International Criminal Tribunal Research Articles

THE DEFINITION OF PROTECTED GROUP IN THE CONTEXT OF APPROACH TO GENOCIDE UNDER INTERNATIONAL CRIMINAL LAW AND POLISH CRIMINAL LAW

The study seeks to define the group of people protected under the provisions on genocide both in the Polish criminal law and international criminal law. The provisions of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, the Rome Statute of the International Criminal Court and the Statutes of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia and the International Criminal Tribunal for Rwanda contain a very similar definition of genocide. Killings and other acts listed in that legislation, committed in order to exterminate all or part of national, ethnic, racial or religious groups as such are prohibited as genocide. Similar conduct was prohibited in the provision of Article 118 of the Polish Penal Code. However, the protected group has been identified differently. It has been defined much more widely in Polish criminal law than in international law. A perpetrator of genocide acts with the purpose to exterminate all or part of a national, ethnic, racial, political or religious group or a group with a specific worldview. There are two important differences: the first is that international law acts prohibit intentional conduct while Article 118 prohibits purposeful conduct. The second difference is a much narrower definition of groups protected by international regulations. They do not protect a political group and a group with a certain worldview. This study analyses the consequences of this distinction, in particular the possibility of classifying the conduct aiming against a political group and a group with a particular worldview.

OBMANA ILI ISKRENOST? DVA PRIZNANJA PRED MEĐUNARODNIM KRIVIČNIM SUDOM ZA BIVŠU JUGOSLAVIJU / FRAUD OR SINCERITY? TWO ACKNOWLEDGMENTS BEFORE THE INTERNATIONAL CRIMINAL COURT FOR THE FORMER YUGOSLAVIA

The author analyzes two cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY), specific to the guilty plea of the accused. Stevan Todorovic, the chief of police in Bosanski Samac, is the highest-ranking official in the municipality who has pleaded guilty and expressed remorse for his own responsibility and the crimes committed. Damir Došen, a shift guard at the Keraterm camp in Prijedor, did the same. Were the acknowledgments of these two convicted war criminals an expression of true remorse or a way to avoid higher prison sentences by reaching an agreement with the court prosecutor's office? The answer to this question is suggested by the analysis of the behavior of Todorović and Došen after serving his prison sentence.

The accuracy of the crime of genocide in the bill of kuhp 2019 according to human rights regulations

With regulations regarding human rights that have been regulated, norms and institutions should be able to protect humans and their rights to life so that they do not live under threat. Mainly, because the crime of genocide has been regulated by various international human rights instruments like the International Criminal Tribunal for Rwanda (ICTR), the 1948 Genocide Convention, and to 1988 Rome Statute on International Criminal Court. But facts show that cases regarding the crime of genocide are still happening. The Criminal Code as a law adopted from the Dutch-herited Criminal Code requires an appropriate codification between the awareness and legal needs of the Indonesian nation, thus requiring a new criminal arrangement to replace the old regulation. The 2019 RKUHP then emerged as a solution, but there are still many ambiguous article formulations that make the 2019 RKUHP still have to be reviewed. An example is the article regarding the crime of genocide in Article 598 of the 2019 RKUHP. Some of the weaknesses of the article are in things such as the fall of authority over the implementation of a crime and one of its regulations that the convict gets a pardon or amnesty written in Article 140. If the crime of genocide remains in the 2019 RKUHP, then a number of revisions must be made by reviewing the Rome Statute so that there is no expansion of the meaning in the article regarding the crime of genocide.

The Interpretation of Slavery before the International Criminal Court: Reconciling Legal Borders?

This article examines the interpretation of the definition of slavery/ enslavement by the International Criminal Court (ICC) in the Ongwen case (2021) and its application to the facts of the case at hand. This examination is warranted because Ongwen represents the first case in which the ICC was tasked with deciding whether the crime of enslavement had been committed. This article illustrates that the ICC has been outward-looking, finding that judgments of other courts largely featured in the reasoning of the ICC when interpreting slavery. The detailed study in this article further reveals that, either directly or indirectly, the ICC more specifically drew on the judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Kunarac case. The article shows that, in doing so, the ICC reconciled legal borders by incorporating in its decision elements of general international law, international human rights law, and international humanitarian law instruments to inform its understanding of slavery/enslavement. The article highlights that the ICC contributed to norm consolidation globally.

Rehabilitation of Perpetrators of International Crimes – Myth or Reality? Case Study of the International Criminal Tribunal for Former Yugoslavia

Of the 92 persons convicted at the International Criminal Tribunal for Former Yugoslavia (ICTY), 60 have already served their sentences and were released. Even though perpetrators’ rehabilitation and their public behaviour in post-conflict environments are essential for countering denial, establishing an authoritative version of the truth, and sustainable reconciliation, we still know little about what happens after they return to their communities. This article attempts to examine ICTY convicts’ rehabilitation by assessing the quality and the result of existing rehabilitation programs (e.g., how much the public behaviour of those released matches the expectations of the victim’s community, what their relationship is with their guilt and crimes committed). Aside from secondary sources, it draws on 23 semi-structured interviews with victims of war, representatives from victims’ associations, and human rights advocates from the region. It finds that in the context of the absence of specialized rehabilitation programs and lack of oversight of the post-conviction stage at the ICTY, the convicted perpetrators return to communities that support and enable them. Hailed by specific enthusiastic audiences back home, ICTY convicts often fulfil their expectations, closing a vicious circle that dramatically curbs the individual or collective transformative potential of their punishment regarding reckoning with the past and moving towards reconciliation.

Archives of Mass Violence: Understanding and Using ICTY Trial Records

Abstract The most relevant collection for studying the wars accompanying the breakup of Yugoslavia, which resulted in over 130,000 dead or missing, is the archive of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. The Tribunal established by the UN Security Council in 1993 to prosecute genocide, crimes against humanity, and war crimes indicted 161 people and had accumulated millions of pages of testimony, military and police reports, and videos when it closed in late 2017. This invaluable record details the massacres and includes well-known incidents, such as the mass executions after the fall of Srebrenica, but also killings and torture elsewhere in the former Yugoslavia. This article investigates the history of this archive, analyzes its contents, and argues that the collection has two important features which present both a huge opportunity and a significant challenge for research—the immense volume of the archive, and a lack of access to important parts of it.

APPRAISAL OF INTERNATIONAL CRIMINAL COURTS: LESSONS FOR THE GAMBIA ON JAMMEH’S ALLEGED CRIMES

This research is determined to present an appraisal of International Criminal Tribunal for Rwanda (hereinafter referred to as ICTR) from an international law perspective in their quest to serve justice after the perpetration of the heinous atrocities of genocide in 1994 in Rwanda and other criminal tribunals and courts. It examines the failure of the international community to intervene, the raison d’être of ICTR as the main tribunal in this research and its fate. It focuses on the national mechanisms and the need for The Gambia to achieve justice for victims of the former President, Yahya Jammeh by reflecting on Rwanda. These findings are used to gauge The Gambia’s Truth, Reconciliation and Reparations Commission’s (hereinafter referred to as the TRRC) recommendations and The Gambia’s white paper on Jammeh’s alleged crimes. It examines the violation of human rights, the prospects of this white paper and my perspective on possible mechanisms for social justice, integration and cohesion in The Gambia. This research, therefore, finds out that a hybrid court led by The Gambia and supported by judges in Africa is quite relevant to dealing with these alleged crimes because it is established with the aim of addressing this issue of Jammeh’s alleged human rights violations. This is so when The Gambia liaises with the African Union and the Economic Community of West African States to strengthen this hybrid court by providing this court with judges of outstanding legal acumen in hearing cases of such.

The Role of the Ministry of the Interior of the Republic of Serbia in the Conduct of Ethnic Cleansing of the Albanian Population in Kosovo and Metohija From 1998 to 1999

The paper presents a short chronology of the political conflict in the Autonomous Province of Kosovo and Metohija (Socialist Autonomous Province of Kosovo, until the constitutional changes of 1989), which in the 1990s turned into an armed conflict in which the security forces of the Republic of Serbia from October 1998 to June 1999, carried out a planned action of ethnic cleansing of Kosovo Albanians. In the action, several thousand Albanian civilians were executed extrajudicially and between 800,000 and 850,000 Albanians were forcefully expelled to Macedonia, Montenegro, Albania and Bosnia and Herzegovina. This paper is based on the final judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY) by which the highest state officials and military and police generals in the Federal Republic of Yugoslavia and the Republic of Serbia were convicted of joint criminal enterprise aimed at altering the ethnic structure in at least 13 Kosovo municipalities, especially in the period of the NATO alliance campaign from March 24 to June 12, 1999. The role of the Ministry of Interior in the joint criminal enterprise (JCE), as established by the ICTY judgments to the then Ministry of Interior leaders: Vlastimir Đordđević, head of the Public Security Department, Sreten Lukić, head of the Ministry of Interior Staff for Kosovo, (Vlajko Stojiljković, the Minister of Interior, was also accused, but he committed suicide in 2002) - is undoubted. Therefore, it calls for a public analysis and presentation of the role of this part of the repressive apparatus of the state of Serbia in the ethnic cleansing of Kosovo Albanians, as well as its role in the planned and systematic concealment of crimes. The concealment of the crime was conducted from March to June 1999 by the Ministry of Interior forces through secret operations of transfer of bodies of Kosovo Albanians from primary graves in Kosovo and their burial in mass graves at secret locations in Serbia. Three graves were discovered in 2001 and one in 2013, with the assumption that there are more because they are looking for another 1,086 Albanian victims and 562 victims of Serbs, Roma, Bosniaks, Egyptians, Ashkali and others.

Legal Humility and Perceptions of Power in International Criminal Justice

Abstract This article examines how judges and lawyers working in international criminal courts see their authority in relation to power exerted by states, international organisations and private actors. We draw together ethnographic research inside the International Criminal Tribunal for Rwanda (ictr) and the International Criminal Court (icc) that examined perceptions of the interactions among local, national and international legal regimes and the potential for accomplice liability for arms traders under international criminal law. Overall, we show that the legal actors in these courts routinely understood their power as severely limited by concurrent sites of private and public authority. Building on ideas of legal humility, we argue that this should be understood as ‘selective humility’. This humility demonstrated a reticence among these legal actors about what internationalised courts can achieve while offering an argumentative defence against critiques of this legal practice.

Opportunities and failures to prosecute violence against persons with disabilities at the international tribunals for the former Yugoslavia, Rwanda and Sierra Leone

AbstractThis paper presents an inexhaustive but thorough review of the evidence of violence against persons with disabilities that came before, or ought to have been known to, the prosecutors of the international criminal tribunals for the former Yugoslavia, Rwanda and Sierra Leone. This research demonstrates that despite significant and compelling evidence from investigators, journalists and witnesses, gross violations against persons with disabilities were largely ignored by the prosecution or treated merely as aggravating factors at sentencing. These crimes could instead have been characterized as an “other inhumane act” prosecutable as a crime against humanity, which would have emphasized the gravity of the crimes, provided recognition of the victims’ suffering, imposed criminal sanctions on those responsible, and unequivocally condemned violence against persons with disabilities during armed conflict.

Double Agents

Double Agents

Ethnic Cleansing as a Distinct Crime under International Law: Assessing the Case of Forcible Transfer of Ethnic Koreans in the Former USSR(1937)

The forcible transfer of ethnic Koreans in 1937 marked the first precedent of the policy of wholesale eviction and displacement of populations as an instrument of ethnic cleansing in the USSR and became a pattern during and after World War II, when different ethnic minorities amounting to around 6 million people have been uprooted from their homes, with 1 to 1.5 million estimated to have perished as a result of forced internal displacement.
 The present research considers the forced internal displacement of the ethnic Korean population in the USSR to be an act of ethnic cleansing, which is a mass atrocity crime and a blatant human rights violation. Inability to bring the perpetrators to justice for forced displacement of the entire civilian population of ethnic Koreans in the USSR, which has caused the physical extermination of several thousand people and the destruction of their socio-economic infrastructures and culture, will remain in history as the most serious form of impunity and the most flagrant violation of the fundamental right of victims to justice. The state cannot be held accountable for this wrongful act since the Soviet Union, as a subject of international and geopolitical reality, no longer exists and ethnic cleansing has not yet been recognized as an independent crime under international law.
 International law sets out the human rights and each State and other authorities have a prime responsibility and duty to protect, promote and implement all these rights and fundamental freedoms, and it is essential to carry out protection activities at the national and international level. While the prohibition of forced displacement itself has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War, ethnic cleansing has not yet been written and signed in any UN treaty, which means Member States do not have to protect those who have fallen victim, since ethnic cleansing is still not a criminal charge in international law. But in 2005, a UN World Summit included ethnic cleansing along with genocide, war crimes, and crimes against humanity as four things from which each individual State has a duty to protect their populations.
 Despite the fact that forcible transfer and other practices involving the coerced, arbitrary or involuntary displacement of the civilian population from their homes, lands, and communities constitute a specific phenomenon, there is no single legal principle in international law that can be applied to all kinds of population transfers. In some circumstances, deportation or internal displacement as well as other forms of involuntary population transfers may amount to a crime against humanity, a crime of genocide or a war crime, depending on the factual elements of the case and the specific requirements of a certain crime.
 This study accordingly reviews population transfers as the constitutive element of such crimes as genocide and crimes against humanity, and transposes this comparative analysis into the context of ethnic cleansing.
 Every state has the responsibility to protect its population from four mass atrocity crimes: genocide, war crimes, crimes against humanity (that have not yet been codified in a separate treaty of international law), and ethnic cleansing (that has not been recognized as an independent crime under international law). The term ‘ethnic cleansing’ itself has been acknowledged in judgments and indictments of the International Criminal Tribunal for the Former Yugoslavia, although it did not constitute one of the counts for prosecution. One aspect of the criticism of the terms ‘ethnic cleansing’ focuses primarily on the fact that many state governments use this term even when an incident can be classified as genocide in order not to use state resources or taking action against the perpetrating State.

The earth–space alliance in preventing and punishing mass murder crimes: documenting and prosecuting international crimes through aerial satellite evidence

Abstract This article explores and articulates contemporary discourse, reflective of the most recent practice in the domain of relationship between artificial intelligence (AI) and discrete fields of international law, primarily concerning the use of such machinery to prevent and punish crime. It looks into the hitherto unforeseen context of the use of satellite imagery and other AI-generated data as evidence before international courts and tribunals in order to document and prosecute the commission of internationally prohibited crimes. Taking as a lead example the curious case of Al-Werfalli before International Criminal Court (ICC), while examining other relevant cases from the practice of the ICC, International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Court of Justice (ICJ) in some exhaustive fashion, the underlying philosophy is to explore the benefits and limits of the AI, with a view of ascertaining the distinct role and place for courts in shaping stable standards in the face of challenges posed by modern technology. The larger objective is indeed three-fold: to ascertain the role and probative value of aerially derived evidence, to explore some of the challenges associated with the use of such evidence, and to understand the role of courts in determining the applicable standards and developing the law. The existing judicial praxis reveals the acceptance of the satellite-based or aerially derived evidence in judicial proceedings and sets forth the requisite operational criteria, which should serve both as guidance and an inspiration for exploring their further development and specification.

Music and Incitement to Violence: Anti-Muslim Hate Music in Burma/Myanmar

Abstract This article examines a corpus of Burmese-language anti-Muslim hate songs archived on YouTube. Burma/Myanmar is the site of recent genocidal violence perpetrated against Muslims, and these songs are part of the hate speech campaign that undergirds this violence. Using the definition of incitement articulated by the International Criminal Tribunal for Rwanda, the article shows that the lyrics of these songs constitute incitement to violence. Further, the comments written by YouTube listeners provide evidence that the songs provoke additional dehumanizing speech. The songs and their creators are therefore complicit in the recent violent persecution of Muslims in Myanmar.

From the Editor

From the Editor

“TAKE PITY OF YOUR TOWN AND OF YOUR PEOPLE”

It has been argued that the practice of siege warfare is at the very limit of legality under the terms of International Humanitarian Law.[1] The question addressed in this essay might be rephrased: how do the laws of armed conflict permitsieges to become humanitarian disasters? More precisely, can military doctrine regarding the efficacy of siege warfare operations to induce surrender of besieged forces comply in real world terms with the laws of armed conflict? Since February, 2022 it is alleged that Russian armed forces perpetrated a number of crimes against humanity in Ukraine during sieges of cities such as Mariupol. These alleged crimes include indiscriminate targeting of civilian habitation and attacks on evacuation corridors.[2] In the 1990s, siege warfare in the former Yugoslavia provoked international censure and criminal prosecution of perpetrators. Nevertheless, siege operations in Syria and Kashmir today show no sign of respecting the rights of civilian populations despite international censure. The core legal issue regarding sieges is the principle of distinction between combatants and non-combatant civilians and thus decisions regarding targeting and proportionality. The essay will show that distinction is a recent innovation in International Humanitarian Law and uncertainly embodied in military doctrine. The first part reviews evolving IHL norms pertinent to modern sieges. In the second, the essay examines modern jurisprudence regarding the conduct of siege warfare derived from the International Criminal Tribunal for the Former Yugoslavia (ICTY) prosecution of Major General Stanislav Galić and Major General Dragomir Milosević.[3] 
 
 [1] Riordan, K., ‘Shelling, Sniping and Starvation: the Law of Armed Conflict and the Lessons of the Siege of Sarajevo’, Victoria University of Wellington Law Review, 41 (2), p.150; Watts, S., Under Siege: International Humanitarian Law and Security Council Practice Concerning Urban Siege Operations’, Research and Policy Paper, CHE Project, May 2014.
 [2] https://blogs.icrc.org/law-and-policy/2022/03/17/armed-conflict-in-ukraine-a-recap-of-basic-ihl-rules/
 [3] https://www.icty.org/case/galic

World War I: A Phoenix Moment in the History of International Criminal Tribunals

Abstract The post-World War II International Military Tribunal at Nuremberg is commonly considered the first-ever international criminal tribunal. It is also often argued that the very idea of an international criminal tribunal emerged after World War I, when the first plans for such a tribunal were drawn up. This article, however, presents a very different account. It shows that international criminal tribunals did not have to wait for their conception until after World War I; nor did they come into being after World War II – they already operated during World War I and the preceding century. The article also demonstrates that the existence of such tribunals did influence the participants of the Paris Peace Conference, even though they portrayed them as novel.

INCITING VIOLENCE AND PROPAGATING HATE THROUGH THE MEDIA: RWANDA AND THE LIMITS OF INTERNATIONAL CRIMINAL LAW

The media played a significant role during the 1994 genocide in Rwanda. Media messages took two forms: incitement to kill (or “incitement to violence”), and hate propaganda (or “hate speech”). In 2003, the International Criminal Tribunal for Rwanda (ICTR) convicted three media leaders of, amongst others, genocide and incitement to commit genocide. This contribution is an attempt to find out whether these convictions are based on the speech and responsibility for speech through the media − distinct from other actions including utterances outside the context of the media − of the accused. If any of these convictions are in fact based on mediamessages, does “incitement to violence” or “hate speech” constitute the basis for such convictions? Conceding the difficulties of disentangling these different forms of speech, the conclusion is that the convictions are based on “incitement to violence”, and not on “hate speech” as such.

Opening Pandora's box: The case of Mexico and the threshold of non-international armed conflicts

AbstractThis article addresses the situation of Mexican cartels in relation to the applicability of international humanitarian law (IHL). The analysis starts with a theoretical examination of the International Criminal Tribunal for the former Yugoslavia criteria on intensity of violence and level of organization established for assessing the existence of an organized armed group in the context of a non-international armed conflict. The article further examines legal and non-legal literature with the purpose of providing elements to consider the rightness of applying IHL to criminal organizations, also considering similar scenarios in Latin America. The aim of this assessment is to provide additional elements for the consideration of whether IHL is suitable when addressing confrontations between certain criminal gangs and States. Additionally, the article assesses how the commercial purposes of these groups affect their organization and the nature of the violence in which they engage.

Reflections on the Symptoms of Humanitarian Principles in the Investigations – A Study on Admissibility of Electronic Evidences

The establishment of the International Criminal Tribunal’s postWorld War II is the clear sign of augmented figure of International Crimes especially. The culmination of flagship tribunals like Yugoslavia and Rwanda opened the new phase for several significant questions such as the maintenance of humanitarian principles throughout the investigation, relevancy of evidence, authenticity, and overall mechanism and its legality too. The chances of an independent investigation mechanism for international crimes may also not be denied. Under such a state of affairs, the issues of collection, preservation, and scrutiny of the evidence of the most serious International Crimes and violations of normative principles set out by International Criminal Law becomes crucial to know to ensure fair and transparent justice. Indeed, the investigation procedure required for such fairness and transparency demands unequivocal maintenance of humanitarian principles throughout the process and legality for the sake of legal authority behind. Consequently, the present paper counts the impact of the investigation mechanism on criminal for international crimes and the existence of the symptoms of humanitarian principles with its legality by analyzing several International Instruments, Judicial Decisions, and other fact findings on the record.