Current developments

International Criminal Law Review

Volumn 1, Issue 3-4, 2001, Pages 261-284

  Mettraux, Guenael ^a  

^a NONE

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EID: 84856923027     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/15718120121002603     Document Type: Article

References (87)

1. See, Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 2 September 1998, paras 596ff
2. and Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, paras 165ff.
3. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, para 185.
4. (Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 2 September 1998, para 597).
5. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, paras 457-458.
6. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 464.
7. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 438.
8. See also Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 2 September 1998, paras 596-597
9. and Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement and Sentence, 27 January 2000, paras 220-229.
10. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 438: "In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundzija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which [...] is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition of international law." The Kunarac Trial Chamber added that the "basic principle which is truly common to these [domestic] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant."
11. (Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 457.)
12. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 457: "The basic principle which is truly common to these [national] legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the acts has not freely agreed to it or is otherwise not a voluntary participant." See also the very thorough review of national legislation on the subject undertaken by the Kunarac Trial Chamber
13. (Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, paras 442-460).
14. Judgement, 22 February 2001, para 458.
15. See also, C. Chinkin, "Rape and Sexual Abuse of Women in International Law", 5 EJIL 326(1994)
16. and T. Meron, "Rape as a Crime under International Humanitarian Law", 87 AJIL 424(1993).
17. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 460.
18. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993) on the establishment of the International Tribunal for the former Yugoslavia (S/25704, 3 May 1993), para 36.
19. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, para 178.
20. See the Concurring Opinion of Judge Loucaides of the ECHR in Streletz, Kessler and Krenz v. Germany, Applications Nos. 34044/96, 35532/97 and 44801/98, 22 March 2001.
21. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993) on the establishment of the International Tribunal for the former Yugoslavia (S/25704, 3 May 1993), paras 34-35.
22. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 469.
23. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 469.
24. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, paras 469-470.
25. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 488: "[T]he Trial Chamber must identify those elements of the definition of torture under human rights law which are extraneous to international criminal law as well as those which are present in the latter body of law but possibly absent from the human rights regime."
26. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
27. (I. C. J. Reports 1993, p. 414, para 19)
28. Separate Opinion of Judge Lauterpacht, cited in R. Jennings, "Some Reflections on the Implications of Humanitarian Law for International Law Generally", in Collected Writings of Sir Robert Jennings, 1233, 1237(1998).
29. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 496.
30. Prosecutor v. Kunarac et al., Case IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para 496.
31. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
32. (I. C. J. Reports 1993, p. 414, para 19)
33. Separate Opinion of Judge Lauterpacht, cited in R. Jennings, "Some Reflections on the Implications of Humanitarian Law for International Law Generally", in Collected Writings of Sir Robert Jennings, 1233, 1237(1998).
34. Mugesera et al. v. Minister of Citizenship and Immigration, IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division - translation by the author.
35. Streletz, Kessler and Krenz v. Germany, Applications Nos. 34044/96, 35532/97 and 44801/98, 22 March 2001.
36. K.-H. W. v. Germany, Application No. 37201/97, 22 March 2001. The ECHR had no such doubt; it held: "even a private soldier could not show total, blind obedience to orders which flagrantly infringed not only the GDR's own legal principles but also internationally recognised human rights, in particular the right to life, which is the supreme value in the hierarchy of human rights." Article 95 of the GDR's Criminal Code explicitly provided that individual criminal responsibility was to be borne by those who violated the GDR's international obligations or human rights and fundamental freedoms.
37. See, G. v. France, Judgment of 27 September 1995, A. 325-B, p. 38.
38. Streletz, Kessler and Krenz v. Germany, Applications Nos. 34044/96, 35532/97 and 44801/98, 22 March 2001, para 87.
39. See, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, paras 830-831, 836-837 and 842-843.
40. See, for instance, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000
41. and Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999.
42. Prosecutor v. Blaskic, Case IT-95-14-T, Judgement, 3 March 2000, par 337.
43. (see, Prosecutor v. Delalic et al., Case IT-96-21-A, Judgement, 20 February 2001, paras 743ff).
44. See, for a recent example, Prosecutor v. Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement, 31 July 2001, paras 60ff.
45. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, para 230.
46. See, inter alia, Prosecutor v. Delalic et al., Case IT-96-21-T, Judgement, 16 November 1998, para 346.
47. Prosecutor v. Delalic et al., Case IT-96-21-A, Judgement, 20 February 2001, para 192.
48. Prosecutor v. Delalic et al., Case IT-96-21-A, Judgement, 20 February 2001, para 196-197.
49. Prosecutor v. Delalic et al., Case IT-96-21-A, Judgement, 20 February 2001, para 196.
50. See, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, paras 388 and 840.
51. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para 388, in particular footnote 533, page 112.
52. (see, Prosecutor v. Blaskic, Case IT-95-14-T, Judgement, 3 March 2000, paras 300-303
53. and Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 2 September 1998, para 491).
54. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para 839.
55. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para 840.
56. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para 834.
57. Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, paras 839-841.
58. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 17.
59. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 247, 281 and 315.
60. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, paras 18-22.
61. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 21.
62. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 21
63. and Prosecutor v. Furundzija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, par 35. In Aleksovski, the Appeals Chamber had pointed out that "[t]he need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced"
64. (Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para 113).
65. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 23 where it says that the Appeals Chamber has no advisory power: "La chambre d'appel du Tribunal ne détient pas de pouvoir consultative".
66. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 23.
67. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, paras 24 and 27.
68. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para 22: "En outre, les crimes visés par le Statut sont par nature particulièrement graves et leur définition jurisprudentielle contribue au développement général du droit international humanitaire et pénal."
69. See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, paras 630-634
70. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999, para 98
71. and Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000, para 274.
72. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, paras 443-445.
73. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 45.
74. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 46.
75. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 48.
76. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 49.
77. Docket No. 2 BvR 1290/99, Decision of 12 December 2000 - available at the website of the court under (www.bundesverfassungsgericht.de).
78. Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999.
79. 2 BvR 1290/99, Decision of 12 December 2000, 32 and 33 and Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999, paras 66 and 98.
80. See on this decision the critical comment by Michael Bohlander, The direct application of international criminal law in Kosovo, [2001] 1 Kosovo Legal Studies, issue I, p. 7, who argues that direct application of such principles is a matter of domestic constitutional and not international law, and that the Gjilan court was wrong under Yugoslav and UNMIK law to refer to ICTY and other customary law regarding the classification of the offences as crimes against humanity.
81. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 68. The Appeals Chamber held that, when, at the end of the prosecution case, the Trial Chamber decide proprio motu or following the patty's submission upon the acquittal of the accused, it must ask itself "[not] whether it is convinced that the respondent was guilty of genocide beyond reasonable doubt but whether, giving credence to such evidence, no reasonable Trial Chamber could have found that he had such an intent"
82. rosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 73.
83. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 73.
84. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, para 77.
85. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, Partial Dissenting Opinion of Judge Wald.
86. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, Partial Dissenting Opinion of Judge Wald, para 14.
87. See, Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001, Partial Dissenting Opinion of Judge Shahabuddeen, paras 23-29.