Murder as a Crime against Humanity at the Ad Hoc Tribunals: Reconciling Differing Languages

Former Yugoslavia ◽

English Text ◽

Mens Rea ◽

Wide Range

SummaryThe statutes of the International Criminal Tribunals for Rwanda and for the Former Yugoslavia give these tribunals jurisdiction over murder as a crime against humanity. Yet the judges of these tribunals have often found themselves disagreeing as to the level means rea required for conviction. The controversy results from the French text that employs the term “assassinat” in the place where the English text speaks of “murder.” Assassinat is equivalent only to the premeditated kind of murder. This has led some of the judges to insist that no mens rea lower than premeditation is sufficient for conviction for murder as a crime against humanity under the statutes of the ICTR and the ICTY. It is suggested in this article that neither the requirements of international criminal law nor a contextual reading of the statutes truly favours such a strict view of murder as a crime against humanity, which effectively excludes a wide range means rea, which will, but for the use of the term “assassinat” in the French text, properly anchor a conviction for murder.

The Main Characteristics of the International Criminal Tribunal for the Former Yugoslavia During its Mandate from 1993 to 2017

SEEU Review ◽

10.2478/seeur-2019-0006 ◽

2019 ◽

Vol 14 (1) ◽

pp. 91-116

Author(s):

Viona Rashica

Keyword(s):

United Nations ◽

Security Council ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

The Other ◽

Former Yugoslavia ◽

International Criminal Tribunals

Abstract The tradition of international criminal tribunals which started with the Nuremberg and Tokyo tribunals was returned with the International Criminal Tribunal for the former Yugoslavia. As a result of the bloody wars in the territory of the former Yugoslavia in the 1990s, the Security Council of the United Nations decided to establish the ICTY as an ad hoc tribunal, that was approved by the resolutions 808 and 827. The main purpose of the paper is to highlight the features of the ICTY during its mandate from 1993 to 2017. For the realization of this research are used qualitative methods, based on the bibliography that is related with international criminal law, with special emphasis with the activities of international criminal tribunals. Furthermore, some data are also collected from the credible internet sources, which have valuable information about the procedures of the ICTY and for the International Residual Mechanism for Criminal Tribunals. The results of the study demonstrate that during its mandate, the ICTY was accompanied with a lot of successes which distinguish it from the other international criminal tribunals. At the same time, the ICTY has also a lot of failures, which have come as a result of various political influences within it. The conclusions of this paper aim to increase knowledge about the activity of the ICTY, by offering important information for its establishment and organs, and for its main successes and failures.

The Tribunals and the Renaissance of International Criminal Law: Three Themes

The American Journal of International Law ◽

10.5305/amerjintelaw.110.2.0191 ◽

2016 ◽

Vol 110 (2) ◽

pp. 191-211 ◽

Cited By ~ 3

Author(s):

Darryl Robinson ◽

Gillian MacNeil

Keyword(s):

Criminal Law ◽

International Criminal ◽

Former Yugoslavia ◽

Academic Literature ◽

Legal Standards ◽

The Way

We are delighted to participate in this symposium on the legacy of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (Tribunals; respectively, ICTY and ICTR). We have been asked to offer reflections on the Tribunals’ impact on substantive international criminal law (ICL)—in particular, the definitions of crimes and the modes of liability. Given the enormity of the topic, we can offer only a cursory and impressionist sketch of the terrain, and draw attention to a few intriguing features along the way. We will not attempt to survey the Tribunals’ jurisprudence or the related academic literature. Instead, our aim is simply to highlight three themes underlying the Tribunals’ elaboration of substantive legal standards. For the nonspecialist, this sketch may provide a helpful overview of the evolution of ICL. For the specialist, this sketch may bring into slightly sharper relief some underlying patterns in the Tribunals’ work. We will also offer some broader thoughts about the Tribunals in the overall arc of ICL, and how their structure and priorities have left a lasting, distinctive imprimatur on ICL.

What We Talk About When We Talk About Early Release in International Criminal Law: The Sui Generis Nature of the Reduction of Sentence Under the Rome Statute

International Criminal Law Review ◽

10.1163/15718123-bja10113 ◽

2021 ◽

pp. 1-29

Author(s):

Cristina Fernández-Pacheco Estrada

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Case Law ◽

Criminal Court ◽

Early Release ◽

The Many

Abstract Early release has been regularly granted by the ad hoc tribunals for over 20 years. However, it could be argued that some issues still remain contentious. In fact, in May 2020, the Practice Direction ruling early release in the Mechanism of the International Criminal Tribunals was amended. This was intended to clarify key matters, such as the time needed to be served before early release, the possibility of imposing conditions upon those released, and the unappealable character of the resulting decision. At a glance, it could be argued that the International Criminal Court is better equipped to confront the many challenges posed by early release. This is owing to its detailed regulation, which may consequently lead to a more reasoned and solid case law. After comparatively examining ten features key to the application of early release, however, this paper argues that the ultimate problem lies within the nature generally conferred to early release in the Rome Statute.

The Good Deeds of International Criminal Defendants

Leiden Journal of International Law ◽

10.1017/s0922156512000398 ◽

2012 ◽

Vol 25 (3) ◽

pp. 799-813 ◽

Cited By ~ 1

Author(s):

JEAN GALBRAITH

Keyword(s):

Criminal Law ◽

International Criminal ◽

War Crimes ◽

The Other ◽

Former Yugoslavia ◽

Crimes Against Humanity ◽

Good Deeds

AbstractInternational criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

International Criminal Law Review ◽

10.1163/157181206778553905 ◽

2006 ◽

Vol 6 (3) ◽

pp. 313-348 ◽

Cited By ~ 5

Author(s):

Mohamed Elewa Badar

Keyword(s):

Criminal Law ◽

International Criminal ◽

Case Law ◽

Fundamental Concept ◽

Former Yugoslavia ◽

Mens Rea ◽

The Creation ◽

The Law

AbstractEven though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea – remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms "specific intent", "special intent", "dolus specialis", or "surplus intent"? Similarly, what are the precise meanings of the terms "deliberately", "intention", "intent", "intentionally", "wilful or wilfully", "knowledge", and "wanton" as provided for in the ICTY Statute or as employed by the Chambers within its judgments.

The Principle of Legality at the Crossroads of Human Rights and International Criminal Law

10.1093/oso/9780190272654.003.0012 ◽

2018 ◽

Author(s):

Shane Darcy

Keyword(s):

Human Rights ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

Ex Post ◽

European Court ◽

Ex Post Facto ◽

Principle Of Legality

This chapter explores the treatment of the principle of legality in international criminal law, in particular the rule against ex post facto application of criminal laws, as enshrined in human rights law. It demonstrates that a broadly liberal interpretation of nullum crimen has facilitated judicial creativity and the development of international criminal law by international courts and tribunals. The chapter begins with a general discussion of the principle of legality under international law, before turning to a consideration of the treatment of the principle at Nuremberg and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The final section of the chapter turns to the European Court of Human Rights and examines how it has addressed the rule of non-retroactivity in the context of national prosecutions of international crimes, in particular in Kononov v. Latvia.

The International Criminal Court: Promise and Politics

Proceedings of the ASIL Annual Meeting ◽

10.5305/procannmeetasil.109.2015.0269 ◽

2015 ◽

Vol 109 ◽

pp. 269-272

Author(s):

Makau Mutua

Keyword(s):

Civil Society ◽

Criminal Law ◽

International Criminal Court ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

International Criminal Tribunals

The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals—the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Joint criminal enterprise in the practice of international criminal tribunal for the former Yugoslavia

Crimen ◽

10.5937/crimen2101081c ◽

2021 ◽

Vol 12 (1) ◽

pp. 81-99

Author(s):

Irena Čučilović

Keyword(s):

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

Individual Responsibility ◽

Former Yugoslavia ◽

Criminal Enterprise ◽

Extended Form ◽

Joint Criminal Enterprise

Joint criminal enterprise (JCE) is the institute first applied by the International criminal tribunal for the former Yugoslavia (ICTY) in the Tadić case, and thereafter further shaped through the practice of the ICTY despite the fact that JCE as a form of individual responsibility is not mentioned anywhere in the Statute of ICTY, neither implicitly nor explicitly. Although today there is no doubt that the Joint criminal enterprise is an institute of international criminal law, which was very often applied in the practice by both ICTY and other international ad hoc tribunals, the serious remarks to this institute do not abate. It's pointed out that this is an institute that "was created" to ensure the conviction of the defendants, which procedurally affects the prosecution, which is relieved of the burden of proving criminal responsibilities and the specific roles of each of the participants in the JCE. Besides that, at the time when this doctrine was formulated, it was not entirely clear whether it was a form of commission or a form of complicity. Only a couple of years later, in the Milutinović et al. case, the ICTY stands out that the liability based on the JCE doctrine, in fact, is a responsibility for the commission, which further compromised this doctrine. Questionless, the application of the Joint criminal enterprise doctrine in practice leads to serious violation of the fundamental principles of contemporary criminal law. With general review of the Joint criminal enterprise doctrine, in this piece of work, the author considers one case of conviction under the third (often referred to as "extended") form of JCE, in order to point out the key problems which this doctrine produces in practice.

The Swinging Pendulum of Cultural Heritage Crimes in International Criminal Law

Intersections in International Cultural Heritage Law ◽

10.1093/oso/9780198846291.003.0005 ◽

2020 ◽

pp. 109-132

Author(s):

Anne-Marie Carstens

Keyword(s):

Cultural Heritage ◽

Criminal Law ◽

Ad Hoc ◽

International Criminal ◽

Historical Analysis ◽

Hague Convention ◽

Criminal Court ◽

Cultural Property ◽

International Criminal Tribunals

Contemporary prosecutions in international criminal tribunals have exposed a long-standing debate over the role of cultural heritage-based crimes in international criminal law. This chapter presents an historical analysis that reveals that the pendulum has swung back and forth with regard to support for including offenses that expressly refer to the destruction or seizure of artistic, historic, and scientific property and of ‘historic monuments’. While cultural heritage destruction was proposed as an offense after the First World War, a pervasive reluctance to include it largely prevailed from the postwar Nuremberg trials until the late 1980s. This chapter attributes this reluctance in part to coinciding developments in cultural property protection that were occurring outside international criminal law, such as the 1954 Hague Convention and the early drafts of the 1948 Genocide Convention. Before the end of the century, though, the pendulum swung back in favor of including the deliberate and unnecessary destruction of certain cultural heritage as a discrete and separate war crime. Both ad hoc international criminal codes and the Rome Statute of the International Criminal Court reflect lasting recognition of the role that cultural heritage destruction can play in the larger narrative of oppressing, persecuting, and even eradicating targeted collective groups.

Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia

Law & Social Inquiry ◽

10.1111/j.1747-4469.2006.00023.x ◽

2006 ◽

Vol 31 (03) ◽

pp. 585-616 ◽

Cited By ~ 24

Author(s):

John Hagan ◽

Ron Levi ◽

Gabrielle Ferrales

Keyword(s):

Criminal Law ◽

International Institutions ◽

Ad Hoc ◽

International Criminal ◽

Former Yugoslavia ◽

Panel Survey ◽

Political Transformations ◽

Political Forces

This article develops a conflict approach for studying the field of international criminal law. Focusing on the International Criminal Tribunal for the Former Yugoslavia, we draw on Burawoy's (2003 ) elaboration of reflexive ethnography to determine how external political changes affect the work of an international legal institution. We explore how political frameworks of legal liberalism, ad hoc legalism, and legal exceptionalism result in internal office, organizational, and normative changes within this Tribunal, thereby linking national political transformations with the construction of the global. Drawing on rolling field interviews and a two-wave panel survey, we conclude that the claims to universals that underwrite transnational legal fields cannot be understood solely through an analysis of external political forces, but must be combined with attention to how these are refracted through internal organizational change within international institutions.