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PART Ⅰ SOURCES AND PRINCIPLES OF INTERNATIONAL CRIMINAL LAW1

Introduction1

1. SOURCES OF INTERNATIONAL CRIMINAL LAW5

(A) International Custom and the Value of Precedents5

ICTY, Prosecutor v. Tadic, Appeals Chamber, Jurisdiction Decision,2 October 19956

ICTY, Prosecutor v. Kupreskic et al., Trial Chamber, Judgment of 14 January 200017

ICTY, Prosecutor v. Aleksovski, Appeals Chamber, Judgment of 24 March 200022

Commentary25

Questions26

Further Reading26

(B) Treaties and Instruments Establishing International Tribunals26

IMT Nuremberg, Goring et al., Judgment of 30 September-1 October 194627

ICTY, Prosecutor v. Delalic et al. (Celebici case), Trial Chamber,Judgment of 16 November 199830

Commentary33

Questions34

Further Reading34

(C) General Principles of Law34

ICTY, Prosecutor v. Erdemovic, Appeals Chamber, Judgment of 7 October 1997 (Joint Separate Opinion of Judge McDonald and Judge Vorah)36

ICTY, Prosecutor v. Furundzija, Trial Chamber, Judgment of 10 December 199838

Commentary40

Questions41

Further Reading41

(D) International Criminal Law and Human Rights41

ICTY, Prosecutor v. Kupreskic et al., Trial Chamber, Judgment of 14 January 200042

STL, In re Hariri, President, Order on Conditions of Detention,21 April 200944

ICC, Situation in the Democratic Republic of the Congo, Pre-Trial Chamber I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 17 January 200648

ICTR, Prosecutor v. Rwamakuba, Trial Chamber, Decision on Appropriate Remedy, 31 January 200749

Commentary51

Questions52

Further Reading52

2. THE FUNDAMENTAL PRINCIPLES OF INTERNATIONAL CRIMINAL LAW53

(A) Nullum Crimen Sine Lege53

The Notion and Its Origins53

IMT Nuremberg, Goring et al., Judgment of 30 September-1 October 194655

International Military Tribunal for the Far East, US et al., v. Araki et al.,Separate Opinion of Bernard Victor Aloysius Roling, 12 November 194858

International Military Tribunal for the Far East, US et al. v. Araki et al.,Separate Opinion of Radhabinod Pal, 12 November 194859

Commentary60

SCSL, Prosecutor v. Norman, Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction, 31 May 200461

Corollary Principles: Specificity, Non-Retroactivity and Non-Extension by Analogy67

European Court of Human Rights, Kononov v. Latvia, App. No. 36376/04,Grand Chamber, Judgment of 17 May 201068

ICTY, Prosecutor v. Milutinovic et al., Decision on Dragoliub Ojdanic's Motion Challenging Jurisdiction - Joint Criminal Enterprise, 21 May 200372

Commentary73

Questions75

Further Reading76

(B) Immunities76

The Notion and Its Origins76

Functional Immunities76

Israel, Eichmann v. Attorney-General, Supreme Court, Judgment of 29 May 196277

United Kingdom, R v. Bow Street Stipendiary Magistrate (Bartle) ex parte Pinochet Ugarte (No. 3), House of Lords, Judgment of 24 March 199979

USA, Matar v. Dichter, US Court of Appeals for the Second Circuit,Decision of 16 April 200985

Commentary87

Personal Immunities88

Spain, Fidel Castro, Audiencia Nacional (Central Criminal Court),Decision of 4 March 199989

France, Gaddafi case, Cour de cassation, Judgment of 13 March 200191

Belgium, Sharon and Yaron, Cour de cassation, Judgment of 12 February 200392

SCSL, Prosecutor v. Taylor, Appeals Chamber, Decision on Immunity from Jurisdiction, 31 May 200493

Commentary96

Other Sources of'Immunities'96

ICTY, Prosecutor v. Karadzic, Decision on Karadzic's Appeal of Trial Chamber's Decision on Alleged Holbrooke Agreement, 12 October 200997

Questions99

Further Reading99

(C) Ne Bis In Idem99

The Notion and Its Origins99

ICTY, Prosecutor v. Tadic, Trial Chamber, Decision on the Defence Motion on the Principle of Non-Bis-In-Idem, 14 November 1995100

ICTY, Prosecutor v. Karadzic, Trial Chamber, Decision on the Accused's Motion for a Finding on Non-Bis-In-Idem, 16 November 2009103

Commentary104

The Complexity of Multiple Sovereigns105

Amnesty and Ne Bis In Idem108

ECCC, Decision on Appeal Against Provisional Detention Order of Ieng Sary, 17 October 2008108

Commentary111

Questions112

Further Reading112

PART Ⅱ CRIMES113

Introduction113

1. WAR CRIMES117

(A) The Notion and Its Origins118

(B) Grave Breaches118

(C) War Crimes in Non-International Armed Conflicts118

(D) Link with the Armed Conflict119

(E) Categories of War Crimes120

(F) War Crimes Committed by Civilians122

Superior Military Government Court of the French Occupation Zone in Germany, Rochling et al., Judgment of 25 January 1949122

Israel, Enigster, Tel-Aviv District Court, Judgment of 4 January 1952127

Commentary132

(G) Violations of the Rules on the Conduct of Warfare132

Means of Warfare132

Japan, Shimoda et al. v. the State, Tokyo District Court, Judgment of 7 December 1963132

Commentary138

Methods of Warfare138

USA, US v. Calley, Court of Military Appeals, Judgment of 21 December 1973138

ICTY, Prosecutor v. Galict Trial Chamber, Judgment of 5 December 2003141

Commentary153

Questions153

Further Reading153

2. CRIMES AGAINST HUMANITY154

(A) The Notion and Its Origins154

IMT Nuremberg, Goring et al., Judgment 30 September-1 October 1946 (Streicher, von Schirach)156

US Military Tribunal Sitting in Nuremberg, US v. Altstotter et al.(Justice Trial), Judgment of 3-4 December 1947159

ICTY, Prosecutor v. Tadic, Trial Chamber, Judgment of 7 May 1997166

Commentary168

(B) The Perpetrators and the Victims168

US Military Tribunal Sitting in Nuremberg, US v. Greifelt et al. (RuSHA Trial), Judgment of 10 March 1948169

France, Papon case, Cour de cassation, Judgment of 23 January 1997170

ICTY, Prosecutor v. Limaj et al., Trial Chamber, Judgment of 30 November 2005170

France, Barbie case, Cour de cassation, Judgment of 20 December 1985174

ICTY, Prosecutor v. Martic, Appeals Chamber, Judgment of 8 October 2008175

Commentary179

(C) The 'Chapeau' Elements179

ICTY, Prosecutor v. Kunarac et al., Appeals Chamber, Judgment of 12 June 2002181

Commentary184

(D) The Specific Crimes Within Crimes Against Humanity184

ICTY, Prosecutor v. Kupreskic et al., Trial Chamber, Judgment of 14 January 2000186

ICTR, Nahimana et al. v. Prosecutor (the Media case), Appeals Chamber,Judgment of 28 November 2007188

ICTY, Prosecutor v. Kunarac et al., Trial Chamber, Judgment of 22 February 2001194

Commentary198

Questions199

Further Reading199

3. GENOCIDE200

(A) The Notion and Its Origins200

(B) The Elements of Genocide201

The Underlying Acts201

ICTR, Prosecutor v. Akayesu, Trial Chamber, Judgment of 2 September 1998201

Commentary203

Protected Groups204

ICTY, Prosecutor v. Krstic, Trial Chamber, Judgment of 2 August 2001204

Commentary207

Genocidal Intent209

ICTY, Prosecutor v. Jelisic, Trial Chamber, Judgment of 14 December 1999209

ICTY, Prosecutor v. Jelisic, Appeals Chamber, Judgment of 5 July 2001214

ICTY, Prosecutor v. Krstic, Trial Chamber, Judgment of 2 August 2001217

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005 (UN Doc. S/2005/60)223

Commentary227

(C) Cultural Genocide?228

Germany, Jorgic case, Federal Court of Justice (Bundesgerichtshof),Judgment of 30 April 1999228

(D) Prevention of Genocide vs. Complicity in Genocide229

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),Judgment of 26 February 2007230

(E) Domestic Implementation234

Australia, Nulyarimma v. Thompson, Federal Court of Australia, Judgment of 1 September 1999234

Questions236

Further Reading237

4. AGGRESSION238

US Military Tribunal Sitting in Nuremberg, US v. von Weizsacker et al.(Ministries case), Judgment of 11-13 April 1949241

US Military Tribunal Sitting in Nuremberg, US v. von Leeb et al.(High Command case), Judgment of 27 October 1948244

Commentary247

US Military Tribunal Sitting in Nuremberg, US v. Krauch et al.(I.G. Farben case), Judgment of 30 July 1948248

Commentary251

United Kingdom, R v. Jones, House of Lords, Judgment of 29 March 2006252

Commentary254

Questions255

Further Reading255

5. TORTURE256

(A) Overview: The Practice and the Prohibition256

(B) Elements of the Crime of Torture258

Severity of Pain or Suffering259

ICTY, Prosecutor v. Brdanin, Appeals Chamber, Judgment of 3 April 2007260

Commentary262

Public Official as Actor265

ICTY, Prosecutor v. Kunarac, Trial Chamber, Judgment of 22 February 2001265

Commentary268

Intent and Purpose269

ICTY, Prosecutor v. Kunarac, Appeals Chamber, Judgment of 12 June 2002270

Commentary271

(C) Necessity?271

Israel, Legality of the General Security Service Interrogation Methods, Supreme Court, Judgment of 6 September 1999271

Commentary281

Germany, Daschner Wolfgang and E. case, Regional Court (Landgericht) of Frankfurt am Main, Decision of 20 December 2004282

Questions284

Further Reading285

6. TERRORISM286

(A) The Notion and Its Origins286

(B) Outlawing Terrorist Acts286

(C) Criminalizing Terrorism288

Lebanon, In re Dany Chamoun et al., Judicial Council, Judgment No. 5/1995 of 24 June 1995288

USA, US v. Fawaz Yunis, US Court of Appeals, District of Columbia Circuit, Judgment of 29 January 1991294

(D) Terrorists and International Humanitarian Law301

USA, Hamdan v. Rumsfeld, Supreme Court, Judgment of 29 June 2006301

Italy, Bouyahia Maker Ben Abdelaziz et al., Supreme Court, Judgment No. 1072 of 17 January 2007305

Commentary310

Questions311

Further Reading311

7. PIRACY312

USA, US v. Smith, Supreme Court, Judgment of 25 February 1820314

USA, The Ambrose Light, Federal District Court of New York, Judgment of 30 September 1885315

United Kingdom, In Re Piracy Iure Gentium, Judicial Committee of the Privy Council, Judgment of 26 July 1934317

Kenya, Hassan M. Ahmed et al. v. Republic, High Court of Kenya, Judgment of 12 May 2009319

Commentary321

Questions321

Further Reading321

PART Ⅲ FORMS OF RESPONSIBILITY323

Introduction323

1. COMMISSION327

USA, US v. Potter, US Navy Board of Review, Judgment of 5 June 1968328

ICTR, Gacumbitsi v. Prosecutor, Appeals Chamber, Judgment of 7 July 2006330

Commentary332

Questions332

Further Reading333

2. JOINT CRIMINAL ENTERPRISE334

ICTY, Prosecutor v. Tadic, Appeals Chamber, Judgment of 15 July 1999335

ICTY, Prosecutor v. Brdanin, Appeals Chamber, Judgment of 3 April 2007344

ICTY, Prosecutor v. Martic, Appeals Chamber, Judgment of 8 October 2008347

Commentary351

Questions351

Further Reading352

3. CO-PERPETRATION353

ICC, Prosecutor v. Lubanga, Pre-Trial Chamber, Decision on the Confirmation of Charges of 29 January 2007354

Commentary360

ICC, Prosecutor v. Katanga and Chui, Pre-Trial Chamber, Decision on the Confirmation of Charges of 30 September 2008360

Questions361

Further Reading362

4. PLANNING363

ICTY, Prosecutor v. Kordic and Cerkez, Trial Chamber, Judgment of 26 February 2001 and Appeals Chamber, Judgment of 17 December 2004364

ICTY, Prosecutor v. Dragomir Milosevic, Appeals Chamber, Judgment of 12 November 2009365

Commentary367

Questions367

Further Reading368

5. ORDERING369

(A) Overview369

(B) Must the Order Be Executed?370

USA, Court-Martial of General Jacob H. Smith, 3 March 1903370

Commentary372

(C) Mens Rea373

ICTY, Prosecutor v. Blaskic, Trial Chamber, Judgment of 3 March 2000373

ICTY, Prosecutor v. Blaskic, Appeals Chamber, Judgment of 29 July 2004376

Commentary379

Questions379

Further Reading380

6. AIDING AND ABETTING381

Federal Republic of Germany, S. and others (Hechingen and Haigerloch Deportation case), Tribunal (Landgericht) Hechingen, Judgment of 28 June 1947382

Federal Republic of Germany, S. and others (Hechingen and Haigerloch Deportation case), Court of Appeal (Oberlandesgericht) Tubingen,Judgment of 20 January 1948386

US Military Tribunal Sitting in Nuremberg, US v. Ernst von Weizsacker et al., (Ministries case), Judgment of 11-13 April 1949387

Commentary388

ICTY, Prosecutor v. Furundzija, Trial Chamber, Judgment of 10 December 1998390

USA, Khulumani v. Barclay National Bank Ltd. et al., US Court of Appeals for the Second Circuit, Judgment of 12 October 2007399

Questions400

Further Reading401

7. INCITEMENT TO COMMIT GENOCIDE402

(A) The Notion and Its Origins402

(B) The Meaning of Direct and Public Incitement404

ICTR, Nahimana et al. v. Prosecutor (Media case), Appeals Chamber,Judgment of 28 November 2007405

ICTR, Prosecutor v. Bikindi, Trial Chamber, Judgment of 2 December 2008412

Commentary414

(C) Intent and Causation416

Canada, Mugesera v. Canada (Minister of Citizenship and Immigration),Judgment of 28 June 2005416

Commentary419

Questions420

Further Reading420

8. SUPERIOR RESPONSIBILITY421

(A) The Notion421

(B) A Controversial Start422

US Military Commission in Manila, Trial of General Tomoyuki Yamashita,Case No. 21, US Military Commission, Manila,8 October-7 December 1945422

USA, In re Application of Yamashita, Supreme Court, Judgment of 4 February 1946425

Commentary431

(C) Crystallization and Codification431

(D) Elements436

Subordination: Effective Command and Control436

ICTY, Prosecutor v. Hadzihasanovic, Appeals Chamber, Judgment of 22 April 2008438

SCSL, Prosecutor v. Brima (AFRC case), Appeals Chamber, Judgment of 22 February 2008444

Commentary445

Mens Rea446

ICTY, Prosecutor v. Strugar, Appeals Chamber, Judgment of 17 July 2008446

Commentary450

Actus Reus: Omission450

ICTY, Prosecutor v Strugar, Appeals Chamber, Judgment of 17 July 2008451

Commentary455

Questions456

Further Reading456

PART Ⅳ CIRCUMSTANCES EXCLUDING CRIMINAL RESPONSIBILITY459

Introduction459

1. JUSTIFICATIONS: SELF-DEFENCE461

US General Military Court in Ludwigsburg (Germany),Erich Weiss and Wilhelm Mundo, Decision of 10 November 1945,Report of the Judge Advocate461

Commentary462

Questions463

Further Reading463

2. EXCUSES464

(A) Superior Orders464

Germany, LLandovery Castle case (Dithmar and Boldt case), Supreme Court(Reichsgericht) at Leipzig, Judgment of 16 July 1921464

US Military Commission, Csihas et al., Report of the Judge Advocate,September 1946466

Italy, Kappler et al., Military Tribunal, Judgment No. 631 of 20 July 1948468

Israel, Jamal Abd El-Kader Mahmud et al. v. The Military Advocate General et al. (Meir case), Supreme Court, Judgment of 27 December 1989470

Commentary471

Questions472

Further Reading472

(B) Duress472

US Military Tribunal Sitting in Nuremberg, US v. Ohlendorf et al.(Einsatzgruppen case), Judgment of 10 April 1948473

ICTY, Prosecutor v. Erdemovic, Appeals Chamber, Judgment of 7 October 1997476

East Timorese Transitional Administration, Prosecutor v. Leki, Special Panels for Serious Crimes (SPSC), Judgment of 11 June 2001 (English original)487

Questions491

Further Reading491

(C) Necessity491

US Military Tribunal Sitting in Nuremberg, US v. Flick et al., Judgment of 22 December 1947492

Federal Republic of Germany, Sch. and Dr. L. (Gestapo members case), German Federal High Court (Bundesgerichtshof), Judgment of 14 October 1952494

Israel, Eichmann v. Attorney General, Supreme Court, Judgment of 29 May 1962496

France, Touvier case, Court of Appeal, Versailles, Judgment of 2 June 1993497

Commentary499

Questions499

Further Reading500

(D) Mistake of Fact500

USA, US v. Schwarz, Navy Court of Military Review, Judgment of 29 October 1971500

Commentary501

USA, US v. McMonagle, US Court of Military Appeals, Judgment of 27 September 1993502

Commentary504

Federal Republic of Germany, Polish prisoner of war case, Federal Court of Justice (Bundesgerichtshof), Judgment of 12 December 1950504

Questions506

Further Reading507

(E) Mistake of Law507

Germany, Llandovery Castle case (Dithmar and Boldt case), Supreme Court (Reichsgericht) at Leipzig, Judgment of 16 July 1921507

Netherlands, In re Wintgen, Special Court of Cassation, Judgment of 6 July 1949508

Netherlands, B., Court Martial, Judgment of 2 January 1951509

Federal Republic of Germany, Sch. and Dr. L. (Gestapo members case)Federal High Court (Bundesgerichtshof), Judgment of 14 October 1952510

Questions511

Further Reading512

(F) Mental Disorder512

Germany, Stenger and Crusius, German Imperial Court (Reichsgericht)in Leipzig, Judgment of 6 July 1921512

Commentary515

Questions515

Further Reading515

(G) Tu Quoque516

IMT Nuremberg, Goring et al, Judgment of 30 September-1 October 1946 (Donitz)516

ICTY, Prosecutor v. Kupreskic, Trial Chamber, Judgment of 14 January 2000518

ICTY, Prosecutor v. Martic, Appeals Chamber, Judgment of 8 October 2008520

Questions521

Further Reading522

PART Ⅴ JURISDICTIONAL AND PROCEDURAL ISSUES523

Introduction523

1. PRIMACY VERSUS COMPLEMENTARITY525

ICTR, Prosecutor v. Kanyabashi, Trial Chamber, Decision on the Defence Motion on Jurisdiction, 18 June 1997526

ICTR, In the Matter of Theoneste Bagosora, Trial Chamber, Decision on the Application by the Prosecutor for a Formal Request for Deferral, 17 May 1996526

ICC, Prosecutor v. Kony et al., Pre-Trial Chamber, Decision on the Admissibility of the Case under Article 19(1) of the Statute, 10 March 2009530

Commentary534

2. STATE COOPERATION535

ICTY, Prosecutor v. Blaskic, Appeals Chamber, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997535

ICTY, Prosecutor v. Dokmanovic, Trial Chamber, Decision on the Motion for Release by the Accused Slavko Dokmanovic, 22 October 1997553

Commentary555

3. SURRENDER AND ARRESTS557

(A) Relations Between International Tribunals and Domestic Courts557

ICTY, Prosecutor v. Martic, Trial Chamber, Decision on the Prosecution's Motion to Request Leave to File a Corrected Amended Indictment, 13 December 2002558

ICTY, Prosecutor v. Nikolic, Appeals Chamber, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003559

Commentary563

(B) Interstate Relations563

Italy, Adler and 32 others (Abu Omar case), Milan Single Judge, Verdict of 4 November 2009, Reasons Filed on 1 February 2010564

Commentary570

4. TRIAL PROCEDURES571

ICTY, Prosecutor v. Limaj et al., Trial Chamber, Decision on the Prosecution's Motions to Admit Prior Statements as Substantive Evidence, 25 April 2005572

ICC, Prosecutor v. Lubanga Dyilo, Trial Chamber, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007577

Commentary580

Questions580

Further Reading580

Index583