88-132). See also a case where, in an obiter dictum, the Court held that the plea was not applicable in a
(Nwaoga, 8
civil
war
at 3).
See Wagener and others
(Rome
Military Tribunal, at 52-3; High Military Tribunal, at 746), Neubacher
Fritz (at 39-41). 9 10 1
'
See for instance Wolfgang Zeuss and others (at 206-7, 216). See for instance Nikolaus von Falkenhorst (at 226-7, 237). See for instance
attack fists
and
for these
auch
Neumann. Upon
the orders of a superior officer, the accused had taken part in an
on prisoners of war who had refused
to
The German Supreme Court at events, for there could be no doubt
feet'.
work, and had
in addition 'belaboured a prisoner
l
as to the legality of the order
sich nicht in Zweifel ziehen lassen, dass der Befehl rechtmassig
state that 'Unless there
is
with his
Leipzig held that the accused could not be held responsible
war,
(
Wie die Dinge
liegen,
wird
The Court went on to even in a body of prisoners,
at 2554).
damage to military discipline, bud relentlessly and they have to be stamped out by all the commanding officer and if necessary even by the use of arms. It is of course
to be irreparable
disorderly tendencies have to be nipped in the
means
at the disposal
of the
understood that the use of force {Gewaltanwendung) in any particular case must not be greater than necessary to compel obedience.
It
is
has not been established that there was any excessive use of force here.
The accused has been charged with having continued to belabour [the Scottish prisoner of war] Florence when he was lying on the ground and after the resistance of the prisoners generally had already been overcome. For this, however, no adequate proof has been forthcoming' (at 2553-4; at 699 for the English translation).
It is
notable that in the same case the Court also ruled out the defence being available to the
accused with regard to other instances where he had ill-treated prisoners of war using what the Court held to be excessive force, not justified by the order (ibid, at 2554-6 and 699-704, for the English translation).
In von Falkenhausen the Brussels
Court Martial {Conseil de guerre) held
the execution of reprisals against the population could reprisals
amount
that the superior orders
concerning
to an admissible plea to the extent that the
were necessary to ensure the security of the Occupant; indeed according
to the
Court
at
the time
these reprisals were carried out, under international law such reprisals could not be regarded as a 'flagrant violation of the laws of warfare' (at 868-70).
INTERNATIONAL CRIMINAL LAW
236
whether the execution of the order by the subordinate was in keeping with national legal standards.
We
inter-
12
here only the cases where according to the courts the defendant
shall discuss
lacked the requisite subjective element (mens red).
Lack of mens rea due to purported absence of freedom of judgment
1.
In Kappler reprisals
and
others (1948) the
Rome
Military Tribunal dealt with the unlawful
ordered by Hitler for the murder in Via Rasella, Rome, of 32 members of an
SS unit. The SS Lieutenant Colonel Kappler, besides carrying out those orders, decided
more
to kill ten
because meanwhile another SS had died as a result of the
Italians
bombing. In addition, he had persons.
The Court held
more
five
Italians killed
that the reprisals
by mistake: a
ordering the shooting of ten persons plus the additional
found that he was not
it
total
of 335
were unlawful, and Kappler was guilty of people. However,
five
guilty for the killing of 320 persons ordered
by
Hitler. It
held that:
The mental
prompt obedience
habit of
organization based on very
been previously executed
from the Head of
in
Court to believe that
obey an unlawful
in the various areas
of military operation, the
it,
may
it
fact that
owing
forces,
in
an
same content had an order
to the great
cannot but diminish, especially in a serviceman, that freedom of
necessary for an accurate appraisal,
is
had developed working
the fact that orders with the
and Supreme Commander of the armed
State
moral force inherent
judgment which
that the accused
strict discipline,
all
these are elements
which lead
this
not be held with certainty that Kappler was aware and willed to
order.' (At 30.
13
The Supreme Military Tribunal upheld the judgment by
a
decision of 25 October 1952, at 97-118.)
12
One may mention
V.
was trying
G. (Korad Khalidv.
to enter the safety area,
the order 'to defend units'
J. F.
member
Military Court. In 1993 a
was lawful
Paracommando
soldier),
brought
1995 before a Belgian
in
wounded a Somali child who accused. The Court found that
of the Belgian military troops in Somalia had
through barbed wire fencing guarded by the
and prevent anyone from penetrating into the cantonment of various Belgian military 1064-6).
(at
It
then considered
how
the defendant had carried
out.
it
It
noted that 'on
observing the child creep through the concertina and thus arrive in the immediate vicinity of the bunker, he
warning
[the defendant] first gave the necessary verbal
warning shots into the ground about 50 decided to
fire
an aimed shot ...
was the only possible one (in
cm away from
at non-vital
in
both Somali and English
who
the child,
organs, viz. the legs
to fulfil his defensive duties ... he
.
.
.
still
showed no
...
he then
fired
two
reaction, ... he finally
the procedure followed by the accused
was physically incapable of catching the intruder
view of the special position of the bunker, which was accessible only from the rear along an aperture in the
cantonment
wall)
.
.
.
and
[in
addition]
it
was
unrealistic to call
upon other
reserve facilities, e.g. the picket;
[furthermore] in view of the possible imminent attack, the reaction had to be also
commensurate;
...
all
prompt and
this reaction
was
being considered, there was no other action suitable in the circumstances which
could be taken to prevent further penetration
.
.
.
[and] the force used was unmistakably proportional to the
nature and extent of the threat' (at 1066-7).
A
similar case
is
D. A. Maria Pierre
(Osman Somow
v.
Paracommando
Soldier).
A
Belgian Military Court
held that the order was lawful and that, in accidentally causing the death of a Somali civilian, the Belgian soldier
on guard duty who had executed the order was not responsible for he had not
foresight
and
care'
when
firing a
warning shot which by ricochet had
fatally
wounded
failed 'to exercise
the Somali (at 1069-
71). 13
The Court applied
found them not guilty
the
(at 51
same reasoning ).
to the four other accused,
who had
executed Kappler's order, and
OTHER EXCUSES
The Court's reasoning
highly questionable and, indeed, was 'reversed' in sub-
is
14 sequent judgments of Italian courts.
where
a superior gives
If
one were
to share this approach, in
all
cases
an unlawful order the subordinate would be relieved of
one could
responsibility. Indeed,
237
prove that the superior authorities' widespread
easily
practice of issuing unlawful orders, together with the great clout of such authorities,
bring about a frame of
and hence
mind whereby
the subordinate forfeits his awareness and will,
lacks the requisite mental element for the
commission of the crime.
Lack of mens rea due to alleged mental disorder
2.
There are also other instances where, according to some national courts, the execution of unlawful superior orders, while not constituting per se a valid defence,
may
bring about such a state of
lacks
any autonomous
in the subordinate, that in the
end he
will as well as the intent necessary for his criminal responsibil-
such cases courts have found that the accused found himself in such
ity to arise. In
of confusion that he was unable to entertain the mental attitude required for
state
mens
A
mind
rea.
case in point
10
May
in
1943-5 by
is
Caroelli
1947. In northern
and
others decided
Italy, in
Italian fascists
by the
Italian
Court of Cassation on
the area under the control of the Republic set
up
with the support and under the control of Germans (the
so-called Repubblica Sociale Italiana), the provincial representative of the govern-
ment
had ordered the head of Guardia Nazionale Repubblicana (GNR),
{prefetto)
Caroelli, to execute ten partisans
Guard
officer.
(the prefetto
The
were about to
ferret
killing
of a National
being unlawful, was absolutely arbitrary
had been informed by one of
was due more
officer
by way of reprisal following the
reprisal, in addition to
Mr
his subordinates that the killing of the
to jealousy than to political motives,
and
at
any
rate the police
out the perpetrator). The case was brought before the Court of
Assize of Padua which acquitted Caroelli, his deputy,
and another
officer,
on the
strength of Article 51, last paragraph, of the Italian Criminal Code, whereby 'whoever
executes an unlawful order
is
not punishable, whenever the law does not allow him to
scrutinize the lawfulness of the order'.
Cassation held that reliance
and
patently unlawful
upon
arbitrary,
On
appeal from the Prosecutor, the Court of
that provision
was wrong, because the order was
and the subordinates were not bound
to carry
it
out,
pursuant to Article 40 of the Military Criminal Code applicable in Time of War. Nevertheless, the three accused were acquitted, because they 'lacked freedom of will, in the
conduct ordered by their superior'. The Court emphasized
was given, Caroelli
when he
left
stand on his
tried to
oppose
it
'in
the prefettos office, he had feet'.
in Caroelli a state
manifestations'
'a
According to the Court
two agitated
talks'
that,
the order
with the prefetto and,
cadaverous appearance' and 'could hardly this
showed
that the order brought about
of 'psychic confusion that was also accompanied by clear physical
and
this 'confusion
was transmitted
to his aides'.
According to the
Court,
14
when
See in particular Mass and Priebke (Appeal), 15 April 1998,
at
52-4.
INTERNATIONAL CRIMINAL LAW
238
when
the manifestation of will contrary to the criminal action ordered by the superior
is
such as to cause clear physical troubles and a psychic confusion that nullifies the subordin-
freedom of decision, clouding a
ate's
does not
criminal intent, and even
clear vision of hierarchical relations, evidently there
of awareness and will required for making up a generic
exist that integrity
more
the specific criminal intent necessary for the crime at
issue. (At 2.)
The above reasoning does not comport with the
relevant rules
and principles of
international law. In any event, assuming that the legal grounds set out
were correct, validly raise
addition, in
remains that in
it
is
this
and similar
by the court might
cases the excuse the defender
not superior order, but that of mental disorder (see supra 12.5.1). In
such cases,
all
it
would of course be necessary
for the courts to
extremely cautious in establishing the facts and the credibility of witnesses, plea of superior orders should
become
lest
be the
a general pretext for negating criminal
responsibility.
Lack of mens rea due to uncertainty of law
3.
In addition to
Thomas
L.
some
Kinder— it
cases is
I
will cite
below (13.4.3)— that
worth mentioning
Military Tribunal sitting at Nuremberg. In
Command
is
trial,
brought before a
US
Wilhelm von Leeb and others {High
case), the Tribunal discussed the question of
manders under
Wagener and others and
a significant case,
by obeying an order issued by
whether the
field
com-
their superior authorities to
use prisoners of war for the construction of fortifications, had complied with an
unlawful order and were therefore
was not patently the
illegal
guilty.
The Tribunal
rightly held that the order
because the law on the matter was unclear; consequently
accused were not responsible under this count.
It
is
worth quoting the
Tribunal's reasoning:
One
serious question that confronts us arises as to the use of prisoners of
construction of fortifications. cally prohibited the use
war, whereas the later
It is
the proposal
tions, objection
for the
of prisoners of war for any work in connection with the operation of
Geneva Convention
[of 1929] provided that there shall be
connection with the operations of war. This situation
when
war
pointed out that the Hague Convention [of 1907] specifi-
was made
is
no
direct
further complicated by the fact that
to definitely specify the exclusion of the building of fortifica-
was made before the [Geneva] conference
definite exclusion of the use of prisoners this case to the effect that Russia
used
to that limitation,
was not adopted. There
German
is
also
much
and such
evidence in
prisoners of war for such purposes.
It is
no
defence in the view of this Tribunal to assert that international crimes were committed by an
what constituted accepted use of
adversary, but as evidence given to the interpretation of
prisoners of war under international law, such evidence that the illegality
of such use was by no means
construction of fortifications 1
Ins Irihunal
is
is
a charge directed
is
pertinent. At any rate,
it
appears
The use of prisoners of war in the against the field commanders on trial here. clear.
of the opinion that in view of the uncertainty of international law as to this
matter, orders providing for such use
from superior
prisoners oi war in dangerous areas, were not criminal
authorities, not involving the use of
upon
their face,
but a matter which a
OTHER EXCUSES
commander had
field
upon higher
levels.
239
the right to assume was properly determined by the legal authorities
(At 534; see also 535.)
15
Arguably, in this and other similar cases, the defence that can be validly raised
is
not
that of superior order but of mistake of law.
WHETHER UNLAWFUL ORDERS MAY RELIEVE OF
13.1.5
RESPONSIBILITY In
some
IF
GIVEN ON THE BATTLEFIELD
cases courts have denied in the case at bar that the execution of an unlawful
order could amount to a defence, while conceding in obiter dicta that, however, this
might have been the case had the order been given
in the heat of the battle,
when
the
subordinate had no time for reflection.
Thus, in Kotalla, in
its
judgment of 14 December 1948, an Amsterdam
commander of the
Criminal Court rejected the claim of the accused, an SS staff in the
orders,
police-run transit
when
camp
ill-treating, torturing,
The Court held
at
Special
security
Amersfoort, that he had acted under superior
and murdering inmates
in the period 1942-45.
that:
according to a universal sense of justice, orders to carry out acts— which, as has been proven
sible.
.
.
.
This
is all
— do
stamp of inhumanity and unlawfulness
in this case, bear the
subordinate of responsibility under criminal law and the
more compelling
the
in this case
latter
where the
not simply absolve a
remains personally responissue in question does not
under any circumstance concern the kind of orders that are given battlefield,
which
in themselves
must be obeyed immediately,
in action
and on the
but, rather, acts of lengthy
duration on numerous occasions during which the accused could have given more sincere signs of his
own
Similarly, in
goodwill and a sense of responsibility.
US
v.
Calley (judgment of 21
Appeals held, per Judge Quinn, In the stress of combat, a
make
a refined legal
obey an
to
15
it is
more
illegal
Another case
member
in point
may be
if
he guesses wrong on a
considerable disagreement. (At 543-4.)
difficult for a
is E.
van
£.,
subordinate to
make up
decided after the Second World
Dutch unit of
members of the Dutch armed
had captured. The order
members of
of the armed forces cannot reasonably be expected to
his
mind and
refuse
order in the midst of battle. Nonetheless, even under those
Cassation. In April 1945 a
decree as
1973), the Court of Military
judgment and be held criminally responsible
question as to which there
Admittedly,
December
that:
to kill
War by
a
Dutch
Special Court of
resistance fighters in occupied Netherlands, recognized by Royal
forces, shot
and
killed four
them, given by the commander
members of the Dutch Nazis (NSB) they
B.,
was executed by van
E.
with two other
The Court found that 'given the circumstances in which the order was given, the accused was entitled to assume in good faith that his commanding officer was authorized to give that order for the liquidation of the prisoners, and that this order was within the scope of his subordination'. The Court therefore found van E. not criminally liable and acquitted him (in NederJ., 1952, 514-16). To better grasp the purport of this decision, it must be recalled that in the case against the commander, B., the same Court held that he
the unit.
was not
committed
a
guilty for ordering to shoot
and
pardonable error of law (see above).
kill
the prisoners, because the law was unclear and he
INTERNATIONAL CRIMINAL LAW
240
extraordinary circumstances he
is
required to appraise the legality or
order, provided the legal regulation of the matter
beyond doubt. Various US Courts Martial
illegality
universally accepted
is
of the
and
clear
rightly recognized this principle. In this
connection Calley, as well as two cases related to another episode, Schwarz and Green, stand out. In the
US Court
a
first case,
Martial convicted Calley of the 'premeditated murder'
of twenty- two infants, children,
Vietnam on 16 March 1968.
women, and
men
old
in the village
of My Lai in South
Lieutenant Calley, a platoon leader, claimed that he
First
had acted upon orders from Captain Medina, given before the occupation of the village
and
as
soon
was invaded. Medina
as the village
every living thing— men,
women,
allegedly ordered the killing of
and animals— adding
children,
cumstances were they to leave any Vietnamese behind them the villages en route to their final objective.
(Medina always denied having issued
Whether or not
that
under no
as they passed
this
cir-
through
order was truly given
the Court Martial held that the deliberate
it),
killing
of unarmed persons offering no resistance and under the control of armed
forces
was patently
manifestly
illegal
illegal.
It
thus took the view that even in the heat of battle,
orders must not be executed and,
complied with,
if
used in defence. 16 The Court of Military Appeals took the same stand In short, the particular circumstances
under which the order
is
(at
may
not be
538-46). 17
given and executed
should no doubt be taken into account, not however for the purpose of relieving the subordinate of his responsibility, but as a possible extenuating circumstance. 18
16
See the Instructions from the military judge to the Court Martial,
17
See also Schwarz and Green. In 1970 a five-man
overnight, to search out, locate, civilians,
women and
entered by two stress for fear
and kill Viet Cong. In
children, in three huts,
members of the team,
and
to have acted
of ambushes, was rejected. In the
that 'the accused could not have honestly
US Marines a small
first
(at
1720-4).
Vietnam had been sent
out,
hamlet called Son Thang they came across sixteen
killed all of
upon
March 1971
patrol in South
them upon order of the team
leader.
The
plea
orders and under conditions of extreme tension and
Navy Court of Military Review held
case {Schwarz), the
and reasonably believed
that Herrod's [the
team
leader] order to
kill
unarmed women and children was legal before us shows beyond any doubt The record that Herrod's orders to kill the unarmed women and children were patently illegal and were recognized as being so by members of the patrol including private Schwarz' (at 860, 863). The same view was taken in the apparently
Green (see 18
NCMR 70-3811,
In the
of the
.
Israeli
in a
May
.
.
.
.
1971).
war crime case of Major Shmuel Malinki and
others,
an
Israeli court, in
applying Paragraph 19(B)
Criminal Law, drew a distinction between 'sudden and unexpected orders' and 'other orders'.
stated that 'A soldier ...
and
19
.
educated and trained to use his weapon in two types of activities
is
group framework. In a group framework he
on the commander's
order, without hesitation.
as possible, in order to fulfil his task in the
educated towards battle
He
is
is
trained to act most mechanically with general reliance
trained to act quickly and immediately, as automatically
framework
where there
It
— independently
suitably. In training
no time
and
in the daily routine the soldier
no place
for independent thoughts on the part of the private who forms part of a unit, where the results of the battle and the fate of the soldier and his comrades might depend on his unquestioned obedience to his commander's orders and his speed in is
activity,
operating his weapon before the enemy. The
educating the soldier in speed and
framework and obeys
a
is
for deliberation,
modern and
sudden and unexpected order
his
through
his actions, since the necessary training
in its use
to fire
of criminal responsibility for the results in taking a man's
weapon of our era adds and obliges The soldier who operates within a commander, will in general be relieved
sophisticated
maximum automatism
life
from
.
.
.
of the soldier to respond immediately and almost automatically to orders of this kind deprives him of the possibility that he consider the circumstances
commander
under which the order was given and forces him to
regarding the reason for using his weapon' (at 134-5).
rely
on the
OTHER EXCUSES
THE ICC STATUTE
13.1.6
follows
It
from the above that
commit genocide or crimes
humanity
about the
enumerates
war
list
is all
ICC
at present the
of crimes. Hence, at present any serviceman
about to commit
is
falls
the
was
Statute
of such crimes. In addition, the 'Elements of
Crime' specify the various subjective and objective ingredients of each individual
the act he
of
this category
traditional international law
of prohibited war crimes,
in detail the various classes
odds
at
is
crimes. This inconsistency
one could consider that
striking because, while
Statute (whereby 'orders to
are manifestly unlawful') 19
does not include, in
it
manifestly unlawful orders, those concerning
not crystal clear
ICC
Article 33(3) of the
against
with customary international law, since
more
24I
is
class
expected and required to know whether
under the category of war crimes and must be
aware of whether or not the execution of a superior order involves the commission of such a crime. This
preamble that
its
international
is all it
more
the
as a whole'.
in his indictment characterizes the
it
Statute implicitly provides in
intends to address 'the most serious crimes of concern to the
community
Furthermore, under the ICC Statute approach,
against
ICC
true because the
if
same offence
humanity (cumulative charges
are allowed,
in a particular case the Prosecutor
as
both
a
war crime and
under existing case
might happen that the defence of superior orders could be urged and
with respect to the offence as a crime against humanity, whereas matically hold should the
same offence be
classified as a
it
crime
a
law: see
1
relied
1.2),
upon
would not auto-
war crime. This
hardly prove consistent with the object and purpose of the Statute and
result its
would
intent 'to
put an end to impunity for the perpetrators' of 'the most serious crimes'.
The inconsistency between customary and interpreters, it
as
and
consonant
in particular the
treaty law should arguably
Court, to construe Article 33
strictly,
prompt the
so as to
make
with customary international law. In other words, when
as possible
dealing with serious violations of international humanitarian law perpetrated
on
superior orders, the Court should begin from the assumption that an order to engage
such violations
in
is
by definition 'manifestly unlawful', unless one
exceptional or rare occurrence that the substantive law
ICC
particular provision of the
Statute)
is
is
faced with the
on the matter
unclear and the agent
may
(that
is,
a
usefully plead
the defence of mistake of law (see infra, 13.4).
19
'
1
Article 33 provides as follows:
.
The
fact that a
crime within the jurisdiction of the Court has been committed by a person pursuant to
an order of a Government or of a superior, whether military or
civilian, shall
not relieve that person of
criminal responsibility unless: (a)
The person was under
a legal obligation to
obey orders of the Government or the superior
in
question;
The person did not know that the order was unlawful; and The order was not manifestly unlawful. For the purposes of this article, orders to commit genocide or crimes (b) (c)
'2.
unlawful.'
against
humanity arc manifestly
INTERNATIONAL CRIMINAL LAW
242
NECESSITY AND DURESS
13.2 13.2.1
NOTION
Necessity or duress severe
and
may be urged harm
irreparable
as a defence
to his life
perpetrates an international crime. international rule
Duress
is
when
a person, acting under a threat of
or limb, or to
The person under
and limb of a
life
threat,
third person,
although he breaches an
and consequently commits an international crime, is not punishable.
often termed 'necessity', both in national legislation
and
in cases relating
war crimes and crimes against humanity. However, there are some important
to
differences
between these two categories of defences:
Necessity
1.
circumstances.
designates
threats
As pointed out
to
and limb emanating from
life
in the British
Manual of Military Law,
covers situations other than those where one
is
faced with threats or compulsion of a
third party. Necessity denotes, for instance, the condition
of hunger
[another person] to eat him' (§630, no.
kills
objective
necessity proper
where
a person 'in extremity
1).
In the case of necessity the agent intends to cause an unlawful harmful effect; to
2.
he does entertain the criminal intent required by the criminal rule
put
it
differently,
(he
is
not only aware that by his action he causes the death of another person but he
indeed wills that death, because achieving this result a serious
imminent
shipwrecked person
threat to his
who
is
life);
is
the only
means
for
him
to avert
for instance, he wills the death of the other
attempting to climb into the small boat capable of carrying
only one person; nevertheless, the law considers that he must be excused by not being
punished. In contrast, duress to a large extent negatives the subjective element of the
person under coercion (he does not will the death of the prisoner of war he constrained to
kill);
substitutes for his
the criminal intent of the person causing duress in a
mens
rea;
is
by the person acting under duress
held criminally responsible for the (for instance, a lieutenant
death of an innocent civilian he has constrained a soldier to
The requirements prescribed by international however the same. The relevant case law four
strict
( 1
harm
conditions for duress
the act charged to
life
(2) there (3)
is
way
hence, with duress, unlike necessity, a third person, that
the person threatening the agent,
(see
and necessity
is
responsible for the
two defences are
almost unanimous in requiring
be upheld
done under an immediate
is,
harm caused
kill).
rules for each of these
below) to
is
is
as a defence,
threat of severe
namely:
and irreparable
or limb; is
no adequate means of averting such
the crime
committed
is
evil;
not disproportionate to the
evil
threatened (the contrary
would, for example, occur in case of killing in order to avert a sexual assault). In other words, to be proportionate, the crime committed under duress or necessity must, on balance, be the lesser of two evils or an evil as serious as the (4)
the situation leading to duress or necessity
brought about by the person coerced.
one
to
be averted;
must not have been voluntarily
OTHER EXCUSES
243
NECESSITY
13.2.2
As stated above, generally speaking, necessity designates threats to
life
is
and limb emanating from
a broader heading than duress. objective circumstances
It
and not from
another person.
Although, according to the British Manual, necessity defence,
under
20 it
strict
would seem conditions.
The law on 1174-9).
necessity
may
not constitute a
21 that instead international law admits this defence, although
22
was
clearly set out in
The defendants had claimed
Farben plants was the necessary
Krauch and others
(I.
G. Farben case, at
that the utilization of slave labour in
result
G.
I.
of compulsory production quotas imposed
upon them by requiring them
the government as well as the obligatory governmental measures
Tribunal sitting
at
to use slave labour to achieve such production.
Nuremberg summed up
The US Military
the conditions under which necessity
is
admissible as follows:
From
IMT,
a consideration of the
governmental decree
a superior officer or a law or
unless, in
its
moral choice
operation,
will
of action.
to invoke
it
It
that an order of
not justify the defence of necessity
of a character to deprive the one to
it is
as to his course
where the party seeking
and Roechling judgments, we deduce
Flick
whom
it is
follows that the defence of necessity
directed of a
is
not available
was, himself, responsible for the existence or execution
of such order or decree, or where his participation went beyond the requirements thereof, or
was the
An
result of his
own
initiative. (At 1179.)
interesting case concerning necessity
is
Stanislaus Bednarek, brought before the
Austrian Supreme Military Tribunal (judgment of 9 September 1916). The accused, a
Russian subject, while being on territory under Russian control, had reported to the Russian police that three
German
arrested; later on, captured
treason and sentenced the
on
soldiers
1 1
Supreme Military Tribunal found
to
was obliged
as a result they
October 1915 by an Austrian military court. that he
Prosecutor, in submissions of 26 July 1916, to Russian law,
were in hiding;
had been
by the Austrian army, the Russian had been accused of was not
On
appeal,
The General Military
guilty.
had noted
that the accused, being subject
German
soldiers to the police, pursuant
to report the three
§164 of the 'New Russian Criminal Law' of 22 March 1903; he had therefore acted
under
'irresistible
coercion' (at 4).
The Supreme Military Tribunal upheld
this sub-
mission and found that the accused had found himself in a condition akin to
'state
of
necessity' (notstandahnliche Lage); there therefore existed a 'circumstance excluding culpability',
20
namely
'irresistible
coercion' (at 2).
'Compulsion arising from hunger or from immediate danger
to a person's
excuse the commission of a war crime, although such compulsion
may be
life
or property will not
considered
in
mitigation oi
punishment' (§ 630). 21
The law on
necessity (and duress, treated
on the same footing) is summarized in vol. XV of the UN or
Security Council acting
under Chapter VII of the
might submit. Probably
allegations they
it
UN Charter.
may make
was
felt
at
(iii)
non-governmental organizations acting on
behalf have no right to refer a case to the Court, but the Prosecutor
and
motiv-
politically
outcome was
and ideologically
provided that investigations
it is
alleged victims of crimes or
the information
minor import-
to international
the existence in the area (particularly in the former
request of a State party to the Statute, or the request of the
at
use of criminal justice for their
more probable because of
The
them
for
enabled States to act on political grounds or ated States to
such a right would
the alleged crimes were of
to grant a right of complaint to
(iii)
(ii)
made
their
use of
that to grant
such a right would have resulted in the Court being flooded with innumerable complaints, most of them probably frivolous or unfounded. This should not apply to the right of a State to lodge a complaint: States are expected carefully to screen allegations of crimes
made by
the victims or by private organizations, with a view to
ascertaining whether they are supported by reliable evidence.
A
second notable feature of the ICC system
is
distinction between preliminary investigations or, as
and
investigation proper.
The need
for
that the Statute clearly draws a
we
shall
term them here, inquiry,
an inquiry to precede investigations
for in Article 15 with exclusive regard to cases
is
provided
where the Prosecutor decides
to take
proceedings proprio motu. The inquiry consists of a search for information or the gathering of evidence about an alleged crime, for the purpose of establishing is 'a
if
there
reasonable basis to proceed with an investigation'. The initiation of the inquiry by
the Prosecutor received
on
from any
his
own
is
based on any relevant information he
reliable source, as well as 'written or oral
Court' (Article 15(1)). exists,
initiative
the Prosecutor
If
and when he has established
must submit
to the Pre-Trial
tion of an investigation'. If the Pre-Trial
may commence a State or
the investigation.
By
Chamber
testimony
may have
at the seat
of the
that such 'reasonable basis'
Chamber
a 'request for authoriza-
grants the request, the Prosecutor
contrast, in the case of referral of a 'situation'
by the Security Council, the Prosecutor's request
for the authorization of an investigation
is
to the Pre-Trial
not required. Clearly,
it is
by
Chamber
assumed
that the
national authorities of the referring State have already undertaken an inquiry, and that the Security Council, through first
one of its subordinate bodies, has already made
a
screening of information relating to the possible perpetration of crimes.
Article 14
ICC
Statute provides for the initiation of investigations at the request of a
State into a 'situation' in
which one or more crimes under the Court's
jurisdiction
INTERNATIONAL CRIMINAL LAW
408
appear to have been committed.
It
stipulates that 'as far as possible' the State should
and provide the necessary 'supporting documen-
'specify the relevant circumstances'
tation'. Interestingly, the Statute does not set out any further requirements; in particular, it
does not require that the requesting State be the national State of the victim or
the alleged perpetrator, or the State
on whose
committed. Hence, any contracting
State,
territory the
crime has been allegedly
even a State that has no link whatsoever
with the crime,
may
that the crimes
under the Court's jurisdiction are of universal concern; consequently
file
the request. This regulation
may
any State possessing the relevant information
is
clearly
based on the principle
bring them to the attention of the
Prosecutor.
Commencement
of investigations
at the
UN Charter'
the
(Article 13(b)
),
may
be
UN body, 'acting under Chapter VII
of
request of the Security Council
undertaken by the Prosecutor whenever that
refers to the Prosecutor 'a situation in
which one or
more' crimes under the jurisdiction of the ICC appear to have been committed. Plainly, the Security
Council
may only submit to
ICC
the
'situations' involving serious
crimes the perpetration of which amounts to a 'threat to the peace' (or a 'breach of the peace')
— these are, however, broad notions involving a wide discretionary power
of the Security Council in their interpretation.
CONDITIONS THE PROSECUTOR MUST FULFIL BEFORE INITIATING AN INVESTIGATION
22.3
ICTY and
In the
the
ICTR system
the Prosecutor not only has absolute freedom to
decide whether or not to initiate investigations and against
whom, but
carry out investigations outside any judicial scrutiny (although he
comply with
a set of obligations regarding the
of the suspects). Such judicial scrutiny
when By
made
(ii)
free to
end of the
investigations,
who may admit
or
it.
contrast, in the
ICC system
the actions of the Prosecutor are subject to a set of
conditions, whenever the initiation of investigations
or
at the
the Prosecutor submits an indictment to a reviewing judge,
dismiss
is
conduct of investigations and the rights
only
is
also
must of course
has been
not apply
when
made by
the Prosecutor
on
his
(i)
own
has been requested by a State,
initiative.
(These conditions do
the investigations have been requested by the Security Council.)
In the case of a State request, as well as in the case of the Prosecutor acting proprio
motu, the Prosecutor, as pointed out above, must
would be If
he
is
a reasonable basis to
satisfied that there
is
commence an
such a
basis,
first
of all determine whether 'there
investigation' (Articles 18(1)
he must notify
'all
States which, taking into account the information available,
jurisdiction over the crimes concerned' (Article 18(1),
applies to referrals by States). In case of referral tor
the
may find possible
other means of enabling States to initiation
of court
and 53(1) ). and those
States Parties
would normally
exercise
which formally speaking only
by the Security Council, the Prosecu-
become cognizant of the
investigations.
Only
if
no
State
referral
and of
concerned
is
STAGES OF INTERNATIONAL PROCEEDINGS
investigating the alleged crime nor has the alleged author a national judge, or instead a State
proceedings, but
is
concerned
is
409
been brought to
before
trial
investigating or conducting judicial
do
clearly 'unwilling or unable' to
justice,
may
the Prosecutor
initiate investigations proper.
As stated above,
in the case of preliminary investigations or inquiry initiated
Prosecutor proprio motu, in addition to these conditions,
Chamber
cutor to submit to the Pre-Trial tion, together
it is
a request for authorization of
The
an investiga-
with any supporting material collected. The Prosecutor
investigation only after obtaining such judicial authorization (and
conditions mentioned above are differentiation
by the
necessary for the Prose-
if
may
initiate
also the other
fulfilled).
between the three instances of
can be
initiation of proceedings
of referral to the Court by the Security Council,
easily explained. In the case
it
has
been considered that a ruling by the Pre-Trial Chamber was not necessary. The
fact
that the crimes submitted
by the Security Council
Court involve a threat or
to the
even a breach of the peace has been considered of paramount importance and
remove
rate sufficient to
The condition, imposed only
own motion,
his
investigation,
is
for cases
that the Pre-Trial
aimed
at
any
that condition.
Chamber should
at limiting the
has not been regarded as necessary
where the Prosecutor
initiates the
inquiry on
authorize the conduct of
first
power of the Prosecutor. The same condition
when
the initiative
is
taken by a State. Clearly
it
has
been thought that before submitting a case to the ICC a State party gives due con-
and
sideration to the importance
significance of the step
it
takes in bringing the case
before the Court. It
however important
is
among
to
emphasize
that, conversely,
no
distinction
is
made
the three categories of instances as far as the possibility of challenging the
admissibility of a case
is
concerned. Whether the case
State or the Security Council, or
is
initiated
is
brought to the Court by a
by the Prosecutor, the accused or other
persons involved as well as States have the right to challenge the admissibility of the case prior to the confirmation of the indictment containing the charges, that
is
during
investigation (see Article 19).
22.4
CONDUCT OF INVESTIGATIONS BY THE PROSECUTOR
As
stated above, in international trials before the
system prevails. Hence, the situation still
first
is
different
ICTY and
from that
the
ICTR
the adversarial
in civil law countries
which
uphold the institution of an investigating judge (juge ^instruction). There, the Prosecutor who, through his
staff,
gathers the available evidence against the suspect; then,
prima
facie case,
to search out
if
he considers that he has
he hands the case over to the investigating judge.
and
collect evidence,
it
is
conducts preliminary investigations and
It falls
a
to this judge
both that against the accused and the evidence
INTERNATIONAL CRIMINAL LAW
410
exculpating him. Conversely, in international proceedings the Prosecutor gathers
evidence against the suspect in his investigation. for
and
aimed
collect evidence
finds exculpatory evidence, he
is
It is
at refuting the
primarily for the defence to look
charges (although
duty bound to disclose
In the conduct of investigations, the Prosecutor arrested.
it
if
the Prosecutor
to the defence).
may need
to have a suspect
Under Rule 40(A) of the Rules of Procedure and Evidence (RPE) of the
ICTY, he will have to request the relevant State to arrest the suspect and place him in custody. However, under Rule 40(B), in custody or
if
a State
prevented from keeping the suspect
is
unable or unwilling to take the measures necessary to prevent his
is
escape, the Prosecutor
may apply
to a judge of the
ICTY
designated by the Tribunal's
President for an order to transfer the suspect to the seat of the Tribunal or any other
upon by the Tribunal's Bureau. Rule 40
place decided ity
transfer to I
bis also
provides for the possibil-
of the Prosecutor requesting a judge of the Tribunal to issue an order for the
and provisional detention of a suspect
in the detention unit of the Tribunal.
have already mentioned above that in the ICC the system
closer to the inquisitorial
model and perhaps more attuned than the
system to the specific requirements of international criminal Article (54)(l)(a) of the
ICC
Statute, the Prosecutor
is
to issue orders of arrest
ICC
Article 58 of the Interestingly,
Indeed, under
It is
to gather
for the Pre-Trial
and other orders requested by the Prosecutor
(see
Statute).
under Article 56 of the ICC
and while the investigation
Chamber may
trials.
under the obligation
evidence both against and in favour of the suspect or accused.
Chamber
some respects ICTY and ICTR
in
is
is
Statute,
upon
request of the Prosecutor
being conducted by the Prosecutor, the Pre-Trial
take measures to collect or preserve evidence,
whenever such evidence
might not be available subsequently for the purposes of trial.
22.4.1
Of
THE NEED FOR CO-OPERATION BY STATES
course, the conduct of investigations involves the search for
evidence. To
do
so,
any international prosecutor perforce needs to
and
collection of
rely
upon
operation of States. Indeed, the suspects, the victims, or any witnesses territory of one or
the co-
may be on
the
more sovereign States. The Prosecutor has no power or authority to on such territories. To discharge his mission he therefore needs
carry out his functions the co-operation of
forms:
(i)
at the
all
the relevant States. Such co-operation
may
take two different
request of the Prosecutor, the national authorities (prosecutors or
investigating judges,
depending on the national
legislation)
may
carry out
all
the
actions required by the Prosecutor, for instance, question suspects, victims, or witnesses,
conduct on-site investigations, seize documentary evidence or other eviden-
tiary material;
investigations
(ii)
they
may
on national
authorize the international prosecutor to carry out
territory, if
need be with the assistance of specially desig-
nated national authorities (judges, prosecutors) or of the national authorities that are territorially competent. Clearly, the second
internationally oriented
and favourable
form of co-operation
is
far
more
to the expansion of the Prosecutor's powers.
STAGES OF INTERNATIONAL PROCEEDINGS
411
The choice between the two different modes of co-operation very much depends on the attitude of individual States. For instance, in the case of the ICTY, in their implementing legislation some States (such as Australia, France, Italy, New Zealand, and Spain) tend
power
to attribute to national judicial authorities the
to collect
evidence and perform other acts necessary for the Prosecutor's investigations. Other States,
on
the other hand, tend to authorize the Prosecutor to
some
fulfil at least
parts
of his mission autonomously on the national territory; this for instance holds true for Austria, Finland,
Germany, and Switzerland.
In Blaskic (Judgment on the request of Croatia) the
must turn
that normally the International Tribunal ties for
ICTY Appeals Chamber
the collection of evidence, the seizure of evidentiary material,
However,
etc.
the Tribunal's Prosecutor was authorized directly to carry out such activities territory of a State in
two
situations:
belligerents or entities of the tive activity
when
(i)
held
to the relevant national authori-
on the
the State was one of the former
former Yugoslavia (§53); and
was authorized by national implementing
(ii)
when such
investiga-
legislation (§55). In addition,
according to the Appeals Chamber, the Tribunal was authorized to reach out directly to private individuals living
on the
when such individocument and the State
territory of a State
duals were needed to testify in court or deliver a particular
concerned had refused to comply with an order of the Tribunal; the Tribunal could directly
summon
evidence or appear in court (§§55-56).
1
It
in
such instances
an individual to hand over
a witness or order
should be added that of course, whenever
international police or military forces are available which are lawfully stationed
the territory of a State where evidence
them
may be
found, the Prosecutor
happened
for assistance in the gathering of evidence. This
Cerkez (Decision on defence motion
on
turn to
Kordic and
in
where an ICTY
to suppress evidence) ,
may Trial
Cham-
ber held that the search and seizure of documents in Bosnia and Herzegovina by
1
The Appeals Chamber
justified the first exception as follows:
the territory of which crimes
might be implicated through the
official
investigations,
ence of State
might it
in the
may have been
and
'The
first class
in addition,
commission of these crimes. Consequently,
channels of identifying,
summoning and
(ii)
encompasses
some
own
to the very
The
of those States, to go
in the case
interviewing witnesses, or to conduct on-site particular, the pres-
it
life
or personal integrity but possibly those of his
relatives.
It
follows that
purpose and function of the International Tribunal to have State
States
International Tribunal in such a
This obligation (which,
on
which
interview of a witness might discourage the witness from speaking the truth, and
also imperil not just his
present on such occasions.
States: (i)
authorities of
might jeopardize investigations by the Prosecutor or defence counsel. In
officials at the
would be contrary
them
perpetrated;
and
manner
Entities of the
former Yugoslavia are obliged
officials
to cooperate with the
as to enable the International Tribunal to discharge
its
functions.
should be noted was restated in the Dayton and Paris Accords), also requires
to allow the Prosecutor
and the defence
to fulfil their tasks free
from any possible impediment or
hindrance' (§53).
As to the third exception, the Appeals Chamber found that
above-mentioned scenarios
[that
is, if
it
was
justified
on the following grounds: In the
the national authorities refuse to co-operate and therefore prevent
individual from testifying or handing over evidence] the attitude of the State or Entity
discharge of the International Tribunal's fundamental functions.
power
It is
therefore to be
may
assumed
that
to address itself to those individuals inures to the advantage of the International Tribunal.
vested with such a power, the International Tribunal
accused of atrocities in the former Yugoslavia' (§55).
would be unable
to
guarantee
a
.\n
jeopardize the
au inherent
Were
it
not
tan trial to persons
INTERNATIONAL CRIMINAL LAW
412
the Office of the Prosecutor accompanied by forces of
members of
SFOR was
powers of the Prosecution provided for in the [ICTY]
'perfectly within the
Statute'
(at 4).
The problem of co-operation by States the ICC,
on various grounds.
will
detailed (Articles 86-102) and, in essence, eral
and
refer the
obligations, the
on co-operation
cases that
had been referred by
comes from
numerous and
States
both gen-
However, in case of refusal or
failure to
Court can only 'make
a finding to that effect'
UN
matter to the Assembly of States Parties (or to the
to co-operate
are
impose upon contracting
specific obligations to co-operate.
comply with such
prove of special importance in the case of
the provisions
First,
organ to the Court) (Article 87(7)
this
a State not party to the Statute that
and
Security Council, in ).
If
the failure
had entered into an ad
hoc agreement or arrangement with the Court, the Court may inform the Assembly of States Parties
depending on whether the matter had been referred to
or,
it
by the
Security Council, such organ.
Secondly, the general scheme of relations between the Court and States tially
is
substan-
based on a 'horizontal' approach: States are not subordinate to the Court but on
its level,
as
it
were
(see supra, 19.7).
the Court can only
fall
It
follows that
compliance with international obligations.
means of putting
into effect
its
a State decides not to co-operate,
It
lacks
any special authority, or power, or
orders, or generally discharging
territory of a recalcitrant State party.
Statute the Pre-Trial
if
back on the usual international law mechanisms for inducing
Chamber may
its
mission,
on the
However, under Article 57(3) (d) of the ICC
authorize the Prosecutor:
to take specific investigative steps within the territory of a State Party without having
secured the cooperation of that State under Part 9 [on International Co-operation and Judicial Assistance]
if,
whenever possible having regard
to the views of the State concerned,
the Pre-Trial
Chamber has determined
a request for
cooperation due to the unavailability of any authority or any component of its
judicial system
Thirdly, the
competent
Court
in that case that the State
is
upon
unable to execute
under Part
to execute the request for cooperation
acts
clearly
9.
the principle of complementarity. In other words
it
only adjudicates cases where national prosecutorial or judicial authorities are unable or unwilling to deal with a case (see supra, 19.5 and this
main
feature of the Court's activity
is
7).
that, except
sents to the exercise of the Court's jurisdiction, the authorities. Proceedings
commence
been labelled by the Court having held
trial
before the
as 'unwilling or
One
of the consequences of
where the relevant Court
ICC only
if
State con-
substitutes for national
national authorities have
unable genuinely to prosecute', or as
proceedings 'not conducted independently or impartially' or 'incon-
sistent
with the intent to bring the person concerned to justice' (Article 17). Whenever
this
so,
is
it
follows that those national authorities are
to co-operate with the
ICC, for instance
documents, execution of searches and
most unlikely
in the collection
seizures.
to be prepared
of evidence, service of
STAGES OF INTERNATIONAL PROCEEDINGS
413
RIGHTS OF SUSPECTS AND OTHER PERSONS INVOLVED IN INVESTIGATIONS
22.4.2
Any person
whom
involved in investigations, for instance suspects (that
crime) or persons questioned as witnesses pects) possesses
under customary and treaty law
a set of
any person about
fundamental
rights are protected, albeit implicitly, in the Statutes of the
whereas they are
Under
when
is,
mav have committed an international (whether or not they may become sus-
there are grounds to believe that he
laid
in
Article 55(1) of the
investigations
ities at
down
much ICC
detail in the Statute of the
rights.
ICTY and
Such
the ICTR,
ICC.
Statute these rights are granted to suspects even
and other preliminary
activities are carried
out by State author-
the request of the Prosecutor. These rights include the right:
to be ques-
(i)
tioned in a language that the person understands or to be assisted by an interpreter
without payment;
(ii)
not to be subjected to any form of coercion or threat;
any form of
to be subjected to
cruel,
incriminate himself or to confess
inhuman, or degrading treatment;
and
guilt;
(v)
(hi)
not
not to
(iv)
not to be arbitrarily deprived of his
liberty.
Persons suspected of an international crime possess in addition the following rights (laid
down
in Article 55(2)
of the
ICC
Statute as well as in customary law):
(i)
to be
informed, prior to questioning, that there are grounds to believe that they have committed an international crime;
makes
shall
be recorded and
their silence creating a freely
(ii)
to
be cautioned that any statement the suspect
may be used
presumption of
in evidence;
guilt; (iv) to
chosen or assigned by the court's
(iii)
be
to
remain
silent,
legally assisted
without
by a person
registry, at the court's expense; (v) to
be
questioned in the presence of counsel.
22.4.3
In the
SUBMISSION OF THE INDICTMENT OR CHARGES ICTY and ICTR system
the
outcome of investigations may be the drawing
by the Prosecutor, of an indictment, containing case
is
whenever he
'is
charged'.
The Prosecutor may proceed of an investigation that there
sufficient evidence to provide reasonable
committed
set forth the
also contain a concise statement of facts
against the suspect. at
is
grounds for believing that
a suspect has
a crime within the jurisdiction of the Tribunal' (Rule 47(B) of the
RPE). The indictment must
any time before
name and
particulars of the suspect;
it
ICTY must
and an indication of the charges preferred
The Prosecutor may withdraw the indictment without its
up,
concise statement of the facts of the
satisfied in the course
and of the crime with which the suspect
to take such a step
'a
prior leave,
confirmation by a judge; thereafter, the withdrawal needs the
leave of a judge or the Trial
Chamber (see, for instance, Rule 51(A) of the RPE of the may amend the indictment without prior leave,
ICTY). Similarly, the Prosecutor
before confirmation, whereas thereafter he can do so only with the leave of a judge
depending upon the the
RPE
case,
of the ICTY).
of the competent Trial
Chamber
(see for instance Rule
or,
50 of
INTERNATIONAL CRIMINAL LAW
414
Under the ICC
Statute,
the end of investigations the Prosecutor submits
at
charges setting out the facts and the crimes of which the suspect
accused (see
is
Article 61). Interestingly,
power
under the ICC Statute the Prosecutor does not enjoy
to conclude that,
investigation of a case, there
Whenever he reaches
prosecution.
Chamber,
upon
this conclusion,
stating the reasons therefor, as well as, if it
a discretional
insufficient basis for a
is
he must so inform the Pre-Trial is
a State or the Security Council
and
(2)
Council
or,
that has referred a situation, that State or the Security Council (Article 53(1)
of the
ICC
Statute). Either at the request of the State or the Security
depending upon the
on
case,
its
own
Prosecutor's decision and request
initiative,
him
power
that the Prosecutor's discretionary
scrutiny. This legal regulation appears to
standards by which the Prosecutor
is
Chamber may review the
the Pre-Trial
to reconsider
(Article 53(3)
it
2 ).
This entails
not unqualified but subject to judicial
be meritorious by:
may decide whether
(i)
setting out the general
or not to prosecute a case,
(ii)
obliging the Prosecutor to give reasons for his deciding not to prosecute and in
addition
(iii)
empowering the
Pre-Trial
Chamber
to reverse his decision, the other-
wise unfettered powers of the Prosecutor are significantly restricted and any abuse forestalled or, in
A
any
may be checked. arisen many times
question that has
Prosecutor
may be
characterized
Akayesu an
is
whether the charges made by the
cumulative for the same act (for instance, the same murder
and charged both
ICTR
is
case,
Trial
as a
Chamber
war crime and
as a
held that cumulative charges could be
three instances (where the offences charged
had
different legal ingredients;
relevant provisions protected different interests;
is
crime against humanity). In
and where
it
made
in
where the
proved necessary to
record a conviction for multiple offences in order fully to describe what the accused
had done) (§§461-70). In
a decision in Tadic
an ICTY
matter was only theoretical and had no practical relevance.
an ICTY
Trial
reconciled,
Chamber
namely
Chamber
Trial 3
held that the
In Kupreskic
and
others,
held that two seemingly conflicting requirements must be
requirement that the rights of the accused be
'the
safeguarded' and the requirement that 'the Prosecutor be granted consistent with the [ICTY] Statute to enable her to
fulfil
all
fully
the powers
her mission efficiently and in
Chamber conmake cumulative charges if the facts charged violated simultaneously two or more provisions of the Statute, and charge in the alternative when an offence appeared to be in breach of more provisions, one of them being special to the other (for instance, a murder could be charged as a crime the interests of justice' (§724). In the light of these requirements, the
cluded that the Prosecutor should
against
2
humanity and
in
of the widespread or
may on its own initiative review a decision of the made on the grounds that the prosecution would not
However, under Article 53(3)(b) the Pre-Trial Chamber
Prosecutor not to proceed only serve the interests of justice
if
such decision has been
on account of the
infirmity of the alleged perpetrator, 3
the alternative, for the event
and
gravity of the crime, or the interests of the victims, or the age or
his or her role in the alleged crime.
Tadic {Decision on the Defence motion on the
Form of the
indictment), at 10.
STAGES OF INTERNATIONAL PROCEEDINGS
415
systematic practice not being proved, as a war crime) (§§720-7). However, both
another Trial Chamber, in Brdanin and Talk {Decision on the amended indictment) (§§29-43), and the this
ICTY Appeals Chamber,
view (see supra,
1
in Delalic
and
others (§400), disallowed
1.2).
CONFIRMATION PROCEEDINGS
22.4.4
The procedure
for reviewing indictments
adopted by the ICTY and the ICTR
differs
from that of the ICC. The Rules of Procedure and Evidence of these two Tribunals do not provide for what justice,
namely
is
considered an essential safeguard in
a 'preliminary hearing' in
adversary hearing, establish that there the fact that originally the
RPE
is
all
adversarial systems of
which the Prosecutor must, a
prima
facie case.
This
in
an open and
probably due to
is
envisaged confirmation of the indictment as the
prerequisite for issuing an arrest warrant.
ICTY and ICTR system
In the
the Prosecutor must submit the indictment, together
with the 'supporting material' (that
is, all
the material designed to corroborate the
charges brought by the Prosecutor) to the judge
indictment and supporting material and may:
on
duty.
The judge reviews the
confirm the indictment;
request the Prosecutor to present additional material; or
(iii)
it;
(i)
(iv)
(ii)
dismiss
adjourn the
review so as to give the Prosecutor the opportunity to modify the indictment. The reviewing judge performs these alternative acts in a hearing that
without the suspect or his counsel, and the
ICTY
is
is
ex parte, that
is,
held in camera. Pursuant to Article 19(1) of
Statute, the standard for confirmation of the indictment
that there
is
must
be a prima facie case, 4 a standard that would seem to be more exacting than that required for the Prosecutor's appraisal (which
is
that 'there
is
sufficient evidence to
provide reasonable grounds for believing that a suspect has committed a crime', Rule
47(B)
ICTY RPE). 5 Upon confirmation of
status of
the indictment, the suspect acquires the
an accused. In addition the judge may,
one or more
arrest warrants or
at the request
of the Prosecutor, issue
any other order sought by the Prosecutor, which the
make in the interests of justice. (In the ICC system under Chamber may issue arrest warrants even before a person is
judge deems appropriate to Article 58 the Pre-Trial
formally charged.) In contrast, in the
ICC system
Chamber, which holds
4
the Prosecutor submits the charges to the Pre-Trial
a public hearing in the presence of the 'person charged' (unless
Judge McDonald, in her decision in Kordic and others (Review of the indictment) held
purposes of confirmation, the prima
would,
if
facie case
that, for the
standard meant that there was a credible case which
not contradicted by the defence, be a sufficient basis to convict the accused on the charge
(at 1123). 5
this
as
In his Separate
Opinion
requirement means that
would
in the decision in Rajic it
is
justify a reasonably or
(Review of the indictment), Judge Sidhwa held that and circumstances
sufficient for the Prosecutor to point to 'such facts
ordinary prudent
man
to believe that a suspect has
committed
a crime'
(at 1065).
For a detailed discussion of Rule 47(B), see D. Hunt, 'The Meaning of a Prima Facie Case',
ICTY Procedure,
137-49.
in
Essays on
INTERNATIONAL CRIMINAL LAW
416
may
such person waives his right to attend, or absconds and
not be detained, and the
Chamber
decides nonetheless to hold the hearing), or his counsel.
hearing
to enable the
is
establish substantial
Chamber to 'determine whether
there
is
The purpose of the
sufficient evidence to
grounds to believe that the person committed each of the crimes
charged' (Article 61(7)
).
The
Pre-Trial
Chamber may: (i) confirm the charges or some Chamber for trial; (ii) decline to confirm
of them, and commit the person to a Trial the charges 'in relation to which
or
(iii)
amend
ings
is
insufficient evidence';
adjourn the hearing to enable the Prosecutor to submit further evidence or 6
the charges (Article 61(7)
22.5
Both
has determined that there
it
).
PRE-TRIAL PROCEEDINGS
in the ICTY and ICTR system and in the system of the ICC, commence with the initial appearance of the accused and his
pre-trial proceed-
entering a plea of
guilty or not guilty.
In this initial hearing the Court reads the indictment or the charges previously
confirmed by a reviewing judge
Chamber
(in the
ICC system)
(in the
stands the nature of the charges and
whether he pleads guilty or not In the
ICTY and ICTR
systems) or by the Pre-Trial
to the accused, satisfies itself that the accused underis
assisted
by defence counsel, and then asks him
guilty.
ICTY and ICTR system,
if the
accused pleads
guilty, the Trial
Chamber enters were
a finding of guilt— provided the requisite conditions are met. (These conditions first laid
fied in
down
jurisprudentially in the Erdemovic (Appeals)
paragraphs
(i)
to (iv) of Rule 62 bis
RPE
judgment and then codi-
ICTY.) The Trial
Chamber
instructs the Registrar to set a date for the sentencing hearing (Rule 62 bis If
instead the accused pleads not guilty, the Trial
Chamber:
(i)
shall
also
RPE ICTY).
ensure that the
Prosecutor discloses to the defence, within the prescribed time limit (30 days after the initial
appearance of the accused, under Rule 66(A) (i) of the
ing material ation;
and
ICTY RPE)
which accompanies the indictment or the charges
(ii)
the support-
at the time of confirm-
appoints a pre-trial judge, charged with co-ordinating communication
between the parties during the to organize exchanges
pre-trial phase.
between the parties so
It
may also convene a status
conference
as to ensure expeditious preparation for
trial.
In the period before initiation of trial proper, the parties
motions, namely motions which: defects in the
(i)
form of the indictment or charges, or
joined in one indictment or separate raise objections
may
trials,
(iii)
in nature (for instance,
See also Rules 121-6.
allege
(ii)
trials,
may also
or
file
(iv)
other
motions for the provisional
release of the accused, for the disqualification or recusal of a judge, etc.).
6
preliminary
seek severance of counts
or instead seek joinder of
concerning the assignment of counsel. The parties
motions that are not preliminary
file
challenge the court's jurisdiction, or
STAGES OF INTERNATIONAL PROCEEDINGS
Motions are considered and pronounced upon by the
Trial
417
Chamber
and, subject to
may be appealed to the Appeals Chamber. ICTY and ICTR system, once the Prosecutor's disclosure of
certain conditions,
In the
completed and preliminary motions, the Prosecutor to factual
and
in dispute;
(ii)
(iii)
The
ticity.
(i)
call,
with
will testify; (v) a
among other
list
Once
judge
may convene one
or
of,
a
summary of
more
as to
status conferences,
trial
and
authen-
where meas-
in addition the status of
reviewed.
the Prosecutor has completed
disposed
things a
(iv)
of exhibits the Prosecutor intends
ures are taken to ensure expeditious preparation for is
and law;
where possible whether the defence has any objection
pre-trial
the accused
a pre-trial brief addressing the
a statement of contested matters of fact
on which each witness
to offer stating
is
admissions by the parties and a statement of matters
of witnesses the Prosecutor intends to
the facts
evidence
any, are disposed of, the pre-trial judge orders
within a certain time limit:
legal issues;
which are not list
file
if
all
his filings
the pre-trial judge submits to the Trial
however may not be compared
to the 'case
file'
and
all
the motions have been
Chamber
(which
a complete file
of inquisitorial systems, where the
court finds the evidentiary material for both the prosecution and the defence). This includes
file
ences,
bis
the
documents
filed
by the
to hold a Pre-Trial Conference
where
(if
parties. This file enables the
the Trial
Chamber
an excessive number of witnesses are being called to prove the same
(C) of the
ICTY RPE),
witnesses he intends to chief for
some
With the In the
it
call,
may
call
upon
the Prosecutor to reduce the
assistance of the aforementioned 'complete
commence
ICC system
has
file'
the Trial
Chamber
pre-trial proceedings unfold before the Pre-Trial
Chamber. After the
Chamber must
among may
is
thus
Chamber. The
arrest of the accused
satisfy itself that the
informed of both the charges against him and
He
number of
trial.
surrender to the Court, the
).
Rule 73
or to shorten the estimated length of the examination-in-
Statute allots extensive powers to this
60(1)
'considers
facts',
witnesses.
in a position to
trial.
of the status confer-
parties, transcripts
and minutes of meetings held by the judge with the
Chamber
Trial
that
all
his rights
and
his
accused has been
under the Statute
(Article
other things the right to apply for interim measures pending
In particular, he
apply for provisional
release. In this
phase the Prosecutor
may amend the charges after giving notice to the accused and provided that the PreTrial Chamber has authorized such amendment. It is also in this phase that the Prosecutor must proceed to the disclosure of the 'evidentiary' materials he has collected (this matter
is
regulated by Rules 76-84).
under Rule 121(10) the Registry must keep a 'full and accurate record' of the proceedings before the Chamber, 'including all documents transmitted to the Interestingly,
Chamber', hence also the 'supporting material' on which the charges preferred by the Prosecutor are based. The Prosecutor, the person subject to an arrest warrant or to a summons, and victims and their legal representatives are entitled to consult this record. The record is then transmitted to the Trial Chamber before trial proceedings open (Rule 131). It would seem that in this way the ICC system goes much further
INTERNATIONAL CRIMINAL LAW
418
than the two ad hoc Tribunals in making available 'evidentiary' material to the Trial
Chamber
before the
Thus,
trial.
it
would seem, an important
TRIAL PROCEEDINGS
(B)
CASE PRESENTATION
22.6
ICTY and ICTR system normally
In the
the Prosecutor,
of the
feature
been to some extent incorporated into the ICC procedure.
inquisitorial system has
where he
sets
the
trial
begins with an opening statement of
out the main elements of charges and outlines his case.
make an opening statement, although normally make such a statement when the Prosecutor's case rests, that is at the beginning of the defence case (Rule 84 ICTY RPE). The accused has the right to make a statement 'under the control of the Trial The defence may,
so wishes, also
if it
defence counsel prefer to
Chamber', without taking an oath. This statement is
not examined and cross-examined upon
to give
it
probative value (Rule 84 bis
statement that
is
is
this departure;
— this
end of the
was of course
if
all
IMT
this
the closing statements of the prosecution
in addition to their testifying as witnesses.
it
tunity for defendants freely
general views
and explain
common
— that
Witnesses are
is,
law systems
first
after the trial
his case.
To
why
(Thus
had finished
could probably tolerate this
is
trial proper'.)
that this
is
without being cross-examined
their motivations or
The Prosecutor then presents exhibits.
IMT
is,
was happening 'outside the
departure from most
own
Charter, in Article 24(j),
however, that rule provided for the defendants to
trial, after
the evidence had been produced; so the
departure because in effect
behind
Chamber may decide make a
the accused to
he so wishes, give evidence on his
defendants effectively spoke afterthe case was closed, that
and
Trial
an exception to the normal scheme of the
where the accused may,
a statement at the
and defence
However, the
then examined and cross-examined. The
is
had already envisaged
make
not testimony, hence the accused
ICTY RPE). Allowing
not a piece of evidence
adversarial system, behalf, but
it.
is
The reason
the only oppor-
— to set out their
they consider they are innocent.
this end,
he
calls
witnesses and produces
examined-in-chief by the Prosecutor, then cross-examined
by defence counsel, and subsequently re-examined by the Prosecutor. 7
The usual ation, in
7
rules
on the nature and
As happens
in the practice
of
examin-
limits of examination-in-chief (or direct
American terminology), cross-examination, and
some common law
re- examination
(or redirect,
countries (but not in England, where
it
forbidden), also in international criminal tribunals before examining witnesses in court, each party to
undertake 'witness preparation', that
necessary questions. In this
thumb,
a
way
is,
to rehearse the examination-in-chief,
the whole testimony
is
rehearsed.
It is
strictly
is
is
entitled
by asking the witness
commonly
all
the
stated that, as a rule of
prosecutor or defence counsel should never ask a question in examination-in-chief or cross-
examination without previously knowing the answer. This practice, which could sound odd or unfair to
STAGES OF INTERNATIONAL PROCEEDINGS
American terminology)
in
apply. Thus, in
419
examining witnesses in chief the Prosecutor
or the Defence must refrain from asking leading questions (that suggest the answer, such in cross-examination.
The
as:
hear the
behind the prohibition of leading questions
common
that in criminal trials held in
is
full
questions that
may be
put
8
traditional reason
in-chief
is,
'Was the car yellow?'), whereas such questions
in
examination-
law countries the jury
required to
is
information, or the account of events, directly from the witness, without
any interference from prosecutors or defence counsel. In short, jurors are expected
to
hear information about facts not through the prosecutor or defence counsel but as directly as possible
from the witness. In
and defence counsel
contrast, in cross-examination the prosecutor
are allowed to ask leading questions so as to put their case to the
witness and to cast doubt on the acceptability or credibility of the witness.
However, judges rate not
on
sitting
bound by
strict
international courts tend to be
rules.
They may
more
examination-in-chief, thereby overruling objections by the other party, sider that such questions to speed
may justifiably be
up the proceedings. Even
allowed where the witness
is
if
they con-
put in the interests of justice, in particular
common
in
or at any
flexible
therefore allow leading questions in
law systems, leading questions are
dealing with matters that are not contentious, or are
agreed between the parties, and
it
seems appropriate to apply a similar rule to
international tribunals.
Cross-examination
and matters
'shall
be limited to the subject-matter of the evidence-in-chief
affecting the credibility of the witness and,
where the witness
is
able to
give evidence relevant to the case for the cross-examining party, to the subject matter
ICTY RPE). A further requirement under Rule 90(H) (ii) of the ICTY RPE,
of that case' (Rule 90(H)(i) of the cross-examination:
In the cross-examination of a witness
who
is
is
set
out for
able to give evidence relevant to the case for the
cross-examining party, counsel shall put to that witness the nature of the case of the party for
whom that counsel appears which is in contradiction of the evidence given by the witness.
lawyers in
civil
law countries,
the key issues of testimony,
is
(ii)
among
other things aimed
at: (i)
time building in him a feeling of security and confidence, and
mind
(iii)
the witness comfortable).
It is
also
at the
same
answer which could be
to one's client (especially in cross-examination, although in examination-in-chief
way of making
and answers, on
putting the witness in a proper frame of
to be effective in his testimony or with a view to avoiding receiving a surprising
damaging also a
focusing, in the questions
reducing the witness's anxiety about his testimony in court and
it
could be partly
important to 'control' the witness, for instance asking
short, specific questions, so that the witness does not go ranting off
on other
subjects.
Often, prosecutors and defence counsel also simulate cross-examination, so as to better prepare the witness to questions
from the other
In Kupreskic
Chamber
and
side.
others {Decision on communications between the parties
ruled that, once a witness had
made
and
longer communicate with the party that had called him, except with the leave of the 8
A
legal provision
their witnesses) the Trial
the 'solemn declaration' provided for in Rule 90(
on leading questions can be found
in Rule
Chamber
611(C) of the 2001
US
1 )
he could no
(at 3).
Federal Rules oi
Evidence ('Leading questions should not.be us.ed on the direct examination of a witness excepl
as
may be
necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross
examination.
When
party, interrogation
a party calls a hostile witness,
may be by
leading questions').
an adverse party, or
a witness identified with
an adverse
INTERNATIONAL CRIMINAL LAW
420
This
an important requirement. For example, a witness
is
commit
the accused
a killing
and the defence does not put
may
testify that
he saw
to the witness in cross-
examination that he could have been mistaken; then in his closing speech the defence argues that the witness could have been mistaken as the killing. There
is
opportunity to respond to that suggestion
might have been able daylight' or 'But
A
party
may
may
at the
time of
when he was on
the witness stand, it
when he
was broad
metre away').
a
Chamber
ask the Trial
also
additional matters, that
Judges
was night-time
to give a convincing rebuttal (e.g. 'Nonsense,
was standing only
I
it
then a basic unfairness. The witness should have been given the
to
authorize questions relating to
matters not raised in examination-in-chief. 9
is,
any stage put questions to the witnesses (Rule 85(B) ICTY RPE). In
at
the practice of the ICTY,
if
judges ask questions at the end of re-examination and
these questions are not directly related to matters raised in examination-in-chief or
cross-examination, then the parties are authorized to examine and cross-examine the witness on those specific matters.
Generally speaking, judges have broad powers in directing the examination of witnesses. Their guiding principle
of justice so as to ensure a
They
exercise their
and more
must conduct business
in the interest
therefore enjoy considerable latitude.
powers by ruling on possible objections by the counter-party to
generally,
measures should be taken to
on the
They
put by the Prosecutor or defence counsel, as the case
specific questions
Also,
that they
is
fair trial.
may
be.
they direct the case presentation by deciding what facilitate
the testimony of vulnerable witnesses, by ruling
admissibility or relevance of evidence, controlling the
ing to avoid any harassment or intimidation of the witness,
manner of questionand by deciding on
written or oral motions submitted by the parties with respect to the questioning of witnesses.
10
After the close of the Prosecution's case, the pre-trial judge orders the defence to file
a
list
of the witnesses
it
intends to
call,
with a
summary of the
facts
on which each
witness will testify and the estimated length of time required for each witness, plus a list
of exhibits (Rule 65
ter
ICTY RPE). In addition, the Trial Chamber may it may call upon the defence to reduce the
(G) of the
hold a Pre- Defence Conference, where
number of
witnesses
it
intends to
prove the same
call to
estimated length of the examination-in-chief for
some
produce
Under Rule
90(H)(iii)
ICTY RPE, 'The
Trial
examination of character witnesses,
of
Under Rule
90(
I
)
of the K
may present
Chamber may,
enquiry into additional matters'. See also ICTY, Decision 10
ICTY who are
may
of course also
exhibits.
At the end of the defence case, the Prosecutor
9
calls witnesses,
above, and
set forth
shorten the
witnesses (Rule 73 ter
RPE). The defence then makes an opening statement and questioned in accordance with the rules
facts or to
in
Kupreskic
in the exercise
and
of
its
discretion, permit
others on limitation of scope of cross-
at 2.
TY
RPE, 'The
Trial
Chamber
interrogating witnesses and presenting evidence so as to
effective for the
evidence in rebuttal, then
ascertainment of the truth; and
(ii)
shall exercise control (i)
make
over the
the interrogation
avoid needless consumption of time'.
mode and
order
and presentation
STAGES OF INTERNATIONAL PROCEEDINGS
may
the defence
ordered by
it
present evidence in rejoinder, and the Court
to be presented {court evidence).
are questioned
first
421
may have
Normally witnesses
called
evidence
by the court
by the judges, then cross-examined by the Prosecutor and sub-
sequently by defence counsel; this sequence
is
established in the interest of the
defence, which has thus the opportunity to
first hear the questioning by the judges and the prosecution. The Court may then re-examine the witnesses, with the usual
caveat that
if
doing
in so
not previously considered in examination or
raises matters
it
cross-examination, the Prosecutor and the Defence have the right to cross-examine
on such
matters.
Once
the evidence has been presented, the Prosecutor makes a closing argument,
all
followed by a closing statement by the Defence. In these arguments both parties, in addition to
summing up
their appraisal of the evidence
arguments on points of fact and
(ICTY Rule 86(C)
closing speeches
A
similar system
and
main
setting out their
law, are obliged to address sentencing matters in their )."
envisaged for the ICC. Under Rule 141(2) of the ICC, 'the
is
defence shall always have the opportunity to speak
last'.
Furthermore,
it
has wisely
been provided that matters relating to sentencing be separately addressed by the
end of trial,
parties, before the
22.7
The most fundamental trials is
common
in this
model. Under
to
all
and Rule
in 'additional hearings' (see Article 76
143).
RULES OF EVIDENCE
principle relating to the taking of evidence in international
systems based on the adversarial model and this principle
other piece of documentation only
indeed inherent
is
any written or oral testimony, documents, or
become evidence
if
admitted
in court after
being
the subject of arguments by the parties. In other words, no evidence exists outside
court proceedings. Also affidavits and any exhibit or evidentiary material
become
may
only
by the party
a piece of evidence after being presented in a court hearing
concerned, being discussed or agreed between the parties, and declared admissible
by the court.
A and
second fundamental principle, which is
is
unique to international proceedings,
'technical' rules of evidence
but enjoy great
is
not shared with
common
that courts are not
flexibility
law systems
bound by
and
strict
and should be guided, rather
than by formal standards, by general principles of fairness.
That in international
1
(a)
1
This rule has been
our position
much
completely innocent, but
and not with no witness
is
that the accused
you find him
guilty, please
who
is
say:
how can we address
sentencing matters
completely innocent ('Your Honours,
bear in
mind
it,
(iv)
if
my
as
when
client
that he only beat the victims with his
is
fists
and (b) we do not know what factual findings the Chamber will make. It is like the when charged with breaking the window in the headmaster's study: (i) first, there
in the headmaster's study,
(ii) if
there
is
a
window,
it is
not broken,
(iii) if
was an accident. This does not sound very convincing as protestation of innocence is undercut by what sounds like admissions by the accused.
do
much
a stick'!),
old schoolboy plea, is
if
of evidence should be simplified as
attacked by the defence,
that point
at
trials rules
I
did
it,
it
a
it
is
broken,
1
did not
closing speech
the
INTERNATIONAL CRIMINAL LAW
422
possible
was
illustrating
first
proposed in 1945 by the
US
delegate to the
London Conference.
In
paragraphs 17 and 18 of the American draft of the Proposed Agreement 12
US
Robert H. Jackson, the
to the representatives of the other three Powers, Justice
representative, stated:
We
do not want technical
cut
down what
really
is
rules of evidence designed for jury trials to be used in this case to
and
of probative value, and so
fairly
we propose
of the statute [of the future IMT] that utmost liberality shall be used
more
and American lawyers than
significance to British
As provided
and apply
IMT
in Article 19 of the
it
.
to lay .
.
The
does to Continental lawyers. 13
Charter, an international court
may adopt
the greatest possible extent expeditious and non-technical procedure',
'to
and admit 'any evidence which
it
deems
the administration of evidence
is
premised on the notions
to have probative value'. This regulation of that: (i) there
consisting of lay people without any expert knowledge; the court
professional judges,
of evidence;
down as a part idea may have
(ii)
who
is
is
no jury
made up of
are in a position to appraise the probative value of each piece
the specific features of international criminal proceedings require
courts to be flexible and to be guided primarily by the need to ensure a fair and
expeditious
trial.
It
follows
from
Chamber 'may exclude evidence the need to ensure a fair
Within
may be
trial'
this general context,
this principle that,
if its
probative value
among is
substantially
(Rule 89(D) of the
ICTY RPE). 14
some
on
specific rules
other things, a Trial
outweighed by
certain matters have evolved
and
held to be customary in nature; consequently, under general principles of
may be
international law, they
derogated from by courts
if
their statutes or rules of
procedure and evidence so require (see supra, 2.4.1-3). In international criminal proceedings
it
now seems
accepted that the standard of
proof should be that judges must be convinced beyond a reasonable doubt of the
guilt
may convict. This standard (on which see infra) is laid of the ICTY RPE and in Article 66(3) of the ICC Statute. It has 15 the ICTY case law. Courts are authorized to exclude evidence
of the accused before they
down also
in
Rule 87(A)
been upheld in
that has
been gathered
in
violation of fundamental
from
a
person
who
breach of fundamental principles of law, for instance in
human
rights safeguards (for example, evidence obtained
has previously been subjected to
inhuman or degrading
treat-
ment), or by dubious or devious methods (for example, by surreptitiously obtaining the piece of evidence at issue). 16
12 13 14
International Conference
on Military
Trials, at 59.
Ibid., at 83.
Chamber insisted on the general principle of liberal admission of evidence: 'The embodied by the case-law of the Trial Chamber on the issue is the one of extensive admissibility of evidence— questions of credibility or authenticity being determined according to the weight given to each of In Blaskic a Trial
principle
the materials by the Judges at the appropriate time' (§34). 15
See for instance
Jelisic
(§108), Kunarac (Decision on motion for acquittal) (§3), Kvocka (Decision on
defence motions for acquittal) (§12), Delalic 16
As stated
cast substantial
in
Rule 95 of the
doubt on
its
and
others (Appeal) (§434), Jelisic (Appeal) (§§34-7).
ICTY RPE, 'No evidence
reliability
or
if its
admission
integrity of the proceedings.' Sec also Article 69(7) of the
shall is
be admissible
antithetical to,
ICC
Statute.
if
obtained by methods which
and would seriously damage, the
STAGES OF INTERNATIONAL PROCEEDINGS
Other
rules are designed to expedite trial proceedings
may
instance, international courts
or of public documents (such as court, etc.). That facts
means
423
and avoid waste of time. For
take judicial notice of facts of
common
knowledge
UN records, records of other proceedings of the same
that neither party
is
required to provide evidence that such
occurred or that the documents are authentic (for a case where the court took
judicial notice of
UN reports, see for instance Akayesu, §157). Furthermore, instead of may
calling expert witnesses, their statements
be
filed
with the court, so that,
if
the
other party does not object to the statement and does not wish to cross-examine the expert witness, the statement
person (see Rule 92
testify in
admitted into evidence without calling the witness to
is
of the
bis
ICTY RPE). 17
In addition affidavits (that
formal written statements signed by a witness in front of a public
official
accordance with another procedure provided for in national legislation)
may who appears
admitted into evidence. They the testimony of a witness
be so admitted, but only:
testimony of that witness, and of such
affidavit.
(iii) if
in court,
(i)
(i)
may
be
in order to corroborate
the affidavit
is
filed
prior to the
the opposing party does not object to the filing
18
There are also rules on evidence relating to light
(ii) if
is,
or in
cases of sexual assault. In such cases, in
of current practices, rules of evidence tend to protect the victim. Consequently:
no corroboration of the
not allowed as a defence
victim's testimony
if
required;
is
(ii)
consent of the victim
is
the victim was subjected to or threatened with or had
reason to fear violence, duress, detention, or psychological oppression, or reasonably believed that
if
she or he did not submit, another person might be so subjected,
threatened, or put in fear;
(iii)
the prior sexual conduct of the victim
admitted into evidence (see Rule 96 of the
may
not be
ICTY RPE).
Rules also require that communications between lawyer and client be treated as 'privileged'.
Consequently they require that such communications are not subject to
disclosure at
trial,
with some exceptions
(if
the client consents to such disclosure or
has voluntarily disclosed the content of such communications to a third party, and 19 such party then gives evidence of that disclosure); see Rule 97 of the ICTY RPE.
Finally, special rules deal
with the delicate question of evidence affecting national
security of States. Plainly, in international trials, particularly
armed
conflict are at stake,
officers or other State agents
important evidence
who
rely
upon
may be
when crimes
linked to
in the possession of military
sources affecting national security. Courts
have therefore to strike a balance between the need to respect the legitimate security concerns of States and the demands of
17
See
on
this
justice.
This in particular applies to States
Rule the Trial Chamber's Decision in Milosevic on Prosecutor's request
ments admitted, §§4-30, the decision in Milosevic on Prosecution application Rule 92
bis
without cross-examination,
at 2.
to
to
have written state-
admit evidence pursuant
to
See also the Trial Chamber's decision in Galk on the Prosecution
request for admission of Rule 92 bis statements, at 4-19, as well as
on Admission
into evidence
of a written
statement by a deceased witness, at 2-6. 18
On
the legal value of affidavits
Kramer and 19
On
and the need
to consider
them
carefully sec
among
other cases, Josef
others (the Belsen trial), at 636.
this
matter see the decision of 27 November 1996
production of defence witness statements), at
2,
in
ladie {Decision on prosecution motion
and Separate Opinion of Judge Stephen,
at
3-7.
fbi
INTERNATIONAL CRIMINAL LAW
424
when the documents raising national security concerns are in their custody: as the ICTY Prosecutor rightly argued in her Brief in Blaskic {Judgment on the request of Croatia)
to grant a State a blanket right to withhold, for security purposes,
,
documents necessary
for trial
criminal tribunal and 'defeat
The ICC in detail.
might jeopardize the very function of an international
its
essential object
and purpose' (§§70-3). 20 which regulates the matter
Statute contains a provision (Article 72)
emphasizes the need for the parties concerned to take
It
steps ... to resolve the matter
through cooperative means', so
acceptable to both the parties
and the Court.
'all
reasonable
as to achieve solutions
cannot be agreed and the
If solutions
Court holds that the documents are relevant and necessary for establishing the or innocence of the accused, provision
is
made
camera and ex parte, the drawing of inferences,
A
problem may
related
arise
when
measures
as hearings in
as well as orders for disclosure.
the source of information
witness provides documents or information only disclosed. This
for such
guilt
on condition
is
and
confidential
a
that the source not be
a frequent occurrence in the case of international criminal proceed-
is
may hold documents and other information of great may not be prepared to 'go public'. In these cases, the possibility that the person could be compelled by the court to disclose his source may prompt him 21 to refuse to testify. The ICTY RPE takes this possibility into consideration in Rule 70. Regard is also taken of some categories of potential witnesses who could not testify ings, for intelligence organizations
relevance to a
trial,
but
without breaching their staff
members of by
bers, if called
compel them is
official duties
the International
either party to testify,
may
formally set out in Rule 73(4-6) of the
20
In Blaskic
(this in particular applies to
do
decline to
to give evidence. This right for officials of the
where the documents are
whether the State
and the court
ICRC, envisaged
is
acting in
good
faith; (ii)
in a State's custody. In
its
view:
(i)
may
translation
camera,
the
documents need
its
itself; (iv)
and no transcript
is
Chamber added
conditions, to withhold
relevance to the 21
trial
may be
Chamber;
invited
become
the
Trial
documents
made
will
then be scrutinized by the judges in
of the hearing; (v) the documents considered not
may
may be
redacted by the State
be allowed, subject to some stringent
great relevance to national security while at the
same time of
scant
proceedings (§68).
This Rule provides that:
in
criteria
establish
one of the working languages of the Tribunal, such
(i)
the Trial
Chamber may not order
the party to produce additional evidence
received from the entity or person providing the initial information;
appear
must
national security secrets will not accidentally
that in exceptional cases a State
documents of
22
measure
relevant will be returned to the State, whereas those that are material to the case
concerned. The
not
in Simic
this
to be translated into
be carried out by the State
in ex parte proceedings,
the Court
(Judge Karibi-Whyte dissenting) the State at issue
'should increase the confidence of the State that (iii) if
will
ICC RPE.
submit the relevant documents to the scrutiny of one judge designated by the
public';
mem-
Cross). These staff so,
{Judgment on the request of Croatia) the Appeals Chamber suggested some general
for the situation
to
of confidentiality
Committee of the Red
(ii) it
may not summon
(or
compel
to
court) the person or a representative of the entity for the purpose of obtaining that additional
evidence; in addition,
(iii) if
the party concerned calls a witness to introduce the information at issue, the Trial
Chamber may not compel him declines to answer
the Trial a fair 22
Chamber
to answer questions relating to the information or its origin, if the witness on grounds of confidentiality. However, (iv) the Rule in no way detracts from the power of to exclude
evidence
'if its
probative value
is
substantially
outweighed by the need
to ensure
trial'.
Simic' (Decision
on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness),
27 July 1999, §§34-80.
STAGES OF INTERNATIONAL PROCEEDINGS
CONTROL OF PROCEEDINGS
22.8
International courts, like any court, have an inherent ings.
This
among
425
power
to control their proceed-
other things entails that Trial Chambers are authorized to decide
when an exception should be made to the basic principle whereby proceedings are public. Whenever the need to protect victims or witnesses, public order or morality, security, or the interests of justice so require, a Trial Chamber may, either on its own initiative
or at the request of either party, order that a hearing or part thereof be held
in closed session (see e.g. Rule 79 of the
ICTY RPE).
It
may also
order that, for the sake
of protecting witnesses, witnesses give testimony though image- or voice-altering devices or closed circuit television (see, for instance, Rule 75(B) of the
Chamber may order
In addition, the Trial
courtroom whenever
proves necessary to ensure a
this
maintain the dignity and decorum of the proceedings; of the accused
he engages in disruptive conduct
if
ICTY RPE).
that a person be excluded fair trial to it
from the
the accused or to
can also order the removal
(see for instance Rule
80 of the
ICTY RPE). The Court may
also initiate
'contumaciously refuses or In the
ICC system
contempt proceedings against a witness when he or she to
fails
answer a question' (Rule 77(A) of the ICTY RPE).
the powers of the Court to control proceedings are regulated by
Article 64. Detailed provisions are contained in Article 70
against the administration of justice
implementing or spelling out the
A
major issue
is
and
Court declares
is
guilty. It
is
common on
knowledge that
in
common
law systems
whether the proceedings are criminal or
whereas in countries of Roman-Germanic tradition the standard of proof in
criminal cases
is
case, the
retires to deliberate in private.
the standard of proof varies depending
In
ICC RPE
that of the standard of proof required for a court to determine
whether the accused
civil,
issue of offences
Statute's provisions.
both parties have completed their presentation of the
the hearings closed
on the
in the relevant Rules of the
DELIBERATIONS
22.9
When
and
common
that facts
is
is
is
formally pre-established by law for
must be proved 'beyond
must be proved accused
rather loose, but
civil litigation.
law countries the standard normally required in criminal proceedings
in such a
guilty; in other
way
a reasonable doubt'. This
means
that the facts
that a court satisfies itself without hesitation that the
words, the court must find that the accused
is
guilty without
entertaining a doubt that would cause any reasonable and prudent person to hesitate before reaching a definite conclusion. As the European Court of Human Rights put it
in Barbera,
In 1947 Lord
Messegue and Jabardo, 'any doubt should benefit the accused' (§77).
Denning
discussion in Miller
v.
set
out a clear definition of the standard of proof under
Minister of Pensions.
He
pointed out
that:
INTERNATIONAL CRIMINAL LAW
426
the degree of cogency as guilty ...
probability.
required in a criminal case before an accused person
is
well settled.
is
need not reach
It
but
certainty,
must carry
it
is
found
a high degree
of
Proof beyond reasonable doubt does not mean proof beyond the shadow of a
doubt. The law would
to protect the
fail
community
deflect the course of justice. If the evidence in his favour
remote possibility
is
man
possibilities to
as to leave only a
which can be dismissed with the sentence
possible, but not in the least probable', the case
nothing short of that
admitted fanciful
if it
so strong against a
is
'of course
is
it
proved beyond reasonable doubt, but
will suffice. (At 3.)
In contrast, less stringent requirements are provided for in non-criminal proceedings, that
is,
civil actions, for
ponderance of the evidence' sought to be proved
is
make out
sufficient to
proof for criminal and ings
it), or,
and convincing evidence'
clear
may be
evidence showing, as a whole, that the fact
is,
more probable than
that offered in opposition to
a prima civil
must be proved 'by a pre-
instance tort cases: issues (that
under
(that
is,
not, evidence that
is
more convincing than
a test requiring a higher degree of proof, 'by
by evidence that
facie case).
and
clear
is
The upholding of
explicit
and
is
different standards of
proceedings accounts for the possibility that
trial
proceed-
terminated with the acquittal of the defendant and be followed by pro-
ceedings for damages in tort law (as for instance in the famous O.
Simpson
case).
It
should however be noted that in some instances a rule different from that prevailing
is
/.
applied even in criminal proceedings: for instance, under Rule 850(a) (b) of the
Uniform Code of Military
US
'The accused has the burden of proving the defense
Justice,
23 of lack of mental responsibility by clear and convincing evidence'.
Also in
many
countries of continental Europe and most other
civil
law countries
the law draws a distinction between private law proceedings and criminal proceedings.
For the former category the law defines both the classes of admissible evidence
and the requirements
for their admissibility,
and
their respective probative value. In
contrast, in criminal proceedings, the principle of the free evaluation of evidence
obtains: the court freely evaluates the evidence to each piece of evidence.
the accused
23
is
The standard of
says, yes
I
matters
US Uniform Code,
a reasonable doubt.
killed intentionally,
but
I
is
freely decides
is
is still
'beyond a reasonable doubt',
e.g. if
The question is— what happens
was insane or otherwise deranged
if
certainties exist. Therefore the law is
known
is
the accused then turns around and
at the is
put a burden on the defence to prove that he was insane. But
convincing evidence'. This
the accused
the prosecution will have to prove that he committed the
time?
It
would be very hard
imposes on the defendant
as a reversible
for
not insane. So what the law does it
would equally be too harsh on
defendant to require him to prove 'beyond a reasonable doubt' that he was insane. Insanity
and no
to give
that the judge reaches the 'conviction' that
the prosecution to prove 'beyond a reasonable doubt" that the person instead
what weight
24
proof, even under Rule 850,
charged with murder under the
murder beyond
What
guilty or innocent.
and
is
a
a tricky question
intermediate standard of 'clear and
this
burden of proof and
is
often imposed for 'special
defences'. Interestingly, the
ICC
Statute forbids any reversing of burdens of proof. See Article 67(1
)(i)
of the
Rome
Statute. 24
For instance,
in
French law Articles 1315
and the probative force of each
class
ff.
and 1341-8 of the
of admissible evidence in
and 536 of the Code of Criminal Procedure
lay
down
Civil
civil
Code
set
out the modes of evidence
proceedings, whereas Articles 353, 427,
the standards of the intime conviction of the judges and '
STAGES OF INTERNATIONAL PROCEEDINGS
It
would seem
two standards of proof required
that the
in
law countries respectively (the 'beyond reasonable doubt'
427
common
test
more
'intime conviction of the judge) are not identical, the latter being
would seem, broader. (Other commentators
The judgment given
at the
25
On
opinions.
common
may append to
score, criminal courts
this
civil
of the
test
loose and,
have advanced a contrary view.)
it
26
ICTY, the ICTR, and the ICC must provide a statement
of the facts as found by the court and the legal reasons for not concur with the majority
law and
and the
law systems and international
its
findings. Judges
who do
the judgment their separate or dissenting
uphold the system prevailing (that
'civil'
interstate) courts
is,
in
both
such as the
International Court of Justice.
SENTENCING
22.10
Whenever sentencing does not
constitute a procedure per se as a result of the accused
entering a guilty plea, the sentence
is
part of the verdict.
Penalties are not provided for in an accepted tariff of penalties. International
provisions only rule out the death sentence. Otherwise they provide very general indication to courts. For instance, the
ICTY
terms of imprisonment, the Trial Chambers
why
provide that the court need not explain another. Article 192(1) of the Italian
and
in
have recourse to the general practice
they have attached value to one piece of evidence rather than to
Code of Criminal Procedure
gives account in the judgment's legal
Arguably the provisions
Statute provides that 'in determining the shall
is
stricter:
'The judge appraises evidence
grounds of the conclusions reached and the
French law on standards of proof in criminal
court to convict a person whenever a certain
amount of evidence
is
trials
criteria adopted'.
do not force the jury or the
available (hence the
other hand, as a matter of principle, they may, in reaching a decision of guilty, use unless otherwise provided by law,
and attach
to
it
the value
it
word all
deserves in their eyes (this
'intime');
on the
evidence available, is
called in
German
l
legal literature freie Beweiswiirdiging').
and Germany the courts must be convinced beyond reasonable doubt.
In the Netherlands 25
For, instance, Pradel (at 474). Indeed, the question arises of
conviction 26
if
one
In Heinz
is
Heck and
others (the Peleus trial) the Judge Advocate in his
a reasonable doubt' test as follows: 'A reasonable as a
weak mind may grasp
if it is
considered this case as
benefit of
it
and
it
is
struggling to avoid an honest conclusion
know you
I
will,
to acquit him. is
guilty,
If,
stated that 'reasonable
certain. In
doubt means
most things there to
do
decided that a person In
its
have an \intime)
on evidence affair
explained the 'beyond
imaginary doubt such that
is
plain.
of your own.
It
If,
with a reasonable doubt such as
whom
that
you entertain such
a
means having I
have
doubt the
you have heard drives your minds
to
equally your duty to say so without regard to the consequences ot this
and just
others (the Natzweiler trial) the Judge Advocate, in his
such an inquiry as you would make into any
affairs
summing up, own
of your
111
Probably there are few things in the world about which we can be utterly and completely is
take into account any sensitive
What you have
left
as to
on the other hand, the evidence
it is
finding' (at 123). In Wolfgang Zeuss
life.
are
really
guilty.
fanciful or
some important
your duty to give to any accused person
the conclusion that he
your everyday
most anxiously, you
is
summing up
doubt does not mean some
the kind of doubt that might affect you in the conduct of
described, then
whether one can
not convinced beyond reasonable doubt that the accused
decision of 6
is is
some doubt— some little doubt— in one's mind, but you are not obliged to doubt— anything which would not affect your judgment in you own affairs.
to be satisfied
beyond reasonable doubt. That means you must not be
guilty, feeling that
December 1988
perhaps you were wrong about
in Barbera,
Messeguc and Jabardo
loft,
ha\ ing
that' (at 199). v.
Spain, the
reasonable doubts must be silenced' (Series A146, §77). See also Safferling, at 259-60.
ECHR
held that
all
INTERNATIONAL CRIMINAL LAW
428
regarding prison sentences in the courts of the former Yugoslavia' (Article 24(1)
ICTR
).
The
Statute provides similarly in Article 23(1), referring of course to the courts of
Rwanda.
Articles 77
and 78 of the ICC
ICC
definite guideline to the
Statute, although less terse,
Chambers with regard
Trial
do not provide any
to the determination of
sentence.
Chamber
therefore for each Trial
It is
to establish the prison sentence
considers
it
appropriate, in view of the gravity of the crime. In Delalicand others (Appeal) (§806)
and
in Aleksovski (Appeal) (§185) the
ICTY
Appeals Chamber held that retribution and deterrence ought to constitute the main guiding principles in sentencing for international crimes. Trial Chambers have nor-
mally taken the same approach
(see, for instance,
two notions
that those
or, as
Furundzija (§288)
ICTY
example, in Todorovic (Sentencing judgment) an
Trial
).
Thus, for
Chamber took
the view
termed them, 'purposive considerations', merely
it
formed the backdrop against which the sentence of an individual accused must be determined (§28). 27
ICTY Trial Chambers have also considered reprobation and stigmaamong the main purposes of sentencing: see, for instance, Erdemovic
In other cases, tization as
(Sentencing judgment) (§65), Furundzija (§289), and Blaskic (§§763-4).
some
In
The Chamber went on
to the exaction of
must be proportionate
to the
As
for deterrence,
in general, will
mentioned the purpose of rehabilitating
it
punishment
age.
wrongdoing:
held that
it
in other
meant
for
be understood as reflecting a
so'.
fair
wrongdoing. This means that the penalty imposed
words that the punishment be made
that 'the penalties
have sufficient deterrent value to ensure that those
be dissuaded from doing
the
29
to say that the principle of retribution 'must
and balanced approach
(§29).
also
when he was of young
accused, particularly 27
Chambers have
cases Trial
28
The Chamber went on
to
the crime'
fit
imposed by the International Tribunal must,
who would
consider committing similar crimes
to say that, 'Accordingly, while the
recognises the importance of deterrence as a general consideration in sentencing,
it
will
Chamber
not treat deterrence as
a distinct factor in determining sentence in this case' (§30). 28
In Erdemovic (Sentencing judgment) the
ICTY
Trial
Chamber
held that: 'The International Tribunal sees
public reprobation and stigmatisation by the international community, which
would thereby express
its
indignation over heinous crimes and denounce the perpetrators, as one of the essential functions for a prison sentence for a crime against humanity' (§65). 29
For instance, in Furundzija (§291) an
punishment such
ICTY
as retribution, deterrence,
Trial
Chamber
support for rehabilitative programmes in which the accused Trial
Chamber
In the
is
none of the various purposes of
stated that
and stigmatization was
may
to detract 'from the Trial
Chamber's
participate while serving his sentence; the
especially mindful of the age of the accused in this case'.
same case the
Trial
Chamber
also stated that
it
was
to be guided in
its
determination of the sentence
by the principle proclaimed as early as 1764 by Cesare Beccaria (An Essay on Crimes and Punishment, 1775, reprinted (Brookline Village, Ma:
but must be inevitable'. the sanction, which
is
It
went on
Brandon
Press Inc., 1983)
to state that
'It is
),
namely
that
'punishment should not be harsh,
the infallibility of punishment, rather than the severity of
the tool for retribution, stigmatisation and deterrence. This
the international tribunal; penalties are
made more onerous by
impact upon world public opinion, and
it
is
particularly the case for
international stature, moral authority
must be borne
this punitive effect
suitable length of sentence' (§290). This proposition, while
its
seems correct
in
mind when
in that
it
and
assessing the
stresses the particular
stigma attaching to punishment by an international tribunal as well as the need for the penalties not to be excessively harsh, could appear questionable in another respect:
ment
is
a
it does not seem that inevitability of punishmajor feature of international courts; these courts must of necessity concentrate on major instances
of gross violations of international criminal law and therefore cannot but be selective;
it
follows that in
instances perpetrators will not be punished, unless they are brought before national courts.
many
STAGES OF INTERNATIONAL PROCEEDINGS
Some
courts have tried to set out
some
429
general considerations warranting their
sentencing policy. For instance, in Nadler and others a British Court of Appeal acting
under Control Council Law no. 10 stated
Upon
that:
is,
opinion of
in the
this
unlawfully and maliciously killed another or where the
two
classes a sentence
inhumane conduct of such person
inhumane, on such a scale or so serious in it
within neither of
fall
of death will usually be excessive, there may, nevertheless, be
other cases where the conduct of the convicted person
although
10, a capital
Court, the appropriate sentence where such person has
has materially contributed to the death of another. While in cases that these
Law
the conviction of any person of a crime against humanity under
sentence
its
is
so grossly or persistently
consequences that a capital sentence
is
proper
not proved that such conduct has either caused or contributed to a death.
is
(At 134-6.) It
should be emphasized that the Statute of the ICC makes
much headway
the area of penalties. For, in addition to providing for imprisonment, in Article 77(2), that besides
imprisonment the Court may order
it
'a fine
provided for in the Rules of Procedure and Evidence' and
criteria
also in
also stipulates,
under the
forfeiture of
'a
proceeds, property and assets derived directly or indirectly from the crime, without prejudice to the rights of
bona
fide third parties'.
and other property collected through established
The Court may order
fines or forfeiture
by decision of the Assembly of States
be transferred to
money
that
a trust
fund
Parties for the benefit of the victims
or their families (Article 79).
22.11
REPARATION OR COMPENSATION TO VICTIMS
The ICTY and ICTR Statutes only provide for the 24(3) of the
ICTY
imprisonment, a
right of victims to restitution. Articles
and 23(3) of the ICTR Statute stipulate that in addition to Chamber 'may order the return of any property and proceeds
Statute
Trial
acquired by criminal conduct, including by means of duress, to their rightful owners'. Nonetheless, the Rules of Procedure and Evidence
30
ICTY RPE
Rule 105 of the
regulates restitution in detail.
containing a specific finding of unlawful taking of property, the Trial
It
for
stipulates that after a
at the request
compensation. 30
judgment of conviction
of the Prosecutor or proprio mot it
Chamber may hold
are in the Trial
make allowance
a special hearing on the question of restitution. If such property or its proceeds hands of third parties not otherwise connected with the crime, they will be summoned before the
Chamber and
Chamber,
if it is
given the opportunity to justify their claim to the property or
able to determine the rightful
the restitution of
its
proceeds. If instead
national authorities to
do
so,
and orders
it
its
proceeds.
owner 'on the balance of probabilities', orders is
unable to determine ownership,
it
its
The
Trial
restitution or
requests the competent
thereafter the restitution of the property or of
its
proceeds.
Rule 106, on compensation to victims, cannot of course grant to victims a right to compensation, absent
any provision on the matter in the Statute. Nonetheless relevant national authorities the victim. 'the
It
will
it
provides that the Registrar shall transmit to the
judgment finding the accused
guilty of a
crime that has caused injury
be for the victim to claim compensation before the competent national court.
judgment of the Tribunal
person for such
injury'.
ICTY's primacy.)
(The
to a
or this purpose,
be final and binding as to the criminal responsibility of the convicted and binding nature of the Tribunal's findings seems to be an aspect ot "the
shall
final
1
INTERNATIONAL CRIMINAL LAW
430
The ICC
Statute
more favourable
is
to victims. First, in Article 75
it
provides for
various forms of reparations (restitution, compensation, and rehabilitation). Sec-
Assembly of
ondly, as pointed out above, Article 79 stipulates that the
fund for the benefit of the victims and their
shall establish a trust
of the It
ICC RPE
regulate the matter in
some
States Parties
families. Rules
94-9
detail.
appears from Article 75 and the Rules just mentioned that the proceedings for
may be initiated either by a victim, under Rule 94, or by the own motion, pursuant to Article 75(1) and Rule 95. Victims and the convicted persons may take part in the proceedings and be heard by the court. The Trial Chamber may appoint experts to assist it in determining the damage, loss, or determining reparations
Chamber on
Trial
injury
its
and suggesting
'the appropriate types
under Rule 97(2), 'The Court
ingly,
and modalities of
reparation'. Interest-
shall invite, as appropriate, victims or their legal
representatives, the convicted person as well as interested persons States to
make observations on
the reports of experts'.
The
Trial
and
interested
Chamber
grants
reparation by ordering an 'award against a convicted person'.
(C)
APPELLATE AND REVIEW PROCEEDINGS 22.12
GENERAL
The
right of defendants to appeal against conviction or sentence
as a
fundamental
human
on the notion of fair treaties
on human
blossoming of the as
trial.
right. Subject to
At present
this right
human
evidenced by the
also
is
exceptions, laid
down
in
normally regarded
is
it is
basically predicated
numerous
international
rights as well as the Statutes of international courts. (Before the rights approach, the right
fact that the Statutes
of the
contemplate a right of appeal.) Alongside
may
some
was not considered fundamental,
IMT and
the Tokyo Tribunal did not
some
legal
systems provision
be made for the power of Prosecutors to appeal against
acquittals. Clearly,
here the rationale
is
no longer
this right in
to reaffirm a
fundamental
human
right,
but rather to
ensure the proper administration of justice, by enabling the Prosecutor to appeal to a higher court
when he
considers that the acquittal of the accused
file
an
amounts
to a miscarriage of justice.
The notion and purpose of appellate proceedings vary however
in national systems
number of specifications and exceptions, in civil law countries these proceedings amount largely to a retrial by a court of appeal. Very often both law and facts are brought before this court, for the appellant may claim that the (see supra, 20.2.10). Subject to a
trial
court has both misapplied or misunderstood the relevant law, and wrongly
established the facts.
Hence the court of appeal hears the case anew,
admitting or calling the same or trial
court's
new witnesses, and
judgment or sentence. The
if
need be by
confirms, reverses, or quashes the
right of appeal inures to
both the convicted or
STAGES OF INTERNATIONAL PROCEEDINGS
who may
sentenced and the Prosecutor, ally
any increase
in the sentence
admitted within
most common law
countries appellate proceedings
the appellate court consists of professional judges
themselves for a jury, the only body entitled to courts do not review the
on the
facts.
it
was not then
hear evidence
is
in pejus,
only
is
be put before, and evaluated
findings of fact.
Only exceptionally does
is
it
to a
not substitute
Hence appeals
receive evidence, provided
and was not adduced
at trial
available).
that the jury
make
do not lead
who may
Normally the court of appeal, without any jury, decides
basis of the trial record.
would have been admissible because
(However usu-
also appeal against sentence.
by the appeals court, or reformatio
strict limits.)
In contrast, in retrial, for
431
The reason why courts of appeal only
the sole trier of fact and
by, the trial court.
it
at that stage (for instance,
exceptionally
must The court of appeal may dismiss the all
the relevant evidence
appeal, quash the judgment, or request a retrial by a trial court. In addition appellate proceedings in
two features designed length of proceedings. (It is felt
tried
by
to reduce the First,
Nor
is
law jurisdictions normally exhibit appeals and thus shorten the total
normally the Prosecutor
that such an appeal a jury.)
common
number of
may not
appeal against acquittal.
would compromise the acquitted defendant's
exception to be mentioned below, the accused conviction or sentence, but only
if
may
jury, misdirecting
granted leave to appeal by a judge sitting on the
(for instance, that the trial judge issued
it
in his
summing up about
made on grounds of
wrong
instructions to the
the elements of the offence).
pose of requesting that the defendant be granted leave to appeal
is
request for leave to appeal functions as a sort of
required
when
is
filter,
for
upon
he grants leave only
the
if
an arguable point in the appeal. However, no leave to appeal
the appellant challenges the conviction or sentence
pure law. (Examples include, that the indictment was defective on trial
The pur-
to avoid frivolous,
vexatious, or unmeritorious appeals: the single judge that pronounces
holds that there
be
not appeal automatically against
appeals court. This applies to the vast majority of appeals, those
mixed law and fact
right to
he allowed to appeal against sentence. Secondly, subject to an
he is
on the ground of its
face; that the
court lacked jurisdiction to try the offence, because the offence had been commit-
ted abroad; that the facts
and evidence
to the offence of which the appellant
no case
to
upon by
the prosecutor did not
etc.)
When
appealing on the ground of pure law the appellant
the case before the court of appeal as of right.
In international criminal proceedings neither the
common
law system nor the
law model has been upheld. Rather, a mixed system has been accepted, as we below.
amount
that a defence submission of
answer had been wrongly rejected by the judge; or that admissible evidence
had been excluded,
may bring
relied
had been convicted;
civil
shall see
INTERNATIONAL CRIMINAL LAW
432
APPEALS AGAINST INTERLOCUTORY DECISIONS
22.13
may issue interlocutory
International criminal courts, like their national counterparts,
on preliminary motions
decisions, either
(for instance, those
motions
which challenge the
on any other motion
jurisdiction of the court; see supra, 22.5) or
(for instance,
may lodge an appeal against ICTY RPE and of the ICTR RPE, as well as Article
for provisional release; see 22.5). Either party
such decisions (see Rule 72 of the
ICC
82 of the
Statute).
In drafting the Rules of Procedure
judges of the
took a rather
ICTY and restrictive
on appeals
ICTR went through
the
against interlocutory decisions,
different stages. In a first phase they
approach in providing for such interlocutory appeals; they
subsequently broadened the range of cases where such appeals could be lodged; finally,
faced with an increasing
unduly delay
trial
cantly limiting the
Only
number of appeals
for interlocutory decisions
other cases the appellant must the Appeals
has
Chamber may
shown 'good
RPE).
number of such
appeals and fearing that they might
proceedings, they adopted a restrictive attitude aimed at signifilikely to
be
filed.
on jurisdiction does the appeal
first
request leave to appeal.
grant or refuse leave, depending
ICTY RPE;
cause' (see Rule 72(B) of the
as of right. In
all
bench of three judges of
on whether
the appellant
see also Rule 72 of the
ICTR
31
For some of these appeals, the Appeals
among
Chamber may
if
leave to appeal
is
granted by the bench of three judges,
decide to apply an 'expedited appeals procedure', which
other things involves that the appeal
the original records of the Trial
is
Chamber;
determined entirely on the basis
(ii)
16 bis of the
ICTY RPE amended Rule
of: (i)
written submissions by each party,
without a second exchange of briefs in reply; and 1
A
lie
(iii)
without any hearing (see Rule
ICTR RPE). ICTY RPE relating
and Rule 117 of the
Recently, judges
73 of the
to
motions (other than
preliminary motions). They have provided that, to appeal against a Trial Chamber's
on any such motion,
decision
it
is
necessary for the relevant Trial Chamber,
request of a party, to 'certify' that the decision involves 'an issue that cantly affect the fair
the Trial,
and
for
would
upon
signifi-
and expeditious conduct of the proceedings or the outcome of
which
...
an immediate resolution by the Appeals Chamber
may
materially advance the proceedings'.
The request must be submitted within seven
days of the issuing of the decision.
the certification
may
appeal to the Appeals
If
Chamber without
is
granted, the relevant party
leave within seven days of the filing of
the certification. 32 31
Or, in the case of other motions, not preliminary in nature,
if
'the decision
impugned would cause such
prejudice to the case of the party seeking leave as could not be cured by the final disposal of the post -judgment appeal', or
'if
the issue in the proposed appeal
the Tribunal or in international law generally' (Rule 73(B)(i)
ICTR RPE 32
is
trial
including
of general importance to proceedings before
and
(ii)
of the
ICTY RPE; Rule 73(B) of
the
instead always excludes appeals).
This 'certification' system
Chamber, may simply decide not
may be
criticized since a Trial
to certify the appeal, in
Chamber, fearing
Probably the reply would be that ultimately the issue can be resolved by
judgment has been rendered.
reversal
which case the avenue of appeal final
is
by the Appeals
completely cut
Appeals, after the Trial
off.
Chamber
STAGES OF INTERNATIONAL PROCEEDINGS
ICC system
In the
433
manner
interlocutory appeals are regulated in a detailed
in
Article 82.
APPEALS AGAINST JUDGMENT OR SENTENCE
22.14 As
common law systems, international appellate proceedings do not involve a reOn many occasions the ICTY Appeals Chamber has emphasized that an appeal is an opportunity for the parties to re-argue their cases. On appeal, parties must
in
trial.
not
arguments to matters that
limit their
fall
within the scope of the grounds of appeal,
namely an error of law invalidating the judgment or an error of a
of justice
miscarriage
Furundzija
(see
{Appeal),
§40,
fact involving
Kupreskic
and
others
mi)).
(Appeal)
However, the relevant provisions of the Statutes confer the right of appeal on both the defendant parties
may
and the Prosecutor, thus departing from the
common
law system. Both
appeal against conviction or sentence, and the Prosecutor
may
appeal
against acquittal.
Another departure appeal
much
is
broader. These grounds are:
invalidate the judgment; justice.
Under
ground of
the fact that the range of grounds
lies in
an error of
(ii)
Article 81 of the
ICC
an error of law so serious as to
(i)
fact so serious as to entail a miscarriage
Statute,
a 'procedural error' or 'on
on which one may
an appeal
may
any other ground that
also
affects the fairness or
of the proceedings or decision'. Furthermore, either party
reliability
against a sentence 'on the
of
be lodged on the
may
appeal
ground of disproportion between the crime and the
sentence'.
A
third departure
evidence
is
much
from the
wider.
appellate proceedings
common
may lodge
not available to this party
a
at trial,
motion asking be presented.
the presentation of such evidence require'. Plainly, if
hear the
33
same
'if it
such authorization
new evidence and may
course, the will also
law system
is
that the possibility to hear fresh
Under Rules 115 of the ICTY and ICTR RPE
a party to the
that additional evidence,
which was
The Appeals Chamber may
authorize
considers that the interests of justice so
Chamber will have to some of the facts. Of of evidence before Trial Chambers
granted, the Appeals
is
therefore have to reconsider
rules governing the presentation
apply before the Appeals Chamber. 33
In Tadic (Appeal, decision on admissibility of additional evidence) (§§27-74) the Appeals
must not
that the unavailability of the evidence at trial
result
Chamber
relevant defence counsel; in addition, the interests of justice required admission of evidence only
evidence:
(i)
was relevant
that the conviction
to a material issue;
was unsafe. See
(ii)
also Delalic
was
and
credible;
and
On many
occasions the
(iii)
was such
that
it
ICTY Appeals Chamber
and
if
the
would probably show
others (Appeal, order on motion ofLandzo), at 2
(Appeal, decision on additional evidence) at 3, as well as Kupreskic
held
from lack of due diligence on the part o(
3, Jelisit
others (Appeal) (§§48-76).
has rejected motions for the admission of additional
evidence. This, for instance, happened in Tadic (Appeal, decision on the admission
oj
additional evidence), as
well as in Jelisic (Appeal) (§§20-1). In other cases additional evidence has been admitted. See for instance Delalic
and
others (Order on motion for the extension of the time-limit
an admission
oj
new cvnlciuw
oi 3
1
\la\
INTERNATIONAL CRIMINAL LAW
434
The Appeals Chamber may dismiss the
appeal, or acquit the appellant, or order that
the accused be retried, or change the sentence.
The ICC
may be lodged both by the
Statute provides that appeals
and by the prosecutor. They may appeal against
either the
convicted persons
judgment or the sentence,
or both (Articles 81 and 83).
REVIEW OF JUDGMENT OR SENTENCE
22.15
Under
Article 26 of the
ICC
the
Statute,
ICTY
whenever
a
Statute, Article 25 of the
new
fact
is
ICTR
discovered which
Statute,
(i)
party concerned at the time of trial or appellate proceedings, and 'a
and
Article 84 of
was not known
to the
could have been
(ii)
may ICTR
decisive factor in reaching the decision', the convicted person or the Prosecutor
apply for review of the judgment. Rule
RPE add
a further condition: the
1
new
ICTY RPE and Rule
19 of the
120 of the
not have been discovered through
fact 'could
the exercise of due diligence'.
The
rationale behind this review procedure
sentence
may be endowed
binding and
trial
final judicial decision),
not to revise
justice
and which,
if
it
it
any time a new
evident: although a
is
with the legal force of
res judicata (that
would be contrary fact
known, would have
is,
judgment or the force of a
to elementary principles of
emerges that was unknown
at the
time of
led to a totally different decision. In the case
new is a fact, not evidence of a fact known at the ICTY Appeals Chamber rightly held in Tadic (Appeal on admission
of review proceedings, what must be
time of trial. As the
of additional evidence), 'The mere subsequent discovery of evidence of a fact which
was known
at trial is
not
itself a
new fact within
the
meaning of Rule
1
19 of the Rules'
(at §32).
Under the ICTY and ICTR systems the convicted person may
at
any time
file
an
application for review, while the Prosecutor has a time limit of 'one year after the final
judgment has been pronounced'. The motion a
new
trial: it is
that the sion'.
new
necessary for the
fact, if
for review does not automatically lead to
Chamber which
proved, could have been
This examination
is
'a
delivered the
judgment
to conclude
decisive factor in reaching the deci-
'preliminary' in nature. If the
Chamber's conclusion
is
Chamber commences a new trial, and its judgment may 120-1 of the ICTY RPE and Rules 121-2 of the ICTR RPE).
affirmative, then the relevant
then be appealed (Rules
The ICC system broadens
the category of persons entitled to apply for review.
grants the right to apply not only to the convicted person and the Prosecutor act
ream) but
also, after the
2000,
at
alive at the
death of this person, to spouses, children, parents, or 'one
time of the accused's death
8-9, and of 14 February 2000, at 2-3), in Kupreskic
Drago Josipovid and
and
(who
on behalf of the convicted person, hence may not seek review contra
must only person
It
others), at 7). See also
others {Appeal) the K
TY
Appeals
(
who and
has been given express written
others (Appeal, decision on the motions of
Akayesu {Appeal, decision of 22 August 2000)
(at 5-6). In
Kupreskic
Chamber, after considering and weighing additional evidence (§§263-
302) concluded thai the findings of the Trial
Chamber had
resulted in a miscarriage of justice (§§303-4).
STAGES OF INTERNATIONAL PROCEEDINGS
instructions
from the accused
to bring such a claim'. In addition, the Statute broadens
the classes of requirements necessary for applying for review.
not only
the discovery of a decisive
(i)
evidence was
on
trial
false,
forged, or falsified,
committed an
435
act of serious
fact,
and
but also
(iii)
These conditions include
the discovery that decisive
(ii)
the fact that one or
more judges
sitting
misconduct or a serious breach of duty justifying
the removal of that or those judges from office pursuant to Article 46 of the
Under the same
Statute.
Chamber, which, Chamber, or
(ii)
if it
Statute, the
considers
constitute a
it
new
motion
for review
may
meritorious,
Chamber, or
Trial
(i)
is
submitted to the Appeals
reconvene the original
(iii)
ICC Trial
retain jurisdiction over the
matter.
REVIEW OF OTHER FINAL DECISIONS
22.16
In Barayagwisa (Appeal on request for review or reconsideration) the question arose of
whether
a decision of the
ICTR Appeals Chamber
of 3 November 1999, which dis-
missed the indictment against the appellant and terminated the proceedings, could be the object of review before the Appeals
Chamber
at the request
of the Prosecutor. The
defence submitted that Articles 24 (on appellate proceedings) and 25 (on review proceedings) of the
ICTR
Statute, in granting the right of appeal or review to a
convicted person (besides the Prosecutor) presupposed that the right to request
Chamber dismissed
review was only available after conviction. The Appeals
argument. If
It
noted
the Appellant were correct that there could be
tion,
it
the
that:
would follow
that there could be
no review unless there has been
no appeal from
acquittal for the
a convic-
same
reason.
Appeals from acquittals have been allowed before the Appeals Chamber of the ICTY. The Appellant's logic
is
not therefore correct. (§47.)
Furthermore, the Chamber stated that
it
considered
it
important to note:
judgment may be reviewed pursuant to Article 25 of the Statute and to Rule The parties submitted pleadings on the final or non-final nature of the Decision [of 3 November 1999] in connection with the request for reconsideration. The Chamber would that only a final 120.
point out that a final judgment in the sense of the above-mentioned articles terminates the proceedings; only such a decision
Decision of 3
November 1999 belongs
against the Appellant
filed
this case law, in the
even against a decision that
decision puts an end to the proceedings.
is
one which
it
dismissed the indictment
(§49.)
ICTY and ICTR systems
not
is
subject to review. Clearly, the
to that category, since
and terminated the proceedings.
Hence, according to
may be
may be
stricto
a review
motion
sensu a judgment, provided such
INTERNATIONAL CRIMINAL LAW
436
ENFORCEMENT OF SENTENCES
(D)
PLACE OF IMPRISONMENT
22.17
do not have any prison
International courts
persons. Consequently they
hold those persons in
jail.
available in
must of necessity turn
Article 27 of the
ICTY
which
to detain convicted
to States to see
whether they may
Statute provides that 'imprisonment
be served in a State designated by the International Tribunal from a
shall
which have indicated
persons'. Article 26 of the Similarly,
Article
imprisonment
shall
So
far the
103(1) (a)
prisons.
to the
ICTY and
which have agreed
ICTR
be served
which have indicated
list
of States
to the Security Council their willingness to accept convicted
the
has a similar tenor. 34
ICC
of the
Statute provides that
in a State designated
Court
sentence of
'a
by the Court from
a
list
of States
their willingness to accept sentenced persons'.
ICTR have
entered into agreements with individual States,
to hold persons convicted
by the Tribunals
in their national
35
22.18
CONDITIONS OF DETENTION
Of course, imprisonment of convicted eral laws
and regulations applicable
persons must be in conformity with the gen-
However, conditions of
in the relevant State.
detention of those persons must accord with international standards. This require-
ment, although not explicitly laid implicit in the
down
in the Statutes of the
ICTY and
the ICTR,
whole system of international courts: these courts are bound
international standards
on human
standards as far as the
rights
rights
and
in particular to
comply
fully
is
to respect
with these
of the accused and victims and witnesses are
concerned. 36 34
It
provides that 'Imprisonment shall be served in
Rwanda
or any of the States on a
list
of States which
have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for
Rwanda. Such imprisonment
shall
be in accordance with the applicable law of
the State concerned, subject to the supervision of the International Tribunal for Rwanda'. 5
The UN has made agreements for the ICTY with Italy (signed on 6 February 1997), Finland (7 May Norway (24 April 1998), Sweden (23 February 1999), Austria (23 July 1999), France (25 February
1997),
2000), and Spain (28
agreements.
Among
March 2000). The agreement with Spain
other things,
it
differs in
many
respects
from the other
provides that Spain will only consider the enforcement of sentences
pronounced by the ICTY where the duration of the sentence imposed does not exceed the highest sentence for any crime under Spanish law (currently 30 years).
ICTR u '
The
UN
maximum
has entered into agreements for the
with Mali, Benin, and Swaziland. In the various
sentences
it is
Agreements concluded by International Tribunals with States for the enforcement of
provided that 'conditions of detention shall be compatible with the Standard
for the Treatment of Prisoners, the
Body of
Principles for the Protection of All Persons
Minimum
Rules
under Any Form of
Detention or Imprisonment and the Basic Principles of the Treatment of Prisoners' (Article 3(5) of the various Agreements).
STAGES OF INTERNATIONAL PROCEEDINGS
The ICC
Statute
makes
this
conditions of imprisonment
.
.
requirement .
explicit. Article 106(2)
437
provides that 'the
be consistent with widely accepted international
shall
treaty standards governing treatment of prisoners'.
REDUCTION OR COMMUTATION OF SENTENCE AND PARDON
22.19
International provisions stipulate that the State where the convicted person serves his
sentence
is
not allowed to reduce or change the penalty or release the person before
expiry of the sentence pronounced by the International Court (see, for instance, Article 110(1)
and
upon any change However,
of the
(2)
ICC
Statute).
Only the International Court may decide
in the sentence.
conflicts
may
arise
between the general
the penalty and international prescriptions.
It
legislation of the State enforcing
may happen
that in the State at issue
detainees are entitled to a reduction of sentence, or to early release, or to special
treatment (for instance, parole) after serving the sentence for a certain years, or in case of
good behaviour.
number of
however, these conditions are not applied to
If,
persons convicted by the International Tribunal, this
may be deemed
to constitute
discrimination against these international convicts.
This
difficult issue
has been settled in a flexible
between the Tribunals and
manner
For instance, in the
States.
first
in
agreements concluded
such agreement with the
ICTY, which also served as a model for subsequent agreements, that with 6 February 1997,
it is
provided that
'if
of
non-custodial measures or work-
requested State, the convicted person
is
ing activities outside the prison, or
entitled to benefit
is
Italy
pursuant to the applicable national law of the eligible for
from conditional
release, the
Minister of Justice shall notify the President of the Tribunal' (Article 3(3)). The provision then stipulates that,
if the
President of the Tribunal, in consultation with the
judges, does not consider those national measures appropriate, the convicted person shall
be transferred to the International Tribunal, presumably for the purpose of being
transferred to another State willing to have
him
similar provision (Article 8) covers the issue of
The question of pardon State
may
Article 27 of the
particularly difficult. In
ICTR
is
eligible for
ICTY
Article 28 of the
most
States only the
Head of
Statute (and the corresponding
Statute) provides that:
pursuant to the applicable law of the State
he or she
A
grant pardon. States are extremely jealous of this prerogative of their
supreme national organ.
If,
is
serve the remainder of his sentence.
pardon or commutation of sentence.
in
pardon or commutation
the International Tribunal accordingly. the judges, shall decide the matter
which the convicted person
The President of the
on the
is
imprisoned,
of sentence, the State concerned shall notify Tribunal, in consultation with
basis of the interests of justice
and the general
principles of law.
On
the face of
it,
the matter
is
'decided' by the President of the Tribunal in
438
INTERNATIONAL CRIMINAL LAW
consultation with judges.
The power of pardon would thus seem ultimately
to
belong
to the international body, in contrast to the regulation of most national constitutions.
The judges of the ICTY
smoothed out the problem
skilfully
cedure and Evidence. Under Rule 123 ICTY,
commutation of sentence under national the International Tribunal,
judges 124),
'shall
on the
.
.
.
the person
if
legislation, the State
and then the Tribunal's president,
basis of a set of criteria laid
down
in
is left
in the Rules of Pro-
eligible for
pardon or
concerned
shall notify
in consultation
determine whether pardon or commutation
is
with the
appropriate' (Rule
Rule 125. Thus, the international
body only decides on the appropriateness of pardon decision
is
(or commutation),
to the relevant national authority (Rules
and the
124-6 of the ICTR
final
RPE
are
identical in content).
The ICC Article
1
10
Statute does not it is
for the
make any
provision for the granting of pardon.
(whereas Rule 211(2) makes provision for the
eligibility,
under national
prison programme, or benefit entailing 'some activity outside the prison
simply provides that the Court must be notified and shall exercise activity). It
ICTR
is
its
Statute provides that the
be opted
Court 'may,
more
and
supervisory
ICTY and ICC
so because Article 104 of the
any time, decide to transfer a sentenced
at
State'.
SUPERVISION OF IMPRISONMENT
22.20 Statutes of the
the
for,
law, for a
facility',
therefore probable that a solution similar to that set out by the
in their Rules will
person to a prison of another
The
Under
Court alone to take any decision on the reduction of sentences
ICTY and
the
ICTR
provide that imprisonment served in a State
designated by the Tribunal shall be 'subject to the supervision of the International
and
Tribunal' (Articles 27
26, respectively).
The ICTY entered
inspections not only in the Detention Unit in
pending
trial
into an agreement with
Committee of the Red Cross, authorizing the Committee
the International
The Hague (where accused
to
make
are held
or appeal) but also, subject to the consent of the relevant State, in the
country where the sentence Indeed, almost
all
is
enforced.
Agreements on the enforcement of sentences provide
inspection by the ICRC.
for
37
Under Rule 211 of the ICC RPE the Court's Presidency 'may
.
.
.
request any
information, report or expert opinion from the State of enforcement or from any
17
For instance, the Agreement with Italy of 6 February 1997 stipulates in Article 6(1) that the
carry out inspections
'at
any time and on
ICRC. The ICRC submits
a periodic basis'; 'the
a 'confidential report
may
who
will consult
then request the Italian Minister of Justice
the conditions of detention suggested by the
The Agreement with Spain
differs
[is]
to
ICRC may
be determined by the
based on the findings of these inspections' to the
Minister of Justice and the President of the ICTY, Tribunal's President
frequency of visits
Italian
each other on those findings. The 'to
report to
him any changes
in
ICRC.
from the other Agreements on the enforcement of sentences
in that
it
provides for inspections of the conditions of detention and treatment of the convicted persons by a Parity
Commission
instead of by the ICRC.
,
STAGES OF INTERNATIONAL PROCEEDINGS
reliable source'.
The Presidency may
439
also delegate a judge or a staff
court to supervise the conditions of detention.
member
of the
38
THE SPECIFICITY OF INTERNATIONAL TRIALS (E)
THE UNIQUE TRAITS OF INTERNATIONAL CRIMINAL TRIALS
22.21
It
may now be
appropriate briefly to
sum up
the
main
traits
of international criminal
proceedings. 1.
It is
the Prosecutor
the Prosecutor
Prosecutor
is
may also
who
proceedings in motion. (However, in the
act at the request of a State or the
not duty bound to
of an international crime.
on which
sets
He
initiate
ICC
system,
UN Security Council.) The
proceedings any time he becomes cognizant
enjoys broad discretionary power in selecting the crimes
to concentrate. In this respect,
it is
him
for
to decide
which crimes under the
jurisdiction of the relevant international court are so serious as to deserve to be
brought before an international court (however,
in the
ICC system
the Prosecutor acts
under the scrutiny of the Pre-Trial Chamber). 2.
There
is
no international body such as an investigating judge charged with the
collection of evidence
on behalf of both the accusation and the defence. Rather, the Pro-
secutor, before preferring the charges against the accused, looks for
evidence. 3. is
It is
many national law systems, the Prosecutor under the ICC Statute, he is also bound to
Nonetheless, unlike his counterpart in
not merely a party to the
search
for, gather,
trial.
and pass on
At
least
to the defence
39 any evidence exonerating the accused.
In other words, he acts as an 'organ ofjustice' rather than a 4.
and gathers the
for the defence to search for evidence to refute the accusation's charges.
mere party
to the trial.
Legally speaking, in order to collect evidence (interview witnesses, search
ises, seize
prem-
material evidence, arrest suspects, etc.) both the Prosecutor and the Defence
must turn
to national authorities, in particular to the authorities of the State
where
the witness, or material evidence, or the suspect are located. Without State co-
operation international fact
38
trials
become deadlocked or come
both the prosecution and the defence often
Under Rule
21 l(l)(c) the judge or the staff
member
'will
may
to a standstill.
However,
in
interview witnesses without
be responsible, after notifying the State of
enforcement, for meeting the sentenced person and hearing his or her views, without the presence
oi national
authorities'. 39
Under Rule 68 of the ICTY and ICTR
Rules, the prosecutor
any exculpatory evidence he may have found.
is
only obliged to hand over
to the
defence
INTERNATIONAL CRIMINAL LAW
440
40 having to turn to any national authorities. The same
certain evidence ever,
may be
is
true of gathering
evidence-
gathered without turning to national authorities at
How-
all.
anything involving coercive powers depends on help from the authorities, as does
consulting archives,
There
5.
is
etc.
which belong
no jury responsible
to
a State.
for evaluating the facts. International courts consist
only of professional judges. The underlying reasons for this regulation are that:
would be
difficult to establish the criteria for
appointing jurors; 41
(i) it
international
(ii)
crimes are complex offences; their appraisal requires extensive legal knowledge of
both public international law and criminal extremely complicated and the evidence
law. In addition the facts are often
may prove
experienced judges possessing wide legal expertise
difficult to evaluate. In short,
may be
only
in a position to adjudicate
these crimes. Trials in absentia
6.
may
not be conducted. The presence of the accused
where he
required, except for cases
explicitly waives his right to
is
always
be present
after
appearing in court.
The
7.
same
guilty-plea procedure, adopted at the international level, does not yield the
results as in
ally cut the
common
law systems, where
number of criminal
trials.
to discourage accused persons
it
often
makes
At the international
from making use of
it
possible to drastic-
level various factors
this
tend
procedural mechanism.
Nevertheless, there seems to be an increasing trend towards greater resort to the guilty-plea
procedure
and the plea-bargaining scheme underlying
the reasons behind this recent tendency one the
number of
may perhaps
Among
it.
discern the need to reduce
and streamline the rather cumbersome international criminal
trials
procedure. International trials are not a contest between two parties, overseen
8.
and passive
neutral
an active
referee. International courts play
by
role in directing the
proceedings. In particular, they possess extensive powers with regard to evidence.
may
call witnesses.
would
also
summon
like to call to testify in court,
grounds 9.
They may
but
a
They
as court witnesses persons that a party
who
are loath to
do so on
a
number of
(see supra, 21.4.1).
Victims do not play a major
role.
However, in the ICC system they may
their views
and concerns
entitled to
examine or cross-examine witnesses
may
in court, and, although they
called
not
call
set forth
witnesses, they are
by either party (however, they
have no access to the evidence gathered by the parties, nor can they lodge an appeal). 10.
As the principle nulla poena sine
lege finds
only limited application
at the
international level, courts enjoy broad powers in sentencing convicted persons. 11.
verify
As
a rule appellate proceedings are
whether the
manner
trial
1,1 (
11
may
)ftcn they
For instaiK
at a retrial,
but are designed to
about a miscarriage of justice (however, in some limited cases
as to bring
courts of appeal
not aimed
court erred in law or misapprehended facts in such a serious
hear
new
evidence).
simply telephone them or send them an e-mail. e,
wh.it nationality
should they he?
How could
they he selected?
And
so on.
STAGES OF INTERNATIONAL PROCEEDINGS
22.22
441
THE MERITS OF INTERNATIONAL CRIMINAL JUSTICE
International tribunals present a
number of advantages
courts, particularly those sitting in the territory of the State
or merits over domestic
where
atrocities
have been
committed. a fact that national courts are not inclined to institute proceedings for crimes
It is
As noted above,
that lack a territorial or national link with the State.
until 1994,
when
the establishment of the International Criminal Tribunal for the former Yugoslavia
gave a great impulse to the prosecution and punishment of alleged war criminals, the criminal provisions of the
National courts are foreigners
who
still
1949 Geneva Conventions had never been applied.
and loath
State oriented
to search for, prosecute,
and
try
have committed crimes abroad against other foreigners. For them, the
short-term objectives of national concerns seem
still
to prevail. This
is
also
due
in part
to the failure of national parliaments to pass the necessary legislation granting courts
universal jurisdiction over international crimes. In this respect the implementation in
the
USA of the
relevant
US
1949 Geneva Conventions
is
noted above (see 16.3.2) the
indicative: as
Conmanner the
Statute only provides for jurisdiction over grave breaches of those
ventions where the perpetrator or the victim has
US
nationality; in this
universality principle proclaimed in the Conventions has been deprived of
mous
innovative scope within the
US
legal system.
Faced with
this
national legal conditions, international courts are obviously called
its
enor-
and other similar
upon
to play the
crucial role of replacing national courts.
Secondly, the crimes at issue being international, that
is,
serious breaches of inter-
national law, international courts are the most appropriate bodies to pronounce
them. They are in a better position to Thirdly, international judges
understand and apply international
may be
in a better position to
any rate more even-handed, than national judges
who
on
law.
be impartial, or
at
have been caught up in the
milieu in which the crime in question was perpetrated.
The punishment by
inter-
national tribunals of alleged authors of international crimes normally meets with less resistance
than national punishment, as
it
injures national feelings to a lesser
degree.
Fourthly, international courts, gate crimes with ramifications in countries,
more
easily
many
and other evidence needs
countries. Often witnesses reside in different
to be collected, requiring the co-operation of
several States. In addition, special expertise issues arising
than national judges, are able to investi-
from the various national
is
needed to handle the often tricky
legal
legislations involved.
by international courts may ensure some kind of uniformity in the application of international law, whereas proceedings conducted before national courts may lead to disparity both in the interpretation and application of that law and Fifthly, trials
the penalties given to those found guilty.
INTERNATIONAL CRIMINAL LAW
442
Finally, as international trials are
proceedings, holding international
munity
to break with the past,
standards of
human
munity's purpose
is
by definition more
than national criminal
com-
by punishing those who have deviated from acceptable
behaviour. In delivering punishment, the international
much
not so
com-
retribution as stigmatization of the deviant
behaviour, in the hope that this will have a deterrent
22.23
visible
the will of the international
trials signals
effect.
THE MAIN PROBLEMS OF INTERNATIONAL CRIMINAL PROCEEDINGS
However, one should not be blind to the numerous and grave problems which beset international
The
trials.
problem international criminal courts
crucial
face
is
the lack of enforcement
agencies directly available to those courts, for the purpose of collecting evidence,
searching premises, seizing documents, or executing arrest warrants and other judicial orders.
It
follows that, as
I
have already emphasized
on the co-operation of
many
As long
times, international courts
must
rely heavily
assist
those courts in collecting evidence or arresting the indictees, or do not provide
States.
sufficient assistance, international criminal justice
as States refuse outright to
can hardly
fulfil its role.
This of
course also applies to those cases, such as that of the ICTY, where a multilateral force established under the aegis of the (I
am
and,
referring of course to the
more
UN provides assistance in executing arrest warrants NATO
forces operating in Bosnia
and Herzegovina
recently, in Kosovo).
In addition, there exists a need for international criminal courts to different judges, each with a varied cultural
and
legal
amalgamate
background. (Some come from
common law countries, others from States with a civil law tradition. Some are criminal lawyers, others are primarily familiar with international law. judicial experience, others
do
Another serious problem results primarily
Some have
previous
not.) is
the length of international criminal proceedings.
from the adoption of the adversarial system, which requires
that
It
all
the evidence be scrutinized orally through examination and cross-examination
(whereas in the inquisitorial system the evidence gating judge).
and adopted, principal
in
well in
most
policy
bargaining. In
is
selected beforehand
by the
investi-
should also be noted that the adversarial system was conceived
It
common
choice,
fact,
law countries, as a
namely avoidance of
on account of this
most countries. However,
tend not to plead
guilty,
to international crime.
because
They
exceptional alternative to the
trial
proceedings through plea-
feature, the adversarial
in international criminal
of,
among
of,
fairly
model works
sufficiently
proceedings defendants
other things, the serious stigma attached
prefer to stand trial in spite of the time involved in
examination and cross-examination of witnesses. Additionally, the protracted nature of the proceedings
is
often accentuated by the
STAGES OF INTERNATIONAL PROCEEDINGS
need to prove some ingredient of the crime
443
(for instance, the existence of a wide-
spread or systematic practice, in the case of crimes against humanity) or by the need to look into the historical or social context of criminal conduct.
The question of the length of international
trials is
further complicated by language
problems. At the national level proceedings are normally conducted in only one language; before international courts in at least two, and possibly in three or languages, with the consequence that
documents and
This factor, coupled with the frequent
uphold what
is
need— as
have already emphasized— to
I
of
namely keeping the
a typical feature of the inquisitorial system,
accused in custody both in the pre-trial phase and during state
and the presumption of innocence accruing
and appeal, makes
trial
hardly consistent with the right to a
affairs that is
more
need to be translated.
exhibits
'fair
for a
and expeditious
trial'
any defendant.
to
SELECT BIBLIOGRAPHY McDonald and
GENERAL
Swaak-Goldman
O.
and
Substantive
Procedural
Comparative law International Criminal
M. Delmas-Marty, Procedures
penales d'Eu-
rope (Paris: PUF, 1995); G. Stefani, G. Levas-
and
seur,
edn
B.
Bouloc, Procedure penale, 16th
Ashworth, The
(Paris: Dalloz, 1996); A.
Criminal Process
— An Evaluative Study, 2nd
edn
Oxford
(Oxford:
1998);
S.
University
Press,
Guinchard, M. Bandra, X. Lagarde,
and M. Douchy, Droit processuel
commun du
— Droit
proces (Paris: Dalloz, 2001);
Delmas-Marty and
R.
J.
Spencer
M.
(eds),
Law
I
(eds),
Aspects
of
(The Hague,
London, Boston: Kluwer, 2000), 479-545; G. Kirk McDonald, Practices',
Procedures and
'Trial
547-622;
ibid.,
A.
Whyte, 'Appeal Procedures and ibid.,
623-68; C.
J.
M.
SafTerling,
G.
Karibi-
Practices',
Towards an
International Criminal Procedure (Oxford:
Oxford University
Press, 2001); R.
others (eds), Essays on
Evidence
ICTY
Hague,
(The
Kluwer, 2001);
S.
May and
Procedure and
London,
Boston:
Human
Rights in
Zappala,
European Criminal Procedures (Cambridge:
International Criminal Proceedings (Oxford:
Cambridge University
Oxford University
Press, 2002).
International law
RULES OF EVIDENCE
D. Weissbrodt and R.
Right
to a
Wolfrum
(eds),
The
Fair Trial (Berlin: C. 1997); E.
Comparative law J.
Wallach, 'The Procedural and Evidentiary Rules of the Post-World Trials:
War
II
War Crimes
Did They Provide an Outline
Colum-
Law
(1999),
bia Journal of Transnational L.
Prosecutor
Arbour and others of a
(eds),
Pradel, 471-5; G.
The
Permanent International
A.
M. La Rosa,
Tribunal
RGDIP
G.
Kirk
pour
l'ex-
(1997), 945-86; Y. Nouvel, 'La
101
in
international
Yougoslavie au droit au proces equitable,
preuve devant
Practices',
'Reflexions sur I'apport du
Penal
Criminal Court (Freiburg im Breisgau: Edi-
and
Fletcher, Basic Concepts,
International law
tion Iuscrim, 2000); L. C. Vohrah, 'Pre-Trial
Procedures
P.
14-17
for
International Legal Procedure?', 37
851-83;
Press, 2003).
Yougoslavie',
le
101
Tribunal Penal pour
RGDIP
I'ex-
(1997), 905-44;
INTERNATIONAL CRIMINAL LAW
444
R.
May and M.
Wierda, 'Trends in Inter-
Criminal
national
Evidence:
Nuremberg,
Tokyo, The Hague and Arusha', 37 Columbia Journal of Transnational
725-65; A.
M. La
Rosa,
'La
Law
(1999),
preuve',
May and M.
Wierda, 'Evidence before the ICTY', in R.
May and
others (eds),
ICTY
Procedure and
Evidence, 249-61: G. Boas, 'Admissibility of
Evidence',
ibid.,
263-74;
'Judicial Notice', ibid.,
E.
O'Sullivan,
ings',
War Crimes
(Antwerp, Oxford,
New
York: Intersentia,
2002).
Sentencing K.
Ambos and
lative
S.
Wirth, 'Sentencing,
Charging,
Genocide
against Humanity', in A. Klip (eds),
and
CumuCrimes
and G.
Annotated Leading Cases of
Sluiter Inter-
national Criminal Tribunals II (2001);
J.
C.
Nemitz, 'Sentencing in the Jurisprudence of
by Credible Evi-
the International Criminal Tribunals for the
P.
dence: the Use of Affidavit Testimony in
Yugoslavia
the
Wald, 'To
329-39;
Establish Incredible Events
and
Collection of Evidence: Obligations of States
in
Ascensio, Decaux, and Pellet (eds), Droit international penal 763-78; R.
International Criminal Adjudication
Tribunal Proceed-
42 HILJ (2001), 535-53; G.
Sluiter,
former Yugoslavia and Rwanda, Kress,
and Liider
in Fischer,
(eds), International
National Prosecution,
cit.,
605-25
and
23
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE THE IMPORTANCE OF REACTING TO WIDESPREAD ATROCITIES
23.1
The it
First
was
World War was dubbed
also called,
legacy was slaughter
generation of
'the
war
to
end
all
wars'.
However, the Great War,
brought to an end neither warfare nor man's inhumanity to man.
on
men from
a scale never seen before
Europe.
When
it
was
and the disappearance of
over,
it
was generally
a
whole
that those
felt
responsible for starting the war or for committing atrocities should be brought to
and punished. In addition provide for the
course, proposals were put forward for the establishment of a
its
permanent criminal
court.
It
was a dream, and
it
come true. The war's War would later erupt.
did not
aftermath contained the seeds from which the Second World Since then,
some 250
have occurred.
It
trial
to adopting in the peace treaties clauses designed to
of the major figures responsible for the war and the crimes
trial
committed during
as Its
conflicts of
an international and non-international character
has been estimated that, along with the death
toll
produced by
authoritarian regimes, these conflicts have brought about the death or injury of
more than 170
million persons as well as other inestimable harmful consequences.
In the course of these conflicts vicious crimes, in particular
1
war crimes, were per-
petrated. Furthermore, appalling offences such as genocide, crimes against humanity,
and torture have been committed
in
time of peace.
It
would be
facile to
blame
all
on human wickedness and recall that since time immemorial man inhuman to man. It is a fact that the worst planners, perpetrators, or
these misdeeds
has been
instigators of these crimes, including decision-makers, military leaders,
and senior
executors, have seldom been brought to account for their misdeeds.
is
also a fact that the frustration
and dismay with which we witness
accompanied by indignation and the
is
feeling that
it
all
It
however
these horrors
imperative to react to
is
inhumanity.
1
See
J.
Balint,
'An Empirical Study of Conflict, Conflict Victimization and
C. Bassiouni (eds), 14 Nouvelles Etudes Pennies (1998), at 101.
1
egal Redress', in
(
.
foyner and
INTERNATIONAL CRIMINAL LAW
446
The in the
failure
of States forcefully to respond to crimes
meantime the
community,
international
down
has proclaimed and laid
values such as peace, respect for
is all
chiefly
the
more
striking because
through the United Nations,
in international instruments a set of
human
rights,
fundamental
and self-determination of peoples. To
be consistent, any gross denial of such values, in particular international crimes, ought
been repressed by bringing the alleged authors to
to have 'silence'
world community: the gulf between normative values and
typical flaws of the present
harsh
The astounding
trial.
of international criminal justice has once again brought to the fore one of the
realities, in
standards
other words the fact that the rich potential of international-legal
not matched by their implementation.
is
Let us briefly ask ourselves
why
resort to criminal justice to suppress appalling
international crimes has so far proved a relative failure.
Bringing to book the alleged perpetrators of international crimes in
many
cases
proves to be in conflict with State sovereignty. The sovereign State tends to follow
own
its
short-term interests, too often to the detriment of the general interests of the
international
community.
It
also tends to protect
its
nationals even
infringed fundamental values of the international community.
where the person
It
(Head of
in question has acted as a State agent
cabinet, military official, etc.). In other words, faced with
when
they have
does so especially State,
member
of
war crimes, crimes against
humanity, genocide, torture, or international terrorism, sovereign States too often protect their nationals at jurisdiction or acting
all costs.
upon
They
their nationals to other States, or to
the
same token,
refrain
from
either exercising their territorial
the active nationality principle,
hand them over
as States are self-centred
and loath
and
also refuse to extradite
to international authorities. to look into possible
committed
in a foreign
there, they
tend to shy away from prosecuting foreigners
By
misdeeds
human community living who have allegedly engaged
country and primarily affecting the
in criminal activity abroad.
Since however there can be as
shown by
is
no doubt
that the sovereign State
is still
indispensable,
the anarchy that reigns in States lacking any central authority capable
of protecting the general interests of the population and exercising effective control 2
over
it,
it
proves necessary to reconcile the needs of State sovereignty with the
demands of international criminal
23.2
We
justice.
CURRENT TRENDS IN THE REACTION TO WIDESPREAD ATROCITIES
should ask ourselves what could be done
criminal justice. However, before doing so,
2
Such States are dominated by
I
realistically to
improve international
shall briefly outline
clans, tribes, criminal organizations, or
some
interesting
even terrorist groups. They are
therefore incapable of acting as valid representatives of the State in relations with other international
community.
and
members of
the
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
innovative trends that
— in
of the general hostility towards justice in the
spite
international environment, as noted above
munity
447
— are emerging in the international com-
upsurge in international criminality, noted most
as a result of the staggering
recently in the area of terrorism.
seems that a few trends stand out.
It
ing State responsibility respect
fundamental
individuals'
for
the enforcement of individual rules
and machinery
liability.
still
States, particularly in the area
in other similar matters. Nevertheless,
from the
and
interstate to the
atrocities
rights,
No doubt
State responsibility, that
a
and
tendency to to
shift attention
prosecute and punish individuals rather
may have
indicative of this tendency that the provisions of the 1949
It is
for
react to gross breaches
than by invoking the responsibility of the State for which they State agents.
is,
of commercial or territorial disputes and
one can discern
to
for
in interstate relations the legal
possess considerable significance and are
inter-individual level
more by attempting
and mechanisms
actions
to
and enforcing
for invoking
reacting to wrongful acts of States,
used by
the legal arsenal concern-
First, resort to
increasingly yielding in importance, at least in the area of
is
acted as
Geneva
Conventions on compensation by States for grave breaches have remained a
dead
whereas there
letter,
increasing resort to the criminal provisions of the
is
Conventions. Secondly,
when
resort
is
with international law or law, there States),
made at
to
any
mechanisms
for enforcing
compliance by States
inducing them to respect international
rate for
an increasing tendency to target individuals (sometimes
is
and
in certain cases
in addition to
even to use tools of international criminal
examples may help to clarify this point. In recent times when adopting resolutions under Chapter VII of the UN
the
UN
justice.
Two
Security Council
Charter, in particular for
the purpose of reacting to threats to peace, issued sanctions not against a State
but against an individual or groups of individuals who, according to the Security Council, were responsible for promoting or carrying out the acts amounting to that threat. For instance, in 'to freeze
some
resolutions the Security Council has requested States
without delay funds and other financial assets of Usama Bin Laden and
individuals
and
associated with him'
entities
(see
1333(2000), at §8(c), and 1390(2002), at §2(a)).
ment
It
for is
instance
actions include interim measures typical of criminal justice,
of private assets belonging to the practice of the European
of violence
SC
resolutions
notable that these enforce-
namely the freezing
an individual. Another example can be drawn from
Union (EU).
and intimidation of
political
Recently, faced with the
'escalation
opponents and the harassment of
Zimbabwe, the Council of the EU, noting that Zimbabwe violations of human rights and of the freedom of opinion,
the independent press' in
had engaged
in 'serious
of association and of peaceful assembly', decided to take sanctions not against the
Government of Zimbabwe but
responsibility for such violations',
the
Head of
member
State, R. G.
States
among
namely
Mugabe. By
a
legally
also against 'those
number of
who
only
bear a wide
State officials starting with
binding acts the Council has requested
other things to freeze the private assets oi those State
INTERNATIONAL CRIMINAL LAW
448
officials.
3
These examples show that the international institutionalized response to
serious violations of human rights
is
in
some respects moving away from the concept of realistic and modern concept of 'individual
towards the more
'collective responsibility'
accountability': in addition to holding accountable the State as such, resort has
made
normally used for enforcing criminal
to the tools
groups and individuals who act within and on behalf of the
State; in
been
order to target the
liability in
other words, taking
sanctions to target not only the State but also groups and individuals within that State.
This example provides a good opportunity to stress a further significant development.
As noted above, when the Council of the European Union adopted enjoining the 15
a binding decision
member States to take sanctions against both Zimbabwe and some of its
leaders, the sanctions
imposed included the freezing of the personal
State, R. Mugabe. This
the
is
first
assets
of the Head of
time States have disregarded the customary rules on the
personal immunity ofTo reign Heads of State.
It is
significant that the 15
European
States
have jointly brought about this notable deviation from universally accepted international standards for the purpose of enforcing effectively respect for State
and
its
leader.
also notable that, so far, neither
It is
Zimbabwe nor any other
has contested the international legality of those sanctions. We ing a gradual erosion
human rights— of
the authority of traditional international
customary rules on the personal immunities of senior State
European decision
Indeed, at the
if
is
level,
officials. It
may well be that
a signal of a change in international attitudes
supported by future State practice, that decision
normative
State
may therefore be witness-
— at least in connection with and as a reaction to systematic and
large-scale breaches of
this
human rights by a
and behaviour.
may be destined to generate,
an exception to those customary international law
rules.
Such
exceptions could provide that the personal immunities of Heads of State and other senior State dignitaries
may be
disregarded as a result of collective decisions by groups
of States or international organizations, whereas individual States would not be allowed on their
own
to set those
immunities aside for
Another interesting development, which occurred
risk
in the
of abuse.
United
increasing importance of legal tools proper to criminal justice. In
US
law cases, the
States, evinces the
some
recent civil
courts concerned resorted to criminal law notions as set out in the
recent case law of international criminal tribunals, to settle issues relating to civil litigation (see for instance
C. £., at 3-7, 3
4
See Council
as well as
Common
(2002/145/CFSP),
Kadicv. Karadzic, at 25-30, Garcia
Doe
v.
Lumintang,
Common
of 13 September 2002,
and Vides Casanova is
indicative
Position of 18 February 2002 concerning restrictive measures against
in Official Journal
2002 amending
G.
This development
at 17-19).
ibid.,
Zimbabwe
of the European Communities, 21.32.2002, L50/1; Council Regulation
(EC) No. 310/2002 of 18 February 2002 on the same matter, July
J.
ibid.,
Common
Position of 22
Commission Regulation
no. 1643/2002
L50/4; Council
Position 2002/145/CFSP, ibid., L195/1,
L247/22; and Council decision of 14 September 2002 implementing
Common
Position 2002/145/CFSP, ibid., L247/56. 4
In this case the
two defendants, the former Defence Minister and former Director of the Salvadoran
National Guard, both living in Florida, were sued for damages for their of various persons in Salvador by
provided for
in the
US Torture
this case relied heavily
members of
command
the Salvadoran National Guard.
Victim Protection Act of 1991. Nonetheless, the
on not only Yamashita, but
also
on ICTY case law
responsibility in the killing
Command
US courts
that
responsibility
is
pronounced on
(see decision of 30 April 2002, at
3-7). See also the Instructions of the judge to the jury of the District Court, at 6-9.
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
both of an increasing osmosis between greater
and criminal
civil
and greater importance being acquired by
Finally, there
increasing emergence of individuals
from our
on the
far,
There have been
many
cases where,
on
own
petrated the offence. In
and brought
litigation
many
fact
go in a
bear out the
more importantly
development of criminal
justice.
practical or legal grounds, individuals have
been unable to vindicate rights breached by foreign action brought either in their
at first sight to
but which in
international scene and,
viewpoint, offer potential for the future
also of the
proper to criminal law.
an area where current trends would seem
is
direction contrary to the trends underscored so
and
litigation
legal tools
449
State officials,
State or in the foreign State
through criminal
whose agents per-
of these instances individuals have turned to
a claim against the State
on whose behalf those
civil
allegedly
responsible had acted (or, in the unique case of the United States, against the indi-
Dutch nationals sued the Japanese Gov-
viduals allegedly responsible). For instance,
ernment
for ill-treatment in civilian
during the Second World
War
internment camps in the Dutch East Indies
(Sjoerd Albert Lapre
and
of
others, at 12-38); nationals
the Federal Republic of Yugoslavia brought a case in Italy against the Italian State for alleged breaches of the laws of warfare in 1999 in Belgrade (Markovic, at 3-6); Chinese
nationals brought a claim against Japan before the Tokyo District Court for the use by
Japanese forces of bacteriological weapons in China during the Second World
(Germ warfare
case); a case
was brought
in the
of torture allegedly perpetrated in Kuwait (Al-Adsaniv. Kuwait at 537-51; the case
acts
was subsequently brought before the European Court of Human Rights:
see Al-Adsani
v.
United Kingdom); Greek nationals filed claims for compensation against
in
Greece for crimes committed during the Second World
FRG, at
War
United Kingdom against Kuwait for
at
War
Germany
(Prefecture ofVoiotia
v.
511-14); and the same has happened in the United States (see Princzv. FRG,
604-12)
.
In
all
these cases individuals have ultimately relied
upon
a
scheme
typical
of interstate relations: bringing before national courts claims for compensation against the State allegedly responsible. True, in essence they have
stumbled against the obstacle of sovereign State immunity. 5
Nonetheless, these cases
show the emergence of individuals on
In other words, individuals
human
most of these claims have been dismissed:
no longer accept
the international level.
that their interests, legal claims,
and
concerns be managed by their national States in diplomatic dealings. They no
longer accept that their interests must be channelled through the diplomatic action their State
own their
5
may undertake
at the interstate level.
They wish
own
State or to those of the foreign State allegedly responsible. Clearly, there
This also holds true for Markovic, where the action against the State allegedly responsible for
an international rule had been brought before the courts of that that
to take their rights in their
hands. Therefore to vindicate their claims they turn either directly to courts of
war
acts are a typical expression of
State. See
acts over
governmental
Markovic,
which no
at
judicial review
according to the Court, legal questions relating to the legality of such acts
may
a
breach of
6-9 (the Court hold is
admissible;
only be settled
a1
the
international level, through negotiations between States).
An
exception
Germany
is
established by Prefecture of Voiotia
v.
FRG, where the Greek Court of Cassation held
responsible for the killing of Greek civilians in June 1944 and awarded damages to the relatives of
the victims (at 511-14).
INTERNATIONAL CRIMINAL LAW
450
is
huge potential here
more
individuals are
retribution than in
them
priate for
and power
for recourse to criminal justice.
As
most of these
in
cases
and
interested in international stigmatization of misconduct
monetary compensation
for past misdeeds,
would be appro-
it
to turn to criminal courts, provided such courts have the jurisdiction
to enforce their judgments. This
is
therefore an area where criminal justice
could develop and expand, provided one finds a
realistic
path and offers viable legal
options.
The trends highlighted above may seem
common
thread unites them. This
is
disparate
and heterogeneous,
scale breaches
international
human
of
community
rators of serious crimes
and
the
large-
of those crimes or breaches. The
rights, or as the victims is
on
the forceful emergence of individuals
international level, either as the authors of international crimes or of gross
yet a
gradually realizing that
it
must deal
by authorizing national courts
directly with perpet-
and punish them
to prosecute
through the establishment of international tribunals or by taking sanctions that
By the
directly target individuals even if they are very high ranking State officials.
same token, the international community cannot any longer allow claims and complaints of victims to be
'filtered'
through State channels and machinery.
It
is
therefore trying to ensure that these victims are able to appear before national or
international courts in order to vindicate their rights directly
and without any
intermediary.
The
Statute of the
these trends, for
ICC
to a large extent
and allows victims both
crimes,
to
encapsulates most of
promote international justice— hence stigmatiza-
and retribution
tion of criminality international
compounds and
also envisages the prosecution of alleged authors of serious
it
bodies
to
(see
however 22.2)
compensation
claim
for
— and
to
any damage
appear before suffered
from
international crimes.
23.3
I
shall
RESORTING TO IMPROVED TRUTH AND RECONCILIATION COMMISSIONS
now briefly canvass
promise of justice
is
the possible avenues open to those eager to ensure that the
fulfilled.
I
shall also
underline the possible merits of each possible
option. It
should be admitted that on
political,
or social circumstances,
many occasions, depending on special may prove appropriate to respond to
it
historical,
the wide-
spread perpetration of international crimes not only by resort to judicial process, but also
by
a different response. In addition to bringing to trial at least
authors,
may be
it
may prove
done,
would prove too all,
or
when
helpful to establish Truth
in particular,
when
difficult, costly,
many
perpetrators,
or time consuming to institute is
still
alleged
and Reconciliation Commissions. This
there are too
the former government
some of the
trial
strong and any major
and therefore
it
proceedings for trial
of
all
the
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
persons
who
stability
and
orchestrated or ordered atrocities would be likely to jeopardize the viability of the
new democratic government. We
above (1.2.3(D)) the major flaws of such Commissions. to dwell
on them now.
Rather,
Commissions may be accepted justice.
451
To be
effective, the
it
is
fitting to set
as a useful
It is
have, however, seen
therefore not necessary
out the conditions on which the
and appropriate supplement
to criminal
Commissions should be entrusted with the following
tasks:
1.
Deal with alleged war crimes, crimes against humanity, torture, or terrorism
committed by low- or middle-level
offenders.
As
for genocide, the
extreme gravity of
crime and the need to protect groups against their extermination seem always to
this
impose
brought to book and
a judicial response, so that the alleged perpetrators are
duly punished. Similarly, those
who
have allegedly planned, instigated, masterminded,
or ordered the commission of such crimes
(i.e.
the military and political leaders)
should be prosecuted and tried either by a national criminal court or
at
the
international level. 2.
own
The aforementioned low- or middle-level perpetrators should,
either
on
their
or at the request of the national authorities (or at the behest of
initiative,
the victims or at the suggestion of an international tribunal), be brought before the
Commission
to
committed by 3. ity,
admit their crimes
in public hearings
The Commissions should not only discover
but also shed
conflict,
light
on the social
If
facts
and elements of criminal
the
Commissions
is
liabil-
historical causes of the
possible.
are satisfied that full disclosure has been
made
and,
if
need
determined by the Commissions) has been paid to the victims, they
might grant individual pardon to the persons concerned constitutional
mechanisms of the
(alternatively
relevant State, the
and depending
Commission could pro-
Head of State the granting of a pardon). Pardon would entail exemption, for individual on whom it is bestowed, from the punishment the law inflicts for the
pose the
and
so as to contribute to indicating to the appropriate State authorities the ways
be, reparation (as
on the
give evidence about crimes
political, ideological,
of removing those causes to the extent that this 4.
and
others. Victims should be allowed to air their grievances fully.
to the
crime he has committed, not obliteration of the crime. Such obliteration could only follow from amnesty; however, the ICTY, in Furundzija (§155), held in 1998 that
amnesty
for international crimes
is
contrary to international jus cogens. Other courts
have taken the same stand (see supra, 5.
If
the
Commissions consider
17.1).
that the persons asking for
disclosed their
own
connected,
although not indigent, have failed to pay
or,
victims, they might turn over the
the judiciary of such State
democracy and
pardon have not
crimes or the crimes perpetrated by others with
is
file
full
whom
fully
they were
compensation
to the
to a criminal court of the relevant State (if
independent and
fair justice), or, alternatively, to
fully
upholds
all
the principles of
an international tribunal. The same
should hold true for cases where the Commissions find that the atrocities committed
INTERNATIONAL CRIMINAL LAW
452
by the applicant are so extensive and appalling
(Where
as to render
pardon unwarranted.
the crimes are not political in nature but private, there should also be
amnesty.)
The Commissions should co-operate with national criminal courts or
6.
no
6
the
appropriate international tribunal. In particular, they could hand over to those courts or to an international tribunal any evidence they collect against military or political leaders (so that those persons could then be prosecuted in court), in addition to
submitting to them the the
Commissions
23.4
files
of those persons
who
have not met the standards
set
by
for the granting of judicial pardon.
ENHANCING THE ROLE OF NATIONAL COURTS
National courts should play an even greater role in prosecuting and punishing international crime. Clearly, international courts, whenever they are established (and this is
not a frequent occurrence, to say the
humanity or gross breaches of human basis in so
many parts
crimes. Or,
if
By and
if
courts to adjudicate
on
the
principle
Statute of the
In particular,
over
some of these
proceedings
of 'complementarity'
ICC seems sound:
them
may
turn
(or
as a rule
it
'subsidiarity') is
for national
should provide those courts with the necessary
to exercise criminal jurisdiction.
more use should be made of courts endowed with
tion, for they are the courts best fitted to try this category
why
trial
international crimes.
this end, national legislatures
legal tools to enable
crimes against
only because of the difficulty in collecting the necessary
large,
Rome
all
humanitarian law occurring on a daily
may have no jurisdiction
they do have jurisdiction, prosecution and
enshrined in the
To
cannot pronounce on
rights or
of the world. They
out to be protracted, evidence.
least)
often such courts refrain
territorial jurisdic-
of crimes (but
we saw above
from pronouncing upon crimes). Also, more extensive
use of the principle of active or passive nationality would prove helpful. nationality of the alleged perpetrator
would seem
to have at least a
The
State of
moral duty to
of the limitations inherent in the passive nationality
institute proceedings. In spite
principle, the State of nationality of the victims should also
be sympathetic to victims
who
fair justice.
have suffered, and replace revenge by impartial and
These
States,
however, seldom take action, either for lack of the necessary legal wherewithal or for lack of 'political' will. 7 It
6
is
therefore imperative to
That was the position
at the
prompt
States: (i) to pass legislation
South African Truth and Reconciliation Commission:
or tortured for reasons wholly unrelated to apartheid, the crime did not
fall
if
providing for
a person
was
killed
within the ambit of the
Commission's powers of amnesty. 7
Two
cases in point are the recent decisions of Australian courts
on the
alleged acts of genocide against
Australian aborigines ordered or connived at by Australian State officials (see Federal Court of Australia,
Nulyarimma
v.
Thompson, and Buzzacott
v.
Hill, 2
September 1999,
in
39
ILM
(2000), 20 ff.). Although
was bound both by customary rules on genocide and the 1948 Convention on genocide, the courts were unable to pronounce on the alleged genocidal acts for lack of the necessary implementing legislation. Australia
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
jurisdiction over international crimes; ticular, to
(ii)
to
implement such
legislation;
453
(iii)
in par-
enact legislation necessary for the implementation of the relevant 'criminal'
provisions of the four 1949 Geneva Conventions and the two Additional Protocols of
and bring these provisions into
1977,
and
effect;
(iv) to ratify
international treaties
designed to impose the obligation to prosecute authors of some categories of crimes
1984 Convention on torture and the various
(for instance, the
and bring them into
23.4.1
on terrorism)
effect.
RESORT TO UNIVERSAL JURISDICTION
Another means of reconciling respect
community, based on inal justice,
for the current structure of the international
a plurality of sovereign States
and the need
might involve expanding the jurisdiction of
extending their jurisdiction to
all
for effective crim-
State criminal courts
international crimes, wherever the crime
and whatever the nationality of the
ted
treaties
alleged author or victim. This
is
by
commit-
would involve
enlarging the universal criminal jurisdiction of States.
As was pointed out above
(see supra, 15.5.1) there are
jurisdiction: absolute jurisdiction
even
if
the suspect
is
two categories of universal
(where national prosecution
may be commenced
not on the territory of the prosecuting State) and conditional
jurisdiction (where the presence of the suspect
on the
territory of the State
is
a
necessary condition for instituting criminal proceedings).
Resort to a broad conception of universality entails
may
entertain criminal proceedings against foreign
State officials, provided only that
someone lodges
among
other things that courts
Heads of
State or foreign senior
a complaint.
8
the foreign State
may end up travelling
may
official,
may when
This however
involve the risk of abuse as well as friction in international relations, particularly
because of the initiation of criminal proceedings against him,
being hindered in the exercise of his functions, being de facto barred from
abroad for fear of prosecution or even
arrest.
Admittedly, the risk of abuses
be tempered by the existence of personal immunities accruing to senior State
officials
on
official
14.2). Nonetheless,
missions abroad, as well as to diplomatic and consular agents (see it
would be judicious
for prosecutors, investigating judges,
and
courts to invoke this broad notion of universal jurisdiction with great caution, and
only
if they
are fully satisfied that compelling evidence
Generally speaking judges into
some
it
would seem harmful or
sort of 'knights errant of
9
Beccaria, charged with righting the It
8
is
available against the accused.
at least illusory to
human
nature', in the
transform national
words attributed
to
most serious wrongs throughout the world.
would seem therefore appropriate
to opt for conditional universal jurisdiction
For example, Belgian judges have received complaints against several well-known personalities, including
Augusto Pinochet and Fidel Castro, the
Israeli
prime minister
Ariel Sharon, a current foreign minister (of the
Congo), the former leaders of the Khmer Rouge, a former Moroccan minister, and a former Iranian prime minister. 9
This image does not appear in the Harlem edition, the
last
edition revised by Beccaria; however,
it
does
appear in some translations, for example, the English translation of 1775. (SeeC. Beccaria, \n Essay on Crimes
and Punishment, reprinted (Brookline the knights errant of
human
Village, Ma.:
nature in general'.)
Branden Press
Inc., 1983), al 64, 'as if
judges wore to be
INTERNATIONAL CRIMINAL LAW
454
whenever the suspect or accused
is
an incumbent senior foreign State
enjoying personal immunities under international law, or a former State
whom personal ably,
immunities,
would be
it
if
and
realistic
any,
no longer accrue because he has
practical for national
Germany, 10 and
in France,
11
by
State, or
a rule of
the suspect or accused
found
is
some
the crime was committed neither exercises
of the suspect or accused,
or, if
clearly incapable of, or for
A
trial.
its
to that in force in
prohibited by a treaty ratified by the
law, the State
authorized to
is
exercise criminal jurisdiction subject to
is
is
customary international
initiate
on the
territory of
(i)
that the State
where
jurisdiction nor requests the extradition
the territorial State does request extradition,
(iii)
which
criminal proceedings and
conditions:
strict
any reason cannot ensure a
further condition should be that
Argu-
upon them. For example, they could
or even to improve
decide that whenever an international crime
official (to
left office).
lawmakers to deal with universal
by promulgating a law akin
jurisdiction over foreign State officials
not
official
fair,
expeditious,
(ii)
and
that
it
effective
the foreign State official does not enjoy,
or no longer enjoys, the personal immunities from criminal prosecution provided for
some
in international law for
Of
senior dignitaries or diplomats.
12
course, in addition to the possible adoption of general legislation, any time a
State has ratified a treaty
on Torture)
laying
down
on international crimes the
and accordingly
principle
forum deprehensionis
principle, the State will apply that
exercise universal jurisdiction
on the strength of
national rules implementing the relevant provisions of the treaty. 10
See para.
regard to
all
6,
acts
Ch. 9 of the Criminal Code (Strafgesetzbuch), which stipulates that
committed
Germany
in foreign countries that
is
some connecting
factor (Anknupfungspuntkt)
the accused in Germany, the Federal Court held, in
(not yet published), that a connecting factor
Germany
On
German
case law normally
judgment of 21 February 2001
as residence of
in the Sokolovic case
not indispensable. (In this case, the accused had resided in
twenty years and returned there regularly to receive his retirement pension.)
for
German system
the
is
German law applies with
between the crime and Germany, such
its
the
13
obliged to punish by virtue of an inter-
national treaty incorporating the principle of universal jurisdiction. Although requires
1984 Convention
(for instance, the
Delmas-Marty
Roth and
in general, see R.
(eds), Juridictions nationales, at 19-22.
On
Y.
and
Jeanneret, 'Droit allemand', in Cassese
the case law concerning Article 6(1) of the
German
Criminal Code, especially the crime of genocide, see in particular A. Eser, 'Volkermord und deutsche Strafgewalt
— Zum
Spannungsverhaltnis von Weltrechtsprinzip und legitimierendem Inlandsbezug', in
Strafverfahrensrecht in Theorie (this 11
und
Praxis, Festschrift fur Lutz
Article
torture
and various forms of terrorism] any person
be prosecuted and tried by French courts
T.
3-31
at
689-1 of the French Code of Criminal Procedure provides that 'pursuant to the international
conventions referred to in the following articles [that
12
Meyer-Gossner (Munich: Beck, 2001),
paper was written prior to the judgment in the aforementioned Sokolovic case of 21 February 2001).
if
is,
Articles
689-2
to 689-7, referring to treaties
guilty of any of the offences listed in those articles
that person
is
.
.
.
on
may
present in France'.
See also the conditions set out in the Joint Separate Opinion of Judges R. Higgins,
R
Kooijmans, and
Buergenthal in Case Concerning the Arrest Warrant of 11 April 2000 (Judgment of the International Court of
Justice of 14 13
February 2002),
at
§§59-60.
may be tainted by a serious limitation. When applied to a member of cabinet or diplomat, the principle may result in
Plainly, the conditional universality principle
former Head of State or government or senior these persons never being brought to
become amenable
they could
trial if
basis of the absolute universality principle
authorities to
ment).
It
hand over the former senior
would however appear
acceptable,
however seriously
they are prudent enough to avoid travelling to a country where
to judicial process. Similarly, a foreign State requesting their extradition
it
is
likely to
come up
official (unless this official is
out of favour with the
that the need to forestall possible abuses should
may run counter
to the
on the
against a blunt refusal by the national
make
new govern-
this eventuality
fundamental imperatives of international
justice.
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
As stated above (15.5.1(B)), a
455
different category of universal jurisdiction could be
adopted for international crimes allegedly perpetrated by low-ranking military or other junior State agents, or even
As
civilians.
I
officers
have already noted (supra), nor-
mally these persons are not well known, and their travels abroad do not make news. Therefore, issuing arrest warrants against
make
it
possible for
them
to be
them even when they
apprehended
as
soon
are abroad
would
as they enter the territory of the
prosecuting State.
23.5
A
crucial question
NATIONAL CRIMINAL JUDGES AND INTERNATIONAL COURTS is
that of the relationship
international courts. In
my
between national criminal judges and
opinion, resort to national courts exercising territorial,
national, or universal jurisdiction offers an advantage
criminal courts. National judges have posal.
Normally
justice
more
— and
I
all
compared with international
the coercive arms of the State at their dis-
emphasize the word normally'
— they can
therefore render
effectively.
However, by pleading for a widening of the criminal jurisdiction of national courts, I
do not intend
contrary, First
to underestimate the merits of international criminal courts.
On
the
consider that these courts can play an essential role in at least four ways.
I
of
all,
to exercise
it
they can incite national judges to broaden their jurisdiction, or
under
their traditional
grounds of jurisdiction. Indeed,
as
I
pointed out above, for over forty years after the entry into force of the
at least
have already 1
949 Geneva
Conventions national courts have not used the universal jurisdiction they derived
from these Conventions. They have only begun
to discover that they are
endowed
with such jurisdiction since the establishment by the United Nations of the two ad
hoc criminal tribunals
and 1994.
in 1993
Secondly, international courts can replace national judges whenever these judges are unable or unwilling to render justice in a
on many occasions
Thirdly,
fair,
impartial,
international courts
and
efficient
manner.
and tribunals may prove more
impartial than national courts, particularly those of the State where the crime was perpetrated,
and therefore where tensions, animosity, and popular resentment may
exist jeopardizing the fairness
when when
a case involves very
trial.
complex international crimes. This
these crimes implicate powerful political
evidence
is
widely scattered over
powers going beyond those It
of a
only international courts can take adequate and appropriate judicial action
Finally,
many
at
ICC
It is
the Court,
a matter of regret that
and the Superpower
is
when
the
of the national judge. present a
number of major Powers appear
reluctant to accept the jurisdiction of international tribunals
the
leaders, or
countries, as the investigation then requires
at the disposal
should nevertheless be added that
particularly so either
is
and military
and even
to
submit to
such States as the USA, Russia, and China oppose
actively trying even to
shun
its
jurisdiction over
US
INTERNATIONAL CRIMINAL LAW
456
nationals that possibly
hoped the
commit crimes
in a State party to the
ICC
Statute.
14
It is
to
be
embedded in gradually wane and
that this negative attitude, inconsistent with the ideals firmly
US
Constitution and the American historical tradition, will
eventually disappear.
USING MIXED CRIMINAL COURTS AND TRIBUNALS FOR INTERNATIONAL CRIMES
23.6
On some
occasions the establishment of mixed or 'internationalized' courts such as
those set up in East Timor, in Kosovo, or in Sierra Leone,
may appear
to be a better
solution than resort to national courts or to international criminal tribunals.
where the national judicial system has collapsed due
Plainly, there are situations civil strife
pened
in
to
or protracted internal commotion. Think for instance of what has hap-
Colombia. There, resort to national courts would be of no
are those where, although a judicial system does exist
ethnic or religious tensions are so strong that the judiciary
proves therefore unable to administer justice
grounded on ethnic or
religious divides.
when
Think
avail.
and works is
Other cases
fairly
smoothly,
also 'contaminated'
and
faced with international crimes
for instance of such situations as
Bosnia and Herzegovina. The system of 'internationalized' courts could prove very
when
effective also
the
ICC
is
firmly established: indeed,
it
may
ensure a proper
functioning of the complementarity mechanism and prevent the Court from being
flooded with hundreds of cases because of the inadequacy of national systems due to the collapse of the local judiciary.
more important whenever
ICC
party to the
Mixed or
'internationalized' courts will prove even
the collapsing official apparatus
is
that of a State that
is
not
Statute.
Similarly, the appalling terrorist acts perpetrated against
US territory in
2001 would
probably be the appropriate subject matter for 'internationalized' courts. Adjudication of those crimes in
US courts might lead observers to believe that the fundamental
principle of presumption of innocence could hardly be respected. In addition, as
may impose
those courts
may be
culprits
death sentences, European States that apprehend alleged
hand them over
obliged to refuse to
to
US
courts
grounds. Furthermore, these crimes have wide ramifications in
14
As
is
well
known, the
USA
is
pursuing
this
purpose both by entering into
on human
many bilateral
rights
countries; the
agreements with
may become, parties to the ICC Statute, and by having the Security Council adopt exonerating US personnel from the Court's jurisdiction. See in this respect resolution 1422(2002)
States that are, or
resolutions
adopted by the Security Council on 12 July 2002. Under para. the provisions of Article 6 of the officials
Rome
Statute, that the
or personnel from a contributing State
tions established or authorized by the
UN
[i.e.
1,
the Security Council 'requests, consistent with
ICC,
if
a case arises involving current or
former
contributing to peace-keeping or peace-enforcing opera-
Security Council] not a Party to the
Rome
Statute over acts or
omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting
1
July
2002 not commence or proceed with investigation or prosecution of any such
Security Council decides otherwise.' Para. 3 stipulates that
with paragraph
1
and with
their international obligations'.
'Member
States shall take
case, unless the
no action inconsistent
THE OUTLOOK FOR INTERNATIONAL CRIMINAL JUSTICE
prosecution
and
may
therefore have to search for
will therefore
and
collect the
need the co-operation of those
States.
evidence in
457
many
States
Also in this respect a mixed
or 'internationalized' tribunal would seem to be the proper forum. In addition,
conducted before such tribunals would expose the
much
terrorist acts
and
trials
their context
an 'ordinary' national court.
better than trials before
Other instances where the national
judicial system
component
bolstered by an international
is
inadequate and needs to be
that of Palestine,
is
where courts could be
beefed up by international prosecutors and judges, so as to prosecute and try serious
crimes of terrorism in a In
fair, effective,
and expeditious manner.
one may bring before 'internationalized' courts crimes against
addition,
humanity, torture, or genocide perpetrated in some authoritarian countries, where the political system countries refuse
on
still
neighbouring
the alleged perpetrators, while
protects
political
grounds to take action against them.
SOME TENTATIVE CONCLUSIONS: THE NEED TO WORK FOR CRIMINAL JUSTICE ON VARIOUS FRONTS 23.7
Human
by now become
rights have
a
bonum commune
humanitatis (a
common
of whole humankind), a core of values of great significance for the whole of kind.
It is
also the
only logical and consistent to grant the courts of
duty to prosecute, bring to
of their
own
world community'. That
at
long
last
to say, they
is
name and on
authorities but in the
community. Thus,
States the
power and
allegedly responsible for
By so doing, national courts would eventually
intolerable breaches of those values. as 'organs of the
and punish persons
trial,
all
asset
human-
act
would operate not on behalf
behalf of the whole international
the theoretical construct put forward in the 1930s by
the great French international lawyer Georges Scelle, the construct he termed dedou-
blement fonctionnel (role-splitting), for long a Utopian doctrine, would be brought to fruition
and translated into
order lacks
legal
reality.
15
legislative, judicial,
Scelle
emphasized
that, since the international
and enforcement organs acting on behalf of the
whole community, national organs may perforce have
to fulfil a dual role: they
act as State organs whenever they operate within the national legal system; they
qua international agents when they operate within the international
act
In a way, for Scelle, national officials exhibit a sort of
'split personality'.
may may
legal system.
That
is
to say,
although from the point of view of their legal status they are and remain State organs, they can function either as national or as international agents.
As
a result of the present state of affairs
community, 15
at 43,
55
Scelle's
doctrine has
come
and the trends emerging
to acquire
an enhanced
See G. Scelle, Precis de droit des gens. Principes et systematique, 54-6, 217;
HR
II,
at 10, 319, 450;
(1936), 91-106.
On
(dedoublement fonctionnel)
Idem, Theorie
et
pratique de
this doctrine see A. Cassese,
in International Law',
1
la
I
world
(Paris: Librairie
du Recueil
Sirey, 1932),
fonction executive en droit international',
'Remarks on
EJIL (1990),
in the
vitality, at least as far
210ft".
Scelle's
Theory of Role Splitting
458
INTERNATIONAL CRIMINAL LAW
as the social function of
law enforcement
is
concerned, and in spite of the growing
tendency of States to institute international or mixed criminal tribunals and courts.
However, deficiency,
we have
as
seen above, resort to national courts
is
not free from
any more than are the other available means of reacting to
atrocities
and
other gross violations of human rights, namely the establishment of Truth and Reconciliation
Commissions, of international criminal tribunals, or of mixed or
nationalized' courts. atrocities
lies
None of these avenues
a
in
is
flawless.
'inter-
Probably the best response to
prudent and well-thought-out combination of the various
approaches, seen not as alternatives but as a joint reaction to the intolerable suffering
we
are obliged to witness every day.
In conclusion, effective societal
I
consider
and
it is
the combination of more incisive action by the most
institutional devices of the
many
available to
could send a shock-wave through the practice of impunity. Let international criminal law
human lence
is
a
branch of law
wickedness and aggressiveness.
and viciousness
to try to
One must
is
me
repeat again that
more than any
also deals with
how
stem them to the extent that
given the magnitude of the task, there
of international criminality.
It
that,
lawmakers that
other,
society faces this
is
is
up
about to vio-
possible. Clearly,
no single response to the multifarious aspects
perforce resort to a whole
gamut of responses,
each most suited to a specific condition, effectively to stem international crimes.
1
1
1
1
1
1 1
INDEX national reconciliation, in process of 316
A
punishment, opinio juris
absentia, trial in 400-5
rationale 312-13
absolute universal jurisdiction 286-91
Second World War,
264-7
act of state doctrine
analogy
model 365-76
to the inquisitive
principal elements of, incorporation into the
international procedure 386-7
ban on 153-6 apartheid international crime, whether 25
transposition onto the international legal level
376-85
jurisdiction over 25
appeals
accused
adversarial
right to
be present
at his trial
400-5
and
inquisitorial systems, in
civil
law countries, in 430
acts of 112
common
criminal intent 115
notion and purpose of 430
112
law jurisdictions, in 431
fresh evidence
individual criminal liability
on 433
grounds of 433
1 1
instances of 114
interlocutory decisions, against 42
international adjudication, failure to extend to
judgment, against 433
sentence, against 433
international treaties, in breach of
new forms of
appellate proceedings
1 1
impact of appraisal on 117
separate concepts, splitting into
1
and terrorism, relationship with
atrocities 1
10
forms of 113
perpetrated abroad,
trial
by national court 7-9
responses to
amnesties 5
absence of 112
wars of
430-4
international crime, not 24
16
subjective elements of 114-15
trials,
proceedings 374-5
Armenian genocide 328 arms trade
objective elements of 115-16
traditional
in national
in international proceedings
115
notion of 111-13
torture
430
right of
111 international crime, as 24
judicial findings,
374-5
appellate proceedings
aggression
definition
312
wounds not healed by 313
adversarial system
opposed
315
312
specific episodes, in relation to
active nationality principle 281-2
as
after
as to
current trends 446-50
1 1
aiding and abetting
extraterritorial jurisdiction,
promotion of
11-14
mental element 165-6 participation in criminal activity by 188-9
forgetting 5
importance of 445-6
amnesty atrocities, as to
international tribunals, establishment of
5
blanket 316
internationalized courts, establishment of
human
means of 5 mixed courts, establishment of
rights provisions, incompatibility with
313
international practice, manifestations of 315
314-15
Sierra Leone, in
314-15
universal values, attacks
1
State courts, exercise of jurisdiction by trial
6-7
5-6
Truth and Reconciliation Commissions, establishment of 9-11
on 315
international law, contrary to 314
national jurisdiction, obstacle to exercise of
312-16
1
revenge 5
international crimes, for
rule prohibiting
1
attempt inchoate crime, as
intended harm 195
1
9
INDEX
460
194-6
participation in
individuals,
inhumane
195
possibilities
by 83
acts
80
intention to bring about result 81 international crimes, as 24
B
international criminal tribunal, proposal for 68 international instruments, prohibition in 73-4
burden of proof international
trial,
in 391
International Military Tribunal,
trial in
69-72
jurisdiction see jurisdiction
knowledge of attack 92
mens
command responsibility see superiors responsibility
rea 106
culpable negligence 175
murder 74
of
compensation to victims 429-30 complementarity and ICC 351-3
national criminal jurisdiction 297-8
complicity 179-80
objective element of 65, 74-81
notion, origin of 67-74
Ottoman Empire, mass
concurrence of offences ideal
213-4 213-4
real
killings in
67
penalties 34
personal motives for 30
conditional universal jurisdiction 285-6
policy or systematic conduct, link with conduct
81-2
conspiracy
commit 196-8
genocide, to
practice, as part of
international rules
control Council
Law
66
prohibited conduct 74
inchoate crime, as 191
on 197
racist
no. 10 73
or
inhuman frame of mind, not need
co-operation of states with the co-operation of states with the
ICC 358-60 ICTY and ICTR
357-8
risk,
awareness of 81
Second World War, during 68-9 sexual violence 78-9
co-operation with international tribunals 355-60
special intent
Covenant on
State officials acting in private capacity,
Civil
and
Political Rights
extraterritorial reach
State organs,
12
crimes against humanity
167-8
by 83-5
by 83
strict interpretation
of law 154-5
authors of 83-5
subjective element 81-2
category of 64
systematic nature of 65-6
creation of category of 69-70
terrorism as 128
crimes against Christianity, formulated as 67
torture 77-8, 118
culpable negligence, element of 82
Truth and Reconciliation Commissions, establishment of 9-11
customary international law
victims of
as part of 72
departure from 93-4
ICC
for
82
Statute, Article 7,
armed and 91-4
deportation or forcible transfer of population
76-7
forces,
members of 87
broadening of category 90-1 civilians
86,88
different classes of crime, for 85
enforced disappearances 80
generally 85
enslavement 75-6
murder-type crimes 86-9
extermination 74-5
nationals of State concerned or foreigners
88-9
features of 64
genocide as 96, 106
human
opponents of policy 88
rights law, deriving
from 64-5
humanity, meaning 67
ICC
Statute, Article 7
and customary
international law 91-4 identifiable
group or
collectivity,
lifting
imprisonment
criminal law analogy, ban
of 267-71
in violation
crimes against peace non-retroactivity, principle of 147-8
persecution
against 79-80
immunities,
persecution-type crimes 89
war crimes, dropping of link with 73
of fundamental rules
of international law 77
arbitrary
on 153-6
power of government, protection
against
common
142
law countries, in 142
NDEX
community of nations,
general principles
recognized by 32-5
46l
ICC
Statute, provisions of 251
international crimes, in 247-8
deviant behaviour, protection against 140
international law, customary rule of
250
international see international criminal law national,
grounding of 139
killing, as
defence to 246-50
national jurisdiction 37-8
mitigation, as 246
non-retroactivity, principle of 147-53
notion of 242
nullum crimen sine
lege,
principle of 139-45
strict legality,
superior orders, and 246 values, balancing 247
objective justice, principle of 140
doctrine of 141
criminal organization criminal liability 138-9
enforced disappearance of persons as a
138
labelling as criminal
membership of 137-8
crime against humanity 80
criminal plan 181-7
enforcment of sentences 436-9
criminal purpose 181-7
enslavement
culpa gravis 58, 210
crime against humanity,
culpable negligence see mens rea
meaning 75-6
customary law
equality of
crimes against humanity
genocide, not 98
Statute, Article 7,
and 91-4
excuse in 221-2
ICC
justification in
extraterritorial jurisdiction
12-13
evidence
Statute, Article 7 see
arms 395-7
European Court of Human Rights
departure from 93-4
immunities
75
ethnic cleansing
as part of 72
ICC
as
and 91-4
and
adversarial
immunities
inquisitorial systems, in
admission and evaluation 374
221-2
gathering 367-8
international criminal law, as source of 28-30
appeal,
rape, definition of 34-5
confidential source of 424
universality principle, position of
293-5
warfare, of 38-9
on 433
international
trial,
judicial notice
rules in
421-4
423
national security, affecting 423-4 privileged
D
communications 423
sexual assault, in case of 423
defence
excuse
duress see duress
categories of 224
excuse see excuse
characterization of defence as 220-1
immunities
classes
see
immunities
of defence defined as 221-2
221-2
justification see justification
compensation for action,
mistake of fact 252-5
criminal frame of mind, lacking 224
liability to
mistake of law 256-63
customary international
necessity see necessity
examples 220
self-defence see self-defence
individual autonomy, lack of
values, appraisal of
220-1
221-2
generally 224 insanity or mental disorder,
deportation as a
law, in
due
224-8
crime against humanity 76-7
detention, conditions of 436-7
intoxication 228
minors 229
dolus eventualis 58, 103, 168-71
219-21
dolus specialis 103-5, 115-6 167-8
justification distinguished
double jeopardy
superior orders see superior orders
unlawful action, for 220
prohibition 319-21
drug trafficking
extermination crime against humanity, as 74
international crime, not 24
meaning 74-5
duress collective killing, participation in
defence of 34, 242
250
extradition national courts, role of
1
5
to
INDEX
462
Morocco, competence of courts on 305 national criminal courts, cases before 97
and expeditious
fair
as a general principle
trial,
395-400 favor
norm-setting 98
156-7
rei
national criminal jurisdiction 297-8
objective elements of
favouring the accused, principle of
1
56-7
political
force majeure 222
98-102
grounds, extermination of group on 96
proceedings for 19 protected groups 97 separate category of offence, as 96 special intent
general principles of international criminal law see
103, 168
State responsibility 98
subjective elements of 103-5
international criminal law
Geneva Convention see jurisdiction, crimes, and warfare
as well as
war
widespread practice, acts as part of 100 grave breaches of the Geneva Convention 55-6 gross negligence 171-5
genocide
guilty plea 369-70,416
actus reus 102
aggravated criminal intention 103
autonomous
H
100
status
classes of action
102
human
conduct amounting to 98 conspiracy to
commit 196-8
community concerns, geared
Convention
to 65
crimes against humanity, derivation of 64-5
adoption of 41, 96
enforcement mechanisms 97 flaws
rights
amnesty, incompatibility with 313
monitoring bodies, jurisdiction of
1
1-14
violations 3-5
and omissions 96-7
jurisdiction provisions 280
countermeasures 4
merits of 96
international courts, extraterritorial
persons bound by 269
jurisdiction of 11-14
prosecution, obligation of 314
international sanctions, failure of 3-5
reservations 305
national and international courts, response
Spain, interpretation in 308
of 3
crime against humanity, as 96, 106
peaceful reprisals against 4-5
cultural 96
Truth and Reconciliation Commissions, establishment of 9-11
discrete crime, as 41
humanitarian law
elaboration of notion 100 forced expulsion, exclusion of 99-100
groups
interventionist attitude in 200
cultural or social destruction
105
definition of 101
internal
national, definition single
protected
Rwanda,
positive duty to act, rules
killing
armed
conflict, in
52-3
national and international courts, response
101
member,
of 3
102
serious, establishment of
101 in
imposing 201-2
violations
ethnic 102
one
crimes against humanity, derivation of 65
50-3
war crimes, not amounting
101
to 50-1
victim, identification of 100
ICC
Statute, Article 6
immunities,
lifting
107-8
of 267-71
incitement to 198
ignorantia legis non excusat principle 257-60
international co-operation, obligation of 303
immunities
international crime, as 24
classes
international criminal tribunals, cases before
customary international
judgments 98 objective elements, clarification of 100
of 264 law,
under
accrual of 264
functional and personal 265-7
meaning 96
general purport, with 270
men
international crimes, lifted in case of 267-71
of military age, killing 104-5
mensrea 103-6, 108
Military Manuals, provisions of 269
7
1
1
1 1
NDEX
military officers, relating to 268 ratione materiae
and
ratione personae
State agents, relating to
forgetting 5
265-7
268-71
importance of 445-6 international tribunals, establishment of
substantive defence, as 266
under 264 problems of 280
means of 5 mixed courts, establishment of
1
by 6-7
national jurisdiction, obstacle to exercise of 321
State courts, exercise of jurisdiction trial
personal
Truth and Reconciliation Commissions, law,
under 265-7
diplomatic 273
5-6
establishment of 9-1 categories of 16
ignoring 448
defining 147
international 271-3
civil litigation,
international crimes, in case of 271
classes of
national 273-4
compensation, order for 8
State agents, relating to
imprisonment
271-3
and 449
1
co-operation between States 15
see also sentencing
failure to
fundamental rules of international
law, in
violation of 77
respond to 446 37-41
historical evolution
individual
liability,
enforcement of 447
international co-operation, obligation of 302-3
place of 436
supervision of 438
International Military Tribunals, envisaged by 40 limitation rules 316-19
inchoate crimes
matters not included 24
categories of 191
meaning 190
meaning 16,23
participation in
190-1
national courts, impact of international law
customary
incitement genocide, to 198
treaties,
law, relevance of
national courts, role of 452-5
participation in criminal activity by 189-90
national
trials,
respect for fundamental
safeguards in 309-10
independence and impartiality of international judges 393-4
on
303-4
implementation of 304-8
inchoate crime, as 191
notion of 23-5
indictment 413-4
obligation to exercise jurisdiction 9
confirmation of 415-6
perpetrated abroad,
individual criminal responsibility, principle of
136-9
trial
by national court 7-9
procedural standards 309-10 prosecution by States
customary rules authorizing 303
innocence
customary rules obliging 301-3
presumption of 390-3
model as opposed model 365-76
inquisitorial
to the adversarial
express national legislation, absence of 305
ICC
Statute, provisions of 301
302
treaty provisions
insanity excuse, as 224-8
unwillingness 352
intent 162-8,210 see also
1
revenge 5
national legislation, provided for in 264
customary international
1
internationalized courts, establishment of
international customary or treaty rules, granted
jurisdiction,
463
mens
special intent
Inter- American
scope of 24
United
rea
Commission of Human Rights
extraterritorial jurisdiction
States, trial in
interlocutory decision 432-3 International Criminal Court
13
adversarial trial model, choice of 385
interlocutory decisions 432-3
apartheid, jurisdiction over 25
international crimes aiding and abetting 165-6
appeals see appeals
apartheid, status of 25
failure to co-operate
atrocities,
groupings of States relating to 342
amnesties 5 current trends 446-50 extraterritorial jurisdiction,
with 360
features of 341
responses to
11-14
8
universal jurisdiction, resort to 453-5
167-8
inquisitorial trial
promotion of
model, elements of 387
investigations see Prosecutor's investigations judicial institutions
34
1
NDEX
464
criminalized acts 17
jurisdiction
automatic 341
ejusdem generis construction
complementarity 351-3
features of 16-22
national authorities, cases pending before
general
national security information, protection of
law, relationship
general principles of 31
accused, favouring 156-7
359
Nuremberg scheme, comparison of 353-5 Chamber, submission of charges
English law countries, in 142
favor
to
415-16 417-18
legality
Preparatory Committee 341-3 regulations
rei
1
56-7
individual criminal responsibility 136-9
pre-trial proceedings
and
of crimes 139-45
need for 135 non-retroactivity 147-53
rules of international law 36
non-specific 136
review final decisions,
of 435
nulla
poena sine
nullum crimen sine
sentence, of 434-5
penalties, legality of
354
specificity
human
Rules of Evidence and Procedure 389
358-60
State co-operation
157-8
lege
judgment, of 434-5
role of
lege
139-45
157-8
145-7
rights law,
drawing on 18
hybrid nature of 19 inherent requirements 20
Statute
adoption of
customary
1 1,
340-3
interpretation
law, codification
and
clarification of existing rules
151-2
of 154
drafting 340-3
judicial interpretation of rules
intent, provisions of 159
legal precision, lack
International
Law Commission, work of
legality, principle
333-4 list
55
with 19-20
352
Pre-Trial
body of international
1
analogy, ban
out 26
favor
on 153-6
156-7
rei
non-retroactivity 147-53
and duress, provisions on 251
self-defence, provisions
on 229-30
nullum crimen sine
subjective element of crimes, provisions
on
176
war crimes, definition of 59-62
mens
terrorism, exclusion of
from jurisdiction 125
UN agenda, returning to victims, reparation or
mens
rea
to
430
national rules distinguished 135
network, increase in 145
enforcement of 447
non-retroactivity, principle of
main problems 442-3
generally 147-9
merits of 441
new
outlook 445-58
social conditions, expansive adaptation
of rules to 149-53
sanctions 448
normative standards 18
447-8
notion of 15-16
vindication of claims 449
organizations, responsibility for acts of
137
atrocities, reaction to
current trends 446-50
origin of 18
importance of 445-6
preventative role 22
working
for
457-8
procedural
international criminal law accessibility
and
1
national courts, role of 15
national or international courts, role of 21
341
compensation
international criminal justice liability,
rea see
municipal case law, evolution from
surrender of persons to 359-61
widespread
139-45
of 145-7
malleability of rules 21
meaning 15
tools, using
lege
specificity, principle
superior orders, provisions on 241
individual
of
accused, favouring 156-7
of crimes subject to jurisdiction, setting
necessity
150
of 147
foreseeability
15, 17
prohibitory nature of 17 151
prosecution and punishment 17
central criminal court, lack of 146
public international law, as branch of 16
criminal prohibitions, evolutive adaptation of
rate
152
of change in 21-2
rudimentary nature of 17
NDEX
465
general principles, questioning reliance
sources of
community of nations,
general principles of
criminal law recognized by 32-5 courts and tribunals, statutes of 26
on 135
genocide, judgments on 98 see also genocide
416
guilty plea in
individual criminal responsibility, principle of
customary law 28-30
136-9 model, elements of 386-7
general principles 31
inquisitorial trial
generally 25-6
investigations see Prosecutor's investigations
36-7
judicial decisions
judges, independence
37
legal literature
jurisdiction
objections to 337-8
primary 26 regulations
and
rules of international law 36
scholars, opinions of
36-7
pre-trial proceedings
416-17
preliminary motions 416
previous decision, departing from 37
27
treaties
and impartiality of 393-4
336,349-51
specificity, principle
of 145-7
strict interpretation
primacy of 349-51
154
procedural rules 16 prosecutorial and judicial function 338
substantive 15 substantive justice, doctrine of 142-3 treaties, analogical application
of 154
unacceptable risk of harm, criminalizing 22 International Criminal Tribunal for adversarial trial model, choice of
Rwanda 384-5
regulations
and
rules of international law 36
review final decisions,
of 435
judgment, of 434 sentence, of 434
appeals see appeals
Rules of Evidence and Procedure 385, 389
confirmation proceedings 415
Security Council resolution for 337
cumulative charges in 414
State co-operation 357
establishment of
genocide, judgments guilty plea in
335-40
1 1,
on 98
Statute 26,340
see also
genocide
416
inquisitorial trial
international criminal tribunals
model, elements of 386-7
investigations see Prosecutor's investigations
judges, independence
and impartiality of 393-4
pre-trial proceedings
ad hoc, development of 334-40
enforcement agencies, lack of 442 establishment of abortive early attempts 327-9
336,349-51
jurisdiction
victims, restitution to 429
416-17
origin of idea 322
preliminary motions 416
phases of 327
primacy of 349-51
post-Cold
procedural rules 16
Second World War, following 329-33
regulations
and
rules of international law 36
War New
former Yugoslavia, for
Order, in 334-40
see International
Criminal
Tribunal for the former Yugoslavia
review final decisions,
International Criminal Court see International
of 435
Criminal Court
judgment, of 434 sentence, of 434
International Military Tribunals see
Rules of Evidence and Procedure 389 Security Council resolution for 337, 339
International Military Tribunals
national courts, co-ordination of actions with
348
State co-operation 357
Statute 26,340
national criminal judges, relationship with 455
victims, restitution to 429
Rwanda,
International Criminal Tribunal for the former
adversarial trial model, choice of
384-5
appeals see appeals
ICC scheme, under 358-60 ICTY and ICTR scheme 357 models of 355-6
of 338
community of nations,
resort to general
principles of criminal law recognized by
33-4
reliance
cumulative charges in 414 1
1,
335-40
on 355
surrender of nationals to 360-1 trials see
confirmation proceedings 415
establishment of
Rwanda
State co-operation
Yugoslavia
bias, accusation
for see International Criminal Tribunal
for
international
internationalized courts
trial
and tribunals
breakdown of judicial system, establishment on 344
INDEX
466
definition 343
emergency
specificity
343-4
situations, in
establishment of 343-6 practical
trial in
problems of 345-6
admission and evaluation of evidence 374 appellate proceedings 374-5
mixed courts and tribunals
breakdown of judicial system, establishment
court
composition of 368-9
on 344 definition 343
emergency
role of
situations, in
343-4
372-3
evidence, gathering 367-8
establishment of 343-6
guilty plea
369-70
ICTR and ICTY,
problems of 345-6
use of 456-7
for
384-5
inquisitorial system, versus
international law
failure to
402
where permitted 401, 404-5
accused, position of 371-2
length of proceedings 442-3
community
absentia,
adversarial system
use of 456-7
practical
of 439-40
Statutes, provisions of
obligations 4-5
command
investigation, initiation of 367
respect for 4
jury 368
gross violations
main features 375-6 Nuremberg International
countermeasures 4-5 peaceful reprisals against 4-5
treaties,
private vengeance, substitute for 366
law, relevance of
limiting, restrictive
303-4
prosecution, initiation of 367
Tokyo International Military Tribunal, choice
tendency 306
implementation of 304-8
for 383
International Military Tribunals
trial
for
376-83
appeals see appeals
burden of proof 391
Tokyo, for 383
case presentation 418-21
of crimes 331
collective nature
proceedings 367, 369
victims, position of 372
adversarial system, choice of
Nuremberg,
Military Tribunal,
choice for 376-83
on
national courts, impact
crimes against humanity, trying 69-72
closing
crimes envisaged by 40
control of proceedings 425
due process of law, need
for
330
argument 421
court evidence 421
419-20
establishment of 329-33
cross examination
evidence in 378
defence case, presentation of 420
great Nazi criminals, trial of 330
deliberations 425-7 equality of arms 395-7
importance of 333 inquisitorial trial
model,
feasibility
of 377
evidence in rebuttal 420
new law, application of 71-2 Nuremberg Charter 331 Nuremberg scheme and International Criminal Court scheme compared 353-5
evidence in rejoinder 42
Potsdam Declaration 332
innocence, presumption of 390-3
rationale 331
inquisitorial system
353-5
role of
on
376-85
general principles of 31
customary
365-76
international legal level, transposition
examination
418-19
in chief
expeditiousness of proceedings 398-400 fair
and expeditious,
to be
395-400
accused, position of 371-2
Statute of 26
admission and evaluation of evidence 374
substantive justice, doctrine of 143-4
adversarial system, versus
Tokyo Charter 332
appellate proceedings 374-5
Tokyo
court
Trial
332
composition of 368-9
international trial accused, presence of
absconding,
effect
role of
of 400-1
372-3
emergence of 366
constitutional reasons for 400
evidence, gathering 367-8
escape, effect of 404
guilty plea
fair
365-76
conduct, crucial to 403
principle of 400-5
369-70
international procedure, elements
incorporated in 386-7
NDEX
investigation, initiation of 367
main
International Criminal Tribunal for
375-6
features
International Criminal Tribunal for the former
proceedings 367, 369
Yugoslavia, of 336, 349-51
victims, position of 372
international versus national
international criminal justice, merits of 441
complementarity 348
investigations preceding see Prosecutor's
primacy 348
investigations
348
rules for
legal provisions
judges
independence and impartiality of 393-4 questions by 420
international crimes, prosecution
to
387
416-18
pre-trial proceedings
and
punishment of 297-8
mixed procedural model, move principles governing
war crimes, prosecution and punishment of 295-7 national, obstacles to exercise of
equality of arms 395-7
amnesty 312-16
expeditiousness of proceedings 398-400
and expeditious
trial
395-400
innocence, presumption of 390-3 judges, independence
and impartiality of
393-4
double jeopardy, prohibition of 319-21 generally 312
immunities 321 ne
idem 319-21
bis in
statutes of limitation
nature of 389
316-19
passive nationality, principle of
presence of accused 400-5
crimes against humanity, prosecution of
283-4
publicity of proceedings 397 role of
277
national criminal, trends in
length of proceedings 442-3
fair
Rwanda, of
336,349-51
prosecution, initiation of 367 trial
467
double incrimination, need for 282-3
389
problems with 442-3
generally 277
publicity of proceedings 397
ground of 282
review
international crimes, in case of 283
final decisions,
of 435
legality,
principle of 283
judgment, of 434-5
torture, prosecution of
sentence, of 434-5
United
rules of evidence
421-4
States, in
283-4
306
war crimes, prosecution of 283-4
sentencing see sentencing
principles of 277
standard of proof 422, 425-7
protection of national interests, principle of
uniformity in application of law 441
unique
traits
277
of 439-40
victims, reparation or
territoriality, principle
compensation
to
429-30 visibility
effects
442
of
advantages of 278-9
of crime
felt
in territory
278
France, philosophy in 278
intoxication 228-9
generally 277
investigations see prosecutor's investigations
ideological
and
278
political reasons, basis in
international crimes, in case of 279 locus commissi delicti, determination of
280
problems with 279 State official with
jurisdiction active nationality, principle of
statement of 277-8
forms of 281 generally 277
territory,
meaning 279 453-5
international crimes, in case of 281
universal, resort to
nationality of prosecuting State, time of
universality principle
perpetrator possessing 282 residents, inclusion of
United
States, in
immunity, perpetrator
being 280
282
306
absolute universal jurisdiction 286-91
advantages of 289-90 application of 284-5, 293-4
Geneva Conventions, over breaches of 297 Genocide Convention, provisions of 280
broad version of 286-91
international crimes, over 280
conditional universal jurisdiction 285-6
arrest warrants, issue of
290
INDEX
468
customary international
law, position at
293-5
Eichmann,
trial
M mens
of 293
rea
emergence of 277
awareness of circumstances 166
Geneva Conventions, breaches of 297
case law 160
inconsistent rulings, danger of 290
command
international treaties, in 284
responsibility,
minor defendants, international crimes by
culpable negligence
narrow notion of 285-6
death, causing 174
national legislation, in 287-9, 294
generally 161
objections to 292-3
gross 172-3
piracy, in case of
ICC
284
Statute, provisions of 176
instances of 173-5
of 291
Spanish case law 288-9
international system, in
versions of 285
meaning 171
war crimes, prosecution of 284-5
national legal systems, in
war crimes, over 6-7, 38
recklessness, bordering
jury
risk,
adversarial system, in 368
172
172
on 175
awareness of 171
sufficiency of 173
threshold of 172
justification
war crimes 58-9
characterization of defence as 220-1
customary international
law, in
221-2
excuse distinguished 219-21 justifiable
forms and shades of 159 general definition, lack of customary rule setting
homicide 219
out 159 general notions of 161-2
law providing 219
ICC
lawful belligerent reprisals 219, 221 lawful
in case of
crime against humanity, in case of 175
291
pitfalls
knowledge
166
punishment 221
Statute, provisions of 159, 176
intent
generally 161
self-defence see self-defence
illustration of
162-3
international rules 162
K
knowledge, role of 164-7
knowledge, role of within intent
82, 138 164-7,
meaning 162 natural consequences of actions 163
210-1
planning 163 premeditation 163 result, rules
special
legality
international customary rules
principle of
judicial determination of
accused, favouring 156-7 analogy, ban
favor
rei
concentrating on 165
167-8
1
methodological problem 159-62
on 153-6
recklessness
56-7
consequences of actions, expectation as to
non-retroactivity 147-53
nullum crimen sine penalties
162
177-8
lege
169-70
139-45
culpable negligence bordering on
157-8
specificity, principle
175
denunciations, cases of 169-70
of 145-7
ICC
Lieber code 38
Statute, provisions of 176
instances of 169-71
limitation international crimes, application to
316-19
national jurisdiction, obstacle to exercise of
multitude of persons, crime committed by 169
U6-19
post-war
rationale 316 treaty provisions
meaning 168-9
317
risk,
German
courts, notion in
awareness of 161
specific crimes,
of see war crimes etc
substantive rules setting out
mental disorder
160
169
3
1
1
INDEX
defective
and undeveloped
faculties
469
defence of 34, 242-3
227
excuse, as 224-8
effect
gravity of offence, reducing 226
ICC
premeditated design, incapacity to entertain]
notion of 242
of 242
Statute, provisions of 251
special units bent
226 superior orders, plea of 237-8
uncontrollable
of temper 227
fits
on disregarding 245-6
law,
unavailability to
negligence, culpable see mens rea
non-retro activity, principle of 147-53
minors individual autonomy, lack of 229
nulla
poena sine
lege 157-8 lege 72, 139-45
nullum crimen sine
mistake of fact defence, as 252-5
honest and reasonable, erroneous belief being
Nuremberg principles 269, 334 Nuremberg Tribunal see International and
252
Military
Tribunals
superior orders, and 253-5
mistake of law
O
defence, as 256-63 factors taken into account
omission
260
breach of Conventions resulting from 20
ignorantia legis non excusat
fundamental assumption 257
257-60
limitations of
crime, to report 207 criminalized 200
rationale 256
liability for
relevance of 256
evolution of 200
mens
superior orders, and 261-3
rea 203
mixed courts and tribunals 343-6, 456-7
meaning 200
models of co-operation with international courts 355-6
rules
money laundering
superiors, responsibility of
crime, not reporting 207
emergence of notion 203-5
multiple offences test
214,217
German Code 206-7
212-16
classes, differentiating
subdivision of categories 206-7
cumulative charging 215-16
subjective elements 209-11
concurrence of 213
instances of 212
subordinate, not supervising 207
protected values, test based real
on 217
on 217-18
several rules, violating 2 single
ordering criminal conduct
1
93-4
other inhumane acts as crimes against humanity
concurrence of 213
sentencing, impact
206
failure to prevent offence
general conditions of 207-9
categorization of 212
ideal
to act, breach of
201-2
international crime, not 24
Blockburger
imposing positive duty
80-1
1
conduct or transaction 213
specialty, principle
of 216
various rules covering same subject matter,
pardon
in international proceedings 437-8
breach of 214-16
participation in criminal activity
various victims, against 212-13
aiding and abetting 188-9
murder
attempt 194-6
crime against humanity, as 74, 86-9
categories of 179
co-perpetration 179, 181
common
N
purpose or design,
acts flowing
national jurisdiction see jurisdiction active nationality, principle of
281-2
passive nationality, principle of 282-4 tie bis in
idem principle
1
9-2
responsibility for
181-7
aiding and abetting 188-9
concentration camps, persons running
186-7 concurrence in crime 184-5
necessity admissibility 243 cases
3
in
from criminal plan,
on 243-5
foreseeable crimes of other participants, responsibility for
187
INDEX
470
Hadamar
trial, illustration
not formally
of 183-4
out 182
set
persons concerned in killing 184
genocide
R rape
customary law 34-5
definition,
commit 196-8
conspiracy to
meaning 78
incitement to 198
recklessness 168-71,210
inchoate crimes 190-1
incitement or instigation 189-90
see also
mens
rea
reparation to victims 429-30
180
international law, in
marital 149-51
modalities of 179
reprisals
multitude of persons, action of 181 national legal systems, in
179-80
ordering 193-4
lawful belligerent 219,221
peaceful 4-5
responsibility of superiors see superiors,
perpetration 180
responsibility of
review proceedings 434-5
planning 192-3 passive nationality principle 282-4
rules of evidence
penalties principle of legality of 157-8
in national trials
persecution as a crime against humanity 79-80,
in international trials
367-8
421-4
89-90 piracy international crime, as 24
sanctions
jurisdiction over 24, 38 universality principle 284
planning criminal action 192-3 positive obligations to act 201-2
primacy of international Tribunals 348-5 premeditation 163
international 448 failure
of 3-5
self-defence
allowable 221
presumption of innocence
see innocence,
pre-trial proceedings
ICC
416-8
Prosecutor's investigations
Statute, provisions of
justification
229-30
221-2
public international law, under 223
of suspect 410
charges, submission of
criminal responsibility, exclusion of 223
examples 222-3
presumption of
arrest
economic 4
413-15
threat, in response to
224
conduct of 409-15
sentence reduction or commutation of 437-8
confirmation proceedings 415-16
sentencing
indictment, submission of 413-15
detention, conditions of 436
initiation of
fines
conditions preceding 408-9 discretion as to
406-7
place of 436
International Criminal Court, in case of
407-8
in, rights
of 413
Prosecutor, decision of 406 setting in
motion 406-8
State co-operation,
need for 410-12
suspects, rights of 413
public international law international criminal law, relationship with 19-
20
purpose of 20
trial, in
427-9
multiplicity of offences
217-18
pardon 437-8
and 407
persons involved
supervision of 438 international
Security Council, at request of inquiry,
429
imprisonment
policy, general considerations
429
reduction or commutation 437-8 rehabilitation
428
reprobation and stigmatization 428 retribution
and deterrence 428
sexual violence
crime against humanity, as 78-9
meaning 79 smuggling international crime, not 24
sources see international criminal law, sources of Special Court for Sierra
establishment of
1
Leone
NDEX
actus reus 127, 129
of 216
speciality, principle specificity, principle
471
armed
of 145-7
standard of proof in international
trials
425-7
conflict, link
with 125
condemnation, increase
123
in
crime against humanity, as 128
statutes of limitation international crimes, application to 316-19
depersonalization of victim
national jurisdiction, obstacle to exercise of
discrete international crime, as
316-19
125
128-30
elements of 124
rationale 316
enforcement of provisions 130-1
treaty provisions 317
features of 125-6
freedom
superior orders battlefield, given
on 239-40
duress, defence of 246
international adjudication, failure to extend to
Statute, provisions of 241
and national law
international
111 tests
232-4
manifestly unlawful 232-3
and
military
of 120-1, 123
120-5
defence of 34
ICC
fighters, acts
generally agreed definition, whether lacking
international crime, as 24
International Criminal Court, not under
232
civilian
jurisdiction of 125
mistake of fact, and 253-5
international substantive rules 130
mistake of law, and 261-3
Latin
American
notion of 231-2
mens
rea
rejection of plea, case law
upholding
plea, case
on 234
law on
countries,
Convention of 123
129
Military Commission,
by 310
trial
national boundaries, transcending 129
freedom of judgment, lack of 236
private or State capacity, by individuals in
grounds 235
prohibition in t