scholarly journals Presumption of Consent or a Lack Thereof of the Victim and the Presumption of Guilt (Innocence) of the Accused in Cases of Sexual Offences: Emphasise What Is Necessary, Cross Out Everything Unnecessary

2021 ◽  
Vol 9 (3) ◽  
pp. 4-35
Author(s):  
Gleb Besedin ◽  
Pavel Stepanov
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Sexual Offense ◽  
Criminal Cases ◽  
Sexual Offences ◽  
Legislation And Jurisprudence ◽  
Sexual Offenses ◽  
Modern Technique ◽  
European Court

The article focuses on the significance and relevance of victims consent in sexual offenses cases. The case-law of national legal systems as well as of international judicial bodies demonstrates that consent is a conditio sine qua non for qualifying an act as a sexual offense. However, the recent examples of criminal cases raised from national and international jurisprudence allow authors to conclude that the non-consensual character of sexual acts is frequently complicated to prove in due to some peculiarities of the sexual offenses per se. This paper analyses the modern technique of sexual offenses criminalization which can be characterized by one of two possible approaches: first, the presumption of the alleged victim’s consent to sexual intercourse or, on the contrary, second, the presumption of the lack of thereof. Despite the fact that the second approach seems to be more favorable for alleged survivors, the implementation of this approach entails a number of difficulties. The main one is the hypothetical conflict with the metapresumption of criminal procedure (i.e. the presumption of innocence). In the paper this contradiction is analyzed from the perspective of the legislation and jurisprudence of different jurisdictions, as well as the practice of international judicial bodies (European Court of Human Rights, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda).

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

scholarly journals How Far Has the International Criminal Tribunal for Rwanda Really Come since Akayesu in the Prosecution and Investigation of Sexual Offences Committed against Women? An Analysis of Ndindiliyimana et al.

2013 ◽  
Vol 13 (4) ◽  
pp. 747-788 ◽  
Author(s):  
Helen Trouille
Keyword(s):  
Sexual Violence ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Recent Case ◽  
Single Charge ◽  
Sexual Offences ◽  
Jean Paul ◽  
First Case

During the first trial before the International Criminal Tribunal for Rwanda (ICTR), that of Jean-Paul Akayesu, it became evident that many Tutsi and moderate Hutu women had been raped, that “rape was the rule and its absence was the exception”.1 Although, initially, not a single charge of sexual violence was proffered against Akayesu, presiding Judge Navanethem Pillay interrupted the proceedings, allowing ICTR prosecutors to amend the indictment and include counts of rape and sexual violence. Akayesu subsequently became the first case to recognise the concept of genocidal rape. However, post-Akayesu, comparatively few defendants appearing before the ICTR have been convicted of sexual violence. An analysis of the recent case of Ndindiliyimana et al2 reveals that major shortcomings beset the investigation and prosecution procedures, so that crimes of sexual violence go unpunished, although research suggests that adequate legislation is in place at the ICTR to prosecute rape and sexual violence successfully.

Punishment for Genocide – Exploratory Analysis of ICTR Sentencing

2011 ◽  
Vol 11 (4) ◽  
pp. 745-773 ◽  
Author(s):  
Barbora Hola ◽  
Catrien Bijleveld ◽  
Alette Smeulers
Keyword(s):  
Empirical Study ◽  
International Criminal ◽  
International Crime ◽  
Empirical Studies ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Exploratory Analysis ◽  
International Crimes ◽  
Almost All ◽  
The Relationship

AbstractThe sentencing practice of the International Criminal Tribunal for Rwanda (ICTR) is a relatively neglected topic in academic discussions. The few empirical studies on sentencing of international crimes have focused primarily on the sentencing practice of its 'sister court', the International Criminal Tribunal for the Former Yugoslavia (ICTY). Unlike ICTY defendants, almost all ICTR defendants have been convicted of and sentenced for genocide – arguably the most serious international crime. This empirical study examines the sentencing practice of the ICTR and analyses the relationship between sentence severity and the primary consideration in sentencing – crime gravity. The relevant principles stemming from ICTR case law are reviewed, followed by an examination of the interrelationship between sentence severity and factors relating to crime gravity, such as category of crime, scale of crime and the form and degree of a defendant's involvement in the crime. The ICTR judges appear in most cases to follow the main principles emphasized in their case law, with sentences gradated in line with the increasing seriousness of defendants' crimes and their culpability.

5 Obligations of International Organizations, 5.3 Case No. IT-95-9-PT, Decision on the Motion for a Judicial Assistance to be Provided by SFOR and Others , Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, 18 October 2000

2016 ◽  
Author(s):  
van der Wilt Harmen
Keyword(s):  
International Organizations ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Trial Chamber ◽  
Fundamental Rights ◽  
Former Yugoslavia ◽  
Judicial Assistance ◽  
Shed Light ◽  
Similar Issue

This commentary concerns a decision by the International Criminal Tribunal for the former Yugoslavia in the Simić case that addressed the question whether the Tribunal could issue binding orders to international organizations like SFOR (Stabilization Force). Following the Blaskić-precedent that decided on a similar issue in respect of states—and applying this precedent by analogy—the Chamber concluded that it was authorized to do so. The appearance and testimony of a SFOR-official was necessary in order to shed light on the alleged abduction of Mr Todorović prior to his surrender to the Tribunal. By summoning the witness to the court, the Chamber acknowledged that irregularities during pre-trial investigations might have procedural consequences. The commentary engages in a brief discussion of the case law of the Tribunal on the topic, noting that, while the Tribunal is not much concerned about state sovereignty, it takes the fundamental rights of accused seriously.

scholarly journals The International Criminal Tribunal for the Former Yugoslavia and Fair Trial Rights: A Closer Look

1996 ◽  
Vol 9 (2) ◽  
pp. 479-501 ◽  
Author(s):  
James Sloan
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Recent Article ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
The Other ◽  
Former Yugoslavia ◽  
Body System ◽  
European Court ◽  
Treaty Body

In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.

Commentary: The Assignment of Defence Counsel Before the International Criminal Tribunal for Rwanda

1999 ◽  
Vol 12 (4) ◽  
pp. 957-968 ◽  
Author(s):  
Michaïl Wladimiroff
Keyword(s):  
Free Choice ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Legal Assistance ◽  
Proper Understanding ◽  
International Criminal Tribunals ◽  
Defence Counsel ◽  
The Right

In light of serious problems with the assignment of counsel to defendants before the ICTR, this article examines the freedom of choice of assigned defence counsel before both ad hoc International Criminal Tribunals. International legal instruments guarantee free legal assistance for indigent defendants but do not recognize an unrestricted free choice of such counsel. International case law, however, recognizes that an effective defence can hardly arise from a client-counsel relation that is not based on trust and confidence. Trust and confidence are therefore decisive for a proper understanding of the right to have free legal assistance. Unlike the practice of the ICTY of recognizing the importance of these factors, the Registrar of the ICTR seems to give more weight to geographical distribution of lawyers and other discriminating factors. The Appeals Chamber of the ICTR dealt with this policy in the Akayesu case and overturned the decision of the Registry to refuse the counsel of the defendant's own choosing.

Prosecutor v.Gacumbitsi: The New Definition for Prosecuting Rape Under International Law

2008 ◽  
Vol 8 (1-2) ◽  
pp. 55-85 ◽  
Author(s):  
Alison Cole
Keyword(s):  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Trial Chamber ◽  
International Criminal Law ◽  
Linkage Evidence ◽  
Apparent Contradiction ◽  
Definition Of

AbstractThe Gacumbitsi judgement of the Appeals Chamber of the International Criminal Tribunal for Rwanda is the first appellate case to address the apparent contradiction in the prior jurisprudence of the ad hoc Tribunals on the definition of rape. The Trial Chamber in the Akayesu judgement defined rape as a physical invasion of a sexual nature under coercive circumstances, whereas the later Appeals Chamber judgment of Kunarac introduced the requirement of consent. As well as addressing the role of consent in defining and proving rape at trial, the Appeals Chamber in Gacumbitsi also considered appeals of fact on specific allegations of rape, providing guidance on establishing crime base and linkage evidence to hold superiors responsible for rape under individual and command responsibility theory. After setting out the developments in the case law on the definition of rape, the author considers the contribution of the Gacumbitsi judgement, and argues that the Akayesu approach is most consistent with the framework of international criminal law.

scholarly journals Human Rights Waiver in Criminal Proceedings in Terms of the European Court of Human Rights: ‘Russian Cases’

2020 ◽  
Vol 3 (4) ◽  
pp. 50-58
Author(s):  
Irina Chebotareva ◽  
Olesia Pashutina ◽  
Irina Revina
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Widespread Occurrence ◽  
European Court ◽  
The Government ◽  
Grand Chamber ◽  
The Right

The article investigates the general position of the European Court of Human Rights on the admissibility and validity of the waiver of rights, the features of the European mechanism for protecting human rights in case of the waiver of the right; studies the case-law practices in criminal cases of the Court in relation to Russia where the Court considered the presence/absence of the waiver of the right. The practice of the ECHR reveals the widespread occurrence of human rights violations in the Russian criminal proceedings with the alleged waiver of the right in the framework of criminal procedure. These includes the situations when the Government claimed that the Applicant had waived his/her right and the Applicant did not agree with this fact and insisted that he had been deprived of the opportunity to exercise his/her right. According to the ECHR, violations of human rights established in the Convention are related not only to shortcomings in the legal system but also to improper law enforcement that does not comply with the Convention requirements. Based on the analysis of the ECHR’s general approaches to the waiver of the right, the authors revealed the compliance of the Russian criminal procedure with the requirements of the Court to the waiver of the right and the guarantees established for it. To achieve the objectives in the HUDOC database of the European Court, using search requests we identified cases against Russia considered by the Chamber and the Grand Chamber, in which the ECHR examined the issue of the presence/absence of the waiver of the right in the criminal procedure. As a result, 40 judgments in which the Court directly considered the issue of the presence/absence of the waiver of the right in the criminal procedure in Russia were selected. We studied and analysed the selected judgments.

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