Criminal repression

Introduction

Introductory text

Under its traditional structure, international law prescribes certain rules of behaviour for States, and it is up to every State to decide on practical measures or penal or administrative legislation to ensure that individuals whose conduct is attributable to it, or under some primary rules even all individuals under its jurisdiction, comply with those rules – indeed, ultimately only human beings can violate or respect rules. There is, however, the growing branch of international criminal law, which consists of rules of international law specifically criminalizing certain individual behaviour and obliging States to criminally repress such behaviour. IHL was one of the first branches of international law to contain rules of international criminal law.

IHL obliges States to suppress all its violations. Certain violations, called war crimes, are criminalized by IHL. The concept of war crimes includes – but is not limited to – the violations listed and defined in the Conventions and Protocol I as grave breaches.[1] IHL requires States to enact legislation to punish such grave breaches, to search for persons who have allegedly committed such crimes, and to bring them before their own courts or to extradite them to another State for prosecution.[2] IHL moreover contains provisions on the legal qualification of an individual’s failure to act and on group criminality, such as the responsibility of commanders.[3] While normally a State has criminal jurisdiction only over acts committed on its territory or by its nationals, IHL confers universal jurisdiction over grave breaches on all States. Moreover, it not only permits, it even requires all States to prosecute war criminals, regardless of their nationality, the nationality of the victim, and where the crime was committed. For this reason, too, national legislation is necessary.

Unfortunately, a number of States have not adopted the necessary legislation and many belligerents allow – or even order – their subordinates to violate IHL, with complete impunity. The efforts to set up international criminal courts are therefore understandable. As we will see, they have met with success.

According to the text of the Conventions and of the Protocols, the concept of grave breaches does not apply in non-international armed conflicts. There is, however, a growing tendency in international instruments,[4] judicial decisions,[5] and doctrine to count serious violations of the IHL of non-international armed conflicts under the broader concept of war crimes, to which a regime would apply under customary international law that is similar to that applicable under the Conventions and Protocol I to grave breaches.

The regular prosecution of war crimes would have an important preventive effect, deterring violations and making it clear even to those who think in categories of national law that IHL is law. It would also have a stigmatizing effect, and would individualize guilt and repression, thus avoiding the vicious circle of collective responsibility and of atrocities and counter-atrocities against innocent people. Criminal prosecution places responsibility and punishment at the level of the individual. It shows that the abominable crimes of the twentieth century were not committed by nations but by individuals. By contrast, as long as the responsibility was attributed to States and nations, each violation carried within it the seed of the next war. That is the civilizing and peace-seeking mission of international criminal law favouring the implementation of IHL.

The spectacular rise of international criminal law in recent years, which has been given substance by the establishment of international criminal courts in particular, constitutes an invaluable contribution to the credibility of IHL and to its effective implementation. It would be wrong and dangerous, however, to see IHL solely from the perspective of criminal law. IHL must be applied above all during conflicts – by the belligerents, third States and humanitarian organizations – to protect the victims. As is the case for national law, ex post criminal prosecution of violations is crucial to implementation but is also an admission of failure. It should not discourage the fundamental work of endeavouring to prevent violations and protect the victims by means other than criminal law. As for national law, action under criminal law can be only one of the ways of upholding the social order and common interest. The increasing focus of public opinion on criminal prosecution of violations of IHL may also have reinforced the reluctance of States and their military to use existing mechanisms for fact-finding, such as the International Humanitarian Fact-Finding Commission. Although the ICRC stresses that it will not provide information for the purpose of prosecuting perpetrators and has obtained the corresponding immunities, States and armed groups may also have become more reluctant to give the ICRC access to victims of IHL violations in places of detention and in conflict areas. Certain proposals to develop new mechanisms for the implementation of IHL or to clarify vague concepts of IHL may also meet resistance in military circles because they could facilitate criminal prosecution, although this is not their aim.

An exclusive focus on criminal prosecution may also give the impression that all behaviour in armed conflict is either a war crime or lawful. That impression heightens feelings of frustration and cynicism about IHL and its effectiveness, which in turn facilitate violations. More importantly, that impression is simply wrong. Indeed, an attack directed at a legitimate military objective that is not expected to cause excessive incidental harm to civilians is not a war crime, even if many civilians die. Except in cases of recklessness, targeting errors are not war crimes. For the protection of the civilian population, it is nevertheless crucial for all those launching attacks to take all feasible measures to minimize incidental civilian harm or mistakes, for instance by verifying targets, selecting tactics, timing and ammunition, and giving the civilian population an effective warning, although a violation of that obligation is not a war crime. Similarly, it is crucial for war victims that occupying powers do not legislate as if they were at home, that the ICRC be given access to protected persons, that detainees be allowed to exchange family news, that families separated by frontlines be allowed to reunite, that (former) parties to a conflict cooperate to clarify the fate of missing persons, that mortal remains be if possible identified, that humanitarian organizations be given access to persons in need, that children be provided with appropriate education and that civilians, both in occupied and on enemy territory, have the opportunity to find employment. All the aforementioned is prescribed by IHL, but violations of such prescriptions are not war crimes.

Cases and Documents

Readings

Suggested reading:

  • ASCENSIO Hervé, DECAUX Emmanuel & PELLET Alain (eds), Droit international pénal, Paris, Pedone, 2000, 1053 pp.
  • BARBOZA Julio, “International criminal law”, in Collected Courses, Vol. 278, 1999, pp. 13-199.
  • CASSESE Antonio, International Criminal Law, Oxford, OUP, 2003, 472 pp.
  • BASSIOUNI M. Cherif, Introduction au droit pénal international, Brussels, Bruylant, 2002, 344 pp.
  • DAVID Éric, Code de droit international pénal : textes au 1er décembre 2008, Brussels, Bruylant, 2009, 1725 p.
  • DAVID Éric, Eléments de droit pénal international et européen, Brussels, Bruylant, 2009, 1566 pp.
  • HENZELIN Marc & ROTH Robert (eds), Le droit pénal à l’épreuve de l’internationalisation, Paris, LGDJ; Brussels, Bruylant; Geneva, Georg, 2002, 355 pp.
  • HUET André & KOERINGJOULIN Renée, Droit pénal international, Paris, PUF, 2001, 2nd ed., 425 pp.
  • KITTICHAISAREE Kriangsak, International Criminal Law, Oxford, OUP, 2001, 482 pp.
  • LA ROSA Anne-Marie, Dictionnaire de droit international pénal, Paris, PUF, 1998.
  • SADAT Leila Nadya & SCHARF Michael P. (eds), The Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni, Leiden, M. Nijhoff, 2008, 448 pp.
  • SLYE Ronald C. & VAN SPAACK Beth, International Criminal Law, New York, Aspen Publishers, 2009, 354 pp.

Further reading:

  • ABELLÀN HONRUBIA Victoria, “La responsabilité internationale de l’individu”, in Collected Courses, Vol. 280, 1999, pp. 139-428.
  • BONAFE Beatrice I., The Relationship Between State and Individual Responsibility for International Crimes, Leiden, M. Nijhoff, 2009, 281 pp.
  • CARCANO Andrea, “Sentencing and the Gravity of the Offence in International Criminal Law”, in ICLQ, Vol. 51, pp. 583-609.
  • CASSESE Antonio (ed.), The Oxford Companion to International Criminal Justice, New York, OUP, 2009, 1008 pp.
  • DECAUX Emmanuel, “The Definition of Traditional Sanctions: their Scope and Characteristics”, in IRRC, Vol. 90, No. 870, June 2008, pp. 249-257.
  • DUTLI Maria Teresa & PELLANDINI Cristina, “The International Committee of the Red Cross and the Implementation of a System to Repress Breaches of International Humanitarian Law”, in IRRC, No. 300, May-June 1994, 15 pp.
  • FALLAH Katherine, “Perpetrators and Victims: Prosecuting Children for the Commission of International Crimes, in African Journal of International and Comparative Law, T. 14, No. 1, 2006, pp. 83-103.
  • FERNANDES FLORES Y DE FUNES José Luis, “Repression of Breaches of the Law of War Committed by Individuals”, in IRRC, No. 282, May-June 1991, 47 pp.
  • FLECK Dieter, “International Accountability for Violations of the Ius in Bello: the Impact of the ICRC Study on Customary International Humanitarian Law”, in Journal of Conflict and Security Law, Vol. 11, No. 2, 2006, pp. 179-199.
  • FREELAND Steven, “Child Soldiers and International Crimes: How Should International Law Be Applied?”, in New Zealand Journal of Public and International Law, Vol. 3, Issue 2, November 2005, pp. 303-328.
  • KALSHOVEN Frits, “From International Humanitarian Law to International Criminal Law”, in Chinese Journal of International Law, Vol. 3/1, 2004, pp. 151-161.
  • LÜDER Sascha Rolf, “The History of the Prosecution of War Crimes”, in RDMDG, Vol. 42/3-4, 2003, pp. 397-414.
  • MERON Theodor, “War Crimes Come of Age”, in AJIL, Vol. 92/3, 1998, pp. 462-468.
  • MOREILLON Laurent, BICHOVSKY Aude, & MASSROURI Maryam (eds), Droit pénal humanitaire, Brussels, Bruylant, 2009, 502 pp.
  • PHILIPPE Xavier, “Sanctions for Violations of International Humanitarian Law: the Problem of the Division of Competences between National Authorities and between National and International Authorities”, in IRRC, Vol. 90, No. 870, June 2008, pp. 359-370.
  • POCAR Fausto, “Violence on Civilians and Prisoners of War in the Jurisprudence of International Criminal Tribunals”, in Anuário brasileiro de direito internacional = Brazilian Yearbook of International Law, Vol. 2, No. 4, 2009, pp. 11-30.
  • RATNER Steven R., ABRAMS Jason S., & BISCHOFF James L., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, Oxford, OUP, 3rd ed., 2009, 483 pp.
  • STAHN Carsten & VAN DEN HERIK Larissa (eds), Future Perspectives on International Criminal Justice, The Hague, T.M.C. Asser, 2010, 693 pp.
  • VAN GENUGTEN Willem J. M., SCHARF Michael P., & RADIN Sasha E., Criminal Jurisdiction 100 years after the 1907 Hague Peace Conference: Proceedings of the Eighth Hague Joint Conference Held in the Hague, the Netherlands 28-30 June 2007, The Hague, T.M.C. Hasser, 2009, 350 pp.
  • VERHOEVEN Joe, “Vers un ordre répressif universel ? Quelques observations”, in AFDI, 1999, pp. 55-71.

 Footnotes

I. Definition of crimes

  1.  the concept of grave breaches of IHL and the concept of war crimes
    GC I-IV, Arts 50 /51/130/147 respectively; PI, Arts 11(4), 85 and 86 [CIHL, Rule 151 and 156]

Cases and Documents

Readings

Suggested reading:

  • BYRON Christine, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court, Manchester, Manchester University Press, 2009, 285 pp.
  • FLECK Dieter, “Shortcomings of the Grave Breaches Regime”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 833-854.
    ÖBERG Marko Divac, “The Absorption of Grave Breaches into War Crimes Law”, in IRRC, Vol. 91, No. 873, March 2009, pp. 163-183. 
  • ROBERTS Ken, “The Contribution of the ICTY to the Grave Breaches Regime”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 743-762.
  • STEWART James G. (ed.), “The Grave Breaches Regime in the Geneva Conventions: a Reassessment Sixty Years On”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 653-877.
  • STEWART James G., Corporate War Crimes, Prosecuting Pillage of Natural Resources, New York, Open Society Foundations, October 2010, 157 pp.

Further reading:

  • CLARK Roger S., “Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare”, in New Criminal Law Review, Vol. 12, No. 3, 2009, pp. 366-389.
  • DEHN John C., “The Hamdan Case and the Application of a Municipal Offence: the Common Law Origins of ‘Murder in Violation of the Law of War’”, in Journal of International Criminal Justice, Vol. 7, No. 1, 2009, pp. 63-82.
  • FLORES ACUNA Tathiana, “The Rome Statute’s Sexual Related Crimes: an Appraisal under the Light of International Humanitarian Law”, in Humanitäres Völkerrecht, Vol. 19, No. 1, 2006, pp. 39-51.
  • HENCKAERTS Jean-Marie, “The Grave Breaches Regime as Customary International Law”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 683-702.
  • KRESS Claus, “Reflections on the Judicare Limb of the Grave Breaches Regime”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 789-809.
  • LAWRENCE Jessica C. & HELLER Kevin Jon, “The First Ecocentric Environmental War Crime: the Limits of Article 8(2)(b)(iv) of the Rome Statute”, in Georgetown International Environmental Law Review, Vol. 20, No. 1, 2007, pp. 61-95.
  • O’KEEFE Roger, “The Grave Breaches Regime and Universal Jurisdiction”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 811-832.
  • PETERSON Ines, “The Natural Environment in Times of Armed Conflict: a Concern for International War Crimes Law?”, in Leiden Journal of International Law, Vol. 22, Issue 2, 2009, pp. 325-343.
  • SALAHI Reem, “Israel’s War Crimes: a First Hand Account of Israel’s Attacks on Palestinian Civilians and Civilian Infrastructure”, in Rutgers Law Record, Vol. 36, 2009, pp. 201-223.
  • SANDOZ Yves, “The History of the Grave Breaches Regime”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 657, 682.
  • STEWART James G., “The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 855-877. 
  1.  the extension of the concept of grave breaches to non-international armed conflicts?

Cases and Documents

Readings

Suggested reading:

  • ANCELLE Juliette, “Les crimes de guerre dans les conflits armés non-internationaux”, in Droit pénal humanitaire, Basel, Helbing Lichtenhaln, 2009, pp. 117-143.
  • ARNOLD Roberta, “The Development of the Notion of War Crimes in Non-International Conflicts through the Jurisprudence of the UN Ad Hoc Tribunals”, in Humanitäres Völkerrecht, Vol. 3, 2002, pp. 134-142.
  • BOELART-SUOMINEN Sonja, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for all Armed Conflicts?”, in Journal of Conflict and Security Law, Vol. 5/1, 2000, pp. 63-103.
  • DUGARD John, “War Crimes in Internal Conflicts”, in IYHR, Vol. 28, 1996, pp. 91-96.
  • KRESS Claus, “War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice”, in IYHR, Vol. 30, 2000, pp. 103-177.
  • LA HAYE Eve, War Crimes in Internal Armed Conflicts, Cambridge, CUP, 2008, 424 pp. 
  • MEINDERSMA Christa, “Violations of Common Article 3 of the Geneva Conventions as Violations of the Laws or Customs of War under Article 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia”, in Netherlands International Law Review, Vol. 42/3, 1995, pp. 375-397.
  • MERON Theodor, “War Crimes in Yugoslavia and the Development of International Law”, in AJIL, Vol. 88/1, 1994, pp. 78-87.
  • MERON Theodor, “International Criminalization of Internal Atrocities”, in AJIL, Vol. 89/3, 1995, pp. 554-577.
  • MOIR Lindsay, “Grave Breaches and Internal Armed Conflicts”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 763-787.
  • MOMTAZ Djamchid, “War Crimes in Non-International Armed Conflicts under the Statute of the International Criminal Court”, in YIHL, Vol. 2, 1999, pp. 177-192.
  • ROBERTS Ken, “The Contribution of the ICTY to the Grave Breaches Regime”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 743-762. 
  • SASSÒLI Marco, “Le génocide rwandais, la justice militaire suisse et le droit international”, in Revue suisse de droit international et de droit européen, Vol. 12, 2002, pp. 151-178.
  1.  the repression of violations of IHL which are not grave breaches

Cases and Documents

  1.  crimes against humanity 

Introductory text

Compared with war crimes or common crimes, the specific feature of crimes against humanity is that they are committed systematically, in accordance with an agreed plan, by a State or an organized group. Perpetrators of crimes against humanity are aware that the acts they are committing are part of a general policy of attacking a civilian population. They are therefore particularly serious crimes, especially because they can claim a large number of victims.

The concept of crimes against humanity evolved over the course of the twentieth century. The Charter of the International Military Tribunal of 8 August 1945 enabled punishment of those who had committed particularly odious crimes during the Second World War, which it defined as “crimes against humanity”.

The concept of crimes against humanity was subsequently recognized as forming part of customary law and being universally applicable. Moreover, it is no longer necessarily associated with the existence of an armed conflict.[6] Finally, the concept of crimes against humanity has also developed in terms of the acts which it makes criminal offences by including, in particular, apartheid[7] and sexual violence.[8]

The legal definition of crimes against humanity, as they are understood today, can be found in the ICC Statute. A crime against humanity is one of the acts listed below when committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”:[9] murder; extermination; enslavement; deportation; persecution on political, racial, national, ethnic, cultural, religious, gender or other grounds; apartheid; arbitrary imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence; enforced disappearance of persons; or other inhumane acts intentionally causing great suffering or serious injury to the body or to mental or physical health. Genocide, for its part, may be understood as a particularly serious crime against humanity (see infra, e) genocide, p. 403).

This definition allows us to understand the particular nature of crimes against humanity as opposed to war crimes: they may be committed at any time and target the civilian population, regardless of nationality or bonds of allegiance. The mens rea also contributes to the specific nature of those crimes: the perpetrator of the crime must be aware that it is linked to a widespread or systematic attack directed against the civilian population.

This is not the place to review all of the above-mentioned acts, which are defined in the ICC Statute. However, the crime of persecution deserves particular attention to the extent that it is, by definition, relatively close to the crime of genocide. Indeed, it is the only crime against humanity that requires a specifically discriminatory intention. As a crime against humanity, persecution must be committed “on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.[10] It differs from genocide in that the latter requires an intention to eliminate the group and that group can only be racial, national, ethnic or religious.

Cases and Documents

Readings

Suggested reading:

  • BASSIOUNI M. Cherif, Crimes against Humanity in International Criminal Law, The Hague, Kluwer Law International, 1999, 610 pp.
  • BYRON Christine, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court, Manchester, Manchester University Press, 2009, 285 pp.
  • DINSTEIN Yoram, “Crimes against Humanity”, in MAKARCZYK Jerzy, Theory of International Law at the Threshold of the 21st Century, The Hague, Kluwer Law International, 1996, pp. 891-908.
  • FRULLI Micaela, “Are Crimes Against Humanity More Serious than War Crimes?”, in EJIL, Vol. 12/2, 2001, pp. 329-350.
  • JIA Bing Bing, “The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law”, in GOODWIN-GILL Guy S. (ed.), The Reality of International Law, Oxford, Clarendon, 1999, pp. 243-271.
  • JUROVICS Yann, Réflexions sur la spécificité du crime contre l’humanité, Paris, LGDJ, 2002, 525 pp.
  • PALOMBINO Fulvio Maria, “The Overlapping between War Crimes and Crimes against Humanity in International Criminal Law”, in Italian Yearbook of International Law, Vol. 12, 2002, pp. 123-145.
  • POILLEUX Sylvia, “Le crime contre l’humanité: limites actuelles et perspectives d’avenir”, in L’Astrée, Vol. 8, 1999, pp. 43-57.
  • ROBERTSON Geoffrey, Crimes Against Humanity: the Struggle for Global Justice, London, Penguin, 3rd ed., 2006, 758 pp.
  • ROBINSON Darryl, “Crimes against Humanity: Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience”, in LATTANZI Flavia &
  • SCHABAS William A. (eds), Essays on the Rome Statute of the International Criminal Court, Ripa Fagnano Alto, Sirente, 1999, pp. 139-169.
  • SCHABAS William A., Genocide in International Law: The Crime of Crimes, Cambridge, CUP, 2nd ed., 2009, 741 pp.
  • ZAKR Nasser, “Approche analytique du crime contre l’humanité en droit international”, in RGDIP, Vol. 105/2, 2001, pp. 281-306.

Further reading:

  • BLANCHET Dominique, “L’esclavage des Noirs dans la définition du crime contre l’humanité: de l’inclusion impossible à l’intégration implicite”, in Revue de la Recherche Juridique – Droit Prospectif, Vol. 24/4, 1999, pp. 1173-1205.
  • CHALANDON Sorj, Crime contre l’humanité: Barbie, Touvier, Bousquet, Papon, Paris, Plon, 1998, 517 pp.
  • DINSTEIN Yoram, “Crimes Against Humanity after Tadic”, in Leiden Journal of International Law, Vol. 13/2, 2000, pp. 373-393.
  • FLORES ACUNA Tathiana, “The Rome Statute’s Sexual Related Crimes: an Appraisal under the Light of International Humanitarian Law”, in Humanitäres Völkerrecht, Vol. 19, No. 1, 2006, pp. 39-51.
  • LAQUIÈZE Alain, “Le débat de 1964 sur l’imprescriptibilité des crimes contre l’humanité”, in Droits, Vol. 31, 2000, pp. 19-40.
  • LATTANZI Flavia, “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda”, in FISCHER Horst (ed.), International and National Prosecution of Crimes Under International Law, Berlin, Berliner Wissenschafts-Verlag, 2001, pp. 473-504.
  • NSABIMANA Christian Garuka, “The Interpretation of the Concept of “Other Inhumane Acts” in Armed Conflicts by the ICTY and ICTR and its Impact on IHL and Human Rights Law”, in African Yearbook on International Humanitarian Law 2008, 2007, pp. 163-174.
  • SLYE Ronald C., “Apartheid as a Crime against Humanity: A Submission to the South African Truth and Reconciliation Commission”, in MJIL, Vol. 20, February, 1999, pp. 267-300.
  • VAN SCHAAK Beth, “The Definition of Crimes against Humanity: Resolving the Incoherence”, in Columbia Journal of Transnational Law, Vol. 37/3, 1998, pp. 787-850.
  • ZAWATI Hilmi M., “Impunity or Immunity: Wartime Male Rape and Sexual Torture as a Crime against Humanity”, in Torture: Journal on Rehabilitation of Torture Victims and Prevention of Torture, Vol. 17, No. 1, 2007, pp. 27-47.
  1.  genocide

Introductory text

Coined by Raphaël Lemkin in the early 1940s, the term “genocide” is derived from the word genos, meaning “race” in Greek, and the Latin verb caedere, meaning “to kill”. In the face of the barbarity of the first half of the twentieth century, a neologism was needed to describe situations in which one group of individuals decides to annihilate another.

For a legal definition of genocide, the best source is the Convention on the Prevention and Punishment of the Crime of Genocide,[11] which entered into force in 1951 and is today part of customary international law. The definition given in Arts II and III of the Convention is repeated verbatim in the statutes of the international criminal tribunals.[12] The explanations given below are broadly based on the case law of those courts.

The fact that international law was once again “one war late” may be lamented. However, can it be blamed for failing to foresee what remains the “ultimate crime”, the “gravest violation of human rights that it is possible to commit”?[13]

By virtue of its scale, the crime of genocide goes beyond the strict framework of IHL, and it is not actually essential that an armed conflict exist for an act of genocide to be committed. It is nonetheless important to define genocide in a work such as this since most such acts are committed in conflict situations.

The definition of genocide includes a list of acts, i.e. “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group”. However, committing one of these acts is not enough for it to be deemed genocide.

The specific nature of the crime of genocide lies in the specific intention (dolus specialis) underlying its perpetration. The acts committed may, in fact, be “straightforward” killings, acts of torture, rape or crimes against humanity, for example, but their distinctive feature is that the specific intention of the perpetrators is not to kill or ill-treat one or more individuals but to annihilate the group to which those individuals belong. It is thus that intention which distinguishes genocide from murder and crimes against humanity.

The specific character of the crime of genocide does not therefore lie in the nature of the act itself but in the thinking (mens rea) behind its perpetration. That thinking is the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The different elements that go together to make up this definition deserve to be clarified in greater depth.

The intention cannot be easily identified. It may be deduced from the words or the general behaviour of the perpetrator (for example, insults directed at a particular group), the systematic and methodical manner in which the crimes were committed, the fact that the choice of victims excluded members of other groups, the premeditated nature of the crimes, etc. Thus, when killing someone (for example), the person committing genocide does not desire the death of that individual in particular but rather the destruction of the group “as such” to which that person belongs.

Moreover, the perpetrator’s intention does not necessarily have to be to destroy the whole of the group – the intention to destroy it “in part” is sufficient for the act to be called genocide. Here again, it is not easy to determine what is meant by “intent to destroy in part”. As things stand with regard to case-law interpretations of the definition of genocide, the intent to destroy must be aimed at a substantial part of the targeted group, at a significant part of the group in terms of quantity or quality. It follows that the expression “in part” also implies that genocide may be carried out within a defined geographical area such as a city.

Finally, how the “group” targeted by those committing genocide is determined is also an essential element of the definition. In the current state of customary international law, the categories referred to in the definition must be considered to be exhaustive. Political, economic or other groups of people that may be considered to be “distinct” from the rest of the population cannot be the target of genocide from a legal viewpoint. This is because groups that are not “national, racial, ethnical or religious” are considered to be “unstable” or “fluctuating”. It is true that the composition of the groups referred to in the definition of genocide is not easily determined in every case and that adherence to a political or economic group is probably even more difficult to establish.

Objective and subjective criteria may be used to identify the four groups targeted in the definition. For example, adherence to a religious group may be ascertained through objective factors such as the holding of services. Membership of other groups can mostly be ascertained in a more subjective manner, by virtue of the stigmatization of those groups by “others”, in particular those committing genocide.

It is important to stress that certain types of conduct related to the direct perpetration of acts of genocide are also deemed to be criminal. These are: conspiracy to commit genocide; direct and public incitement to commit genocide; attempted genocide; and complicity in genocide. Thus, for example, an individual may be sentenced for “conspiracy to commit genocide” or for “direct and public incitement to commit genocide” even if no act of genocide has been committed by himself or others. These are distinctive crimes which do not require the incitement or conspiracy to be followed by an actual effect. The implication of these acts is that it is the specific intention of those involved in the incitement or the conspiracy to destroy in whole or in part a group as such. By contrast, complicity in genocide – which may be characterized by giving instructions or by providing the means, aid or assistance to commit genocide – may not be deemed criminal unless the main crime has been committed. The accomplice did not necessarily have to have been motivated by the specific intent to commit genocide. He had to be – or should have been – aware of it.

Those reading these lines will probably be shocked to note the extent to which, coldly and mechanically, the law manages to apply concepts and definitions that may appear to have little to do with the atrocity of genocide itself. This had to be done, however, to achieve the objectives targeted by the Convention on Genocide, i.e. to prevent the crime and universally repress instances of it without making any concessions. The Convention, which is recognized as having customary force[14] and whose obligations are erga omnes in nature, requires all States to punish the crime of genocide. It is indeed essential for the law to be an uncompromising – fair and differentiated – instrument for repressing ordinary crimes, war crimes, crimes against humanity and the crime of genocide. The seriousness of the crime of genocide is such that a precise definition and universal repression were required. That is why the legal concept takes the liberty of putting into words what nonetheless remains absolutely unspeakable.

Cases and Documents

Readings

Suggested reading:

  • AMBOS Kai, “Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts”, in FISCHER Horst (ed.), International and National Prosecution of Crimes Under International Law, Berlin, Berliner Wissenschafts-Verlag, 2001, pp. 769-798.
  • AMBOS Kai, “What Does “Intent to Destroy” in Genocide Mean?”, in IRRC, Vol. 91, No. 876, December 2009, pp. 833-858.
  • BOUSTANY Katia (ed.), Génocide(s), Brussels, Bruylant, 1999, 518 pp.
  • DES FORGES Alison, Leave None to Tell the Story: Genocide in Rwanda, New York, Human Rights Watch, 1999, 789 pp., online: http://www.hrw.org/reports/1999/rwanda.
  • FRONZA Emanuela, “Genocide in the Rome Statute”, in LATTANZI Flavia & SCHABAS William A. (eds), Essays on the Rome Statute of the International Criminal Court, Ripa Fagnano Alto, Sirente, 1999, pp. 105-137.
  • GAETA Paola, The UN Genocide Convention: a Commentary, Oxford, OUP, 2009, 580 pp.
  • JUROVICS Yann & MOULIER Isabelle, “Le génocide: un crime à la croisée des ordres juridiques internes et international”, in DELMAS-MARTY Mireille (dir.), Criminalité économique et atteintes à la dignité de la personne, Paris, Édition de la Maison des Sciences de l’Homme, Vol. VII, 2001, pp. 179-187.
  • LEMKIN Raphaël, Axis Rule in Occupied Europe, Washington, Carnegie Endowment for International Peace, 1944, 674 pp.
  • LEMKIN Raphaël, “Genocide, a New International Crime: Punishment and Prevention” suivi de “Le génocide”, in Revue Internationale de Droit Pénal, 1946, pp. 360-386.
  • LIPPMAN Matthew, “Genocide: The Crime of the Century: The Jurisprudence of Death at the Dawn of the New Millennium”, in Houston Journal of International Law, Vol. 23/3, 2001, pp. 467-535.
  • MARTIN Pierre-Marie, “Le crime de génocide: quelques paradoxes”, in Le Dalloz, 1.176, 31, 2000, pp. 477-481.
  • SCHABAS William A., Genocide in International Law: The Crime of Crimes, Cambridge, CUP,
    2nd ed., 2009, 741 pp.
  • SHAW Martin N., “Genocide and International Law”, in DINSTEIN Yoram (ed.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, Dordrecht, M. Nijhoff, 1989, pp. 797-820.
  • STERN Brigitte, “Le crime de génocide devant la communauté internationale”, in Études, No. 3903, March 1999, pp. 297-307.
  • TERNON Yves, L’État criminel. Les génocides au XXe siècle, Paris, Seuil, 1995, 442 pp.
  • VERHOEVEN Joe, “Le crime de génocide. Originalité et ambiguïté”, in RBDI, Vol. 24/1, 1991, pp. 5-26. “Génocide”, in LA ROSA Anne-Marie, Dictionnaire de droit international pénal – Termes choisis, Paris, PUF, 1998, pp. 46-49.

Further reading:

  • ALONZO-MAIZLISH David, “In Whole or in Part: Group Rights, the Intent Element of Genocide, and the ‘Quantitative Criterion”, in New York University Law Review, Vol. 77/5, 2002, pp. 1369-1403.
  • BERLE Adolf Augustus Jr, “Mise hors la loi du génocide – Examen des objections concernant la ratification de la Convention par les États-Unis”, in Revue internationale de Droit Pénal, Vol. 2, 1950, pp. 147-151.
  • CASSESE Antonio, “La communauté internationale et le génocide”, in Le droit international au service de la paix, de la justice et du développement, Mélanges Michel Virally, Paris, Pedone, 1991, pp. 183-194.
  • DADRIAN Vahakn N., “The Armenian Genocide and the Legal and Political Issues in the Failure to Prevent or to Punish the Crime”, in UWLA Law Review, Vol. 29, 1998, pp. 43-78.
  • DENIKE Howard J. (ed.), Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, Philadelphia, University of Pennsylvania Press, 2000, 559 pp.
  • CHARNY Israel W. (ed.), Le livre noir de l’humanité: encyclopédie mondiale des génocides, Toulouse, Privat, 2001, 718 pp.
  • GREENAWALT Alexander K.A., “Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation”, in Columbia Law Review, Vol. 99/8, 1999, pp. 2259-2294.
  • LAQUEUR Walter (ed.), The Holocaust Encyclopedia, New Haven, Yale University Press, 2001, 765 pp.
  • MAISON Rafaëlle, “Le crime de génocide dans les premiers jugements du Tribunal pénal international pour le Rwanda”, in RGDIP, Vol. 103/1, 1999, pp. 129-145.
  • NTANDA NSEREKO Daniel D., “Genocidal Conflict in Rwanda and the ICTR”, in Netherlands International Law Review, Vol. 48/1, 2001, pp. 31-65.
  • SASSÒLI Marco, “Le génocide rwandais, la justice militaire suisse et le droit international”, in Revue suisse de droit international et de droit européen, Vol. 12, 2002, pp. 151-178.
  • SCHABAS William, “The Crime of Genocide in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda”, in FISCHER Horst (ed.), International and National Prosecution of Crimes Under International Law, Berlin, Berliner Wissenschafts-Verlag, 2001, pp. 769-798.
  • SCHABAS William A., “Hate Speech in Rwanda: The Road to Genocide”, in McGill Law Journal, Vol. 46/1, 2000, pp. 141-171.
  • THWAITES Nadine L.C., “Le concept de génocide dans la jurisprudence du TPIY : avancées et ambiguïtés”, in RBDI, Vol. 30/2, 1997, pp. 565-606.
  • VAN DER VYVER Johan David, “Prosecution and Punishment of the Crime of Genocide”, in Fordham International Law Journal, Vol. 23/2, 1999, pp. 286-356.
  • VERDIRAME Guglielmo, “The Genocide Definition in the Jurisprudence of the ad hoc Tribunals”, in ICLQ, Vol. 49/3, 2000, pp. 578-598.
  • VETLESEN Arne J., “Genocide: A Case for the Responsibility of Bystander”, in Journal of Peace Research, Vol. 37/4, 2000, pp. 519-532.
  • ZAKR Nasser, “Analyse spécifique du crime de génocide dans le Tribunal pénal international pour le Rwanda”, in Revue de Science Criminelle et de Droit Pénal Comparé, No. 2, April-June 2001, p. 263-275.

 Footnotes

II. Participation in war crimes

  1.  Participation, complicity and instigation

Cases and Documents

Readings

Suggested reading:

  • DARCY Shane, Collective Responsibility and Accountability Under International Law, Leiden, Transnational Publishers, 2007, 398 pp.
  • SASSÒLI Marco & OLSON Laura M., “The Decision of the ICTY Appeals Chamber in the Tadic Case: New Horizons for International Humanitarian and Criminal Law?”, in IRRC, No. 839, September 2000, pp. 733-769.
  • SCHABAS William A., “Enforcing International Humanitarian Law: Catching the Accomplices”, in IRRC, No. 842, June 2001, pp. 439-459.

Further reading on the criminal responsability of private companies:

  • CLAPHAM Andrew, “Extending International Criminal Law Beyond the Individual to Corporations and Armed Opposition Groups”, in Journal of International Criminal Justice, Vol. 6, No. 5, November 2008, pp. 899-926.
  • JACOBSON Kyle Rex, “Doing Business with the Devil: the Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes against Humanity”, in The Air Force Law Review, 56, pp. 167-231.
  • MONGELARD Eric, “Corporate Civil Liability for Violations of International Humanitarian Law”, in IRRC, Vol. 88, No. 863, September 2006, pp. 665-691.
  • STEWART James G., Corporate War Crimes, Prosecuting Pillage of Natural Resources, New York, Open Society Foundations, October 2010, 157 pp.
  1.  Command responsibility
    P I, Arts 86(2) and 87(3) [CIHL, Rules 152 and 153]

Cases and Documents

Readings

Suggested reading:

  • BANTEKAS Ilias, “The Interests of States Versus the Doctrine of Superior Responsibility”, in IRRC, No. 838, June 2000, p.391-402.
  • BANTEKAS Ilias, “The Contemporary Law of Superior Responsibility”, in AJIL, No. 93/3, 1999, pp. 573-595.
  • BURNETT Weston D., “Contemporary International Legal Issues – Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra”, in Military Law Review, 1985, pp. 71-189.
  • CHING Ann B., “Evolution of the Command Responsibility Doctrine in Light of the Celebici Decision of the International Criminal Tribunal for the Former Yugoslavia”, in North Carolina Journal of International Law and Commercial Regulation, Vol. 25/1, 1999, pp. 167-205.
  • FERIA-TINTA Monica, “Commanders on Trial: The Blaskic Case and the Doctrine of Command Responsibility under International Law”, in Netherlands International Law Review, Vol. 47/3, 2000, pp. 293-322.
  • GARRAWAY Charles, “Responsibility of Command – A poisoned Chalice?”, in ARNOLD Roberta & HILBRAND Pierre-Antoine (eds), International Humanitarian Law and the 21st Century’s Conflicts – Changes and Challenges, Lausanne, Editions Universitaires suisses, 2005, pp. 117-138.
  • HENZELIN Marc, “Les ‘raisons de savoir’ du supérieur hiérarchique qu’un crime va être commis ou a été commis par un subordonné. Examen de la jurisprudence des Tribunaux pénaux internationaux pour l’ex-Yougoslavie et le Rwanda”, in TAVERNIER Paul, Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour pénale internationale, Brussels, Bruylant, 2004, pp. 108-125.
  • JIA Bing Bing, “The Doctrine of Command Responsibility in International Law: With Emphasis on Liability for Failure to Punish”, in Netherlands International Law Review, Vol. 45/3, 1998, pp. 325-347.
  • LAUCCI Cyril, “La responsabilité pénale des détenteurs de l’autorité: étude de la jurisprudence récente des tribunaux pénaux internationaux”, in L’observateur des Nations Unies, Vol. 6, 1999, pp. 142-165.
  • LAVIOLETTE Nicole, “Commanding Rape: Sexual Violence, Command Responsibility, and the Prosecution of Superiors by the International Criminal Tribunals for the former Yugoslavia and Rwanda”, in CYIL, Vol. 36, 1998, pp. 93-149.
  • LEVIE Howard S., “Command Responsibility”, in Journal of Legal Studies, Vol. 8, 1997-98, pp. 1-18.
  • LIBBY Sean, “Deffective [Effective] Control: Problems Arising from the Application of Non-Military Command Responsibility by the International Criminal Tribunal for Rwanda”, in Emory International Law Review, Vol. 23, No. 1, 2009, pp. 201-230.
  • LIPPMAN Matthew, “The Evolution and Scope of Command Responsibility”, in Leiden Journal of International Law, Vol.13/1, 2000, pp. 139-170.
  • MELONI Chantal, Command Responsibility in International Criminal Law, The Hague, TMC Asser press, 2010, 269 pp.
  • METTRAUX Guénaël, The Law of Command Responsibility, Oxford, OUP, 2009, 307 pp.
  • MITCHELL Andrew D., “Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes”, in The Sydney Law Review, Vol. 22/3, 2000, pp. 381-410.
  • OLASOLO Héctor, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes, Oxford, Portland, Hart, Studies in International and Comparative Criminal Law, Vol. 4,  2009, 354 pp. 
  • SAROOSHI Danesh, “Command Responsibility and the Blaskic Case”, in ICLQ, Vol.50/2, 2001, pp. 452-465.
  • VETTER Greg R., “Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC)”, in The Yale Journal of International Law, Vol. 25/1, 2000, pp. 89-143.
  • ZAKR Nasser, “La responsabilité du supérieur hiérarchique devant les tribunaux pénaux internationaux”, in Revue Internationale de Droit Pénal, Vol. 73, 2002, pp. 59-80.

Further reading:

  • BOURGON Stéphane, “La doctrine de la responsabilité du commandement et la notion de lien de subordination devant le tribunal pénal international pour l’ex-Yougoslavie”, in Revue québécoise de droit international, Vol. 19, hors-série 2007, pp. 95-118.
  • DUNGEL Joakim & SAUTENET Vincent, “Recent Clarifications of Superior Responsibility by International Criminal Tribunals”, in The Global Community Yearbook of International Law and Jurisprudence 2008, Vol. I, 2008, pp. 257-265.
  • KNOOPS Geert-Jan Alexander, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities”, in International Criminal Law Review, Vol. 9, No. 3, 2009, pp. 501-529.
  • RONEN Yaël, “Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings”, in Vanderbilt Journal or International Law, Vol. 43, 2010, pp. 313-356.
  • WILLIAMSON Jamie A., “Some Considerations on Command Responsibility and Criminal Liability”, in IRRC, Vol. 90, No. 870, June 2008, pp. 303-317.

III . Defences

Introductory text

International criminal law, as it has developed to date, allows an individual accused of a crime to draw on every legal and de facto means available to present a full and complete defence. However, as international criminal justice has evolved, certain defences have sometimes been completely ruled out and sometimes simply restricted.

For example, contrary to what is applied at the national level in most States, justifying an act on the grounds that it was prescribed by the law of the land is something that has no application in international criminal law. And it should be recalled that the Nuremberg Tribunal deemed criminal the programme of euthanasia legally established under the Nazi regime in the Nacht und Nebel decree. Nor does the official position of the accused – even if he acted as head of State or government – relieve him of responsibility or constitute grounds for reducing the punishment.[15] By the same token, international criminal law holds that the fact that a crime has been committed by a subordinate does not exonerate his superiors if they knew or had reason to know that the subordinate was committing or was going to commit a crime and did not try to prevent him from doing so. This rule was not set out in the Charter of the Nuremberg Tribunal. However, it was subsequently reflected in various post-World War II decisions.[16]  We should note that a commander incurs criminal responsibility for failing to act only if there is actually a legal obligation to act. The duty of commanders vis-à-vis their subordinates is stipulated in Art. 87 of Protocol I, whereas Art. 86 stipulates the criminal responsibility of commanders who have failed to fulfil their duty.[17]

The acceptability of a defence based on superior orders seems less clear. This defence consists of arguing that the accused was obeying orders issued by a government or a superior. Historically, some have considered it a valid defence while others have considered it to be a mitigating circumstance, or both. The Charter of the Nuremberg Tribunal explicitly ruled it out as a valid defence but allowed it to be a mitigating circumstance.[18] However, the Nuremberg Tribunal refused to enforce that rule and to take account of superior orders when deciding the sentence. More recently, the decisions regarding Eichmann[19] and Barbie[20] confirmed the rule. Until quite recently, the fact that orders were given by a hierarchical superior was therefore systematically ruled out as a defence. This was demonstrated by the Allied Control Council Law No. 10 (Art. II.4[b]), the Statute of the International Military Tribunal in Tokyo (Art. 6), the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 2[3]), the various versions of the Draft Code of Crimes against Peace and the Security of Humanity (Art. 5) and, more recently, the Statutes of the International Criminal Tribunal for Rwanda (ICTR, Art. 6(3)) and the International Criminal Tribunal for the former Yugoslavia (ICTY, Art. 7(4)). The adoption of the Statute of the International Criminal Court (ICC) has perhaps changed matters. The Statute allows a defendant to cite superior orders in his defence on three conditions: that the subordinate was under a legal obligation to obey the order, that he did not know that the order was unlawful and that the order was not obviously unlawful.[21] A priori that restriction suggests that a defence of this kind will not easily pass the acceptability test. What is more, the ICC Statute limits the presentation of such a defence all the more since an order to commit genocide or a crime against humanity is obviously unlawful.[22]
The ICC Statute allows other defences: mental defect, illness,[23] a state of intoxication depriving the person of the ability to appreciate the criminal nature of his conduct,[24] a state of distress,[25] and irresistible duress.[26]

A defence based on duress has frequently been associated with a defence citing superior orders. However, a defence based on duress has its own definition and consequently an independent application. In fact, the difference is to be found in particular at the level of whether or not a moral choice was available. A soldier who is ordered to set off a bomb in a hospital is not morally obliged to carry out the order and can decide whether to follow it or not. By contrast, if the soldier in question carries out the order to avoid being exposed to a direct threat to his life or other serious consequences, this is a case of duress. Although the ICTY decided by three votes to two that the duress-based defence was not grounds for exoneration in the case of crimes against humanity or war crimes,[27] the ICC Statute stipulates that duress may justify relieving the individual of criminal responsibility.[28] Thus, when the actual will of an individual is worn down or destroyed completely by a situation, this will be deemed a case of irresistible duress and thus grounds for lifting criminal responsibility.

Finally, it should be pointed out that the ICC Statute places self-defence among the valid grounds for release from criminal responsibility. That defence must obviously meet certain criteria: the person must have used force with the intention of defending himself or of defending another person against an imminent and unlawful use of force and that defending force must be proportionate to the degree of danger. As regards war crimes, the Statute indicates that this applies to defending not only persons but also items essential to survival or to the accomplishment of a military mission. The provision fortunately stipulates that, to use this defence, it is not sufficient for an operation to be carried out as self-defence in the sense of jus ad bellum. Even given this restriction, it is difficult to imagine the circumstances in which that defence could actually be advanced to justify a war crime (and even less how it could justify genocide or a crime against humanity). Indeed, using force against a person who illegally resorts to force is not even prohibited under IHL. If the person is a civilian, he or she will cease to enjoy protection against attacks,[29] and if the person is a combatant violating IHL, even a civilian can resist that person in order to defend himself without it being deemed to constitute unlawful involvement in hostilities. In neither case is the act prohibited by IHL, and there is thus no need to invoke self-defence to justify it.

Cases and Documents

Readings

Suggested reading:

  • ESER Albin, “Defences in War Crimes”, in IYHR, Vol. 24, 1994, pp. 201-234.
  • GALAND Renaud & DELOOZ François, “L’article 31, par. 1 c) du Statut de la Cour pénale internationale : une remise en cause des acquis du droit international humanitaire ?”, in IRRC, No. 842, June 2001, pp. 533-538.
  • KNOOPS Geert-Jan, Defenses in Contemporary International Law, Ardsley NY, Transnational Publishers, 2001, 287 pp.
  • ROWE Peter, “Duress as a Defence to War Crimes after Erdemovic: A Laboratory for a Permanent Court?”, in YIHL, Vol. 1, 1998, pp. 210-228.
  • SHAHABUDDEEN Mohamed, “Duress in International Humanitarian Law”, in ARMAS BAREA Calixto A. (ed.), Liber amicorum ‘in memoriam’ of Judge José Mariá Ruda, The Hague, Kluwer Law International, 2000, pp. 563-574.
  • “Atelier sur l’article 31, par. 1 c) du Statut de la Cour pénale internationale, coordonné par Éric DAVID”, in RBDI, 2000-2, pp. 355-488.
  1.  Self-defence?

Cases and Documents

Readings

Suggested reading:

  • CASSESE Antonio, “Under What Conditions May Belligerents Be Acquitted of the Crime of Attacking an Ambulance?”, in Journal of International Criminal Justice, Vol. 6, No. 2, 2008, pp. 385-397.
  • GALAND Renaud & DELOOZ François, “L’article 31, par. 1 c) du Statut de la Cour pénale internationale: une remise en cause des acquis du droit international humanitaire?”, in IRRC, No. 842, June 2001, pp. 533-538.
  1.  Superior orders?
    [CIHL, Rules 154 and 155]

Cases and Documents

Readings

Suggested reading:

  • ANDRIES André, “Les limites de la force exécutoire de l’ordre supérieur en droit militaire belge”, in RDMDG, Vol. 8/1, 1969, pp. 79-142.
  • DAVID Éric, “L’excuse de l’ordre supérieur et l’état de nécessité”, in RBDI, 1978-79, pp. 65-84.
  • DUFOUR Geneviève, “La défense d’ordres supérieurs existe-t-elle vraiment?”, in IRRC, No. 840, December 2000, pp. 969-992.
  • GAETA Paola, “The Defense of Superior Order: The Statute of the International Criminal Court versus Customary International Law”, in EJIL, Vol. 10, 1999, pp. 172-191.
  • GARRAWAY Charles, “Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied?”, in IRRC, No. 836, December 1999, pp. 785-794.
  • GREEN Leslie C., Superior Orders in National and International Law, Leyden, A.W. Sijthoff, 1976, 374 pp.
  • STAKER Christopher, “Defence of Superior Orders Revisited”, in Australian Law Journal, Vol. 79, 2005, pp. 431-447.
  • VERHAEGEN Jacques, “Le refus d’obéissance aux ordres manifestement criminels”, in IRRC, No. 845, March 2002, pp. 35-50.

Further reading:

  • AUBERT Maurice, “The Question of Superior Orders and the Responsibility of Commanding Officers in the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977”, in IRRC, Vol. 28, No. 263, 1988, pp. 105-120.
  • OSIEL Mark, Obeying Orders: Atrocity, Military Discipline, and the Law of War, London, Transaction Publishers, 1999, 398 pp.
  1.  Defence of necessity?

Cases and Documents

Readings

Suggested reading:

  • DAVID Éric, “L’excuse de l’ordre supérieur et l’état de nécessité”, in RBDI, 1978-79,
    pp. 65-84.
  • DUBOIS Olivier, “Le droit pénal des conflits armés et la théorie de la nécessité”, in Annuaire de Droit de Louvain, 1995, pp. 95-112.
  • DUNBAR N.C.H., “Military Necessity in War Crimes Trials”, in BYIL, Vol. 29, 1952, pp. 442-452.

 Footnotes

IV. The prosecution of war crimes

  1.  The universal obligation to repress grave breaches
    GC I-IV, Arts 49/50/129/146 respectively; P I, Art. 85(1) [CIHL, Rules 157 and 158]

Cases and Documents

Readings

Suggested reading:

  • D’ARGENT Pierre, “La loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire”, in Journal des Tribunaux, Brussels, Vol. 118, No. 5935, 1999, pp. 549-555.
  • DINSTEIN Yoram, “The Universality Principle and War Crimes”, in International Law Studies, US Naval War College, Vol. 71, 1998, pp. 17-37.
  • FERDINANDUSSE Ward, “The Prosecution of Grave Breaches in National Courts”, in Journal of International Criminal Justice, Vol. 7, No. 4, September 2009, pp. 723-741.
  • HENZELIN Marc, Le principe de l’universalité en droit pénal international, Droit et obligation pour les États de poursuivre et juger selon le principe de l’universalité, Geneva/Brussels, Helbing & Lichtenhahn/Bruylant, 2000, 527 pp.
  • HENZELIN Marc, “La compétence pénale universelle. Une question non résolue par l’arrêt Yerodia”, in RGDIP, No. 4, October-December 2002, pp. 819-854.
  • KEIJZER Nico, “War Crimes and their Prosecution in National Legal Systems”, in RDMDG, Vol. 38/1-4, 1999, pp. 411-429.
  • KISSINGER Henry A., “The Pitfalls of Universal Jurisdiction”, in Foreign Affairs, Vol. 80/4, 2001, pp. 86-96.
  • MERON Theodor, “Reflections on the Prosecution of War Crimes by International Tribunals”, in American Journal of International Law, Vol. 100, No. 3, pp. 551-579.
  • O’KEEFE Roger, “Universal Jurisdiction: Clarifying the Basic Concept”, in Journal of International Criminal Justice, Vol. 2, Issue 3, 2004, pp. 735-760.
  • ORENTLICHER Diane F., “Responsibilities of States Participating in Multilateral Operations with Respect to Persons Indicted for War Crimes”, in JOYNER Christopher C. (ed.), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights, Toulouse, Erès, 1998, pp. 193-206.
  • OSIEL Mark, “Why Prosecute? Critics of Punishment for Mass Atrocity”, in Human Rights Quarterly, Vol. 22/1, 2000, pp. 118-147.
  • STERN Brigitte, “À propos de la compétence universelle”, in YAKPO Émile (ed.), Liber amicorum Judge Mohammed Bedjaoui, The Hague, Kluwer Law International, 1999, pp. 735-753.
  • PHILIPPE Xavier, “The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?”, in IRRC, Vol. 88, No. 862, June 2006, pp. 375-398. 
  • ROULOT Jean-François, “La répression des crimes contre l’humanité par les juridictions criminelles en France : une répression nationale d’un crime international”, in Revue de Science Criminelle et de Droit Pénal Comparé, Vol. 3, 1999, pp. 545-562.
  • RYNGAERT Cedric, “Universal Jurisdiction over Violations of International Humanitarian Law in Germany”, in Revue de droit militaire et de droit de la guerre = The military Law and the Law of War Review, 47, 3-4, 2008, pp. 377-399.
  • VAN DER VYVER David, “Universal Jurisdiction in International Criminal Law”, in South African Yearbook of International Law, Vol. 24, 1999, pp. 107-132.
  • VANDERMEERSCH Damien, “Quel avenir pour la compétence universelle des juridictions belges en matière de crime de droit international humanitaire”, in Revue pénitentiaire et de droit pénal, Paris, Cujas, 2003, pp. 229-248.
  • VANDERMEERSCH Damien, “Le principe de compétence universelle à la lumière de l’expérience belge : le mouvement de balancier”, in RUDETZKI Françoise (ed.), Terrorisme, victimes et responsabilité pénale internationale, Paris, Calmann-Levy, 2003, pp. 463-474.
  • VANDERMEERSCH Damien, “Prosecuting International Crimes in Belgium”, Journal of International Criminal Justice, Vol. 3, 2005, pp. 400-421.
  • VAN ELST Richard, “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions”, in Leiden Journal of International Law, Vol. 15, 2000, pp. 815-854.

aa) relation to amnesty


[CIHL, Rule 159]

Cases and Documents

Readings

Suggested reading:

  • BOED Roman, “The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations”, in Cornell International Law Journal, Vol. 33/2, 2000, pp. 297-329.
  • DUGARD John, “Dealing with Crimes of Past Regime. Is Amnesty Still an Option?”, in Leiden Journal of International Law, Vol. 12/4, 1999, pp. 1001-1015.
  • GAVRON Jessica, “Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court”, in ICLQ, Vol. 51/1, 2002, pp. 91-117.
  • MEINTJES Garth & MÉNDEZ Juan E., “Reconciling Amnesties with Universal Jurisdiction”, in International Law Forum, Vol. 2/2, 2000, pp. 76-97.

bb) no statutory limitations
[CIHL, Rule 160]

Cases and Documents

Readings

Suggested reading:

  • LAQUIÈZE Alain, “Le débat de 1964 sur l’imprescriptibilité des crimes contre l’humanité”, in Droits, Vol. 31, 2000, pp. 19-40.

cc) link with international immunities

Cases and Documents

Readings

Suggested reading:

  • FRULLI Micaela, “The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities?”, in Journal of International Criminal Justice, Vol. 2, 2004, pp. 1118-1129.
  • SASSÒLI Marco, “L’arrêt Yerodia: quelques remarques sur une affaire au point de collision entre les deux couches du droit international”, in RGDIP, No. 4, October-December 2002, pp. 789-818.
  1.  Mutual assistance in criminal matters
    P I, Art. 88 [CIHL, Rule 161]

Cases and Documents

  1.  Judicial guarantees for all those accused of war crimes
    GC I-IV, Arts 49(4), 50(4), 129(4) and 146(4) respectively; GC III, Arts 105-108; P I, 75(7)

Cases and Documents

Readings

Suggested reading:

  • SCALIA Damien, “A Few Thoughts on Guaranties Inherent to the Rule of Law as Applied to Sanctions and the Prosecution and Punishment of War Crimes”, in IRRC, Vol. 90, No. 870, June 2008, pp. 343-357.

V. The international criminal courts

Introductory text

IHL requires that war crimes be prosecuted, and this may be done independently of the existence of international criminal courts. In reality, however, IHL provisions on the prosecution of war crimes were largely ignored until 1990. The armed conflicts in the former Yugoslavia, with their range of systematic atrocities, brought about a radical change in that respect. The international community felt duty-bound to respond. It established the ICTY through the sole emergency procedure known to current international law: a Security Council resolution.[30] Once the ICTY had been set up, the double standard would have been too obvious if a similar tribunal, the ICTR, had not been set up following the armed conflict and the genocide that took hundreds of thousands of lives in Rwanda.[31] There is certainly room for doubt about the way in which those ad hoc international criminal tribunals were set up. However, if steps had been taken to establish them according to the traditional method of constituting new international institutions – by means of a convention – the world would still be waiting for them to come into existence. And without those ad hoc tribunals, which served as precursors, the ICC Statute would probably not yet have been adopted.

The ICTY has the authority to take cognizance of acts of genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war. The concept of grave breaches is set out in the Geneva Conventions and therefore applies only to international armed conflicts. Surprisingly, the ICTY Statute does not mention grave breaches of Protocol I, despite the fact that the former Yugoslavia and its successor States were parties thereto. It should be recalled that the Protocol expands the concept of grave breaches to many violations of the rules governing the conduct of hostilities, which it brought up to date. The ICTY, however, plugged the gaps as far as non-international armed conflicts and the conduct of hostilities were concerned by applying a broad interpretation to the concept of “violations of the laws or customs of war”.[32]

For its part, the ICTR has the authority to take cognizance of acts of genocide, crimes against humanity and serious violations of Art. 3 common to the Conventions and of Protocol II. The concept of “serious violations” is different from that of “grave breaches”. The latter applies only in international armed conflicts, whereas the conflict in Rwanda was not international. It was the first explicit reference, in an international document, to the fact that violations of IHL committed during non-international armed conflicts may constitute international crimes.

The ICTY has authority with regard to any person who has committed one of the crimes listed in its Statute on the territory of the former Yugoslavia since 1991. It therefore remains authorized to deal with the crimes that were committed and are still being committed in Kosovo. By contrast, the ICTR is authorized only to deal with crimes committed during 1994 in Rwanda or by Rwandan citizens in the territory of neighbouring States.

All tribunals develop and refine the law they apply. In so doing, they demonstrate the realism of that law and heighten its credibility. In that respect, the ICTY and the ICTR have exceeded all expectations. In a short space of time they have inter alia: considerably developed the law of non-international conflicts; modified the distinction between international and non-international armed conflicts; redefined the concept of protected persons; made more explicit the active and passive scope of application of IHL; built up and coordinated the foundations of general principles of international criminal law and clarified the concepts of genocide and crimes against humanity. ICTY and ICTR case law may well be criticized from many points of view, but it has given a remarkable boost to IHL, which is now referred to daily by defence lawyers and public prosecutors, discussed in learned articles and finally forms the basis for well-reasoned verdicts.

The ICC Statute – the successful outcome of more than 50 years of effort – was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002, having been ratified by 60 States.[33] As a treaty, it is binding only on the States party to it and persons under their jurisdiction. The Court is authorized to deal with genocide, crimes against humanity, war crimes and aggression.

In international armed conflicts, all grave breaches of the Geneva Conventions fall within the jurisdiction of the Court.[34] Conversely, Protocol I is not mentioned and the other serious violations of the law of international armed conflicts listed by the ICC Statute do not cover all the grave breaches defined by Protocol I. For example, the Statute makes no reference to unjustified delays in repatriating prisoners of war and civilians. On the other hand, it stipulates that rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization are war crimes.[35] Moreover, the Statute defines the enlistment of children under 15 years of age and forcing them to participate actively in the hostilities as war crimes.[36] The rules concerning the use of certain weapons are limited to uncontroversial cases, such as chemical weapons.[37] States were opposed to referring to nuclear weapons, biological weapons and laser weapons and have relegated the definition of weapons likely to cause superfluous injury to a list which has yet to be drawn up by the States Parties.[38] As far as non-international armed conflicts are concerned, the ICC Statute represents spectacular progress in terms of IHL. It is the first treaty to contain a detailed list of war crimes in those situations and confirms once and for all that the concept of war crimes also applies to internal conflicts. The list covers serious violations of Art. 3 common to the Conventions[39] as well as a large number of other violations, including crimes committed on the battlefield.[40]

The Court may exercise its authority vis-à-vis the States Parties without having to obtain consent for each case of application. If the State on whose territory the acts or omissions being prosecuted took place or the State of which the person accused of a crime is a national is bound by the Statute or recognizes the authority of the ICC, the ICC may exercise its jurisdiction.[41] It is therefore not always necessary to obtain the consent of the State of which the accused is a national. That is also the case when the Security Council refers a situation to the ICC by means of a resolution adopted in application of Chapter VII of the UN Charter.[42] Conversely, the Security Council may also ask, through such a resolution, that no inquiry be opened and proceedings be deferred for a renewable period of 12 months.[43] In a final provision, which we consider regrettable, the Statute stipulates that a State which becomes party to it may declare that, for a period of seven years from the entry into force of the text, it does not accept the Court’s jurisdiction with respect to war crimes when it is alleged that those crimes have been committed on its territory or by its nationals.[44] Thus, even the international crimes most firmly established in current treaty law may evade the authority of the ICC for seven years.

Only the Prosecutor, who is elected by the States Parties, may refer a specific case to the Court. Situations may be referred to the Prosecutor by any State Party and by the Security Council, but the Prosecutor may also open enquiries on his or her own initiative.[45] In the latter case, the Prosecutor must, however, present a request for authorization to the Pre-Trial Chamber. If the Chamber decides to authorize the opening of an enquiry, or if a State has referred a matter to the Prosecutor and he intends to conduct the enquiry, the Prosecutor must notify all the States Parties aswell as the other States concerned. If one of those States informs the Prosecutor that proceedings concerning the matter in question are already under way at the national level, the Prosecutor must place the proceedings under the authority of the State concerned, unless the ICC Pre-Trial Chamber authorizes him to continue the enquiry himself. There may be serious doubts about whether, on the one hand, that procedure contributes to the efficacy of the prosecutions and, on the other, whether it means that the right of the accused to have his case heard within a reasonable time can be respected. However, it does reflect the States’ fears of any jurisdiction which might judge the conduct of their agents independently of their wishes.

One of the outstanding features of the ICC Statute is that it codifies – for the first time in a treaty whose framers intended it to be universal – the general part of international criminal law.[46] It succeeds in bringing together the general principles of criminal law existing in the world’s various legal systems and those deriving from the instruments of International Human Rights Law.

In the traditional view of international law, even when certain individual acts had been declared international crimes, the obligation or the right to prosecute the perpetrators used to be the task of one, several or all the States. The State was thus a vital intermediary between the rule of international law and the individual who had violated that law. It was only with the establishment of international criminal courts that this veil was lifted and the responsibility of the individual before international law and the international community became visible. These courts are therefore the most obvious manifestations of that new layer of international law – which superimposes itself on traditional international law governing the coexistence of and cooperation between States, but without replacing it – namely, the internal law of the international community of more than six billion human beings. Compared with the typical response to violations from the traditional layer – sanctions – criminal trials have obvious advantages: they are governed by law and do not depend on the good intentions of States; they are set in train in a regular, formalized procedure which is the same for everyone; they are not subject to veto and are influenced far less by political considerations than Security Council resolutions, the only body of international society empowered to decree sanctions; they are directed against the guilty individuals and do not affect innocent individuals, as military or economic sanctions inevitably do.

Despite all this, internal jurisdictions will retain a key role in the prosecution of war crimes – even when the ICC functions effectively and is empowered to deal with every situation in which international crimes are committed. First, that role will be quantitative, as international justice will never be able to cope with the hundreds of thousands of crimes which, unfortunately, blemish every major conflict. It will be able only to select a few specific, symbolic cases in order to put a stop to impunity. All the rest must be dealt with by national systems. Moreover, a policy of international criminal law and defence of international society implemented by the international judicial bodies alone would run counter to the principle of subsidiarity and would require disproportionate funds. The role of national justice will also be qualitative, however. Just as in each country the rule of law and its credibility depend on the quality, the independence and the effectiveness of the courts of first instance, international justice will continue to depend on national courts. Without them, the international courts will at most function as a fig leaf when it comes to war criminals. For those reasons, the existence of international courts should under no circumstances discourage the States, their prosecutors and their courts from fulfilling their obligations with regard to war crimes.

In conclusion, war crimes and the obligation to prosecute them already existed before international courts were set up. However, those courts constitute an institution for the implementation of the existing rules and have therefore ensured that those rules become reality. As in so many other areas, setting up an institution, and paying its staff for the sole purpose of dealing with a problem is an important step toward finding a solution, but not sufficient in itself. Until recently, international criminal courts existed for only two of the many situations requiring them. Those two ad hoc courts represented a vital initial step. Once the ICC Statute has been universally accepted, other steps will follow. The very credibility of international justice depends on this because justice which is not the same for everyone is not justice.

Readings

Suggested reading:

  • AKHAVAN Payam, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities”, in AJIL, Vol. 95/1, 2001, pp. 7-31.
  • AKSAR Yusuf, Implementing International Humanitarian Law: From the Ad-Hoc Tribunals to a Permanent International Criminal Court, London/New York, Routledge, 2004, 314 pp.
  • CASSESE Antonio & DELMAS-MARTY Mireille (dir.), Crimes internationaux et juridictions internationales, Paris, PUF, 2002, 267 pp.
  • CHUTER David, War Crimes: Confronting Atrocity in the Modern World, London, Lynne Riener, 2003, 299 pp.
  • ICRC, “Special Issue: International Criminal Tribunals”, in IRRC, Vol. 88, No. 861, March 2006, 215 pp.
  • LA ROSA Anne-Marie, Juridictions pénales internationales. La procédure et la preuve, Paris, PUF, 2003, 508 pp.
  • SASSÒLI Marco, “Le mandat des tribunaux internationaux en cas de violations du droit international humanitaire”, in ASSAF Georges (ed.), Droit international humanitaire et droits de l’homme: vers une nouvelle approche, Beyrouth, 2000, pp. 99-111.

Further reading:

  • OLASOLO Héctor, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, Leiden, M. Nijhoff, 2008, 288 pp.
  • WUERZNER Carolin “Mission Impossible?: Bringing Charges for the Crime of Attacking Civilians or Civilian Objects Before the International Criminal Tribunals”, in IRRC, Vol. 90, No. 872, December 2008, pp. 907-930.
  1.  the establishment of ad hoc tribunals

Cases and Documents

Readings

Suggested reading:

  • ACKERMAN John E. & O’SULLIVAN Eugene, Practice and Procedure of the International Criminal Tribunal for the Former Yugoslavia: With Selected Materials from the International Criminal Tribunal for Rwanda, The Hague, Kluwer Law International, 2000, 555 pp.

Suggested reading - Reviews of case law:

  • ASCENSIO Hervé & MAISON Rafaëlle, “L’activité des Tribunaux pénaux internationaux pour l’ex-Yougoslavie (1995-1997) et pour le Rwanda (1994-1997)”, in AFDI, Vol. 43, 1997, pp. 368-402.
  • ASCENSIO [etc.], “L’activité des tribunaux pénaux internationaux (1998)”, in AFDI, Vol. 44, 1998, pp. 370-411.
  • ASCENSIO [etc.], “L’activité des tribunaux pénaux internationaux (1999)”, in AFDI, Vol. 45, 1999, pp. 472-514.
  • ASCENSIO [etc.], “L’activité des tribunaux pénaux internationaux (2000)”, in AFDI, Vol. 46, 2000, pp. 285-325.
  • ASCENSIO [etc.], “L’activité des tribunaux pénaux internationaux (2001)”, in AFDI, Vol. 47, 2001, pp. 241-282.
  • ASCENSIO [etc.], “L’activité des tribunaux pénaux internationaux (2002)”, in AFDI, Vol. 48, 2002, pp. 381-406.
  • “Current Developments at the ad hoc International Criminal Tribunals”, in Journal of International Criminal Justice, Vol. 1, No. 1, 2003, pp. 197-225 / Vol. 1, No. 2, 2003, pp. 520-554 / Vol. 1, No. 3, 2003, pp. 703-727 / Vol. 2, No. 2, 2004, pp. 642-698 / Vol. 2, No. 3, 2004, pp. 879-909 / Vol. 3, No. 1, 2005, pp. 268-295 / Vol. 3, No. 2, 2005, pp. 485-513 / Vol. 4, No. 3, 2006, pp. 623-658 / Vol. 5, No. 2, 2007, pp. 544-580 / Vol. 5, No. 5, 2007, pp. 1175-1214 / Vol. 6, No. 3, 2008, pp. 569-607 / Vol. 6, No. 5, 2008, pp. 1091-1123 / Vol. 7, No. 2, 2009, pp. 397-438 / Vol. 7, No. 5, 2009, pp. 1153-1196 / Vol. 8, No. 2, 2010, pp. 649-693 / Vol. 8, No. 5, 2010, pp. 1333-1380.
  • TAVERNIER Paul, “The Experience of the International Criminal Tribunal for the Former Yugoslavia and for Rwanda”, in IRRC, No. 321, November-December 1997, pp. 605-621.

Further reading:

  • ABI-SAAB Georges, “International Criminal Tribunals and the Development of International Humanitarian and Human Rights Law”, in YAKPO Émile (ed.), Liber Amicorum Judge Mohammed Bedjaoui, The Hague, M. Nijhoff, 1999, pp. 649-658.
  • JONES John R.W.D., The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, Transnational Publishers, 1998, 376 pp.
  • LAUCCI Cyril, “Juger et faire juger les auteurs de violations graves du droit international humanitaire – Réflexions sur la mission des Tribunaux pénaux internationaux et les moyens de l’accomplir”, in IRRC, No. 842, June 2001, pp. 407-439.
aa) the International Criminal Tribunal for the former Yugoslavia (ICTY)

Cases and Documents

Readings

Suggested reading:

  • FENRICK William, “The Development of the Law of Armed Conflict through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, in International Law Studies, US Naval War College, Vol. 71, 1998, pp. 77-118.
  • FENRICK William, “The Application of the Geneva Conventions by the International Criminal Tribunal for the former Yugoslavia”, in IRRC, No. 834, June 1999, pp. 317-329.
  • GREENWOOD Christopher, “The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia”, in Max Planck Yearbook of United Nations Law, Vol.2, 1998, pp. 97-140.
  • MEINDERSMA Christa, “Violations of Common Article 3 of the Geneva Conventions as Violations of the Laws or Customs of War under Article 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia”, in Netherlands International Law Review, Vol. 42/3, 1995, pp. 375-397.
  • MORRIS Virginia & SCHARF Michael P., An Insider’s Guide to the International Criminal Tribunal For the Former Yugoslavia: A Documentary History and Analysis, Transnational Publishers, 2 vols, 1995.
  • MURPHY Sean D., “Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, in AJIL, Vol. 93, 1999, pp. 57-97.
  • QUINTANA Juan José, “Violations of International Humanitarian Law and Measures of Repression: The International Tribunal for the Former Yugoslavia”, in IRRC, No. 300, May-June 1994, pp. 223-239.
  • SASSÒLI Marco, “Le rôle des tribunaux pénaux internationaux dans la répression des crimes de guerre”, in LATTANZI Flavia & SCISO Elena (eds), Dai tribunali penali internazionali ad hoc a una corte permanente, Atti del convegno Roma, 15-16 dicembre 1995, Napoli, 1996, pp. 109-125.
  • WAGNER Natalie, “The Development of the Grave Breaches Regime and of Individual Criminal Responsibility by the International Criminal Tribunal for the Former Yugoslavia”, in IRRC, No. 850, June 2003, pp. 351-383.

Suggested reading - Reviews of case law:

  • BOSTEDT Frédéric P., “The International Criminal Tribunal for the Former Yugoslavia: Judgements in 2005”, in Chinese Journal of International Law, Vol. 5, No. 3, 2006, pp. 683-717.
  • BOSTEDT Frédéric P., “The International Criminal Tribunal for the Former Yugoslavia in 2006: New Developments in International Humanitarian and Criminal Law”, in Chinese Journal of International Law, Vol. 6, No. 2, 2007, pp. 403-439.
  • BOSTEDT Frédéric P. & DUNGEL Joakim, “The International Criminal Tribunal for the Former Yugoslavia in 2007: New Developments in International Humanitarian and Criminal Law”, in Chinese Journal of International Law, Vol. 7, No. 2, 2008, pp. 389-415.
  • CARCANO Andrea, “The International Criminal Tribunal for the former Yugoslavia: Activities in 2003”, in Chinese Journal of International Law, Vol. 3, No. 1, 2004, pp. 267-290.
  • International Criminal Tribunal for the former Yugoslavia, Judicial Supplement, available online at http://www.icty.org.
  • JORGENSEN Nina H.B., “Spotlight on the Work of the International Criminal Tribunal for the Former Yugoslavia in 2002”, in Chinese Journal of International Law, Vol. 2, No. 2, 2003, pp. 365-382.
  • SAUTENET Vincent, “The International Criminal Tribunal for the former Yugoslavia: Activities in 2004”, in Chinese Journal of International Law, Vol. 4, No. 2, November 2005, pp. 515-564.
  • SAUTENET Vincent, “Le Tribunal pénal international pour l’ex-Yougoslavie”, in Revue québécoise de droit international, Vol. 16.2, 2003, pp. 323-362.
  • SAUTENET Vincent, “Le Tribunal pénal international pour l’ex-Yougoslavie”, in Revue québécoise de droit international, Vol.17.1, 2004, pp. 255-279.
  • SOUSSAN Audrey, “Le Tribunal pénal international pour l’ex-Yougoslavie”, in Revue québécoise de droit international, Vol. 16.1, 2003, pp. 199-221.

Further reading:

  • AKHAVAN Payam, “The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond”, in Human Rights Quarterly, Vol. 18/2, 1996, pp. 259-285.
  • SASSÒLI Marco, “La première décision de la chambre d’appel du Tribunal pénal international pour l’ex-Yougoslavie: Tadic (compétence)”, in RGDIP, Vol. 100, 1996, pp. 101-134.
  • SASSÒLI Marco & OLSON Laura M., “The Decision of the ICTY Appeals Chamber in the Tadic Case: New Horizons for International Humanitarian and Criminal Law?”, in IRRC, No. 839, September 2000, pp. 733-769.
bb) the International Criminal Tribunal for Rwanda (ICTR)

Cases and Documents

Readings

Suggested reading:

  • CISSÉ Catherine, “The End of a Culture of Impunity in Rwanda?: Prosecution of Genocide and War Crimes before Rwandan Courts and the International Crimininal Tribunal for Rwanda”, in YIHL, Vol. 1, 1998, pp. 161-188.
  • MORRIS Virginia & SCHARF Michael P., The International Criminal Tribunal for Rwanda, Transnational Publishers, 2 vols., 1998.
  • NIANG Mandiaye, “Le Tribunal pénal international pour le Rwanda. Et si la contumace était possible !”, in RGDIP, Vol. 103/2, 1999, pp. 379-403.
  • THORNTON Brenda Sue, “The International Criminal Tribunal for Rwanda: A Report from the Field”, in Journal of International Affairs, Vol. 52/2, 1999, pp. 639-646.
  • VAN DEN HERIK Larissa Jasmijn, The Contribution of the Rwanda Tribunal to the Development of International Law, The Hague, M. Nijhoff, 2005, 337 pp.
  • WEMBOU DJIENA Michel-Cyr, “The International Criminal Tribunal for Rwanda: Its Role in the African Context”, in IRRC, No. 321, November-December 1997, pp. 685-693.
  • ZAKR Nasser, “La responsabilité pénale individuelle devant le Tribunal pénal international pour le Rwanda”, in Revue de Droit Pénal et de Criminologie, Vol. 1, 2002, pp. 55-74.
  • “International Criminal Tribunal for Rwanda”, in Africa Legal Aid Quarterly, April-June 2001, 38 pp.

Suggested reading - Reviews of case law:

  • ADJOVI Roland & MAZERON Florent, “L’essentiel de la jurisprudence du TPIR depuis sa création jusqu’à septembre 2002”, in Actualité et Droit international, February 2002, http://www.ridi.org/adi.
  • DAVID Éric, KLEIN Pierre & LA ROSA Anne-Marie (eds), Tribunal pénal international pour le Rwanda: recueil des ordonnances, décisions et arrêts 1995-1997, Brussels, Bruylant, 2000, 834 pp., également sur CD-Rom.
  • LAURISTON Maymuchka, DE LOS REYES Charmaine & ADJOVI Roland, “ICTR in 2004 : Three Case Notes”, in Chinese Journal of International Law, Vol. 4, No. 1, 2005, pp. 203-218.
  • LING Yan,  “The Work of the International Criminal Tribunal for Rwanda in 2002”, in Chinese Journal of International Law, Vol. 2, No. 2, 2003, pp. 655-665.
  • LING Yan, “The International Criminal Tribunal for Rwanda: Achievements and Activities in 2003”, in Chinese Journal of International Law, Vol. 3, No. 1, 2004, pp. 291-304.
  • MIRGUET Éric, “Le Tribunal pénal international pour le Rwanda”, in Revue québécoise de droit international, Vol. 16.1, 2003, pp. 163-197.

cc) hybrid tribunals

  • the Special Court for Sierra Leone
    [See online http://www.rscsl.org/index.html]
    This court was established by the UN, in agreement with the Government of Sierra Leone, in 2000. Its objective is to try the most important war criminals of the conflict that broke out in Sierra Leone on 30 November 1996. This concerns a dozen persons from all the warring parties. They are charged with war crimes, crimes against humanity and other serious violations of IHL.

Cases and Documents

Readings

Suggested reading:

  • CASSESE Antonio, “The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty”, in Journal of International Criminal Justice, Vol. 2, 2004, pp. 1130-1140.
  • CRYER Robert, “A ‘Special Court’ for Sierra Leone?”, in ICLQ, Vol. 50/2, 2001, pp. 435-446.
  • FRULLI Micaela, “The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities?”, in Journal of International Criminal Justice, Vol. 2, 2004, pp. 1118-1129.
  • HOWARTH Kathryn, “The Special Court for Sierra Leone: Fair Trials and Justice for the Accused and Victims”, in International Criminal Law Review, Vol. 8, No. 3, 2008, pp. 399-422.
  • KUMAR SINHA Manoj, “The Creation of Another Court: A Case Study of Special Court for Sierra Leone”, in ISIL Year Book of International Humanitarian and Refugee Law, Vol. 4, 2004, pp. 89-102.
  • MACDONALD Avril, “Sierra Leone’s Shoestring Special Court”, in IRRC, No. 845, March 2002, pp. 121-143.
  • MULGREW Roisin, “On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone”, in Journal of International Criminal Justice, Vol. 7, No. 2, 2009, pp. 373-396.
  • SCHABAS William A., “The Relationship between Truth Commissions and International Courts: The Case of Sierra Leone”, in Human Rights Quarterly, Vol. 25/4, November 2003, pp. 1035-1066.
  • TEJAN-COLE Abdul, “The Special Court for Sierra Leone: Conceptual Concerns and Alternatives”, in African Human Rights Law Journal, Vol. 1/1, 2001, pp. 107-126.
  • the Extraordinary Chambers in the Courts of Cambodia
    After almost a decade of negotiations between the United Nations and the Government of Cambodia in view of the establishment of a special court to try the ageing leaders of the Khmer Rouge, in April 2005 both a final agreement entered into effect and the financial means seem to have been secured. Two Extraordinary Chambers have been established under Cambodian laws: one court will conduct the trials of those accused of killing thousands of civilians during the 1970s while the other will hear appeals within the existing justice system. The two Chambers have jurisdiction to try former Khmer Rouge leaders, inter alia for war crimes they have committed in the conflict that took place between 1975 and 1979 in Cambodia. As at September 2010, five people had been indicted by the Chambers. Kaing Guek Eav, also known as Duch, was the first person to be convicted: on 26 July 2010, the Trial Chamber found him guilty of crimes against humanity and grave breaches of the Geneva Conventions, and sentenced him to 35 years of imprisonment. The remaining four cases (Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea) are still at the pre-trial stage.
    [See also online http://www.ridi.org/boyle for further information.]

Readings

Suggested reading:

  • BOYLE David & LENGRAND Julie, “Le retrait des négociations pour un tribunal mixte au Cambodge : les Nations Unies avaient-elles véritablement le choix ?”, in Actualité et droit international, March 2002, http://www.ridi.org/adi.
  • LINTON Suzannah, “New Approaches to International Justice in Cambodia and East Timor”, in IRRC, No. 845, March 2002, pp. 93-119.
  • ONG Sophinie, “Les Chambres extraordinaires du Cambodge : une dernière tentative de lutte contre l’impunité des dirigeants khmers rouges”, in Revue de droit pénal et de criminologie, No. 11, pp. 949-978.
  • War Crimes Chamber in Bosnia and Herzegovina
    [http://www.sudbih.gov.ba/?jezik=e]
    The War Crimes Chamber was created in Bosnia and Herzegovina in order to allow the ICTY to concentrate on high-ranking criminals and pursuant to UN Security Council resolutions 1503 (August 2003) and 1534 (March 2004) requesting domestic courts to assist the ICTY. Its task is to bring to justice lower-ranking persons suspected of having committed war crimes on the territory of Bosnia and Herzegovina. Contrary to the above-mentioned hybrid courts, the War Crimes Chamber was not directly created by the UN and hence is not controlled by it. It is established under Bosnian law, and is integrated into the Criminal Division of the Court of Bosnia and Herzegovina.
  • Special Panels for Serious Crimes in Timor-Leste

    In March 2000, following the establishment of the United Nations Transitional Administration of East-Timor (UNTAET), Special Panels functioning within the framework of the Dili District Court were created in Timor-Leste. The Panels are composed of one national and two international judges and are tasked with prosecuting serious crimes committed in 1999, including genocide, war crimes, crimes against humanity and torture.
  1.  the International Criminal Court

Cases and Documents

Readings

Suggested reading:

  • AMBOS Kai, “Les fondements juridiques de la Cour pénale internationale”, in Revue Trimestrielle des Droits de l’Homme, Vol. 10/40, 1999, pp. 739-772.
  • ARSANJANI Mahnoush H., “The Rome Statute of the International Criminal Court”, in AJIL, Vol. 93, 1999, pp. 22-43.
  • BASSIOUNI M. Cherif, “Note explicative sur le statut de la Cour pénale internationale”, in Revue Internationale de Droit Pénal, Vol. 71/1-2, 2000, pp. 1-41.
  • BASSIOUNI M. Cherif (ed.), The Statute of the International Criminal Court: A Documentary History, Transnational Publishers, 1998, 750 pp.
  • BELLELLI Roberto (ed.), International Criminal Justice: Law and Practice from the Rome Statute to its Review, Farnham, Ashgate, July 2010, 706 pp.
  • BROOMHALL Bruce, International Justice and the International Criminal Court, Oxford, OUP, 2003, 215 pp.
  • BOURDON William, La Cour pénale internationale, Paris, Le Seuil, 2000, 290 pp.
  • BYRON Christine, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court, Manchester, Manchester University Press, 2009, 285 pp.
  • CARILLO-SALCEDO Juan-Antonio, “La Cour pénale internationale : l’humanité trouve une place dans le droit international”, in RGDIP, Vol. 103, 1999, pp. 23-28.
  • CASSESE Antonio, GAETA Paola & JONES John R. W. D., International Criminal Law, A Commentary on the Rome Statute for an International Criminal Court, Oxford, OUP, 2001.
  • CONDORELLI Luigi, “La Cour pénale internationale : un pas de géant (pourvu qu’il soit accompli...)”, in RGDIP, Vol. 103, 1999, pp. 7-21.
  • DAVID Éric, “La Cour pénale internationale : une Cour en liberté surveillée?”, in International Law Forum, Vol. 1/1, 1999, pp. 20-30.
  • DORIA José, GASSER Hans-Peter & BASSIOUNI Cherif, The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko: In Memoriam Professor Igor Pavlovich Blischenko (1930-2000), Leiden, M. Nijhoff, 2009, 1121 pp.
  • KAUL Hans-Peter, “The International Criminal Court: International Humanitarian Law at Work”, in BUFFARD Isabelle [et al.] (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, Leiden, Boston, M. Nijhoff, 2008, pp. 553-569.
  • KIRSCH Philippe, “The Birth of the International Criminal Court: the 1998 Rome Conference”, in CYIL, Vol. 36, 1998, pp. 3-39.
  • LATTANZI Flavia & SCHABAS William A. (eds), Essays on the Rome Statute of the International Criminal Court, Ripa Fagnano Alto, Sirente, 1999, 516 pp.
  • ROBERGE Marie-Claude, “The New International Criminal Court: A Preliminary Assessment”, in IRRC, No. 325, December 1998, pp. 671-691.
  • SCHABAS William A., An introduction to the International Criminal Court, Cambridge, CUP, 2001, 406 pp.
  • SCHABAS William A., The International Criminal Court: a Commentary on the Rome Statute, Oxford, OUP, 2010, 1259 pp.
  • TRIFFTERER Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, 1999, 1295 pp.
  • WECKEL Philippe, “La Cour pénale internationale, Présentation générale”, in RGDIP, Vol. 102, 1998, pp. 983-993.
  • “Special Issue: Impunity – The International Criminal Court”, in IRRC, No. 845, March 2002, pp. 9 ss.

Further reading:

  • AREF Aref Mohamed, “La Cour pénale internationale : une nouvelle perspective pour l’Afrique”, in International Law Forum, Vol. 1/1, 1999, pp. 30-33.
  • BACIO TERRACINO Julio, “National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC”, in Journal of International Criminal Justice, Vol. 5, No. 2, May 2007, pp. 421-440.
  • BADINTER Robert, “De Nuremberg à la CPI”, in Pouvoirs, Vol. 92, 2000, pp. 155-164.
  • BROWN Bartram S., “U.S. Objections to the Statute of the International Criminal Court: A Brief Response”, in JILP, Vol. 31/4, 1999, pp. 855-891.
  • CRYER Robert, “Implementation of the International Criminal Court Statute in England and Wales”, in ICLQ, Vol. 51/3, 2002, p. 733.
  • “Developments at the International Criminal Court”, in AJIL, Vol. 99, 2005, pp. 370-431.
  • DÖRMANN Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge, CUP, 2003, 580 pp.
  • DÖRMANN Knut, “Preparatory Commission for the International Criminal Court: The Elements of War Crimes – Part II: Other Serious Violations of the Laws and Customs Applicable in International and Non-International Armed Conflicts”, in IRRC, No. 842, June 2001, pp. 461-487.
  • DUYX Peter, HAVEMAN Roelof & VAN SLIEDREGT Elies, “War Crimes Law and the Statute of Rome: Some Afterthoughts?”, in RDMDG, Vol. 39, 2000, pp. 67-122.
  • KIRSCH Philippe, “The International Criminal Court: Current Issues and Perspective”, in Law and Contemporary Problems, Vol. 64/1, 2001, pp. 3-11.
  • LATTANZI Flavia, “Compétence de la Cour pénale internationale et consentement des États”, in RGDIP, Vol. 103, 1999, pp. 438-442.
  • LEE Roy S., DÖRMANN Knut & KIRSCH Philippe (eds), The International Criminal Court : Elements of Crimes and Rules of Procedure and Evidence, Ardsley, Transnational, 2001, 857 pp.
  • MOMTAZ Djamchid, “War Crimes in Non-International Armed Conflicts under the Statute of the International Criminal Court”, in YIHL, Vol. 2, 1999, pp. 177-192.
  • PEJIC Jelena, “Creating a Permanent International Criminal Court: The Obstacles to Independence and Effectiveness”, in Columbia Human Rights Law Review, Vol. 29/2, 1998, pp. 291-354.
  • PFANNER Toni, “The Establishment of a Permanent International Criminal Court”, in IRRC, No. 322, March 1998, pp. 21-27.
  • POLITI Mauro, “Le statut de la Cour pénale internationale: le point de vue d’un négociateur”, in RGDIP, Vol. 103/4, 1999, pp. 817-850.
  • RUBIN Alfred P., “The International Criminal Court: A Sceptical Analysis”, in International Law Studies, US Naval War College, Vol. 75, 2000, pp. 421-438.
  • SCHARF Michael P., “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, in Cornell International Law Journal, Vol. 32/3, 1999, pp. 507-527.
  • STAHN Carsten & SLUITER Göran (eds), The Emerging Practice of the International Criminal Court, Leiden, Boston, M. Nijhoff, 2009, 770 pp.
  • STRAPATSAS Nicolaos, “Universal Jurisdiction and the International Criminal Court”, in Manitoba Law Journal, Vol. 29/1, 2002, pp. 132.
  • SUR Serge, “Vers une Cour pénale internationale : La Convention de Rome entre les O.N.G. et le Conseil de Sécurité”, in RGDIP, Vol. 103, 1999, pp. 29-45.
  • URBINA Julio Jorge, “La protection des personnes civiles au pouvoir de l’ennemi et l’établissement d’une juridiction pénale internationale”, in IRRC, No. 840, December 2000, pp. 857-885.
  • VANDERMEERSCH Damien, “The ICC Statute and Belgian Law”, in Journal of International Criminal Justice, Vol. 2, 2004, pp. 133-157.
  • WEDGWOOD Ruth, “The International Criminal Court: An American view”, in EJIL, Vol. 10/1, 1999, pp. 93-107.
  • ZELLWEGER Valentin & KOLLER David, “Non-State Actors, International Criminal Law and the Role of the International Criminal Court”, in BREITENMOSER Stephan,
  • EHRENZELLER Bernhard, SASSÒLI Marco, STOFFEL Walter & WAGNER PFEIFER Beatrice (eds), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber, Zürich, Dike, February 2007, pp. 1619-1634.
  • ZWANENBURG Marten, “The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?”, in EJIL, Vol. 10/1, 1999, pp. 124-143.
  • “Atelier sur l’article 31, par. 1 c) du Statut de la Cour pénale internationale, coordonné par Éric DAVID”, in RBDI, 2000-2, pp. 355-488.

 Footnotes