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OXPORD

INTERNATIONA CRIMINAL

LAW

r ^^B I A

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j /

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f&**r\v ^"•-•"-'i

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

Oxford University Press It

is

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department of the University of Oxford.

furthers the University's objective of excellence in research, scholarship,

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Published in the United States by Oxford University Press Inc., New York

© The moral

Antonio Cassese, 2003

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Database right Oxford University Press (maker) First

All rights reserved.

No

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without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate

reprographics rights organizations. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department,

Oxford University

Press, at the address

above

You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer British Library Cataloguing in Publication

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by RefineCatch Limited, Bungay, Suffolk Printed in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire

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