Yearbook of International Humanitarian Law
TIMOTHY L.H. MCCORMACK General Editor
JANNK. KLEFFNER Managing Editor
Published by T . M . C . A S S E R P R E S S , P.O. Box I6 163,2500 BD The Hague, The Netherlands www.asserpress.nl
T . M . C . A S S E R PRESS
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Cover photograph: Israeli tank firing, 2006 O Eran Amiran Shlomo
ISBN 978-90-6704-269-7 ISSN 1389-1359
O 2008, T.M.C. Asser Instituut, The Hague, The Netherlands, and the authors T.M.C. Asser Instituut - Institute for Private and Public International Law, International Commercial Arbitration and European Law Institute Address: R.J. Schimmelpennincklaan 20-22, 2517 JN The Hague, The Netherlands; P.O. Box 30461, 2500 GL The Hague, The Netherlands; Tel.: (31-70)3420300; Fax: (31-70) 3420359;
[email protected], www.asser.nl; www.yihl.nl. Over forty years, the T.M.C. Asser Institute has developed into a leading scientific research institute in the field of international law. It covers private international law, public international law, including international humanitarian law, the law of the European Union, the law of international commercial arbitration and increasingly, also, international economic law, the law of international commerce and international sports law. Conducting scientific research either fundamental or applied, in the aforementioned domains, is the main activity of the Institute. In addition, the Institute organizes congresses and postgraduate courses, undertakes contract-research and operates its own publishing house. Because of its inter-university background, the Institute often cooperates with Dutch law faculties as well as with various national and foreign institutions. The Institute organizes Asser College Europe, a project in cooperation with East and Central European countries whereby research and educational projects are organized and implemented. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the copyright owners.
BOARD OF EDITORS Professor Tim McCormack, University of Melbourne (General Editor) Assistant Professor Jann K. Klefner, University of Amsterdam (Managing Editor) Professor Eric David, Brussels Free University Professor Louise Doswald-Beck, Graduate Institute of International and Development Studies, Geneva Professor John Dugard, University of Leiden Mr Bill Fenrick, Dalhousie University Professor Horst Fischer, University of Leiden and Ruhr-Universitat Bochum H.E. Judge Abdul Koroma, International Court of Justice, The Hague Professor Chris Maina Peter, University of Dar es Salaam Dr Avril McDonald, T.M.C. Asser Instituut, The Hague H.E. Judge Theodore Meron, International Criminal Tribunal for the Former Yugoslavia, The Hague Professor Djamchid Momtaz, Teheran University Bacre Waly Ndiaye, United Nations High Commissioner for Human Rights, New York H. E. Judge Elizabeth Odio-Benito, International Criminal Court, The Hague Mr W Hays Parks, USA H. E. President Fausto Pocar, International Criminal Tribunal for the Former Yugoslavia, The Hague Professor Michael N. Schmitt, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen
BOARD OF RECOMMENDATION Her Royal Highness Princess Margriet of the Netherlands, Vice-Chair, Netherlands Red Cross Society Professor Emeritus George Aldrich, University of Leiden, Iran-US Claims Tribunal Professor Emeritus Florentino I? Feliciano, Member Appelate Board, WTO; Senoir Associate Justice, Supreme Court of the Philippines (retired) Professor Emeritus Dr Frits Kalshoven, University of Leiden H.E. Judge C.G. Weeramantry, International Court of Justice (retired)
EDITORIAL OFFICE Dr Jann K. Kleffner, Managing Editor, T.M.C. Asser Instituut Ms Amna Guellali, Assistant Managing Editor, T.M.C. Asser Instituut Ms Michelle Lesh, Correspondents' Reports Editor, Melbourne Law School Ms Karin Peters, Editorial Assistant, T.M.C. Asser Instituut T.M.C. Asser Instituut, P.O. Box 30461, 2500 GL Hague, The Netherlands
[email protected]; www.asser.nl; www.wihl.nl
VI
Table of Contents
CORRESPONDENTS The Yearbook of International Humanitarian Law extends its sincere thanks and appreciation to its correspondents, without whose assistance the compilation of this volume would not have been possible: AFRICA Professor Kamel Filali, Algeria Mr Adel Maged, Egypt Mr Emmanuel Kasimbazi, Uganda ASIA-PACIFIC Ms Amy Barry-Macaulay, Australia Ms Anita Coles, Australia Ms Purnika Dharmadasa, Australia Ms Alison Duxbury, Australia Ms Jessica Latimer, Australia Mr James May, Australia General Nilendra Kumar, India Ms Treasa Dunworth, New Zealand Mr Soliman M. Santos Jr., The Philippines Ms Emily Bell, Timor-Leste EUROPE Professor Eric David, Belgium Ms Lejla VujinoviC, Bosnia and Herzegovina Dr Andreas Laursen, Denmark Mr Peter Otken, Denmark Professor Paul Tavernier, France Dr Eszter Kirs, Hungary
Mr Ray Murphy, Ireland Dr Valentina Della Fina, Italy Dr Omella Ferrajola, Italy Ms Silvana Moscatelli, Italy Dr Valeria Eboli, Italy Mr Rytis Satkauskas, Lithuania Professor Nico Keijzer, The Netherlands Dr Elies van Sliedregt, The Netherlands Professor Antoni Pigrau, Spain Dr Ola Engdahl, Sweden Dr Roberta Arnold, Switzerland Professor Peter Rowe, United Kingdom
MIDDLE EAST Dr Yael Ronen, Israel Dr Mustafa Mari, Occupied Palestinian Territories
NORTH AMERICA Mr Joseph Rikhof, Canada Mr B u m s M. Carnahan, USA
CENTRAL AND SOUTH AMERICA Professor Rafael Prieto Sanjdn, Colombia
VII
TABLE OF CONTENTS
Abbreviations
ARTICLES The obligation of a state under international law to protect members of its own armed forces during armed conflict or occupation P. Rowe
3
The targeting of civilian contractors in armed conflict D. Stephens and A. Lewis Learning the lessons of the MiloSevid Trial G. Boas and T.L.H. McCormack Targeted killing or less harmful means? - Israel's High Court judgment on targeted killing and the restrictive function of military necessity N. Melzer
Implementing international law: a qualified defense of the A1 Dujail trial M.A. Newton
87
117
The execution of Saddam Hussein - A legal analysis E.H. Blinderman The case of Taha Yaseen Ramadan before the Iraqi High Tribunal: An insider's perspective W.H. Wiley
CURRENT DEVELOPMENTS
The year in review A. McDonald International criminal courts round up E.Carnero Rojo and M. Nybondas Israel, Hizbollah, and the second Lebanon war Y. Ronen
181
VIII
Table of Contents
International humanitarian law from a field perspective - case study Nepal P.J.C. Schimmelpenninckvan der Oije
CORRESPONDENTS' REPORTS
A guide to state practice concerning International Humanitarian Law With commentaries by: Roberta Arnold, Amy Barry-Macaulay, Emily Bell, B u m s M. Carnahan, Anita Coles, Eric David, Valentina Della Fina, Pumika Dharmadasa, Treasa Dunworth, Alison Duxbury, Valeria Eboli, Ola Engdahl, Omella Ferrajola, Kame1 Filali, Emmanuel Kasimbazi, Nico Keijzer, Eszter Kirs, Nilendra Kumar, Jessica Latimer, Andreas Laursen, Adel Maged, Mustafa Mari, James May, Silvana Moscatelli, Ray Murphy, Peter Otken, Antoni Pigrau, Rafael Prieto Sanjuan, Joseph Rikhof, Yael Ronen, Peter Rowe, Rytis Satkauskas, Elies van Sliedregt, Soliman M. Santos Jr., Paul Tavernier, Lejla VujinoviC
DOCUMENTATION Classification scheme Bibliography 2005-2006
TABLE OF CASES
INDEX
Abbreviations
IX
ABBREVIATIONS
Abl. AC ACTR AD
Amtsblatt Appeal Cases Australian Capital Territory Reports Annual Digest of Public International Law Cases
Adelaide LR
Adelaide Law Review
ADF AFDI African HRLJ African JI & CL African YIHL Air Force LR Air LR Airpower J Air Univ. Rev. AJIL Albany LR All ER ALR Amer. Univ. JIL & Pol. Amer. Univ. ILJ Amer. Univ. ILR AP AP APL(s) ARABSAT Arizona JI & CL Army Law. ASEAN ASIL Proc ATCA Australian YIL Austrian JPIL Austrian Rev. Int. & Eur. L AVM
Australian Defence Force Annuaire frangais de droit international Afncan Human Rights Law Journal African Journal of International and Comparative Law African Yearbook on International Humanitarian Law Air Force Law Review Air Law Review Airpower Journal Air University Review American Journal of International Law Albany Law Review All England Law Reports Australian Law Reports American University Journal of International Law and Policy American University International Law Journal American University International Law Review Additional Protocol Associated Press Anti-personnel landmine(s) Arab Satellite Communications Organization Arizona Journal of International and Comparative Law The Army Lawyer Association of South East Asian Nations American Society of International Law Proceedings Alien Tort Claims Act (USA) Australian Yearbook of International Law Austrian Journal for Public International Law Austrian Revue of International and European Law Anti-vehicle landmine
Berkeley JIL B.O. BGBl BGH Boston Univ. ILJ Boston College Int. & Comp. LR Brooklyn JIL BTF BverfGE
Berkeley Journal of International Law Boletin Oficial de la Republics Argentina Bundesgesetzblatt Bundesgerichtshof Boston University International Law Journal Boston College International and Comparative Law Review Brooklyn Journal of International Law Balkans Task Force Bundesverfassungsgericht
BYIL
British Yearbook of International Law
California LR Calif. Western ILJ Can. JL & Jur. Canadian YIL Case Western Reserve JIL Catholic Univ. LR CCW CD CENTCOM Chicago JIL Chinese JIL CHR (UN) CIA CICC CICR CID CIS CIVPOL CLA CLJ CLR CMAC Cmnd. Columbia HRLR Columbia JTL Columbia LR Cornell ILJ Cr. App. R CRC Criminal LF Criminal LR CSP CTBT CTS CWC
California Law Review California Western International Law Journal Canadian Journal of Law and Jurisprudence Canadian Yearbook of Intemational Law Case Western Reserve Journal of International Law Catholic University Law Review Convention on Certain Conventional Weapons Conference on Disarmament Central Command Chicago Journal of International Law Chinese Journal of Intemational Law Centre for Human Rights Central Intelligence Agency Coalition for the International Criminal Court Comite International de la Croix Rouge Criminal Investigation Division Commonwealth of Independent States Civilian Police Chief Legal Advisor Criminal Law Journal Commonwealth Law Reports Court Martial Appeal Court Command Paper Columbia Human Rights Law Review Columbia Journal of Transnational Law Columbia Law Review Cornell International Law Journal Criminal Appeals Reports Convention on the Rights of the Child Criminal Law Forum Criminal Law Review Conference of States Parties Comprehensive Test Ban Treaty Commonwealth Treaty Series Chemical Weapons Convention
Dalhousie LJ Denver JIL & Pol. DLR DMU DoD Duke JCIL
Dalhousie Law Joumal Denver Journal of International Law and Policy Dominian Law Reports Detainee Management Unit Department of Defense (USA) Duke Journal of Comparative and International Law
ECCAS ECHR Rep. ECHR
Economic Community of Central African States European Convention on Human Rights Reports European Convention on Human Rights
Abbreviations
ECOSOC ECOWAS EECC EHRR Emory ILR EJIL
ECOMOG
ECOWAS Monitoring Group United Nations Economic and Social Council Economic Community of West African States Eritrea-Ethiopia Claims Commission European Human Rights Reports Emory International Law Review European Journal of International Law
ERW
Explosive Remnants of War
XI
EU European Union European Court of Human Rights Eur. Ct. HR European Commission of Human Rights Eur. Comm. HR Eur. J. Crime, Crim. L & Crim. Jus. European Journal of Crime, Criminal Law and Criminal Justice Exchequer Digest F F Supp. FCJ FCR FDC FDTL Fed. Reg. Fed. Rep. Finnish YIL Fordham ILJ Fordham LR FRETILIN FRY
Federal Federal Supplement Federal Court of Justice (Canada) Federal Court Reports Force Detention Centre East Timorese Defence Force Federal Register (United States) Federal Reporter Finnish Yearbook of International Law Fordham International Law Journal Fordham Law Review Frente Revolucionaria Timor Lest Independence Federal Republic of Yugoslavia
GA GAOR (United Nations) GA Res. GC Georgetown Int. Environ. LR Georgetown JIL Georgia JI & Comp. L German LJ GW ILR GW JIL and Econ. GU GYIL
General Assembly (United Nations) General Assembly Official Records General Assembly Resolution (United Nations) Geneva Conventions Georgetown International Environmental Law Review Georgetown Journal of International Law Georgia Journal of International and Comparative Law German Law Journal The George Washington International Law Review The George Washington Journal of International Law and Economics Gazzetta Ufficiale (Italian Official Gazette) German Yearbook of International Law
Hague YIL Harvard ILJ HCJ HRLJ HRQ
Hague Yearbook of International Law Harvard International Law Journal High Court of Justice Human Rights Law Journal Human Rights Quarterly
IIA Court HR
Inter-American Court of Human Rights
ICJ ICJ Rep. ICLR ICLQ ICOM ICOMOS ICRC ICTR ICTY IDR IFLA IFOR IHL IJLM IJRL ILAS JI & Comp. L ILC Yearbook ILM ILR IMT IMTFE Indian JIL Indiana I & Comp. LR INTELSAT Int. LF INTERFET IRA Iran US CTR IRRC ISAF Israel LR Israel YB Israel YB HR
Inter-American Commission on Human Rights Inter-American Yearbook on Human Rights International Council on Archives International Campaign to Ban Landmines International Committee of the Blue Shield International Criminal Court International Covenant on Civil and Political Rights International Centre for the Study of the Preservation and Restoration of Cultural Property International Court of Justice International Court of Justice Reports International Criminal Law Review International and Comparative Law Quarterly International Council of Museums International Council on Monuments and Sites International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Defense Review International Federation of Library Association and Institutions Implementation Force International Humanitarian Law International Journal of Legal Medicine International Journal of Refugee Law ILAS Journal of International and Comparative Law Yearbook of the International Law Commission International Legal Materials International Law Reports International Military Tribunal (in Nuremberg) International Military Tribunal for the Far East (in Tokyo) Indian Journal of International Law Indiana International & Comparative Law Review International Telecommunications Satellite Organization International Law Forum International Force in East Timor Irish Republican Army Iran-United States Claims Tribunal Reports International Review of the Red Cross International Security Assistance Force Israel Law Review Israel Yearbook Israel Yearbook on Human Rights
JAMA J Amed Conflict L JCSL JICL JIL & Prac.
Journal of the American Medical Association Journal of Armed Conflict Law Journal of Conflict and Security Law Journal of International and Comparative Law Journal of International Law and Practice
IIA Comm. HR IIA YBHR ICA ICBL ICBS ICC ICCPR ICCROM
Abbreviations
XI11
J Int. Criminal Justice JPI J Trans. L & Pol. J Trauma
Journal of International Criminal Justice Judicial Police Inspectors Journal of Transnational Law & policy The Journal of Trauma
KFOR
Kosovo Force
LAS Leiden JIL LNTS LOAC Loy. LA I & CLJ
LQR
League of Arab States Leiden Journal of International Law League of Nations Treaty Series Law of Armed Conflicts Loyola of Los Angeles International and Comparative Law Journal Loyola International and Comparative Law Journal Law Quarterly Review
Maryland JIL & T MCC Melbourne JIL Melbourne Univ. LR Mich. JIL Mich. LR Mil. LR MLR MNF Monash LR Moscow JIL MPYBUNL MPYIL MRT
Maryland Journal of International Law and Trade Military Criminal Code Melbourne Journal of International Law Melbourne University Law Review Michigan Journal of International Law Michigan Law Review Military Law Review Modem Law Review Multinational Force Monash Law Review Moscow Journal of International Law Max Planck Yearbook of United Nations Law Max Planck Yearbook of International Law Militair Rechtelijk Tijdschrift
NATO Naval LR NCOs New England LR NGO NILR NJ NLR Nordic JIL North Carolina LR Northwestern JIHR Northwestern Univ. LR Notre Dame JL Notre Dame LR NPC NQHR NYIL NY Univ. JIL & Pol.
North Atlantic Treaty Organisation Naval Law Review Non-Commissioned Officers New England Law Review Non-Governmental Organisation Netherlands International Law Review Nederlandse Jurisprudentie Naval Law Review Nordic Journal of International Law North Carolina Law Review Northwestern Journal of International Human Rights Northwestern University law Review Notre Dame Journal of Law Notre Dame Law Review New Penal Code Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law New York University Journal of International Law and Politics
Loyola I & CLJ
XIV NY Univ. LR NZLR
New York University Law Review New Zealand Law Review
OAD OAS OECS ONU ONUC OPCW OSA OTP
Osterreichische Auljenpolitische Dokumentation Organization of American States Organization of Eastern Caribbean States Organisation des Nations Unies United Nations Force in the Congo Organisation for the Prohibition of Chemical Weapons Operational Support Arrangement Office of the Prosecutor (of the ICTR andlor ICTY)
Palestine YIL PD Penn. State ILR PKF PMG POW Proc. ASIL
Palestine Yearbook of International Law Probate Division, English Law Reports Pennsylvania State International Law Review Peace Keeping Force Peace Monitoring Group Prisoner of War Proceedings of the American Society of International Law Queen's Bench
RBDI RDI RDPC Recueil des Cours RGDIP RIAA RICR RQDI RSC RSCDPC RSDIE
Revue Belge de droit international Rivista di diritto intemazionale Revue de droit penal et de criminologie Collected Courses of the Hague Academy of International Law Revue genkrale de droit international public Reports of International Arbitral Awards Revue Intemational de la Croix Rouge Revue Quebkcoise de Droit International Rules of the Supreme Court Revue de science criminelle et de droit penal compare Revue Suisse de droit international et de droit europken
SADC SASC Saskatchewan LR SC SCOR SC Res. SCR S. Ct. SCU SFOR SFRY SG SIPRI SOFA South Texas LR
South African Development Community South African Security Council Saskatchewan Law Review Security Council Security Council Official Records Security Council Resolution Supreme Court Reports Supreme Court Reporter (United States) Serious Crimes Unit Stabilization Force Socialist Federal Republic of Yugoslavia Secretary-General Stockholm International Peace Research Institute Status of Force Agreement South Texas Law Review
Abbreviations
XV
Stanford JIL
Stanford Journal of International Law
Stanford LR
Stanford Law Review
Syracuse JIL & Com. SZIER
Syracuse Journal of International Law & Commerce Schweizerische Zeitschrift f i r internationales und europaisches Recht
Tennessee LR Texas ILJ Texas LR Tilburg For. LR TLPS Transn. L & Contemp. Probs TRC Report (South African) Tulsa J Comp. & IL
Tennessee Law Review Texas International Law Journal
UN UNAMA UNAMET UNAMIR UNAMSIL UNCHR UNCHS UNCIVPOL UNCTAD UN Doc. UNDP UNEF UNEP UNESCO
United Nations United Nations Assistance Mission in Afghanistan United Nations Mission in East Timor United Nations Assistance Mission for Rwanda United Nations Mission in Sierra Leone United Nations Commission on Human Rights United Nations Centre for Human Settlements United Nations Civilian Police United Nations Conference on Trade and Development United Nations Documents Series United Nations Development Programme United Nations Emergency Force (in the Sinai) United Nations Environment Programme United Nations Educational, Scientific and Cultural Organisation United Nations Force in Cyprus United Nations Guards Contingent in Iraq United Nations High Commissioner for Refugees United Nations Human Righ.ts Field Office in Rwanda United Nations (International) Children's (Emergency) Fund United Nations Institute for Disarmament Research United Nations Interim Force in Lebanon United Nations IraniIraq Military Observer Group United Nations IraqIKuwait Observer Mission United Nations Unified Task Force United Nations Task Force (in Somalia) United Nations Mission in Nepal United Nations Mission in Sudan United Nations Observer Mission in Georgia United Nations Observer Mission in Sierra Leone United Nations Operation in Somalia United Nations Peacekeeping Force United Nations Protection Force (in Bosnia and Herzegovina) United Nations Transitional Authority in Cambodia
UNFICYP UNGCI UNHCR UNHFOR UNICEF UNIDIR UNIFIL UNIIMOG UNIKOM UNITAF UNITAF UNMIN UNMIS UNOMIG UNOMSIL UNOSOM UNPF UNPROFOR UNTAC
Texas Law Review Tilburg Foreign Law Review Timorese Police Force Transnational Law and Contemporary Problems Truth and Reconciliation Commission Report Tulsa Journal of Comparative and International Law
XVI UNTAET UNTS UNWCC Univ. Calif. Davis LR USAFA JLS
United Nations Transitional Authority in East Timor United Nations Treaty Series United Nations War Crimes Commission University of California Davis Law Review USAFA Journal of Legal Studies
Vanderbilt JTL Virginia JIL Virginia LR
Vanderbilt Journal of Transnational Law Virginia Journal of International Law Virginia Law Review
Wake Forest LR WBR WCR WHO Whittier LR Wisconsin ILJ WLR
Wake Forest Law Review Wound Ballistics Review War Crimes Reports World Health Organisation Whittier Law Review Wisconsin International Law Journal Weekly Law Reports
Yale HR & Dev. LJ Yale JIL Yale LJ Yb Eur. Conv. HR Yb ILC YIHL Yug. Rev. IL
Yale Human Rights & Development Law Journal Yale Journal of International Law Yale Law Journal Yearbook of the European Convention of Human Rights Yearbook of the International Law Commission Yearbook of International Humanitarian Law Yugoslav Review of International Law
ZaoRV
Zeitschrift f i r ausl5ndisches offentliches Recht und Volkerrecht Zeitschrift f i r offentliches Recht
ZoR
ARTICLES
THE OBLIGATION OF A STATE UNDER INTERNATIONAL LAW TO PROTECT MEMBERS OF ITS OWN ARMED FORCES DURING ARMED CONFLICT OR OCCUPATION'
Peter
owe*
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
How can a state be the cause of the death of its own soldiers killed in combat? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The state as a cause of the deaths of members of its own armed forces . . . 6 Special cases: conscript and reserve soldiers. . . . . . . . . . . . . . . . . . . . . . . . 9 Is the state responsible for these deaths?. . . . . . . . . . . . . . . . . . . . . . . . . . International human rights law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International humanitarian law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 11
16
The impact of international humanitarian law on international human rightslaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 .
1.
INTRODUCTION
It might be thought that the development of international humanitarian law shows an intention on the part of states to offer protection by the various treaties applicable during an international armed conflict or an occupation of territory to individuals who are not their nationals. Thus, under the Geneva Conventions 1949 and their two Additional Protocols of 1977 'protected persons' are expected to be civil-
1. O P. Rowe, 2008. 2. Professor of Law at Lancaster University Law School. I am very grateful to A.P.V. Rogers and to Sigrun Skogly for commenting on an earlier version of this article. The views expressed in it are those of the author and any errors remaining are his sole responsibility. Yearbook oflnternational Humanitarian Law
Volume 9 - 2006 - pp. 3-24
4
I? Rowe
ians or members of the armed forces of the enemy state.3 The system of protecting powers was designed to provide a mechanism to offer some protection to nonnationals during international armed conflick4 This was, however, not the case in relation to non-international armed conflicts where all those involved are likely to be nationals of the same state. Common Article 3 to the Geneva Conventions 1949, Additional Protocol I (Art. l(4)) and Additional Protocol I1 impose obligations on a State in respect of its own 'national~'.~ It has to be accepted, however, that some of the treaty obligations and the customary international humanitarian law rules apply only to specific categories of individual. Thus, references to 'civilians' cannot be taken as references to the armed forces of any state involved in the armed conflict. Another way of looking at the purposes of international humanitarian law is to argue that 'the Geneva Conventions exist not to embolden our enemies but to protect our own soldiers from harm should they be captured or detained'.6 This element of reciprocity, as a reason for a state becoming a party to the relevant conventions, might well explain at least one of the reasons for the universal nature of acceptance by states of the Geneva Conventions.' It seems clear (see section 5.1 below) that international human rights law can also apply during a non-international armed conflict and, in certain circumstances, during an international armed conflict. Human rights treaties generally protect the
3. Whilst the enemy is likely to be of a different nationality this factor may not be decisive, see Prosecutor v. TadiC, case No. IT-94-1, Appeals Chamber, Judgement of 15 July 1999, para. 166. The crimes of genocide, crimes against humanity are, however, blind to the status of the perpetrator and of the victim. 4. Strictly, such individuals will not be of the same nationality as (or owe allegiance to) the state in whose hands they are or be of a nationality of another state with which the detaining state maintains diplomatic relations. 5. Protection offered to individuals under these instruments is not based upon their nationality as such. In practice, however, most individuals affected by the activities of the armed forces of a state will be of the same nationality as that state. See generally, K. Rubinstein, 'Rethinking Nationality in International Humanitarian Law', in U. Dolgopol and J. Gardam, eds., The Challenge of Conflict: International Law Responds (Leiden, Brill 2006) p. 89. 6. Congresswoman A. Eshoo, Congressional Record, Proceedings and Debates of the 109th Congress, Second Session, 27 September 2006. The state can also expect its captured armed forces to be repatriated at the close of active hostilities, Third Geneva Convention 1949, Art. 118. 7. With the accession of the Republic of Montenegro on 2 August 2006, see ICRC Press Release 61 96, 21 August 2006. Reciprocity cannot, by itself, relieve a state of its obligations under the Geneva Conventions. It is not the purpose of this article to investigate the reasons why states become parties to international treaties which come within the broad description of being of a humanitarian character in the absence of any clear state interest in doing so. States have, however, assumed an obligation to 'ensure respect [for the Geneva Conventions 19491 in all circumstances' by Art. 1 of the Conventions; see Y. Sandoz, C. Swinarski, B. Zimmerman, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of I2 August 1949 (Dordrecht, ICRC, Nijhoff 1987) para. 45; L. Boisson de Chazoumes and L. Condorelli, 'Common Article I of the Geneva Conventions Revisited: Protecting Collective Interests', 82 IRRC (2000) p. 67. Cf., F. Kalshoven, 'The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit', 2 YZHL (1999) p. 3.
The obligation of a state
5
right to life. In this body of law there is no distinction drawn between the right to life of different categories of individuals or on the basis of nationality. This article will consider whether, under human rights law and under international humanitarian law, a state has an international obligation to protect its own armed forces and, if so, the nature of such an obligation. It has been shown that it can be no answer to say that nationality (foreign or own) holds the key to whether protection is offered to the recipients of one of these intemational obligations. Both under international humanitarian law and intemational human rights law a state will owe some legal obligations to its own nationals and to foreign nationals. For the sake of convenience only the term 'soldier' will be used to refer to members of the armed forces and it will be used in the masculine gender.
2.
HOW CAN A STATE BE THE CAUSE OF THE DEATH OF ITS OWN SOLDIERS KILLED IN COMBAT?
It is likely that in all legal systems recognition is given to the fact that a consequence can have primary and secondary causes and that the actor, whose acts can be considered no higher than a secondary cause of an event, is not merely because of this relieved of all liability for it. This secondary cause may also be described as a 'material' cause or one which should not be ignored as de minimis. It is not surprising to see this principle operating in intemational law also.' An extreme example might be a state (State A) which deliberately sends its soldiers into battle having provided them with no training and no weapons with which to defend themselves. The soldiers are killed by enemy armed forces belonging to State B. Clearly, the armed forces of State B are the primary cause of the deaths of the soldiers. State A may be considered to be a secondary cause if its acts or omissions are a cause of the death in the sense that death would not have occurred had they been given training or had they been supplied with weapons by which they could have defended themselves9 If we concentrate on the responsibility of State A for the deaths of its own soldiers in these circumstances we can see that that state enforces its will on its own soldiers through its military law. It will almost certainly be a military offence for soldiers to refuse to obey a lawful order of a superior officer and, during time of armed conflict, a refusal to obey a superior often attracts a penalty harsher than such an act committed during peacetime. Each soldier of State A can hardly be considered to be agreeing to placing himself in such danger or consenting to run
8. See e.g., The Queen on the Application of Gentle and Others v. The Prime Ministe~The Secretary of State for Defence, The Attorney General [2006] EWCA Civ 1078, para. 17; ibid, [2006] EWCA Civ 1690, paras. 79-80; Osman v. United Kingdom (1999) 29 EHRR 245 both of which are discussed below. International criminal law recognises the concept of a secondary party to an international crime, see the Rome Statute of the International Criminal Court 1998, Art. 25. 9. It may be difficult, in some cases, to show that a particular soldier would not have been killed had he been properly trained or had he been supplied with effective weapons to defend himself.
6
l? Rowe
the (enormous) risk of being killed. Nor can he, realistically, be thought of as being 'willing to sacrifice his life for his country'.'0 Let us suppose he refuses the order to go into battle in the circumstances posed above. In some states he may suffer a more severe penalty than in others. In some, it is foreseeable that he will be sentenced by a military court to be executed. In others, he may be sentenced to a long term of imprisonment. In relation to a soldier executed by his own state that state is, of course, the sole cause of his death." But if we accept that a consequence can have one or more separate causes it should be possible to accept that a soldier of State A killed by the armed forces of State B is a victim of both states where the conduct of State A is as given in the example above. The causal potency of the acts of State A in the death of its own soldiers cannot always be disregarded as being only of a de minimis nature. For the sake of clarity it is worth noting that the fact a state has taken a decision to engage in an armed conflict is not considered, by itself, to be a cause of the death of those members of its armed forces killed during that armed conflict. The issue of the responsibility of the state for their acts or omissions is considered below.
3.
THE STATE AS A CAUSE OF THE DEATHS OF MEMBERS OF ITS OWN ARMED FORCES
The argument has been made above that a state may be a cause of the death of members of its own armed forces. It is likely that in most cases there will be no causal connection between the acts or omissions of the state and the death of individuals belonging to its armed forces. In other cases, however, the argument can be made that its acts or omissions may be a cause. Both Lord Tennyson with his poem, 'The Charge of the Light Brigade' and Wilfred Owen with his 'Duke Et Decorum Est' recognised the great risks which soldiers ran by following their orders.12 The following actions (or omissions) on the part of the state may give rise to a suggestion that the state is a cause of the death of one of its soldiers. Most of them have actually arisen in recent armed
10. This statement may not have universal application since it assumes that soldiers wish to survive combat. See S. Chubin, 'Iran and the War: from Stalemate to Ceasefire', in H. Maul1 and 0 . Pick, eds., The Gulf War (London, Pinter Publishers 1989) who comments that 'the [Iran-Iraq] war ... came to represent a test of the revolution, its capacity for commitment and sacrifice ... it came gradually to epitomize all the themes of suffering and martyrdom that the leadership seemed determined to cultivate', p. 7. 11. Subsequently, he may be considered to be a victim of the armed conflict. In the Armed Forces Act 2006 (UK), s. 359, British soldiers executed for a range of military offences were pardoned 'in recognition [that they were] victims of [the] First World War'. This would be the position, afortiori, had a soldier been shot and killed by his commander on the spot (an act unlawful under national law) for an incidence of disobedience during an armed conflict. 12. Lord Tennyson wrote about an incident during the Crimean War and Wilfred Owen about World War I.
The obligation of a state
7
conflict^.'^ This section concentrates only on issues of causation and not of responsibility. A soldier is ordered by his superior officer to give his body armour to another soldier since supplies are inadequate for all soldiers to be issued with such protective equipment.I4 Further examples might include soldiers being transported through territory in which attacks on them are taking place in vehicles which offer little protection to thernl5 or soldiers being left by their officers in forward positions with no adequate equipment to protect them~elves.'~ Again, soldiers might not be adequately supplied with food or water while in forward positions or evacuated as quickly as possible when wounded." They may be provided with inadequate medical attention if wounded or be transported in vehicles not suitably marked with the protective emblem, which are then attacked by the enemy. Examples of so-called 'fhendly-fire' are not uncommon in armed conflicts. Relevant causes of the deaths of one soldier by soldiers of an allied force may include inadequate identification of their friendly status or through lack of communication of their presence in a particular location by the armed forces of the victim.18 Sol13. Establishing the facts is often difficult when members of the armed forces are killed during an armed conflict and immediate press coverage may not present an accurate account of events. See e.g., The Minister of State (Ministry of Defence) in House of Commons Debates, Hansard, Vol. 417, col. 18 (26 January 2004). 14. See the discussion of the shooting of Sergeant Roberts in Iraq after being 'ordered to hand over his [enhanced body armour] to another soldier', House of Lords Debates, Hansard, 27 April 2006, col. 268, Lord Thomas of Gresford; Board of Inquiry Into the Death of Sergeant Roberts which concluded that 'had [he] been wearing correctly fitted [enhanced body combat armour] (as originally issued to him and withdrawn on 20 March 2003) ... he would not have been fatally injured by the rounds that struck him', (para. 88). The report states that the enhanced body armour was 're-distributed to those considered to be in greater need (dismounting infantry and echelon support staff in unarmoured vehicles)'. The coroner is reported to have commented in this case that 'to send soldiers into a combat zone without the appropriate basic equipment is, in my view, unforgivable and inexcusable and represents a breach of trust that the soldiers have in those in government', The Times, 19 December 2006. The New York Times reported (6 January 2006) that 'Extra a m o r could have saved lives, study shows' referring to a 'secret Pentagon report'. See also the complaints raised by Australian soldiers about their webbing, House Hansard, 17 August 2006, p. 129 (Mrs King). The lack of adequate clothing in a cold environment has figured in a number of conflicts as a cause of deaths of soldiers. 15. See e.g., the use of 'Snatch Land Rovers' by UK forces in Iraq and the issue of transport aircraft (C-130 Hercules) not fitted with explosion suppressant foam, House of Commons Defence Committee, UK Operations in Iraq, 13th Report of Session 2005-06, H.C. 1241 and Government Response, H.C. 1603 (19 October 2006). Compare with this the Australian soldier who is reported to have 'expressed his gratitude that our Australian equipment was better than the American Humvee which in similar circumstances would have seen him killed', House Hansard, 9 August 2006, p. 178. 16. For an account of the leaving of Iraqi soldiers by their officers during the fighting in Iraq in 2003 see The Times, 22 March 2003. 17. See 'Israeli Troops Criticize War Handling', CBSNews World, 18 August 2006. 18. See e.g., The Tarnak Farm Board oflnquiry, Final Report, 19 June 2002 (Canada) which was concerned with the deaths of four Canadian soldiers who were part of a battalion conducting a live ammunition firing exercise in Afghanistan mistakenly attacked by a US Air Force F-16 fighter aircraft. The pilot concerned was found guilty of dereliction of duty in a non-judicial hearing by a senior Air Force officer. He was fined and received a reprimand, see , viewed on 29 January 2007. 14. A. Gerson and N. Colletta, Privatizing Peace: From Conflict to Security (Ardsley NY, Transnational Publishers 2002) p. xi. 15. Marked by the adoption of the 1856 Paris Declaration Respecting Maritime Law, LXI UKPP (1 856) 153, which outlawed privateering viz. Article I: 'Privateering is, and remains, abolished'. 16. AP I, supra n. 6 Art. 50(1) AP I which states: 'A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (I), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.' 17. AP I, supra n. 6, Arts. 48 and 51, which state: Article 48.-Basic rule: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. Article 51.-Protection of the civilian population: 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations ...
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tection of the civilian population], unless and for such time as they take a direct part in hostilities' [emphasis added].18A similar provision applies in the context of non-international armed conflict, where Article 13(3) of AP I1 essentially repeats the word formula of Article 5 l(3) of AP I. Civilians who therefore do take a direct part in hostilities lose their protection from targeting and do not attract formal Prisoner of War status upon capture. While the term 'civilian' is defined negatively and broadly, the category of 'combatants' is quite conglomerate in nature. It includes several sub-groups of persons who attract the title and its accompanying rights and obligations for different reasons. Further, these various sub-groups demonstrate the application of two distinct concepts - on the one hand, combatant character (or in some circumstances, the granting of certain combatant privileges such as Prisoner of War status) is assigned to some on the basis of identity as the armed forces of a state or as an associated group; on the other hand, combatant privileges can be assigned as a result of an individual or group's military function, notwithstanding that they are not prima facie identified as part of the state military force. The conceptual differentiation relates directly to the classification of contractors under IHL. The following sub-paragraphs consider these sub-groups in turn. 2.1.1
Combatant character assigned by identity or associative identity: armed forces of a state
Consistent with the state centred orientation of the modern law, Article 43(2) of AP I is clear as to the status of members of a State's armed forces in an international armed conflict: 'Members of the armed forces of a Party to the conflict (other than medical personnel and chaplains) are combatants, that is to say, they have the right to participate directly in hostilities.' The ICRC has found no contrary state practice for the rule.19 Thus it is that mere identity as a member of the armed forces of a state is sufficient to attract the character of a combatant. 2.1.2
Combatant character assigned by identity or associative identity: agencies incorporated into the armed forces
In addition to its formally established armed forces, Article 43(3) AP I permits states to 'incorporate' paramilitary units or armed law enforcement agencies into
18. Note that common Article 3 to the four 1949 Geneva Conventions, supra n. 6, is expressed in similar terms and makes reference to those not taking an 'active' part in hostilities. While the 2003 ICRC Direct Participation study, supra n. 9, at 2, has identified the Commentary to the Rome Statute as recognizing some potential substantive difference between the terms, this article will adopt the position taken in the 2003 ICRC Direct Participation study that the terms are essentially synonymous. 19. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume 1, Rules, (Cambridge, Cambridge University Press 2005) p. 8, citing the fact that no reservations have been entered to AP I, Art. 50, the absence of conflicting state practice from non-Parties, and the judgment of the ICTY in BlaskiC (ICTY Trial Chamber, 3 March 2000).
Civilian contractors in armed conflict
31
its armed forces on condition it notifies other Parties that it has done so. Such agencies, not necessarily of a military tradition, may therefore derive combatant status through associative identification and incorporation with the armed forces of a state. If a private military firm, or other military or police style contractor, were to be engaged and to accept control over its actions by the contracting State, it might concei~ablymeet the incorporation test. For example, according to their website, Texas-based 'DynCorp International' market 'comprehensive security solutions' and a database of 3000 'law enforcement and security' personnel ready for deployment across the world 'at virtually a moment's n~tice.'~'Since 1994, they have assisted US and other state authorities in civil police training in Bosnia, Kosovo, East Timor, Afghanistan and Iraq; demobilized the Liberian army of 2005 and trained a new force; and have also deployed what they call 'civilian peacekeepers' ' avowed law enforcement function is in accord with the in Bosnia and ~ a i t i . *Their State's capacity to incorporate such into their armed forces - the extent of the incorporation would depend on the terms of the contract. However, to do so would in practice likely defeat the state purpose in engaging contractors, which, controversially, may well include a desire to dissociate direct governmental responsibility, as has been the case with 'Sandline' in Papua New Guinea and 'Executive Outcomes' in Sierra Leone. It also makes little economic sense to the contractor to abdicate control over its personnel and resources. Schmitt concludes that the fact that contractors are not enlisted into armed forces is itself 'dispositive evidence of a state's understanding that the civilian in question does not enjoy [associative combatant status]'.22Further, the notification requirements for police and paramilitary forces to render them lawful combatants suggests that equal requirements would be necessary to render a contractor a part of the armed forces.23 Interestingly, during the second ICRC co-sponsored DPH meeting, Professor Doswald-Beck sought to interpret the definition of 'armed forces' broadly as outlined in Articles 4A(1) andlor (2) of GC I11 and Article 43 of AP I to generally include all contractors, noting that 'the need for formal uniforms is less important today and contractors are still sufficiently distinguishable by their equipment and outfits. As all other criteria are fulfilled, they can be attacked. In terms of AP I, contractors are fulfilling governmental functions and therefore clearly fall within the scope of the notion of 'armed forces' according to Article 43 AP I ' . ~This ~ line
20. DynCorp International LLC (2006), <www.dyn-intl.com/subpage.aspx?id=36>,viewed on 17 October 2007. 21. Ibid., <www.dyn-intl.com/subpage.aspx?id=42>. 22. Schmitt, supra n. 9, p. 524. 23. Ibid., p. 527. 24. 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 12.
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of reasoning was strongly resisted by at least one other expert25and was not ultimately accepted as a viable approach to determining of contractor status. 2.1.3
Combatant character assigned by identity or associative identity: other groups 'belonging to a state 5 armed forces'
Article 4A(1), GC 111, allows that militias or volunteer corps may 'form part' of the armed forces. Additionally, Article 4A(2) allows for other militias and members of other volunteer corps 'belonging to a party to the conflict' to be characterised as Prisoners of War and thus, in accordance with Article 50(1) of AP I, not have civilian status. This provides a window in the existing law that prima facie may seem to allow contractors to 'belong' to the armed forces of a state in some circumstances. 'Belonging' to an armed force and thus attracting combatant status is clearly a looser test than those of identity or incorporation outlined above. In addressing this issue of associative identity, Shaw summarises the comments of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its TadiC decision that: 'States have in practice accepted that belligerents may use paramilitary units and other irregulars only on the condition that those belligerents are prepared to take responsibility for any infringements committed by such forces.'26 The Tribunal in that instance felt that control 'and thus a relationship of dependence and allegiance' was the critical test, and that therefore the term 'belonging to a party to the conflict' used in Article 4A(2) implicitly refers to 'a test of control ... by co-ordinating or helping in the general planning of [the associated group's] military activity'.27 The complicating factor for this group is that the test of associative identity with the armed forces of a state derives first from a functional assessment of the group's core similarity with the military by way of being commanded by a person responsible for his subordinates, having a fixed distinctive sign, carrying arms openly and conducting operations in accordance with the laws and customs of war. Only then does the assessment move to associative identity with the state (not the armed forces of a state as has applied to the two previous sub-groups). This group is conceptually confusing because it mixes separate bases for deriving combatant character and privileges. Applied to contractors exercising military support functions, such as Dyncorp International, besides the question of command and control, distinctive signs etc.,
25. Ibid., p. 14 where it is recorded :'one expert asked why other experts tried so hard to fit private contractors and civilian employees into one of the categories described in Articles 4A[1] or [2] GC 111. While this would have the benefit of making them targetable, it would also give them an actual right to engage in hostilities themselves, a consequence the desirability of which was far from certain'. 26. M. Shaw, International Law, 5th edn. (Cambridge, Cambridge University Press 2003) p. 1071, considering the decision of the ICTY Appeals Chamber in Tad2 (15 July 1999, paras. 94-95). 27. Ibid.
Civilian contractors in armed conflict
33
it is the question of responsibility which poses the more significant practical problem in many circumstances, or rather the governmental desire to dissociate direct responsibility through the engagement of contractors. This may be for a variety of reasons, including economic efficiency, but will disrupt the association of the contractor with the state at the level the Tadid test requires. Accordingly, it is difficult to comprehend that contractor support would, in the ordinary course, be sufficiently integrated in the command and control context to warrant a conclusion that contractor forces 'belong' to the state for the purposes of establishing combatant status. 2.1.4
Combatant privileges extended to accompanying persons based on military support function
In the course of discussion during the AP I negotiations, functionalism as a test for lawful combatancy was specifically considered, and decisively rejected, at least in terms of the original Hague Regulations, and it was determined that 'Whether [members of the armed forces] actually engage in firing weapons is not important. They are entitled to do so, which does not apply to . .. civilians, as they are not members of the armed forces.'28 Notwithstanding this emphatic division between military identity and civilian identity, it was nonetheless acknowledged that civilians, i.e., non combatants, who 'accompany' armed forces were also entitled to a number of combatant-like privileges. Article 4A(4) of GC I11 provides that certain non-enlisted personnel who 'accompany the armed forces ... such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces,' shall be entitled to prisoner of war ('POW') status if captured.29So too are merchant mariners and civil aircraft crews not entitled to better treatment under other provisions.30These people are explicitly identified as civilian^,^' but are to be treated on the same footing as combatants if captured, including detention for the duration of ho~tilities.~~ It is important to observe, however, that while these classes of civilians may be entitled to POW status, it does not equate to having privileged combatant status. They are two separate concepts and a different question altogether.33 According to Pictet's authoritative commentary on GC 111, these provisions were introduced as an 'up-to-date version of Article 8 1 of the 1929 Convention which in
28. Y. Sandoz et al., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of12 August 1949 (Geneva, ICRC 1987) p. 5 15. 29. GC 111, supra n. 4, (emphasis added). 30. Ibid., Art. 4A(5). 3 1. AP I, supra n. 6, Art. 50. 32. GC 111, supra n. 4, Arts. 2 1 and 118. 33. A point reinforced by Professor Louise Doswald-Beck during the second expert meeting on the 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, 12.
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turn was based in Article 13 of the Hague Regulations. '34 Article 13 of the Hague Regulations provides 'Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they were accompanying.'35 Pictet's commentary goes on to state that 'The Conference of Government Experts considered that the text of Article 8 1 of the 1929 Convention had become obsolete (in particular the word 'sutlers' is no longer appropriate) and should include reference to certain other classes of person who were more or less part of the armed forces and whose position when captured had given rise to difficulties during the Second World Notably, the list of the types of accompanying persons is 'indicative' and there is some scope for expansion to accommodate changing circumstances. Interestingly, this provision was not updated in 1977, when the Additional Protocols were developed, although AP I, Article 79, was included, designating those journalists who accompany military forces as civilians and not combatants. The terms of Article 4A(4) GC I11 require that such accompanying civilians receive express authorization from the armed forces they accompany and that they are issued with an identity card for that purpose. The Pictet commentary recounts the debate about the requirement to carry identification cards, noting that 'the application of the provision is ... dependent on the authorization to accompany the armed forces, and the identity card merely serves as proof.'38This lends support to the notion that international law permits the selective application of some combatant privileges to be assigned by a state to a person's specific support function to the armed force in the field, and not merely their group status or identification, as say, a contractor. What kind of contractors might merit such treatment? The term 'supply contractors' is broad and no guidance is given, beyond the conclusion that the original term, 'sutlers', was obsolete. As 'sutlers' usually dealt in clothing and food, it is probable that employees of groups such as Eurest Support Services, which provided its catering services to the Australian Defence Force ('ADF') deployed in East ~ i m o rwould , ~ ~ be covered. However, companies contracted to provide sup-
34. J. Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary, Convention III (Geneva, ICRC 1960) p. 64. 35. 1907 Hague Convention IV Respecting the Laws and Customs of War on Land: Regulations, UKTS 9 (1910), Cd, 5030. 36. Pictet, supra n. 34. 37. Ibid. 38. Ibid., 65. 39. Eurest Support Services, ~www.eurest.com.aulSecond/defence.html~,viewed 18 October 2005. Since 2005, Eurest has been renamed ESS, and its present website advertises 'We are well placed to react to any opportunities arising from a sudden change in the current geopolitical situation.
Civilian contractors in armed conjlict
35
port functions often provide a range of services. Serco Sodexho Defence Services, also contracted to the ADF for catering services, supplies garrison support, base security and maintenance, fire-fighting, maintenance on military vehicles and some significant logistic support such as weapons range management.40Kellogg, Brown and Root, a Halliburton subsidiary, is reported to have 48 000 people supporting US forces in Iraq as a consequence of the $ 15 billion dollar Logistics Civilian Augmentation Program, employed as caterers, drivers, laundry workers, cleaners, construction workers and the like.41 Some support hnctions performed by 'supply contractors' may cross the line of 'direct participation in hostilities' and make the contractor an unlawful combatant (on which see further below), for example the resupply of ammunition by helicopter in the course of a battle.42 Although Article 4A(4) GC 111 is not exhaustive, it is potentially contradictory as far as contractors are concerned. Supply contractors are accompanying civilians who are not combatants but are entitled to POW status. Unprivileged combatants who take a direct part in hostilities, are not entitled to POW status.43Some contracting functions are protected (supply functions), others not - performed by the same company and potentially the same personnel even purely within the notion of 'supply contracting.' Thus, if it is established that the supply contractor is actually taking a direct part in hostilities contrary to Article 5 l(3) of AP I when rendering his or her particular contracting task then such persons may be directly targeted and, if captured, may be detained but not with POW status.44However, Article 4A (4) GC I11 is not cast in such terms. If the contractor function does come within the scope of Article 4A(4) GC 111 activities and is not assessed as constituting direct participation in hostilities then the individual contractor who accompanies the force may not be directly targeted and is entitled to POW status upon capture. Finally, the somewhat arbitrary and potentially outdated list of civilian personnel and functions that qualify for POW status under Article 4A(4) GC I11 is problematic given the wide range of activities now undertaken by contractors in modem warfare. -
The increasing costs of modem weapon systems and the desire to reduce conscription, is leading many countries to actively consider outsourcing their logistic and support services within their military organisations. Defence forces also look to private sector companies to provide a range of facilities management support services to their military on peace-keeping and similar deployments. As this trend grows and Coalition Forces are required to operate in an increasing number of countries, many of which are in the CAMEA region. Compass Group Central Asia, Middle East and Afnca can offer their considerable expertise in providing such services.' Compass Group PLC (2007) <www.essglobal.com/Default. aspx?id=90e> viewed 17 October 2007. 40. See further, Serco Sodexho Defence Services Pty Ltd (2004), <www.ssds.com.au>, viewed 29 January 2007. 41. See further D. Phinney, 'Blood, Sweat and Tears: Asia's Poor Build US Bases in Iraq,' CorpWatch, 3rd October 2005 <ww.corpwatch.org/article.php?id=12675>viewed on 29 January 2007. 42. Schmitt, supra n. 12, p. 544. 43. Y. Dinstein, The Conduct ofHostilities under the Law o f International Armed Conjlict (Cambridge, Cambridge University Press 2004) p. 114. 44. Ibid., pp. 29-30.
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2.1.5
Summary - combatant status and contractors
The analysis undertaken above results in our conclusion that contractors, as such, do not enjoy formal combatant status under the prevailing law. The categories discussed make clear that the current legal framework seeks to reinforce the schism between sovereign armed forces and civilians. While the law does accommodate a number of derivative and associative examples of a State's armed forces, no formula currently existing extends to incorporating contractors within the definition of 'combatant', notwithstanding that certain categories of contractor might enjoy POW status upon capture in specific circumstances. Accordingly, it is clear that given the normal 'arms length' economic relationship States have with contractors, their status remains that of a civilian for the purpose of the Law of Armed Conflict. While prima facie enjoying civilian protections during the course of an armed conflict, such protections can be lost and contractors may thus be deliberately targeted. The following Part will examine the circumstances where this loss occurs.
3.
DIRECT PARTICIPATION IN HOSTILITIES AND LOSS OF CIVILIAN PROTECTION
As previously highlighted, Articles 5 l(3) of AP I and 13(3) of AP I1 establish that protection afforded to persons identified as civilians ends when 'they take a direct part in ho~tilities'.~~ Significantly, there is a temporal aspect to this criterion and civilian protection revives when a civilian ceases to directly act with hostility, encapsulated in the phrase 'unless and for such time as they take a direct part'.46 This Part addresses the general legal framework for when civilian protection is lost under the aegis of 'taking a direct part in hostilities'. Part 4 of this article will then address the specific context of contractor actions and activities within the modern battle space in relation to the 'direct participation' criteria established to guide targeting decisions. 3.1
The meaning of direct participation in hostilities
As to the question of the meaning of 'direct participation,' there has been considerable debate as to what this term means and it has proven to be a 'highly ambigu0 ~ s term ' ~ to~ define. The commentary to this provision in AP I indicates that a narrow interpretation was envisaged. Hence, the commentary notes that there must be a direct causal relationship between the activity engaged in and 'the harm done to the enemy at the time and place where the activity takes Similarly, with
AP I , supra n. 9, Art. 5 l(3). Ibid. Schmitt, supra n. 12, pp. 531-532. Sandoz, AP Commentary supra n. 25, p. 516.
Civilian contractors in armed conjlict
37
respect to AP 11, the commentary observes that 'the notion of direct participation in hostilities implies the there is a sufficient causal relationship between the act of participation and its immediate consequen~es'.~~ Both references indicate a very specific scope of operation based upon temporal and practical immediacy. Such narrowness in the commentary is presumably grounded on a humanitarian ideal of limiting the level of civilian casualty by being restrictive as to the circumstances in
which protection from direct targeting may be lost. Such initial narrowness as reflected in the commentaries has given way to a more fluid reading of the terms that has been based more reliably upon contemporary battlefield experience, though such a reading is not without its opaque difficulties. In its Tadid decision, the ICTY held that 'direct participation in hostilities' was to be decided on a case-by-case basis: 'It is unnecessary to define exactly the line dividing those taking an active part in the hostilities, and those who are not so involved.'50 This conclusion, while taking a pragmatic line, is unsatisfying in its lack of guidance but does at least acknowledge a level of judicial flexibility as to the contextualisation of 'direct participation' in the modem battlespace. According to Henckaerts and Doswald-Beck, a 'clear and uniform definition of direct participation in hostilities has not been developed in state practice',51 hence the initiation in 2003 of the ICRC co-sponsored DPH study. The more general 2005 ICRC study of the state of customary international humanitarian law found that much (written) state practice is vague, and seems deliberately so - military manuals generally repeat the formula unelaborated, deciding with the ICTY that it is preferable to rely upon a 'case-by-case' level of analysis.52However, the study did observe that some official publications did venture a view on the extent of what constitutes 'direct participation' by citing both the Ecuadorian and United States Military Manuals which do give examples of what is considered to be direct participation, 'such as guards, intelligence agents or look-outs on behalf of military force^'.'^ The study also noted the Report on the Practice of the Philippines which similarly considered that civilians acting as spies, couriers or look-outs lose their protection under the aegis of taking a direct part in hosti~ities.~~ It is evident therefore, that what is committed to writing in official state sponsored publications does seek to extend the concept beyond the parameters anticipated in the 1970s during the AP I and AP I1 negotiations. On the other hand, it was noted in the ICRC Customary Law study that the Inter-American Commission on Human Rights decided that the phrase required 'acts of violence which pose an immediate threat
49. Ibid., p. 1453. 50. Prosecutor v. Tadii., Case No. IT-94- 1-T, p. 6 16 (ICTY 1997), available at <www.un.org/ictyl tadic/trialc2/judgernent/inde~.htm>. 5 1. Henckaerts and Doswald-Beck, supra n. 19, p. 23. 52. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume 2(1): Practice (Geneva, ICRC 2005) pp. 107-1 13. 53. Henckarts and Doswald-Beck, supra n. 19, p. 22 [footnotes omitted]. 54. Ibid.
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D. Stephens and A. Lewis
of actual harm'.55 The causative test, in which proximity to the use of force is a determinative factor, does not easily match the position of the US, Philippines or Ecuador. Look-outs or intelligence agents rarely engage in actual violence. The ICRC co-sponsored DPH study has wrestled with the many nuances of how to interpret 'direct participation' and 'hostilities' over the life of the project. Issues such as 'intent', 'nexus', 'directness' and 'causal proximity' among others have been thoroughly debated by the experts participating in the study with decidedly stark views expressed as to the content and place of these concepts.56The discussions in the 2005 report, in particular, focussed upon many context specific examples of when DPH might be manifested though without reaching a complete consensus on the outcomes.57This is not to say that the DPH study did not accept that there were boundaries in their interpretative approach. Indeed, there did seem to be general agreement on the point that civilians who were active 'fighters' were axiomatically taking a direct part in hostilities, whereas the civilian munitions factory worker was universally agreed to be outside the boundary. Significantly, it was acknowledged within the study that in this latter case, the factory worker was exempted not because of a strict application of prevailing legal logic, rather it was consistent with a policy preference that such civilians should be outside the realm of 'direct participation'.58Between these two examples, the experts offered numerous competing views on when a civilian could lawfully be taken to be directly participating in hostilities. In grappling with this conundrum of settling a definitive standard, Schmitt applies a welcome level of legal vigour to the analysis by suggesting that the addition of a 'mens rea of intent' element on the part of the civilian taking a direct part in hostilities provides a more reliable guide to the determination. Thus, expanding the concept of proximity to force to include acts that prepared or rendered the force possible as well as acts in e x e ~ u t i o n Schmitt's ,~~ preference is to interpret direct participation 'liberally, in other words, in favour of finding direct participation,' in order better to protect the civilian population'.60 This is a very utilitarian approach that reflects the growing consensus that the test of direct participation is broader Ironically, it than what the commentaries to AP I and AP I1 seem to ~ontemplate.~' also demonstrates the changing policy view, tempered by modem experience, of what is perceived to better optimise humanitarian goals. This view and those expressed by other commentators will be assessed in the following subsection.
55. Third Report on Human Rights in Colombia, cited in Henckaerts and Doswald-Beck, supra n. 19, p. 22. 56. 2005 ICRC Co-sponsored Direct Participation Report, supra n. 9, pp. 17-36. 57. Ibid. 58. Ibid., pp. 35-36, 38; and 2003 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 2. 59. Schmitt, supra n. 12, p. 533. 60. Ibid., p. 534. 61. See n. 7.
Civilian contractors in avmed conjlict
39
Direct participation in hostilities - the debate as to its limits
3.2
Notwithstanding the ostensibly narrow view of the comrnentarics to AP I and AP I1 as to the limits of the concept of direct participation in hostilities, it is plainly evident that the preponderance of contemporary academic opinion favours a broader conception of the principle. This academic perspective is generally bolstered by the thread of argument contained within the more formal studies sponsored by the ICRC and, as will be subsequently submitted in this article, also by state practice. This section will examine the current academic debate on the breadth of the concept and advance a view that, notwithstanding nuances of disagreement with some prevailing opinions, a broader test of what constitutes direct participation in hostilities is indeed the correct one. The contemporary environment is one characterised by the conduct of asymmetric warfare involving insurgent forces. It is an environment where the exceptionalism anticipated in AP I and I1 as to the participation of civilians in warfare has largely become the norm. Prominent US international lawyer W. Hays Parks, has weighed up the variety of foreseeable support roles of civilians and divides the broad continuum of warfare into three categories positing a personal view that protections progressively differ under both customary law and AP I with respect to these categories, hence he concludes: War effort - protected under both customary law and AP I; Military effort, such as intelligence collection by civilians - not protected under customary law but protected under AP I; and (iii) Military operations - unprotected.62
(i) (ii)
This abstraction requires elaboration. In assessing the framework advanced by Hays Parks, Schmitt correctly acknowledges that distance from the battlefield has no bearing on causal proximity to the use of force.63Instead, it is 'the mens rea of the civilian involved [that] is the seminal factor in assessing whether an attack against military personnel or military objects is direct participation.'64 Schmitt seems to use intent in a simple sense of intending to do the act which amounts to participation. As previously highlighted, Schmitt proposes a 'but for' test in conjunction with a causal proximity factor. Thus he states that the 'but for' causation test requires an assessment of whether 'the consequences would not have occurred but for the act' and connects this with the requirement that there be 'causal proximity' to the foreseeable consequences of the act.65The focus is very much on the tactical environ-
62. W. Hays Parks, 'Air Law and the Law of War', 32 Air Force Law Review (1990) pp. 1, 133. Argument summarized and supported in Schmitt, supra n. 10, p. 533. 63. Schmitt, supra n. 12, p. 537. 64. Ibid., p. 538. 65. Schmitt, supra n. 10, p. 508.
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ment. On this basis, Schmitt decides, for example, that strategic intelligence collection by civilians is not direct participation, but tactical collection and relay to the 'shooter' would be so. Contracted interrogators may therefore directly participate if the purpose of their interrogation is to elicit 'time-sensitive and tactical and operational level intelligen~e'.~~ While providing a much needed level of pragmatic focus, the challenge raised in Schmitt's approach is that determining causal proximity to force depends on one's understanding of what facilitates the tactical application of such force. Providing tactical intelligence to identifjr a target facilitates its destruction. According to Schmitt, direct logistic functions generally do not, unless they are 'immediate battlefield logistics functions', such as, for example, the midbattle helicopter resupply of ammunition by contractors to US forces fighting in the Iraqi city of Najaf, which 'may well determine the ~ictor'.~' This suggests that causal proximity to a hostile act can be insuficient if it is not significant enough to affect a tactical outcome (the 'but for' element) - though in adding this heightened element Schmitt seems to be wavering between the directness of the facilitation, and the impact on outcome. The reliance placed by Schmitt on proximity to tactical outcome can be disingenuous. Napoleon famously declared that an 'army marches on its stomach,' and as a corollary to this metaphor it can equally be said that a soldier cannot fire a defective weapon. Both are intimately related to the maintenance of armed forces deployed in the field and yet would not seem to come within the heightened 'but for' nature of Schmitt's test of what constitutes direct participation. It is difficult logically to exclude more general support functions such as in-country depot maintenance of military equipment, which Schmitt considers remote and 'clearly not direct participation,' and refbelling and loading weapons before tactical deployment which would be.6RDinstein too considers the supply of foodstuffs 'a mere contribution to the general war effort,'69 which may be a satisfactory result but does not lend consistency to the test of causal proximity as a facilitation of the use of force. Another way Schmitt proposes to assess proximity, though not in so many words, is deciding what activities are 'widely deemed' to be military activities, such as search and rescue operations for missing military personnel.70 He concludes, by contrast, that since taking civilians as hostage amounts to a war crime, their rescue by non-military personnel cannot amount to direct participation, but is rather a 'law enforcement' fun~tion.~' And again: voluntarily using oneself as a shield amounts to direct participation because it is 'deliberately attempting to preserve a valid military objective for use by the enemy."' If so, it seems that 'direct
Schmitt, supra n. 12, p. 544. Ibid. Ibid., pp. 544-545. Dinstein, supra n. 43, p. 28. Schmitt, supra n. 12, pp. 539-540. Ibid. 72. Ibid., p. 541.
66. 67. 68. 69. 70. 71.
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participation' can be passive, an important caveat to his general test of requiring 'but for' and proximate causality. Such a position seems to actually introduce the concept of 'indirect' involvement. Is there in fact a distinction between direct and indirect participation? The test of causal proximity, accepted in theory, seems capable of practical application largely intuitively, largely based upon nebulous notions of who, by their acts, ought no longer to be protected as a civilian because they have become more akin to a military operator, thus having a more credible stake in influencing military outcomes. Schmitt's acceptance of a 'widely deemed' set of circumstances to determine direct participation for targeting speaks to this intuitive aspect. Such a standard can, however, produce unreliable results. During the ICRC co-sponsored DPH study it was originally suggested, for example, that a hypothetical Somali woman providing tactical targeting intelligence during a conflict should be allowed one chance to do this before crossing the line and taking a direct part in hostilities which would only occur where she persisted in providing such intelligence.73Such an assessment is replete with moral judgement and is plainly incapable of application by a soldier in the heat of battle. Few writers acknowledge an intuitive character to be applied to the test. Indeed, expert opinion reflected in the 2005 ICRC co-sponsored DPH report was generally agreed 'that loss of civilian immunity from direct attack due to direct participation in hostilities was not a 'sanction for bad b e h a ~ i o u r ' .The ~ ~ difficulty with importing subjective elements such as mens rea or moral culpability for the purposes of targeting is that such subjectivity is a slippery guide and causal proximity not always apparent to the opposing forces, who therefore lack certainty about the extent of their privileges and responsibilities in the conduct of their operations. Beyond moment by moment battlefield targeting, the insistence on intuitive judgment as determinative of the conduct of armed conflict may leach into broader notions of just and unjust wars, and just and unjust causes, which IHL has gone to some lengths to eviscerate through the application of objective legal standards. It is submitted that a more firm objectively reliable line must be drawn in deciding when conduct constitutes 'direct participation'. 3.3
The argument for a third category of 'fighter' under the Direct Participation formula
In grappling with the emergence of the increasing civilianisation of the battle space, there is a growing academic debate as to whether there is, or should be, a formal third category of persons who in fact alternate between combatants and protected civilians, and who warrant their own permanently established criteria for targeting and status upon capture.
73. 2004 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 6. 74. 2005 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 44.
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Cassese accepts the existence of a third category as valid only 'for descriptive purposes .. . It cannot be admitted as an intermediate category between combatants and civilians. In particular, it would be contrary to international humanitarian law to hold that this category embraces persons who may be considered neither as legitimate belligerents nor as civilians (or at any rate 'protected persons') and are therefore deprived of any rights.'75 The existence of a third category of persons who are both and neither civilians and combatants has been strongly rejected by a number of experts.76Dinstein, in particular, is emphatic in his rejection of a possible third category of persons, stating simply 'a person cannot (and is not allowed to) be both a combatant and a civilian at the same time'.77 In the 2005 Israeli Supreme Court case of The Public Committee against Torture in Israel et al. v. The Government of Israel et the Court was invited to recognize the formal existence of a permanent third category of civilians who may be deemed active and continuous fighters within the frame of international armed conflict that were neither fully civilian nor combatant, but rather had a permanent quality of constituting 'unlawful combatant^'.'^ After careful analysis of prevailing customary international law, the President of the Court, His Honour A. Barak, did not accede to such recognition. In declining to make such a finding, President Barak noted that '[wle shall take no stance regarding the question whether it is desirable to recognize this third category. The question before us is not one of desirable law, rather one of existing law. In our opinion as far as existing law goes, the data before us are not sufficient to recognize this third category."O The interpretative approach adopted by the Israeli Supreme Court is entirely consistent with the existing textual framework of the two Additional Protocols. The 'Basic Rule' of distinction as outlined by Article 48 of AP I, for example, makes plain that there are only two relevant categories of person involved in an international armed conflict, namely civilian and combatant." While a civilian taking a direct part in hostilities does not commit a 'war crime' per se under the law of armed conflict for such participation,'2 helshe nonetheless remains a civilian who loses the normal protections bestowed upon civilians in armed conflict for such time as helshe is directly participating in hostilities. Importantly however, at the same time helshe does not acquire combatant rights. As concluded by the Israeli Supreme Court, such persons do not exist as a separate group with separable rights and protections under IHL. Rather the term 'unprivileged combatant' is sometimes used as a descriptor for persons subject to particular treatment, who
75. A. Cassese, International Law, 2nd edn.(Oxford, Oxford University Press 2005) p. 409. 76. 2003 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 5. 77. Dinstein, supra n. 43, p. 28. 78. The Public Committee against Torture in Israel et al. v. The Government of Israel et al. HCJ 769102 (The Supreme Court of Israel) (1 1 December 2005). 79. Ibid., at para. 27. 80. Ibid., at para. 28. 81. AP I, supra n. 6, Art. 48. 82. 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 14.
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have abrogated their protection as civilians although they do not quai@ themselves as combatants. Importantly, whatever the descriptive term used, persons captured always retain fundamental rights to humane treatment.83 While the Israeli Supreme Court in The Public Committee against Torture in Israel et al. v. The Government of Israel et al. case, did not recognize a discrete and permanent third category of 'unlawful combatant', the Court did provide an intriguing analysis of the circumstances under which a civilian does lose normal protections. The Court focused upon a functional interpretation of loss of status. Hence once a civilian performs the 'fimction' of a combatant, then helshe 'ceases to enjoy the protection' granted to a ~ivilian.'~ In applying this functional test, the Court determined that civilians taking a direct part in hostilities could extend beyond those actually operating weapons, and include those who directly support the conduct of hostilities by transporting others, by providing intelligence and by 'supervising' or 'providing a service' to those employing weapons.85Indeed, the Court arrived at an expansive view of 'direct participation' by including within the 'direct participation' paradigm those in the chain of command who sent an individual fighter to commit hostile acts as well as those who decided upon and planned the a ~ t i o n . 'The ~ Court did draw a line at those who merely provided financial support or general logistical support but, nonetheless, clearly anticipated a broad level of activity that was included within their reading of international law's boundaries of what 'direct part in hostilities' means. Significantly, in looking at the associated criterion of the 'for such time' aspect of the test the Court appeared to accept that while single or sporadic hostile acts by civilians entitled the resumption of protection when they were 'detached' from such hostilities, active members of terrorist organizations who were committed to a 'chain of hostilities' were more generally susceptible to a loss of protection 'while committing the chain of acts'.87 Such an interpretation is a faithfid adherence to the existing 'Basic Rule' dichotomy of the combatant/civilian distinction, but in its explicit reference to active membership of a hostile group, does provide a more expansive definitional and temporal basis for determining when civilians lose protection. The Israeli Supreme Court decision provides a usehl frame of analysis for determining the scope of the 'direct participation' and 'for such time' criteria. The conclusion that international customary law does not yet concede the formal existence of a third category of person in armed conflict is surely correct. That said, the Court's preparedness to conceive of a broad 'membership' approach to civilians who regularly and systematically involve themselves in acts of hostility is an accurate measure for targetability determinations in the contemporary armed conflict era. It also underpins the central theme of this article that the concept of 'direct
83. AP I, supra n. 6 , Art. 75 which we contend is reflective of customary international law. 84. The Public Committee against Torture in Israel et al. v. The Government of Israel et al., at p. 76, para. 3 1. 85. Ibid., at para. 35. 86. Ibid., at para. 37. 87. Ibid., at para. 39.
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participation' does need to be reviewed and more broadly based upon a functional assessment of the activities performed. Moreover, it also supports the point advanced in this article that a 'membership' approach can similarly apply to contractor activities, thus rendering many contractor functions susceptible to lawful targeting under the aegis of the 'direct participation' formula. The issue of membership has also been a focus of the ICRC co-sponsored DPH study. The proceedings do reflect an emerging consensus that membership of an organized armed group can equate to an individual member having continuous 'direct participation' in hostilities. That said, opinion of the experts is split on whether this is to be regarded as a permanent status, or whether it is a presumptive factor in determining whether in the specific circumstances the individual loses hislher protection under IHL. Moreover, there was an extra divide in opinion expressed by the experts whether all members of the organised armed group would be susceptible to loss of protection or only those actively engaged in combat or combat related activities, thus excluding those who are cooks or maintainers etc. Importantly, while there is a growing consensus as to the membership approach to contextualizing 'direct participation', there is a concomitant narrowing of opinion regarding criteria for the individual civilian, not part of any group who nonetheless becomes involved in sporadic acts of violence.88 The point of distinction expressed between recognizing membership as either constituting permanent loss or being, rather, a presumptive factor in that determination is not likely to have a great significance in practice. Intelligence will always inform such targeting decisions, irrespective of which category is preferred, hence there should always be a level of definitional acuity applied to such targeting decisions. Given the thrust of this emerging acceptance of the 'membership' approach to the question of 'direct participation' the following Part will squarely address the question of contractor participation and targeting issues under prevailing views.
4.
THE PRINCIPLE OF DISTINCTION AND DIRECT PARTICIPATION IN HOSTILITIES - THE CASE OF CONTRACTORS
The International Court of Justice has squarely determined that the principle of distinction, as reflected in Article 48 of AP I, is a cardinal principle of the Law of Armed This principle demands that military forces do not intentionally direct attacks against civilians as such or against civilians not taking a direct part in hostilities. Article 85(3)(a) of AP I makes targeting civilians or the civilian population a grave breach. In its general customary law study, the ICRC found that there
88. See generally 2005 ICRC Co-sponsored Direct Participation Report, supra n. 9, pp. 41-58. 89. Legality of the Threat or Use of Nuclear Weapons ICJ Rep ( 1 996) p. 226, para. 78 of Advisory Opinion (8 July 1996): The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack ...'
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was 'no contrary state practice' to the principle, accepting however that civilians would no longer be protected if they 'take a direct part in hostilitie~'.~~ This fundamental proscription against launching attacks against civilians found further expression in the 1998 International Criminal Court ~ t a t u t e ,namely, ~' within the definition of 'war crimes'. It also necessarily finds expression in the domestic legislation of States who ratified the Rome Statute. The Australian implementing legislation, for example, provides a penalty of life imprisonment for members of the armed forces who violate this central tenet of the Law of Armed Given the sanctity of the principle of distinction and the serious criminal consequences accompanying its violation, it is reasonable to insist there be a requisite level of certainty for decisions made in the field by soldiers, sailors and airmen when engaging civilians taking a direct part in hostilities. To this end, the expansive role of contractors in modem armed conflict and the quixotic 'case by case' tests proposed by many authorities when determining 'direct participation' criteria for targeting represent considerable challenges to military planners who must always comply with the principle of distinction, to the point where a broader re-
90. Henckaerts and Doswald-Beck, supra n. 19, p. 6, [footnotes omitted; exception contained in Art. 44, AP I]. 9 1. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2 187 UNTS 3 (entered force 1 July 2002) ('Rome Statute'): Art. 8 -War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, 'war crimes' means: (a). .. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. 92. Australian Criminal Code Act 1995 sections 268.24 and 268.70 state as follows: 268.24 War crime-wilful killing (I) A person (theperpetrator) commits an offence if: (a) the perpetrator causes the death of one or more persons; and (b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and (d) the perpetrator's conduct takes place in the context of, and is associated with, an international armed conflict. Penalty: Imprisonment for life. (2) Strict liability applies to paragraph (l)(b). 268.70 War crime-murder (1) A person (the perpetrator) commits an offence if: (a) the perpetrator causes the death of one or more persons; and (b) the person or persons are not taking an active part in the hostilities; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and (d) the perpetrator's conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment for life. -
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vised test should be adopted. It is our contention that such a test is emerging and is being developed through a combination of academic and judicial interpretation as well as accompanying state practice. The following sections detail the contours of this crystallising view and situate it in the context of assessing the targeting of contractors in a time of armed conflict. 4.1
Roles of contractors in contemporary armed conflict
The range of traditional military activities now undertaken by contractors is virtually unlimited. As a result of shrinking defence budgets, the increasing technical complexity of weapons systems, and in some instances, the ideol~gicaldrive of a number of governments, contractors directly support and actually undertake numerous critical military activities that result in the direct application of violence against the enemy. In his extensive analysis of the hture of modern warfare and the role of contractor support, Heaton notes that 'civilians play an indispensable role in the ability of many states to use military force'93and he details the numerous current and advanced technologies that employ highly sophisticated operating systems thus requiring specialist civilian contractor support that are changing the nature of waging warfare.94These are far more extensive than the narrowly conceived supply roles discussed above in the context of GC 111, Article 4A (4). In Heaton's words, contractors can be employed to 'to perform almost any service a state requires. Contractors can train, feed, equip, and house m army. During a conflict, contractors can maintain weapons, gather intelligence, provide security at forward locations, and even fight.'95 Indeed, in the context of the sophisticated weaponry currently within military inventories or planned to be introduced, Heaton notes that 'some of the equipment militaries use is so complicated that militaries rely on contractors to maintain it even during a conflict. Examples of weapons in the United States inventory dependent on contractor naintenance include the F- 1 17 Stealth fighter, the M 1-A 1 tank, the Patriot missile, the B-2 stealth bomber, the Apache helicopter, and many naval surface warfare ships. For some systems, there may not even be military members capable of providing maintenance. The result of this dependence on contractor support is that contractors will need to go where their services are needed, even if that brings them in close proximity to the battlefield ... Contractors even operate some military systems. Contractors flew on targeting and surveillance aircraft and operated Global Hawk and Predator UAVs in Afghanistan and Iraq. This type of participation does not appear anomalous as new systems, such as a Marine truck and an Army surveillance aircraft, are designed to be operated by contractor^.'^^
93. J. Ricou Heaton, 'Civilians at War: Reexamining The Status of Civilians Accompanying The Armed Forces', 57 Air Force LR (2005) pp. 155, 158. 94. Ibid., p. 163. 95. Ibid., p.186. 96. Ibid., pp. 189-190.
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The ubiquitous nature of contractor support is chorused by numerous other reviewers9' and it necessarily undermines the narrow view that civilians participating in conflict are somewhat exceptional in that role. The breadth and scope of civilian participation generally, and contractor participation specifically, necessarily undermines the efficacy of the existing interpretative methods that seek to narrow the targetability of such participants. It would be an absurd result to permit the increasing civilianization of warfare and yet provide almost blanket immunity for civilians in undertaking those roles. It is particularly pernicious to expose military members to potential grave criminal consequences for getting this increasingly illusory standard and framework 'wrong'. Law must keep pace with operational reality and this must include a more liberal interpretation of what 'direct participation in hostilities' means in the context of contemporary contractor support. This need not amount to a change in conventional terms, but rather recognition of the manner in which the practicalities of asymmetric warfare shape customary interpretations.
4.2
The targeting of contractors
The principal test proposed by Schmitt concerning the targeting of contractors certainly provides a more liberal basis for determining direct participation in hostilities and is an impressive start for analysing contemporary standards. As discussed in the previous Part, it is, however, subject to the vagaries of deciding whether the action undertaken by the civilianicontractor comes within the 'but for' causal proximity requirements he proposes. The tactical focus of the test in terms of assessing whether the more generalised support activities will affect the outcome of a particular operation seems a particularly exacting requirement for a soldier in the heat of battle, especially when the consequence is potential life imprisonment in the event of getting the mens realtactical proximity requirements wrong. Thus determining whether a particular re-supply is part of an imminent engagement or whether the intelligence being gathered in any particular instance has some tactical and temporal application capable of effecting an immediate military outcome is hardly capable of definitive assessment by the soldier on the ground. Similarly the suggestion of Doswald-Beck mentioned in Part 2 of this article, that there is a case for contractors to generally come within the definition of a force 'belonging' to a state seems unduly open ended,98notwithstanding the tendency of some States to permit contractors to wear clothing virtually indistinguish-
97. See for example, Schmitt supra n. 12, p. 512. J.D. Michaels, 'Accountability: The Constitutional, Democratic, And Strategic Problems With Privatizing War', 82 Washington Univ. LQ (2004) p. 1001; S.V. Jones, 'Has Conduct In Iraq Confirmed The Moral Inadequacy Of International Humanitarian Law? Examining The Confluence Between Contract Theory And The Scope Of Civilian Immunity During Armed Conflict', 16 Duke JCIL (2006) p. 249; J.T. Mlinarcik, 'Private Military Contractors & Justice: A Look At The Industry, Blackwater, & The Fallujah Incident', 4 Regent Journal of International Law (2006) p. 129; P.W. Singer, 'Outsourcing War', 84 Foreign Afair~s(2005) p. 119. 98. See n. 24.
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able to military uniforms and to permit such civilians to be armed.99Such a test plainly would include those contractors who are universally agreed to be not participating in an armed conflict and, accordingly, it has been subject to serious academic critique. loo 4.2.1
Targeting alternatives - the principle ofproportionality
In practical terms, the issue of determining direct participation has been one that can sometimes be deftly avoided on the battlefield in favour of other targeting tests. Thus, in practice, the principle of proportionality often provides a reliable alternative method of analysis for decision makers when planning and launching attacks. The principle 'seeks to limit damage caused by military operations by requiring that the effect of the means and methods of warfare used must not be disproportionate to the military advantage sought'.'01 In relation to Articles 51 and 57 of AP I this principle is given specific application by prohibiting attacks causing civilian casualties and damage to civilian objects which may be expected to cause incidental loss of civilian life or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. Hence the law accepts that while direct targeting of civilians is prohibited, indirect incidental loss of civilians is tolerable provided it is viewed as a proportionate loss. Rogers considers it 'perfectly logical', for example, that if a civilian drives an ammunition truck, the truck may lawfully be targeted and the driver incidentally killed but if the driver himself is attacked, that would amount to a grave breach of AP 1.'02 This view is strongly debated by others who actually see the driver as taking a direct part in hostilities and who may be directly targeted.lo3It does nonetheless illustrate the blurring of the civilian/combatant distinction. Rogers finds that discriminating between military objectives and civilian objects is 'perhaps more important now',lo4 as a means of maintaining IHL's concern with protection of innocent civilians. Targeting contractors indirectly, that is accepting their loss as incidental injury to attacks on lawhl military objectives, provides a practical solution to the problem of determining who is a combatant and therefore who may be targeted and when. However, it requires a judgment on the part of the commander, justifiable in itself,
99. Schmitt, supra n. 10, p. 515 where he notes '...Army regulations, for example, allow deployed civilians to be issued BDUs (battle dress uniforms), NBC (nuclear, biological, chemical) equipment, Kevlar helmets, and load bearing personal equipment .. . Perhaps more telling is the fact that the combatant commander may authorize the issue of sidearms to civilians for personal protection'. 100. Schmitt supra n. 12, pp. 523-53 1. 101. Pietro Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC 1992) p. 90. 102. A.P.V. Rogers, Law on the Battlefield (Manchester, Manchester University Press 1996) p. 9. 103. The Rogers view is strongly contended by other experts who opine that the driver may be directly targeted i.e., Dinstein, supra n. 43, p. 27 and Schmitt (when the driver is at the 'front'), supra n. 10, p. 508. 104. Rogers, supra n. 102, p. 10.
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49
that the elements of the proportionality equation are satisfied, such as weighing the anticipated civilian loss against the concrete and direct military advantage anticipated.''' The test for proportionality is wider than that for determining 'direct participation in hostilities' and it is here that the conundrum of an unduly narrow definition of direct participation becomes problematic and potentially undermining of humanitarian goals. Such circumstances would arise where there is a mix of those taking a direct part with others who may or may not be (depending on which test is applied) along with 'pure' civilians nearby. Under the proportionality test more civilian loss is accepted and the principle may be resorted to so as to neutralise a 'military objective"06 if direct targeting options are limited due to the vagaries of determining which test for 'direct participation applies'. 4.2.2
Direct participation in hostilities and contractors - the contemporaly views
In seeking to better protect civilians in a time of armed conflict, it is thus timely to conceive of a broader test for 'direct participation'. It is this decision making calculus that Schmitt referred to when advocating that a more liberal definition of 'direct participation' lends itself to better ensuring that civilians are protected by permitting civilians to more reliably choose whether they are crossing the demarcation line between involving themselves merely in the general war effort or more significantly in combat.Io7 Ironically, the domestic law of self-defence found within most jurisdictions is based upon a reasonableness standard.''' What is reasonable in confronting insurgent non-state forces under domestic law conceptions of 'self defence' and perceived threat would likely allow a broad scope of defence for the accused soldier, sailor or airman that exceeds the existing narrow AP I and I1 test of 'direct participation in hostilities'. It seems, therefore, a vacuous exercise to insist upon a narrowly defined 'direct participation' test for targeting when other lawhl principles might be exercised that result in a greater number of civilians being killed. Given the broadness of additional cognate legal tests to justify appropriate military action, it is timely that the ICRC has initiated its co-sponsored DPH study. It is also significant that the project reflects a growing realisation that the policy goals of the framers of AP I in limiting the definition of 'direct participation' is having a contrary effect by causing confusion for both military planners and civilians and endangering 'pure' civilians to a greater degree. The analysis undertaken by Schmitt in his contribution to the ICRC DPH study provides a reliable and useful basis for re-examining the criteria for determining what conduct or activity constitutes 'direct participation in hostilities' under customary law. It is evident from the
105. 106. 107. 108.
AP I, supra n. 6, Art. 51(2). AP I, supra n. 6, Art. 52(2). Schmitt, supra n. 10, p. 508. Zecevic v. Director of Public Prosecutions (Rctoria) [I9871 H C A 26 (1 July 1987)
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views of experts such as Doswald-Beck, Hays Parks and the (mostly unnamed) experts contributing to the ICRC co-sponsored DPH study itself, that professional sentiment is more accepting of a broad test. This sentiment is matched by a developing state practice that will be examined more fully below. Acknowledging this move towards a liberal interpretation of the parameters of 'direct participation', the test proposed by Schmitt provides a ready starting point for assessing the central focus of this article, namely the status and targetability of contractors. In a telling insight, Schmitt states that in his view: 'the approach which best comports with the purposes of humanitarian law is one which assesses the criticality of the act to the direct application of violence against the enemy. For example, working in a munitions factory is distant from the direct application of force, whereas providing tactical intelligence is essential and immediate. Gray areas should be interpreted liberally, i.e., in favour of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distinct fiom the conflict as possib1e.7109 It is here that a substantive argument can be advanced that contractors might more generally be assessed as taking a direct part in hostilities based upon the 'criticality' of their function to the application of force, though we would suggest without the requirement of the probable tactical outcome and causal proximity conditions also asserted by Schmitt. Given the recognition by Schmitt of a capability of 'passive' direct participation and his acknowledgement of the broad 'grey area' nature of contractor activities, it is open to conceive of a broad test that is less onerous on the soldier, sailor or airman in assessing battlefield contractor activity. Such a revised test permits an a priovi determination to be made as to the direct participation activities undertaken by contractors and factored into targeting decisions. Unlike the hapless local civilian who usually finds hirnlherself propelled into conflict through circumstance, the directly employed contractor knows precisely what helshe is getting into and is able to make an informed decision as to the personal risks involved when embarking upon that activity or function. To this end, it is contended that the implications of Schmitt's grey area category ought to be given h l l import. Thus, with the policy based exception of certain recognised activities that have been universally acknowledged as not meeting the standard of 'direct participation' (i.e., civilians working in canteens providing food and clothing for the armed forces or in factories producing munition^),"^ a presumption might be drawn that all other contractor activities that form part of and perpetuate an armed force's 'military effort"" (as contrasted to the more general 'war effort')
109. Schmitt, supra n. 10, p. 509. 110. 2003 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 2. 111. Seen.63.
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and which facilitate the direct application of force should reasonably be regarded as coming within the umbrella of taking a direct part in hostilities. 4.2.3
'Unless and for such time'
Article 5 l(3) stipulates that a civilian loses hisher protection only for such time as they take a direct part in hostilities. The definition of hostilities was thoroughly canvassed at the 2005 ICRC co-sponsored DPH meeting and it was generally agreed that there was a hierarchy of terms relating to conflict that did assist in understanding the scope of the provision. Hence it was agreed that the broadest concept was 'Armed Conflict', followed by 'Hostilities' then 'Military Operations' and finally, 'Attacks'. Within this matrix it was determined that 'Hostilities' did not include 'war sustaining' activity but, rather, was associated with the actual prosecution of the armed conflict, not being restricted however to actual fighting.'I2 It is a definition that draws obvious parallels with that made by the Israeli Supreme Court in the The Public Committee against Torture in Israel et al. v. The Government of Israel et al. case, discussed above, having regard to the Court's reference to including those who 'supervise' or provide a direct 'service' to those employing weapons. Accepting that the term 'hostilities' might be given a broad compass, what then of the temporal requirement of 'for such time'. This is an issue that has been much discussed in the literature and introduces the 'revolving door' concept of farmer by day and guerrilla by night. Indeed, Schmitt asks '[clan it possibly be that those who directly participate in hostilities regain their civilian immunity whenever they successfully return from an operation even though they fully intend to subsequently recommence hostile action? This scenario is particularly ill-fitting in the case of civilian employees and private contractors. For instance, is the requirement simply to return to duties that do not amount to direct participation? Or does the end of the duty day mark return from h~stilities?'"~The answer according to Schmitt is that a civilian remains a valid target 'until unambiguously opting out through extended non-participation or an affirmative act of ~ i t h d r a w a l ' . "This ~ view also accords with a growing state practice concerning the targeting of civilians taking a direct part in hostilities where identification factors criteria relate more to 'membership of the group' criteria than assessing the specificity of actual battlefield behaviour. 4.2.4
Membership of the group approach
In the 2005 ICRC study on general customary law applicable to IHL, Henckaerts and Doswald-Beck found that practice within international armed conflict was not
112. 2005 ICRC Direct Participation Report, supra n. 9, pp. 18 24. 113. Schmitt, supra n. 12, pp. 535-536. 114. Ibid. -
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'clear' on whether members of armed opposition groups are civilians subject to temporal protection under the 'direct participation' criterion, or whether 'members of such groups are liable to attack as such"'5 thus dispensing with the need to calibrate the 'for such time' aspect of the direct participation test. The Israeli Supreme Court in the case of The Public Committee against Torture in Israel et al. v. The Government of Israel et al. was not ready to accede to such a finding for a third category of persons, but did nonetheless frame the test of direct participation broadly in the case of membership of a group whose function it is to engage in ongoing hostilities. The Court in that instance did allow for a more general and ongoing presumption of direct participation of members who are participating in a 'chain of acts'. It is our view that state practice as evidenced in the progress of conflict in Iraq, Afghanistan and, indirectly, in the Israeli invasion of Lebanon in 2006, reflects, at least, the Israeli Supreme Court reasoning of assessing membership of groups actively engaged in a chain of hostile acts as coming within the temporal criteria of the 'for such time' aspect of the direct participation test. Thus, it is open to conclude that direct targetability is becoming associated with membership of the group whose function it is to engage in hostile acts, although it seems accepted and reasonable that an individual may disavow his or her membership with a clear and unambiguous act.'16 It is a means of reconciling the 'criticality of function' test proposed by Schmitt with state practice, because it allows the general function of a class of persons (the group) to be assessed as direct participation, while minimising the practical difficulties and abuses of the revolving door concept of targetability. Direct targetability of contractors is difficult to assess in state practice. Iraq would be an ideal situation, given the overwhelming contractor presence there, but it is difficult to argue conclusively either way that the targeting of US contractors by insurgent forces represents a particular view of the law regarding civilian participation in direct acts of hostility (noting of course the general unlawfulness of such attacks by insurgent forces in any event). Indeed, it is likely that it is of no matter to the insurgents whether they are civilians or not. However, the targeting policies of armed forces participating in contemporary conflict against insurgent forces in other theatres can be extrapolated to illuminate the position of contractors. Recent practice in Afghanistan on the part of the International Security Assistance Force (ISAF) composed of NATO troops suggests that participating nations consider the period of active participation to continue even when the individual is not actually engaged in hostile action, and to continue for the duration of the person's membership of the hostile group. For example, seventy 'militants' were reported killed by Danish and Afghan troops in an operation in Musa Qala, in Helmand Province in December, 2006. The NATO spokesman reportedly 'said that
115 . ICRC 2005 Customary Law study, n. 9, p. 19. 116. Schmitt, supra n. 12, p. 536.
Civilian contractors in armed conjlict
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position^'."^ The Taliban is not recognised as a legitimate government and are therefore said by ISAF to be civilians taking a direct part in hostilities - although in these circumstances it is a noninternational armed conflict. The Musa Qala operation was not reported to have been in response to a hostile act, or specific intelligence of an imminent hostile act. Rather the NATO forces intended to 'seek out insurgents where they might otherwise seek safe haven', according to their spokesperson - Afghan police had told them where to find the Taliban mernbers.ll8 An earlier operation in September 2006 in Panjwayi and neighbouring Zhari district near Kandahar, conducted this time by Canadian NATO forces, reportedly killed up to 200 insurgents. Significantly, 'an Associated Press reporter who travelled to Pashmul saw warplanes drop five bombs within about 20 minutes on orchards where militants were believed to be hiding."I9 Although not perfectly clear, it appears that this is another instance of NATO's view that targeting of Taliban members is permissible outside a literalist time and functionlactivity interpretation of 'direct participation'. Rather, it is membership of the group 'the Taliban' which legitimises direct targeting. In neighbouring Pakistan, the Pakistani govemment bombed an Islamic school, a madrasa, in Peshawar, which the government said had Taliban links and was the present location of a Taliban leader, notwithstanding that there was no reported evidence of contemporary hostile acts emanating from the madrasa. Local people objected to the attack, saying that the school had no links to the Taliban or al-Qaeda, but there does not appear to have been international objection to the capacity of Pakistan to target the school if it was in fact associated with the ~aliban. lZ0 In Iraq, the situation is less clear because there is not a distinctive group, of the character of the Taliban, against which to direct attacks. Rather there are 'the insurgents'. Press releases from US Central Command refer only to operations in response to immediate hostile action, such as small arms fire or the emplacementin-progress of roadside bombs, or to arrests after searches that revealed weaponry or 'bomb-making equipment'. There is not the broader assertion of a right to target insurgents as members of the insurgency that there is in Afghanistan. Further, most current operations are described in law enforcement rather than in armed conflict terms - for example, persons are arrested or soldiers respond in self-defence. This
NATO forces are going out and attacking Taliban
117. J. Straziuso (Associated Press), 'Militants Killed in Afghanistan Fighting: Oficial Says 70 to 8- Taliban Militants Were Killed by NATO Soldiers in Afghanistan Fighting', 4 December 2006, ~abcnews.go.com~Intemational/wireStory?id=2698195&page=3>, viewed on 29 January 2007. 118. Ibid. 119. CBS NewslAssociated Press, '200 Taliban Killed in Fighting', 3 September 2006, iwww. cbsnews.comistories/2006109103/terror/main1962990.shtml>, viewed on 29 January 2007. 120. D.Walsh, 'Growing anger as US accused of being behind madrasa attacks', 1 November 2006,<www.guardian.co.uWpakistan/Story/0,,l936306,OO.html, viewed on 29 January 2007.
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is particularly the case where actions are described as being taken against 'suspected insurgents. ' I 2 ' The situation highlights the greatest practical problem of a 'membership of the group' approach to combatancy and therefore to targeting - identifying the group. In Iraq, the number of militant groups and splinter groups make it difficult to refine a targeting policy beyond the broad stroke of 'insurgents' and also make the identification of group members otherwise than when carrying arms or engaged in hostile actions near impossible. In this way, the practicalities of the particular conflict have made the question of group membership academic, because there is little way to establish it otherwise than with the immediate evidence of hostile action a literal reading of what AP I sets out. By way of further and more refined example, Israeli strikes in Lebanon in the course of the short-lived but destructive war of July-August 2006, were, according to the lsraeli Defence Force (IDF), always directed against Hezbollah members or infrastructure. This is unremarkable and does not expand state practice beyond the traditional targeting principles set out in the words of the Conventions. However, IDF press releases also refer to the targeting of 'houses belonging to Hezbollah terrorist^'.'^^ The literalist interpretation would have this as unlawful, because, without further evidence and while at home, members of Hezbollah would not be actively engaged in hostile action. The press release does not seek to justify the action and on its face seems a confident expression of the legality of the targeting action. Nor does there seem to have been international objection to this targeting principle, rather to problems in fact with identifi~ati0n.l~~ The factual problem in these circumstances is not unfamiliar - it is the longstanding difficulty of dual-use facilities in the form of a group. Where groups such as the Taliban, Hamas, Fatah or the IRA have both armed wings and political, religious or social welfare enterprises, the extent of the group for targeting purposes must be limited to the parts of the group taking part in hostilities. This would mean that potential targets would have to be identifiable as members of the armed group, and can conceivably only be demonstrated by participation in a hostile act - noting causative concerns with the meaning of 'direct part'. To the extent that that is difficult or impossible to distinguish between armed and other elements of the group, then the attacking force must presume civilian status and, further, even when sure of who comes within the armed element, must thereafter consider
121. For example, Multi-National Forces Iraq Release, 'Iraqi Army catches Baqubah insurgents', 15 December 2006. 122. IDF Press Release, 'Expanding Operations in Lebanon; Fifty Terrorists Killed', 13 August 2006. 123. For example, Amnesty International Press Release, 'Israel I Lebanon: End immediately attacks against civilians' 13 July 2006. As a particular example, the disputed raid on Baal-Bek hospital was said by Israel to be on a Hezbollah intelligence gathering centre and by Lebanon to be against civilian women and children: compare IDF Press Release, 'Special Forces Raid in Baal-bek', 3 August 2006 at 13:03h, and 'List of collective massacres perpetrated by Israeli Army in its attack against Lebanon in summer 2006', <www.lebanonembassyus.orgiIsraeliMassacres.html,viewed on 29 January 2007.
Civilian contractors in armed conflict
55
the issues of proportionality and distinction from civilians in making any target selection. Finally and significantly, Israeli domestic law concerning imprisonment overtly provides for a membership approach to direct participation. The Incarceration of Unlawful Combatants Law (5762-2002) is intended to 'regulate the incarceration of unlawfid combatants' defined as 'a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel' (emphasis added) and the person is not entitled to POW status under GC 111.l~~ The cumulative practice of Afghanistan, Pakistan, Lebanon, Israel and, to a lesser extent, Iraq indicates that there is growing state practice over the last two or three years at least among armed forces participating in those areas of conflict that targeting of unprivileged combatants is not limited to actual, physical participation in hostilities (that is, targeting that may become lawful or unlawful from time to time as persons move from activity to activity) but may be based on membership of a group which is participating in hostilities, such as the Taliban. This kind of purposive interpretation is consistent with the Israeli Supreme Court views as to 'membership' criteria, as well as growing consensus of experts participating in the ICRC co-sponsored DPH study, and provides a foundation for assessing the role of contractors under this rubric of interpretation. 4.2.5
Contractors as members of a group
Given growing state practice, what then of targeting contractors as members of a particular group? Time-critical, functional targeting which requires individual assessment as at the moment of any strike 'seems to take little account of the confusion that it would cause', as Rogers helpfully recognizes.'25US contracted interrogators in Iraqi prisons, for example (against whom charges of torture and other grave breaches of the GCs have been alleged), collect intelligence, some of which may be tactical, some strategic, and some of little or no value. We have concluded above that collection of tactical intelligence is causally proximate to hostilities and therefore direct participation at the very least under the test proposed by Schmitt. Collection of other intelligence, according to Schmitt, is not. AP I provides that, in case of doubt as to civilian status, persons are to be treated as ~ivi1ians.l~~ A literalist interpretation of Article 51 would mean that interrogators could be targeted only for so long as they seek tactical intelligence which may well be intermittent even in a single session and prove an impossible test for military planners. Henckaerts and Doswald-Beck seek to resolve this confusion with respect to armed opposition groups, at least in the context of internal conflicts, by suggesting that they should either be considered to 'be continuously taking a direct part in -
124. Art. 1 (Object) and Art. 2 (Definitions). 125. Rogers, supra n. 102, p. 9. 126. AP I, supra n. 9, Art. 50(1).
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hostilities or not considered to be civilians'.12' state practice is combining these views, albeit with a certain lack of clarity. This is in some ways inevitable - it is difficult to conceive of a situation where States would publish the detail of their targeting policies, for reasons of operational security, while news reports do not always disclose the reasoning behind target selection. Written materials such as manuals emanating from a very wide variety of States are often not of great assistance as they simply reiterate the formula of direct participation found in Article 5 1 in terms of distinction between civilians and combatants.128 Applying the view to civilian contractors, the difficulty of assessing the primary functions that attract combatant, civilian or unprivileged combatant status remains extant. What the practice with respect to 'membership of the group' entails is a relaxation of the situation where, for example, a supply contractor moves in and out of targetable status as they move on and off duty. Thus, the co-efficient of a purposive interpretation of Article 5 1, which permits practicable targeting while maintaining the principle of distinction and underlying posture that those who voluntarily engage in armed conflict lose their right to be protected as civilians, is increased vulnerability to legitimate and direct attack of civilian contractors especially among armed forces. This is a natural consequence of a liberal interpretation but one that draws the line very decisively, thus allowing civilians real informed choice as to the risks they assume when undertaking contractor activity. As described here, the membership approach being fostered in practice reflects the membership of the 'fighting activities' of an 'organised armed group', supported by a group of experts in the ICRC DPH discussions of 2 0 0 5 . ' ~However, ~ it is broader than some of the qualifications posited at the 2005 meeting - for example, rather than a 'policy preference', it is better seen as a purposive interpretative method and it is not limited to 'the non-state equivalent' of state armed forces, because it contemplates transnational groups of greater or lesser organisation motivated by religious and other ideology, such as the Taliban or Iraqi insurgent groups such as the Mahdi Army (although there are difficulties of identification).I3O It is our contention that the membership approach acknowledges actual practice and defines appropriate and lawhl behaviour in response to the existing participation of a wide variety of contractors. Given the central role of many contractors in directly supporting the conduct of contemporary operations, our assessment is that such contractors stand exposed to being lawhlly targeted for undertaking their functional responsibilities. Such a view is entirely consistent with the 'criticality' perspective advanced by Schmitt previously mentioned. It is an inevitable outcome of the trend towards the 'corporatization' of warfare that should have been foreseeable from the outset of the current international rush to economic rationalism in all things, even sovereign sponsored warfare. It does, though, set a definitive line of
127. Henckaerts and Doswald-Beck, supra n. 19, p. 2 1. 128. Henckaerts and Doswald-Beck, supra n. 5 1 , pp. 107- 113. 129. 2005 ICRC Co-sponsored Direct Participation Report, supra n. 6, p. 48. 130. Ibid., pp. 48-49.
Civilian contractors in armed conflict
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discretion for those seeking to undertake such contractor activity. Choices may be made as to participation in such activities in the full knowledge of the consequences. This does, in our view, serve to actually bolster the humanitarian concerns expressed in the commentaries to the Additional Protocols by establishing clear boundaries for targeting and allowing informed decision making for those civilians concerning which side of the line they will stand.
5.
RESPONSIBILITY OF THE CONTRACTING STATE
The corollary of emerging clarity for individuals on their situation as a contractor, is an increasing greyness in the law relating to the contracting state's responsibility for acts performed by persons contracted to them. There are two potential aspects of state responsibility raised by the usage of civilian contractors in conflict situations. The first is liability for misuse of contractors themselves, the second responsibility for unlawful acts committed by the contractors. The targeting principles themselves leave scope for abuse of civilian protection by conflicting states. It is prohibited to use civilians as shields to protect areas of military operations.13' Yet the extensive use of civilians for supply and logistic purposes, as in Iraq, may have the effect of shielding the armed forces' lines of supply, critical to the ability to hnction effectively in the field. While the acceptance of 'incidental injury/collateral damage' permits the indirect targeting of such personnel, the mere usage of such contractors may amount to a breach, on the part of the contracting state, of Article 5 l(7). Even a purposive interpretation of targeting of unprivileged combatants based on association rather than function does not relieve a state of its responsibility not to use civilians to protect military areas. This is an aspect of the contracting State's primary responsibility for breach of international law. However, when an individual contractor commits some offence in the course of their activities, both prosecution of the individual contractor or company and/or attribution of the act to the contracting state are problematic. Firstly, the purpose of unprivileged combatancy as a descriptive concept, where contractor activities amount to such, is to leave those personnel open to domestic prosecution for acts committed in the course of their hostile participation, such as murder, assault or damage to property. That is, international law 'refrains from stigmatising the act as criminal. It merely takes off a mantle of immunity' which belongs to lawful comb a t a n t ~ . In ' ~ ~some cases, it may also, along with other offences, be specifically Schmitt, howidentified in national laws as a criminal act, for example in 1srae1.l~~
13 l . AP I , supra n. 9 , Art. 5 l(6). 132. Dinstein, supra n. 43, p. 31. 133. Incarceration of Unlawful Combatants Law (5762-2002). This legislation is intended to 'regulate the incarceration of unlawful combatants' (Art. I), defined as 'a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpe-
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ever, disagrees and labels mere participation, 'without more', as 'contentious' support for its criminalisation is 'dated'. He concludes that only the underlying acts which constitute the participation are potentially ~rimina1.l~~ They are two sides of the same coin - a person must commit some hostile act, proximate to violence or resulting in it, in order to become an unprivileged combatant. The act of participation must be unlawful, to attract unprivileged combatancy. The labelling of the offence is a domestic matter. As for any other person faced with danger, a civilian contractor may act in selfdefence, raising it as a defence if charged with the commission of some violent or otherwise hostile act. Depending on domestic law, the contractor may also be able to argue as an excuse that hisher actions were taken in defence of others. Therefore, the situation of security personnel employed to assure the safety of military personnel or objectives is not so clear-cut as Schmitt suggests, when he concludes that their 'actions are indistinguishable from the quintessential duties of combat p e r ~ o n n e l ' .It' ~is~ a matter that would have to be determined before local law. Therein lies a significant problem in modem practice. In 2004, revelations of abuse of Iraqi detainees at Abu Ghraib prison sparked worldwide condemnation, and six junior ranking US military personnel were subsequently convicted. The Guardian claimed that a contractor had also been charged by the US military with raping a teenage detainee, but had been released because the military had no jurisdiction to prosecute the charges. The militay claimed it was the responsibility of the contractor to deal with the alleged offender.136The scandal implicated two contractors, Titan Corporation and CACI International Inc, which provided interpreting services to the military. Human Rights Watch argued that the 'virtual impunity' of contractors arose from their exemption under 'their terms of engagement' with the US military from Iraqi domestic jurisdiction, and their immunity from prosecution under military law.'37 Such international agreements can deliberately prejudice the rights of the 'host State' (in which contractors are to operate) embodied in its nationals to the protections of humanitarian law, by placing the perpetrators outside the reach of both domestic and possibly international law. That is, the contracting state may rely on the limitations of domestic law or negotiate a Memorandum of Understanding with the domestic regime, as the US has reportedly done in Iraq, so that government
trating hostile acts against the State of Israel' and the person is not entitled to POW status under GC 111 (Art. 2). 134. Schmitt, supra n. 12, p. 520. 135. Ibid., p. 538. 136. J. Borger, 'US Military in Torture Scandal', The Guardian, 30 April 2004,available at iwww. guardian.co.ukiIraqiStoryi0,2763,1206725,00.html>,viewed on 29 January 2007.Note the correction published in The Guardian on 30 April 2004,that Titan Corporation had stated that it provided interpreters and not interrogators, contrary to the original report. 137. Human Rights Watch, 'Iraq: US Prisoner Abuse Sparks Concern Over War Crimes', New York, 30 April 2004,at ~www.hnv.org/englisWdocs/2004/0413O/iraq852l.htm>., viewed on 29 January
2007.
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contractors are not subject to local san~tion."~ Thus, for example security firm Blackwater USA who were investigated by the US State Department in September 2007, following a shooting incident in Iraq in which ten civilians were reported to have been killed,'39were also investigated by the US Justice Department after an Iraqi guard was killed 'by a Blackwater contractor who was drunk'. After the killing, Blackwater flew the contractor out of Iraq, angering the Iraqi government. That killing is now under investigation by the United States Justice Department, but it remains unclear what laws may be applied in the case, because it occurred overseas. ' 140 Notwithstanding the inability to prosecute the contractors under Iraqi law, or apparently under US domestic law, Human Rights Watch insisted that ultimately, the responsibility for prison abuses committed by contractors at Abu Ghraib could be sheeted home to the United States, who was responsible under the Geneva Conventions for the running of detention facilities.14'That the state is liable for its own actions in the contracting process, for example, in the fair employment of cheap labour from third States, is ~ n ~ u e s t i o n a b l eThat . ' ~ ~it is liable for grave breaches of international humanitarian law committed by its armed forces is also ~ 1 e a r .Since I~~ those described as unprivileged combatants, potentially including some contractors, are not associated with the State's armed forces by identity or function, they are apparently responsible for their own actions and the responsibility of the contracting state is only to ensure that its own activities meet its international responsibilities. Thus an individual's classification is significant not only for the conduct of hostile acts such as targeting, but also in the identification of liability for breaches of law. We have already seen that domestic laws are ill-equipped in fact to deal with this aspect of contractor activities, demonstrated in Iraq. However, where a breach of a State's primary obligation under international law cannot be identified, there is a possibility of attributing a contractor's act to the contracting State, albeit problematically. Unfortunately, existing law and practice
138. Coalition Provisional Authority Order 17 (27 June 2004) at paras. 4.3 and 5.2. Civilians of the Multi-National Force and international consultants of the Transitional Government are immune from Iraqi jurisdiction for 'acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto'. 139. AFP, 'Blackwater case deepens as investigations multiply', 29 September 2007, available at , viewed on 2 October 2007. 141. Human Rights Watch, 'Iraq: US Prisoner Abuse Sparks Concern Over War Crimes', New .htm>, viewed on 29 JanuYork, 30 April 2004, at <www.hnv.org/englishldocs/2004104130/iraq852I ary 2007. 142. Cf., Art. 4 of the ILC Articles on Responsibility of States for Internationally Wronghl Acts (2001) UNGA 3 1 May 2001. For a critical factual review of the conditions of third state labourers in Iraq, see Phinney, supra n. 41.Phinney estimates that 48 000 employees work in Iraq under Kellogg, Brown and Root's contract to provide logistic services, of whom approximately 35 000 are lower paid workers from other nations. 143. AP I, supra n. 9, Art. 91.
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with respect to State Responsibility discloses a certain unresponsiveness to the problem of contractors already identified - that is, the deliberate use of contracted agencies to disassociate the hiring government from the acts done. The ILC Articles on Responsibility of States for Internationally Wrongfiul Acts 2001 in Chapter 2 deal with the attribution of responsibility to a State, and in particular Article 5 refers to the 'conduct of a person or entity which is not an organ of the state under Article 4 but which is empowered by the law of that state to exercise elements of the governmental authority shall be considered an act of the state under international law, provided the person or entity is acting in that capacity in the particular instance.' In its commentary to the article, the ILC concluded that in 'special cases' this article could cover 'private companies' so long as the specification relating to authorisation to perform a public or regulatory function 'by the law of that State' was met.144It is this last element which is problematic. The ILC themselves described it as a 'narrow ~ a t e g o r y ' . ' ~ ~ The situations in the view of the ILC which would attract this kind of responsibility included the delegation of immigration powers to national airlines which may be privately owned, the contracting of an agency to guard domestic prisons in the exercise of power to enforce judicial sentence, or the granting of police powers to a railroad company.146The ILC concluded that the determinative factors were 'not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise'.147The kind of corporation which seems to be envisaged by this provision is what is known in Australian domestic law as a 'statutory corporation' - a private entity established and empowered by legislation. Contracting companies, especially those engaged to perform some military-style functions, take a different form. When a government intends to dissociate itself through the employment of a contractor, as discussed above, it is not difficult to avoid the conditions of responsibility under Article 4. The contractor need not and often will not be empowered by law to perform governmental functions. For example, the wide range of contractor roles being performed in the Middle East, which causes problems for classification under IHL, causes similar problems when attempting to attribute responsibility to the state through the requirement of legal authorisation. Secondly, as a matter of fact, the requirement for empowerment by law is easily circumvented by a government intent on dissociation both in terms of the functions and of the level of accountability identified in the contract. Thus, while Article 4 is a potential basis of liability, it may often by avoided on the facts.
144. ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001) UNGA 31 May 200 1, available at . Thousands of Iraqis have been killed and wounded by the conflict itself as well as the deliberate targeting by insurgent forces. At the time of this writing, nearly 4,300 members of the coalition have lost their lives in Iraq along with an estimated 70,000 Iraqi civilian, police, and security forces as a result of the ongoing armed conflict. American military killed and wounded have topped 26,000 in addition to a number of casualties suffered by civilian contractors. 24. Aside from questions regarding the incident in al-Dujail and its bloody aftermath, the focus of the early investigative hearing was on a range of other alleged crimes such as the invasion of Kuwait and the brutal suppression of the 1991 uprising, and the gassing of the village of Halabja. For a description of the proceedings, see J.F. Bums, 'Defiant Hussein Rebukes lraqi Court for Trying Him: Tells Judge He is Still Lawful President', N.Y Times, 2 July 2004, at A l . The initial hearing before an investigative judge is required by lraqi law as a predicate for holding the potential defendant in custody. See also Iraqi Law No. 23 on Criminal Proceedings, supra n. 10, para. 123 ['the examining magistrate or investigator must question the accused within 24 hours of his attendance, after proving his identity
Defense of the A1 Dujail trial
123
the tone that would permeate the entire trial until the moment of his execution nearly thirty months later; he demanded to know 'how can you charge me with anything without protecting my rights under the con~titution'.~~ In fact, the purpose of that initial hearing was not to charge Saddam or any of the other defendants with any crime, but merely to establish a prima facie case that the investigative judge had opened a legal investigation and to have them acknowledge the notification of
their legal rights with their signatures. The High Criminal Court Rules of Procedure stipulate that the investigating judge must notify all suspects of their rights during their first appearance for quest i ~ n i n ~In . ' accordance ~ with Iraqi procedural law, any statement of the accused to the investigating judge is recorded in the written record and 'signed by the accused and the magistrate or in~estigator'.'~ Thus, every suspect (to include Saddam) who has appeared before the investigative judges to date has been notified of their rights to counsel and has acknowledged their comprehension of those rights in writing.28 Subsequent appearances before the investigative judge are undertaken
and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.']. 25. R. Cornwell, 'Saddam in the Dock: Listen to His Victims, Not Saddam, Says White House', The Independent (London), 2 July 2004 (reporting that Hussein stated, 'This is all theater,' at his first (last vispre-trial hearing) at ited 4 October 2004). For those who have observed the Milosevic trial, Saddam's statements were eerily familiar. During his initial appearance before the ICTY on 3 July 2001, Milosevic challenged the legality of the establishment of the ICTY. In a pre-trial motion, Milosevic stated, 'I challenge the very legality of this court because it is not established in the basis of law.' 'Milosevic Challenges the Legality of the U.N. Tribunal', Online NewsHour, 13 February 2002, at ; 'Iraqi president predicts the hanging of Saddam by year's end', at . 38. For example, the President of the ICRC stated: 'Our preliminary reading of the new legislation raises certain concerns and questions. The very broad definition of who is an "unlawfd enemy combatant" and the fact that there is not an explicit prohibition on the admission of evidence attained by coercion are examples.' ICRC, 'Developments in US policy and legislation towards detainees: the ICRC position' (19 October 2006) . ' 39. Hamdan, supra n. 6, pp. 26-34. 40. '. .. the rules adopted must be "uniform insofar as practicable". That is, the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.' Hamdan, supra n. 6, p. 57. 41. Ibid., fh.61, p. 66.
The year in review
257
~ a e d aAlthough .~~ we have noted supra that the Supreme Court erred in recognising that conflict as being an armed conflict to which IHL applies, Congress did not even bother to adjust the revamped military commissions' jurisdiction to take account of the Court's finding on the question of their temporal jurisdiction of the military commissions.43 Pursuant to Sec. 3, §948d.(c) of the MCA: 'A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.' The Combatant Status Review Tribunals (CSRTs) created for the purpose of confirming whether the detainees in US custody had been correctly classified as enemy combatants44found that most of them had been. In many cases, its conclusions are open to question given that they rely on the underlying assumption that the war on terror is an actual war. But the built in bias of the CSRTs was enhanced by their skewed procedure, as noted by this writer elswhere: '[Ilnstead of enjoying the benefit of the doubt regarding their status as POWs, the burden was put on the detainees to disprove a negative: why they should not be classified as enemy combatants. The detainees were also presented with a procedural handicap: in deciding whether a preponderance of evidence supported a detainee's claim that he was not an enemy combatant, there was a rebuttable presumption in favor of the government's evidence. The detainees were denied legal representation but instead had a "personal representative" - a military officer who was not a lawyer and whose role was to "provide assistance to the detainee and provide an ability for the detainee, through the personal repre-
42. 'The charge against Hamdan, ... alleges a conspiracy extending over a number of years, from 1996 to November 2001. All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF - the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11,2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict.' Hamdan, supra n. 6 , pp. 34-36. 43. According to Sec. 3, 5948d. of the MCA concerning the Jurisdiction of military commissions '(a) Jurisdiction. - A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001 .' 44. By Deputy Secretary of Defense Order of 7 July 2004, ~http://www.defenselink.mil/news/ Ju12004/d20040707review.pd~; Combatant Status Implementation Guidelines, 30 July 2004, . 101. Prohibited in Art. 9(1) International Covenant on Civil and Political Rights (ICCPR); Art. 5(4) European Convention of Human Rights (ECHR); Art. 7(3) American Convention on Human Rights; Art. 6 African Charter on Human and Peoples' Rights. 102. Art. 16 ICCPR; Art. 3 American Convention on Human Rights; Art. 5 African Charter on Human and Peoples' Rights. 103. Art. 9(3) ICCPR; Art. 5(3) ECHR; Art. 7(5) American Convention on Human Rights.
272
A. McDonald
rape and other forms of sexual violence. The crime of enforced disappearance is a continuing crime,'" as individuals who are disappeared frequently never reappear. The Convention's 45 provisions set out a comprehensive international legal fiamework to ensure the protection of individuals from this act and the prosecution and punishment of those who engage in it. Article 1 unequivocally prohibits enforced disappearance and excludes any possible justification for it, while Article 2 defines the offence as 'the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a rehsal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law'. This definition is both wider and narrower than that set out in Article 7(2)(i) of the ICC Statute. Whereas the Rome Statute's definition of the actus reus elements of the crime of enforced disappearance restricts it to 'arrest, detention or abduction of persons ...', Article 2 broadens the definition to include 'any other form of deprivation of liberty ...'. However, the requirement in Article 2 of the Convention of some involvement of a state as a necessary element is an unfortunate limiting factor not present in the Rome Statute, under whose Article 7(2)(ii) an enforced disappearance can also be carried out by 'a political organization'. Whilst in most cases a state will be involved, it cannot be excluded that a political, criminal or terrorist organisation or an armed opposition group, inter alia, could disappear someone. If the customary crime of torture can be carried out by a non-state actor, as acknowledged by the ICTY,"~ there is no legal reason why the crime of enforced disappearance - which is often carried out for the purpose of committing torture - could not also be. Conversely, whereas under Article 7(2)(ii) of the Rome Statute the arrest, detention or abduction of a person must be carried out 'with the intention of removing them from the protection of the law for a prolonged period of time', Article 2 of the Convention merely requires that the act of disappearing someone has the effect to 'place such a person outside the protection of the law', without any requirement of a specific intent. Article 3 goes some way towards mitigating the requirement in Article 2 for state involvement as an element of the crime by providing that: 'Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.' Under Article 4, States Parties are required to criminalise enforced disappearance under their domestic law. Pursuant to Article 6(1), States Parties should hold criminally accountable those responsible for enforced disappearance, either directly or indirectly. Under Article
104. As recognised in Art. 8(l)(b) of the 2006 Convention. 105. Prosecutor v. Kunarac, Kovac and Vukovid,IT-96-23 and IT-96-2311-A, Appeals Chamber, 12 June 2002, para. 148.
The year in review
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7 , States Parties are required to lay down penalties for the crime of enforced disappearance which reflect its 'extreme seriousness'. While the Convention does not exclude the application of statutory limitations to the crime of enforced disappearance, pursuant to Article 8(1) States Parties must (a) ensure that any statutory limitations are of long duration and proportionate to the extreme seriousness of this offence and (b) commence from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. Under paragraph (2) of Article 8: 'Each State Party shall guarantee the right of victims of enforced disappearances to an effective remedy during the term of limitation.' Under Article 9(1), each State Party shall take the necessary measures to establish its jurisdiction over the offence of enforced disappearance, based on the territorial and active and passive personality principles. Paragraph (2) provides for the application to the crime of the principle of aut dedere aut j~dicare,"~similar to that governing grave breaches of the Geneva Conventions and Additional Protocol I. Alternative bases of criminal jurisdiction recognised under national criminal law may also be exercised. 5.1.2
Extraordinary rendition
In September 2006 President Bush finally came clean on the existence of a 'secret' detention program run by the CIA since 2002, which had long been suspected and widely reported on1'' but had only obliquely been acknowledged by the administration.''' Bush claimed and embraced the program as 'a cornerstone of the US'S
106. 'Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.' 107. As far back as 2001.The Washington Post was instrumental in breaking and investigating the story. See 'Cole suspect turned over by Pakistan', The Washington Post, 28 October 2001; R. Chandrasekaran and P. Finn, 'U.S. behind secret transfer of terror suspects', The Washington Post, 11 March 2002; D. Priest, 'Jet is open secret in terror war', The Washington Post, 27 December 2004; M. Scheuer, 'A fine rendition', The New York Times, I1 March 2005; S. Shane, S. Grey and M. Williams, 'CIA expanding terror battle under guise of charter flights', The New York Times, 3 1 May 2005;D. Priest, 'CIA holds terror suspects in secret prisons - Debate is growing within agency about legality and morality of overseas system set up after 9lI 1', The Washington Post, 2 November 2005, ;J. Mayer, 'Outsourcing torture: The secret history of America's "extraordinary rendition" program', The New Yorker, 14 February 2005;Committee on International Human Rights of the Association of the Bar of the City of New York and the Center for Global Justice and Human Rights, New York Law School, Torture by Proxy: International and Domestic Law Applicable to 'Extraordinary Renditions (New York, NYU Law School 2004). 108. In a 2001 interview on US television, Vice President Cheney explained the need to go over to 'the dark side' in fighting terrorism: 'We're going to spend time in the shadows of the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussions, using sources and methods that are available to our intelligence agencies if we're going to be success-
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anti-terrorist strategy'.Io9when signing into law the Military Commissions Act one month later, President Bush stated: "'When I proposed this legislation, I explained that I would have one test for the bill Congress produced: Will it allow the CIA program to continue? This bill meets that test."I0 As more about the program was revealed, it became increasingly clear that it could not exist without the support and cooperation of a host of states around the world. The most disturbing revelation is how few states have kept their hands completely clean in what some have come to describe as a 'massive criminal conspiracy'."' In June 2006, Swiss parliamentarian Dick Marty issued his interim report on extraordinary rendition prepared for the Council of Europe's Parliamentary As~ e m b l ~ His . " ~ terms of reference were limited to the involvement of European countries in the practice of extraordinary rendition and in allowing secret detention centres to operate on their territories. Confirming the secret program, in which many European states were implicated at one level or another, he reported that it was 'unlikely that European states were completely unaware of what was happening, in the context of the fight against international terrorism, in some of their airports, in their airspace or at American bases located on their territ~ry'."~'It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services.'""arty's 'findings were expansive, revealing that the torture planes had criss-crossed Europe and the world, touching down on numerous airstrips in countries including: Afghanistan, Algeria, Australia, Azerbaijan, Bahrain, Colombia, Croatia, Cyprus, Czech Republic, Djibouti, Egypt, Estonia, Fiji,
ful. That's the world these folks operate in and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective. ... It is a mean, nasty, dangerous business out there, and we have to operate in that arena.' See transcript of Vice President Dick Cheney, NBC's Meet the Press, 1601. 16 September 200 1, <www.washingtonpost.com/wp-srvinatiodat~cke&transcnpts/cheney09 htmlp. US Secretary of State Condoleezza Rice owned up to and defended the program during her trip to Europe in late 2005. See Secretary Condoleezza Rice 'Remarks upon her departure for Europe', Andrews Air Force Base, 5 December 2005, ~http://www.state.govlsecretary/rm/2005/57602.htm>. See also 8 YIHL (2005) pp. 232. 109. The White House, 'President discusses creation of milita~ycommissions to try suspected terrorists', 6 September 2006, ~www.whitehouse.govlnews/releases/2006/09/20060906-3.html>. 110. The White House, 'President Bush signs Military Commissions Act of 2006', 17 October .html>. 2006, ~http://www.whitehouse.gov/news/releases/2006/10120061017-1 111. T. Paglen and A.C. Thompson, Torture Taxi: On the Trail of the CIA $ Renditions Flights (Cambridge, Icon Books 2007) p. 32. 112. D. Marty, 'Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States', Committee on Legal Affairs and Human Rights, Council of Europe Parliamentary Assembly, Doc. 10957, 12 June 2006, . See also D. Marty, 'Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States', Explanatory Memorandum, 7 June 2006, ; Pem: 'This escalation of violence and its extension to Lebanon was provoked by an attack by Hizbollah, an act of aggression unacceptable to any state and which prompted a military reaction by Israel in Lebanon', SPV.5493 Resumption 1 (21 July 2006) p. 3; Argentina: 'we reiterate once again that the primary responsibility falls on Harnas and Hizbollah due to their provocative and irresponsible actions in recent months', ibid., p. 9; France: 'In Lebanon, Hizbollah bears responsibility for the unleashing of hostilities, and we condemn in the strongest terms the continued firing of rockets on Israeli cities that blindly kill and wound civilians', ibid., p. 11; Australia: 'We need to bear in mind responsibility for the current crisis. It began with the attacks on Israel by Hamas and Hizbollah, including the capture of Israeli soldiers and the launching of rockets and mortar bombs into Israel', ibid., p. 27. US: 'Today Hizballah terrorists operating from Lebanon kidnapped two Israeli soldiers and launched rocket attacks against civilian targets in Israel. The United States condemns in the strongest terms this unprovoked act of terrorism', White House statement on Condemnation of Hizballah Kidnapping of Two Israeli Soldiers, 12 July 2006 ->Topics>Nepal->24 July 2005, where it is stated that CPN-M Chairman Prachanda made it clear in his statement of 14 June 2005 that 'killing civilians - deliberally or even unavoidable accidents - remains completely against party policy'. 53. See ICRC, Annual Report 2005. Nepal, p. 176. 54. Declaration by Prime Minister Surya Bahadur Thapa of 26 March 2004, INSEC, supra n. 25, pp. 106-107. 55. The conflict was increasingly being reported in the international press and by (inter)national organisations. See, inter alia, TNSEC, Nepal. Human Rights Yearbook 2005, pp. 123-128, and Amnesty International, Report 2002. Nepal, Index No. POL 10/001/2002, and Amnesty International, Nepal. Widespread 'disappearances' in the context of armed conflict, Index No. ASA 31104512003, Report of 16 October 2003, and Amnesty International, Nepal. A long ignored human rights crisis is now on the brink of catastrophe, Index No. ASA 31102212005, Report of 18 February 2005, and Office of the High Commissioner for Human Rights, Nepal. Investigations into violations ofinternational humanitarian law in the context o f attach and clashes between the Communist Party of Nepal (Maoists) and Government Securiy Forces (January-March 2006), Report of 18 April 2006. See also International Crises Group, supra n. 44. For general information on IHL violations in Nepal see ICRC, Annual Report 2005. Nepal, pp. 174-175. 56. INSEC, Nepal. Human Rights Yearbook 2005, p. 9. 57. Karki and Seddon, supra n. 5, pp. 54-55.
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Alleged IHL violations by the security forces included arbitrary detention, disappearances, death in custody, the killing of persons hors de combat, indiscriminate attacks, torture, unfair trials, the use of excessive force and deliberate and arbitrary killings of civilians.58Instances were recorded where people who were arrested and detained under the TAD0 were killed on the basis of (unsubstantiated) charges of attempted escape.59Many of the detainees falling under the mandate of the ICRC (so-called 'security detainees') were held under several strongly criticised rules and regulation^.^' Until today, impunity for those suspected of having committed these violations is one of several issues of the utmost concern. Furthermore, allegations of (continuing) use of child soldiers by the CPN-M exist6' and more than 800 cases of disappearances are still unaccounted for.62 The Comprehensive Peace Accord agreed by the Government of Nepal and the CPN-M provided for the establishment of a Truth and Reconciliation Commission (hereinafter TRC). Hopehlly, the legislation which is to be drafted and which is necessary to establish a TRC will also give the TRC the mandate to investigate violations of IHL and human rights committed during the armed conflict between the Government of Nepal and the CPN-M from the start of the Maoist insurgency (13 February 1996) to the conclusion of the Comprehensive Peace Accord (21 November 2006). Notions of such violations should be clearly defined. As required under international law, the Commission should not recommend amnesties or similar measures of impunity with respect to crimes under international law, such as war crimes, genocide, crimes against humanity, extra-judicial killings, enforced disappearances and torture.
58. Human Rights Watch, Clear Culpability: 'Disappearances' by Security Forces in Nepal, Report of February 2005, and Human Rights Watch, Nepal: Security Forces 'Disappear' Hundreds of Civilians. King's Putsch Unleashes Abusive Army, Press Release of 1 March 2005, in which B. Adams, Asia Director for Human Rights Watch states: 'Maoist forces have a horrendous record of killings, torhlre and intimidation, but the response can't be to unleash an army that has been responsible for so many 'disappearances' and other egregious human rights abuses'. See also Human Rights Watch, Country Summary Nepal, January 2006. 59. INSEC, Nepal. Human Rights Yearbook 2004, pp. 8-9. 60. See UN Working Group on Enforced or Involuntary Disappearances E/CN.412005165/Add.1, Report of 28 January 2005. 6 1. See Human Rights Watch, Children in the Ranks. The Maoists' Use of Child Soldiers in Nepal, Report of February 2007, and ICRC, Nepal: ICRC activities in 2006, Operational update of 3 1 December 2006. 62. ICRC, Nepal: ICRCseeks to clarify thefate of more than 800 missingpersons, Press Release of 14 February 2007.
Case study: Nepal 4.
A FIELD PERSPECTIVE
4.1
The Red Cross in Nepal
407
All three components of the International Red Cross and Red Crescent Movement, namely the ICRC, the International Federation and the national societies, are present in Nepal and work on the basis of the same seven fundamental principle^.^^ All 186 National Red Cross or Red Crescent Societies have a permanent presence in their home countries. The Nepal Red Cross Society, founded in 1964, is one of them.641t seeks to decrease the population's vulnerability to health crises and disasters by implementing community-based projects via its many local branches and volunteer^.^' The Nepal Red Cross was one of the few organisations that were able to continue its humanitarian activities throughout the country during the conflict. A representative of the International Federation (the body which coordinates all Red Cross and Red Crescent Societies) has been based in Kathmandu since late 2003. The main task of the Federation in Nepal is to strengthen the capacity of the Nepal Red Cross in project management and reporting, as well as coordination and partnership building. The Federation and several National Societies (fiom Belgium, Denmark, Japan, Norway, Sweden and Switzerland) are working with the Nepalese Red Cross in a number of different fields, such as the prevention of eye infections, improving access to drinking water, water purification and emergency preparedness training of volunteers. With the support of the ICRC, the Federation and the media, the Nepalese Red Cross launched a national campaign to combat misuse of the Red Cross emblem. Only when people are aware of the meaning of the emblem (and its legal basis in IHL and often in national legislation), can they appreciate and respect its life-saving value during armed conflict. On the basis of Common Article 3 to the Geneva Conventions, an impartial and humanitarian organisation such as the ICRC can offer its services to the parties in the conflict. Both parties accepted the ICRC and the protection and assistance package it offered. As the ICRC does in many other countries where it has a pre-
63. The seven fundamental principles of the International Red Cross and Red Crescent Movement are: humanity, impartiality, neutrality, independence, voluntary service, unity, universality - see . 64. See the website of the Nepal Red Cross Society at ~http:!!www.nrcs.org!>. 65. For example, First Aid Services provided by the Nepal Red Cross Society during political demonstrations. The following example serves to demonstrate just one of many problems the country faces next to the effects of the armed conflict. The Nepal Red Cross Society, through its comrnunitybased health care programmes, seeks to combat maternal and infant mortality due to post-partum haemorrhage. An estimated 35,000 women and babies die each year due to unsafe childbirth and neonatal practices, discrimination against women and the lack of access to health care. Estimates claim that this silent tragedy has so far claimed over 25 times more lives than the conflict. See the Federation website for more information at <www.ifrc.org/photoiwdr200611 l.asp> and . 9. Naima. B 'Extinction des poursuites judiciaires a l'egard de 2 226 personnes' in Le Jeune IndPpendant, 7 March 2007 <www.jeune-independant.com/>. 10. Information and commentaries by Judge Adel Maged, Counselor at the Egyptian Court of Appeals, on secondement to the UAE Ministry of Justice as Legal Advisor on International Law and Treaties; Honorary Professor of Law at Durham University (UK). 11. See, e.g., Arab League Council Resolution K 6096 - D. A. (1 15) - G2 - of 12 March 200 1, in which it emphasised the importance of establishing the ICC, providing it with necessary guarantees to enable it to do its mandate independently and impartially, to exercise its jurisdiction on all persons
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supportive of the establishment of the ICC, only three countries (Jordan, Djibouti and Comoros) have ratified the Statute of the International Criminal Court (ICC statute).12 It seems that the political climate surrounding the ICC in the Arab World may be one factor adversely affecting the ratification process; arguments related to national sovereignty and political interference tend to play a substantial role in this area. Even though the number of ratifications of the ICC Statute in the Arab region is limited, Arab States show interest in the current normative development of international criminal law. Evidence of this is the draft of an Arab Model Legislation on the crimes within the jurisdiction of the ICC. Arab officials understand that a state willing to be a party to the ICC Statute should have in place national legislation in conformity with international law so that it will be in a position to prosecute any crime within its sphere of jurisdiction. This would ultimately protect their national (judicial) sovereignty. Thus, there is consensus among scholars and government officials that each Arab country should adopt a legislation that deals with the international crimes enshrined in the ICC Statute. On 3 - 4 February 2002, the Department of Legal Affairs of the Arab League organised a regional seminar on the implications of the ratifications of the ICC Statute. It was entitled 'Implications Arising from the Ratification of or Accession to the ICC's Statute in the National Legislation of the Arab Countries'. The seminar concluded by issuing various recommendations. One of the general recommendations called for drafting a Model Arab Law on the crimes within the jurisdiction of the ICC (MAL), which should also comprise common legal principles and procedures according to applicable international standards. There were also recommendations specifically addressed to Arab States willing to become parties to the ICC Statute and other recommendations for Arab States that are not willing to become States Parties. It was recommended for the first category of states that they have to work on enacting national legislation that cover all acts criminalised in the ICC Statute to avoid the deprivation of their judicial jurisdiction by the ICC. As to the second group of states, it was recommended that they should also make necessary efforts to criminalise, in their national legislation, crimes laid down in the ICC Statute to avoid having their citizens brought to trial before the ICC. Recognising that, the Arab League has made considerable efforts to draft the MAL: In its Resolution No. 453- D18-2511012002 the Council of Ministers of Justice of the Arab League stressed the necessity to prepare the Model Law. It assigned this task to the Committee of Arab Experts and Representatives of Arab States to Coordinate Arab Positions on International Conferences and Treaties (Committee of Arab Experts). - According to a Memorandum of Understanding between the Department of Legal Affairs of the Arab League and the International Committee of the Red Cross (ICRC), the latter prepared a draft Model Law on the Crimes falling under the Jurisdiction of the ICC. - The draft Model Law was submitted to the Committee of Arab Experts during its meeting in June 2002. The Department of Legal Affairs of the Arab League decided to circu-
without discrimination or selectivity and to adhere to the principles of international criminal justice and implementing the provisions of international humanitarian law among all states. 12. Jordan, Djibouti and Comoros deposited their instruments of ratification of the ICC Statute on l I April 2002, 5 November 2002 and 18 August 2006, respectively.
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Correspondents' Reports
late the draft among the respective Arab ministries of justice to have their observations and comments on the draft. - Some criticisms were directed at the ICRC draft as it has a treaty drafting style, which is not suitable for national legislation. In addition, it only fits States Parties to the ICC Statute. - The United Arab Emirates (UAE) proposed to submit a modified Arab Model Legislation that would suit both States Parties and non-States Parties to the ICC Statute. - Accordingly, the UAE Minister of Justice established a committee of experts, the task of which is to draft workable domestic legislation codifying the core crimes included in the ICC Statute. - The UAE Draft was concluded in 2004 and was sent to the Arab League which has circulated it to the competent departments of the Arab ministries of justice requesting their comments and observations. - On 19 September 2005, the Committee of Arab Experts submitted its final revised Arab Model Legislation draft to the Council of Ministers of Justice of the Arab League. - On 29 November 2005, the Council of Ministers of Justice of the Arab League adopted Resolution No. 598- D21-29/11/2005 approving the Model Law, asking the Department of Legal Affairs to circulate it among Arab countries with a view to using it as guidance in drafting their own national legislation comprising the ICC core crimes. The MAL consists of two chapters comprising 13 Articles. The first chapter covers general principles of criminal law, particularly the terms of the national application of penalties, the terms of the application of the irrelevance of official capacity principle, the condition for initiation of investigations, the ne bis in idem principle, the non-applicability of the statute of limitations for the crimes included in the MAL, the non-applicability of special amnesty for the crimes listed in the MAL, the responsibility of commanders and other superiors, and the principle that superior orders is not a ground, in general, for excluding criminal responsibility. Chapter two deals with the crimes within the ICC jurisdiction and details their elements. It covers the crime of genocide, crimes against humanity and war crimes. Furthermore, the last article of the MAL (Article 13) covers the crime of aggression. It defines acts of aggression in conformity with UN General Assembly Resolution 33 14 (XXIX). The MAL on international crimes constitutes the first attempt in the Arab world to incorporate the principles of international criminal law (as contained i.n the ICC Statute) into domestic legislation. It was drafted in such a way as to allow non-States Parties to incorporate it into their national criminal law. ADEL MAGED
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AUSTRALIA'^ Cases 1. Application of Article 1F of the Refugee Convention
*
SRYYYv. Minister,for Immigration and Multicultural and Indigenous Affairs (2005) 86 ALD 5 1 1 (17 March 2005),
<www.austlii.edu.au//cgi-binldisp.pl/au/cases/cthlFCAFC/2005/42.html?query=s~yyy %20~%20minister>. In 2005 the Full Court of the Federal Court of Australia considered a case involving the application of Article 1F of the Convention Relating to the Status of Refugees ('Refugee onv vent ion').'^ SRYYY (real name suppressed for anonymity), a former member of the Sri Lankan army, applied for a protection visa in Australia on the basis that if he returned to Sri Lanka he would be killed. During the application process he disclosed that he had been involved in interrogating Tamil civilian detainees, including children, and that he had assaulted and threatened the detainees in order to obtain information.15 The Minister's delegate rehsed to grant the protection visa on the grounds that there were serious reasons for considering that the applicant had been 'complicit in the crimes against humanity and war . ' ~ Administrative Appeals Tribunal ('AAT') affirmed crimes of the Sri Lankan ~ r m ~ 'The the delegate's decision and the case was appealed ultimately to the Full Court of the Federal Court on the basis that the AAT had committed an error of law. The Full Court first considered whether the AAT had fallen into jurisdictional error by applying the definitions in the Rome Statute of the International Criminal Court ('Rome statute')." The applicant argued that the use of the Rome Statute in the case would offend the principle of nullum crimen sine lege, given that the Rome Statute had not come into force at the time that the alleged conduct had occurred.18 The Full Court rejected any requirement that an instrument had to be adopted or in force at the time that the alleged crime took place, while at the same time acknowledging that the crimes in the Rome Statute had 'crystallised into crimes in international law at the date of the statute'.19 This finding removed any concerns as to retrospective criminalisation of conduct. Although the Court rejected the idea that an international instrument had to be in existence at the time that an alleged crime took place, it recognised that a particular instrument may be more appropriate than others in determining criminal liability depending on where an act had taken place.20
13. This entry was prepared by Amy Barry-Macaulay, Anita Coles, Pumika Dharmadasa, Alison Duxbury, Jessica Latimer and James May on behalf of the Australian Red Cross International Humanitarian Law Advisory Committee (Victorian Division). 14. 1951, 189 UNTS 137. 15. SRYYY V.Ministerfor Immigration and Multicultural and Indigenous AfJhivs (2005) 86 ALD 511, 513 ('SRYYY). 16. Ibid. 17. 1998,2187 UNTS 90. 18. S R W a t p . 531. 19. Ibid., at p. 535. 20. For example, the Statutes of the ICTY and ICTR would be the most suitable instruments for dealing with crimes committed during the conflicts in the former Yugoslavia and Rwanda respectively, ibid., at p 534.
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Secondly, the applicant submitted that the AAT had failed to correctly apply the relevant definition of a crime against humanity in the Rome Statute. The AAT appeared to have confused the elements of a crime against humanity and a war crime in finding that the 'Sri Lankan army was involved in systematic persecution of a civilian group' (as required in a crime against humanity) and thus concluding that there were serious reasons for considering that a war crime had been committed by the applicant.21 The Full Court upheld this element of the claim, stating that the AAT had 'failed to address the essential elements of [a crime against h u m a n i t y ~ ' The . ~ ~ case indicates the necessity of addressing all elements of the offences listed in the Rome Statute. Finally, the case demonstrates the importance of determining whether any relevant defence applies when considering whether a refugee applicant may have committed an Article 1F offence. The applicant submitted that the AAT had failed to consider whether he was entitled to claim the benefit of a defence under Article 33 of the Rome Statute, in particular, the defence of superior orders. The Court upheld the importance of determining whether a defence applied in the context of Article lF(a), stating that '[wle are unable to accept the proposition that a person may be said to have committed a crime when that person has a defence which, if upheld, will absolve or relieve that person from criminal responsibility'.23 The Full Court upheld the appeal and ordered that the matter be remitted back to the AAT to be determined according to law. The AAT reheard the matter and handed down a new ~ considering each element of crimes against humanity the decision on 5 April 2 0 0 6 . ~After Tribunal made a new decision finding that SRYYY had knowingly participated in the torture of innocent civilians who were, for practical purposes, under his control, and he knew that this was part of a widespread or systematic attack by the Sri Lankan army against the civilian population. The Tribunal therefore held that Australia owed no protection obligations to the applicant on the basis of Article 1F of the Refugee Convention.
*
SRHHH v. Minister for Immigration and Multicultural and Indigenous Affaivs [2005] AATA 1020 (14 October 2005), <www.austlii.edu.au//cgi-bin/disp.pllaulcases/ctaa2OO5/l020.html?query=srhhh>.
In October 2005 the AAT reviewed the Minister for Immigration's decision to refuse to grant a protection visa, under Article 1F of the Refugee Convention, to an Afghani man. The Minister's delegate decided that the applicant had been involved in the torture, murder and imprisonment of Afghani citizens between 1987 and 1989 while performing military service with the communist secret police known as K ~ A D . 'The ~ AAT considered in detail the evidence with respect to the applicant's activities during this time. It noted that for the purposes of the exclusion in Article 1F it is not enough for an applicant for rehgee status to have been a willing collaborator with a regime that has committed war crimes or crimes
21. SRYYI: at p. 540. 22. Ibid., at p. 541. 23. Ibid., at p. 544.
24. SRYYYv. Minister,for Immigration and Multicultural Affairs [2006] AATA 320, 5 April 2006. 25. Khademat-e-Ittela' at Dowlat, or state information services.
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against humanity.26The AAT considered the International Criminal Court's (ICC) processes regarding the requisite standard of proof.27 It also considered that the definition of crimes against humanity and war crimes as used in the Refugee Convention derived from international instruments available at the time of the Convention's drafting, with the most comprehensive being found in the 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal at Nuremberg (IMT).~' The AAT ultimately held that the evidence did not establish that the applicant was any-
thing other than a conscripted soldier in a security battalion, serving in a propaganda role. The AAT held that this did not constitute disentitling conduct within Article 1 ~The. AAT ~ ~ therefore remitted the matter back to the Minister to reconsider the protection visa application.
*
SROOOO v. Minister for Immigration and Multicultural and Indigenous Ajfairs [2006] AATA 9 1 (3 February 2006), <www.austlii.edu.aulcgi-binlsinodisp/au/cases/cthlaat2006/91 .html?query= SR0000>.
In early 2006 the AAT reviewed a decision of the Minister's delegate not to grant a protection visa on the grounds that the applicant had participated in crimes against humanity in Afghanistan between 1984 and 1992, while employed by KhAD. The AAT considered whether the applicant should be precluded from being granted protection on the basis of Article I F of the Refugee Convention. The AAT began its discussion by accepting that mere membership of KhAD was not sufficient to ascribe to the applicant conduct amounting to the commission of war crimes or crimes against humanity. The AAT found KhAD agents were involved in the torture and murder of thousands of suspects. However, the Tribunal found that KhAD was a large organisation and the applicant was not aware of or involved in any crimes against humanity or war crimes. The AAT stated at the outset that 'the most recent and authoritative international law definition of war crimes and of crimes against humanity is contained in the Rome Stat ~ t e ' . ~The ' AAT therefore looked to the definition in the Rome Statute, and also noted that the IMT Charter and Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ('Geneva Convention I V ' ) ~ 'were relevant to the proceedings. Ultimately, the AAT found that the evidence did not lead to a finding that the applicant was involved in or aware of the commission of any crimes against humanity or war crimes and so did not examine the international legal position.
26. SRHHH v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020 at para., 164 ('SRHHH'). 27. Ibid., at paras. 176-177. 28. 1945,82 UNTS 279. 29. SRHHH, at para., 180. 30. SROOO v. Ministerfor Immigration and Multicultural and Indigenous AjJairs [2006] AATA 91atpara., 11. 3 1. 1949,75 UNTS 287 ('Geneva Convention IV').
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SZCWP v. Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9 (20 February 2006), <www.austlii.edu.au//cgi-bin~disp.pl/au/caseslcthlFCAFC/2006/9.html?query=szcwp>.
In early 2006 the Full Federal Court handed down another decision involving consideration of Article 1F of the Refugee Convention. SZCWP, a Nepalese citizen, had been refused a protection visa on the basis of the exemption in Article IF. The issue before the Full Federal Court was whether the Tribunal had erred in finding that the applicant had committed crimes against humanity andfor war crimes. The applicant had been a member of a Nepalese Maoist group that advocated the use of force to effect social change. The applicant had claimed that he did not personally kill anyone, but he had participated in non-violent activities on behalf of the group. This was done with knowledge of the group's readiness to use violence (including murder), if that was needed to achieve its goals. The attacks were directed towards landlords and members of the Nepalese police. The majority held that there was sufficient evidence before the AAT for a finding to be made that the applicant satisfied the requirements of Article l ~ ( a ) The . ~ ~applicant had argued that during the time of the applicant's activities the police, who were the main targets of the Maoists, would not come within the definition of 'civilian population ', within the elements required for a crime against humanity. Justice Downes rejected this argument noting that the police are not part of the armed forces, and the fact that they sought to repel an attack by the Maoists did not change their status.33 Justice Wilcox, in a minority opinion, held that the Tribunal had erred in law as there was no evidence that the applicant personally killed any person, or that any killing was carried out on his behalf by a subordinate, the crime of murder (as a crime against humanity), could not be e ~ t a b l i s h e d Justice . ~ ~ Wilcox noted that 'there is no authority that suggests it would be enough to satisfy Article 7.l(a) [of the Rome Statute] that the person is an associate or accomplice of persons who have carried out killings'.35 Justice Wilcox also held that the Elements of Crimes document, adopted by the Assembly of State Parties of the Rome Statute, makes it clear 'in respect of murder, mutilation, cruel treatment and torture, that the relevant person must have done the act; it is not enough that the person may have associated with others who so acted'36. His Honour was of the opinion that there was not enough evidence to hold that the applicant had committed the crimes of which he had been accused. However, as Justice Wilcox was in the minority, the Court found that Australia owed no protection obligations to the applicant on the basis of Article 1F.
*
VWYJ v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1 (16 March 2006), ~www.austlii.edu.auNcgi-bin/disp.pllaulcases/cth/FCAFC/2006/1 .html?query=vwyj >.
32. SZCWP v. Minister,for Immigration & Multicultural & Indigenous Affairs 120061 FCAFC 9, see para., 76 per Gyles J and para., 118, per Downes J. 33. Ibid., at para., 119. 34. Ibid., at paras. 42-43. 35. Ibid., at para., 42. 36. Ibid., at para., 63.
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The Full Court of the Federal Court again considered whether the AAT had committed an error in finding that the applicant was not entitled to a protection visa on the basis of Article lF(a) and (b) of the Refugee on vent ion.^^ The Minister's delegate had refused to grant a protection visa to a Lebanese man on the basis of his participation in the massacre of civilians in a Palestinian refugee camp in 1982. The AAT subsequently found that there was a high probability that the applicant was engaged directly in the slaughter of civilians during the massacre. The Full Court considered whether the AAT had fallen into error in considering the
Rome Statute and the statutes for the ICTY and ICTR, as these instruments came into operation well after 1982 (the date when the massacre took place). The Court referred to the fact that the AAT had found that the mass murder of innocent civilians during a period of armed conflict satisfied the definition of a war crime under the IMT Charter. As such the AAT found that the applicant had committed a war crime within the meaning of Article IF (a) of the Refigee Convention, and had also committed a serious non-political crime within the meaning of Article lF(b). The AAT only considered the subsequent international statutes when determining whether the applicant could avail himself of the defence of superior orders or duress. Such consideration could only have been in the applicant's favour. Ultimately, it found that no such defence was available to the applicant. The Full Court therefore held that the AAT did not fall into jurisdictional error and dismissed the appeal. 2. Extradition * Dragan Vasiljkovic v. The Commonwealth of Australia [2006] HCA 40 (3 August >; and 2006), <www.austlii.edu.au/adcaseslcthlhigh~c~2006140.rtf Dragan Vasiljkovic v. Minister for Justice and Customs 13 October 2006 FCA 1346,
<www.austlii.edu.auiau/cases/cth/federalct/2006/1346.rtf>. The High Court of Australia considered the constitutionality of extradition legislation in 2006. The challenge was brought by Dragan Vasiljkovic, a naturalised Australian citizen and a citizen of Serbia and Montenegro. On 12 December 2005 Croatia issued a warrant for Vasiljkovic's arrest on the ground that in 1991 and 1993 he had committed two counts of war crimes against prisoners of war and the civilian population.38 On 19 January 2006 an Australian magistrate issued an arrest warrant for Vasiljkovic and on 20 January 2006 he was remanded in custody under the Extradition Act 1988 (Cth) ('the Act'). On 25 January 2006 Vasiljkovic made an application to the High Court challenging the legality of his detention and the validity of part of the Act and the Extradition (Croatia) Regulations 2004 ( ~ t h )Under . ~ ~ these Regulations no evidence is required to be provided
37. VWYJ v. Minister jbr Immigration and Multicultural and Indigenous AJairs [2006] FCAFC 1. The applicant sought to appeal a decision of a single judge who had refused to grant an extension of time to file an appeal against the Tribunal's decision. The Full Court granted the extension of time but dismissed the appeal on its merits. 38. Dragan Vasiljkovic v. The Commonwealth of Australia [2006] HCA 40 per Gleeson CJ at paras. 1-3; per Gummow and Hayne JJ at paras. 61-68; Kirby J at paras. 125-137 ('Vasiljkovic'). See 'Referral of Special Case to High Court of Australia', April 2006, High Court Registry, High Court of Australia website ~www.hcourt.gov.au/registry/matters/April06Nasiljkovic.rtP. 39. See 'Referral of Special Case to High Court of Australia', April 2006, supra 38.
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by the extradition country in order to commence the extradition process.40 Vasiljkovic argued this situation was constitutionally invalid because it authorised his detention without requiring that a prima facie case regarding the alleged offences be established. Therefore, this amounted to penal legislation as there was no basis on which to test the charges.41 Vasiljkovic also argued that the Regulations that established the extradition arrangements with Croatia were invalid because they were not made pursuant to a treaty with The High Court of Australia, by majority:3 dismissed the application. It held the legislation was a valid exercise of the Commonwealth's constitutional powers.44 It held that the Regulations were valid even though there was no formal extradition treaty between Australia and The Court held that the extradition of persons for alleged crimes in another jurisdiction, including the extradition of suspected war criminals, were matters of both international concern and physically external to Australia, and the Commonwealth therefore had the power to legislate.46 The Court also held that Vasiljkovic has been validly detained prior to a determination by the government as to whether he was to be extradited, given that extradition inevitably involves a deprivation of ~iberty.~'The Court also found that the Regulations were valid, despite extradition arrangements with other countries requiring aprima facie case to be established before extradition could be c o n ~ i d e r e dGlee.~~ son CJ held that the 'no evidence rule', although controversial because it involved an interference with human rights, was a question of legislative policy not constitutional validity.49 The matter was remitted to a magistrate to consider Vasiljkovic's eligibility for surrender to Croatia for extradition. Vasiljkovic made a new application to the Federal Court of Australia to restrain the government from extraditing him to Croatia, on the basis that the charges of war crimes brought against him by Croatia were not crimes in the relevant Australian State in which the extradition process was sought.50 Vasiljkovic argued the charges were war crimes exclusively under the Geneva Convention Relative to the Treatment of Prisoners of war5', Geneva Convention IV and the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts5* and had no equivalent
40. Extradition (Croatia) Regulations 2004 (Cth), reg. 4. See s., 19(3) of the Extradition Act. 41. Vasiljkovicper Gleeson CJ at paras. 6-15; Gummow and Hayne JJ at paras. 70 and 72; Kirby J at para., 170. 42. Ibid., per Gummow and Hayne JJ at para., 71. 43. Ibid., Gleeson CJ; Gummow and Hayne JJ; Heydon J (concurring with Gummow and Hayne JJ); Kirby J dissenting. 44. Ibid., per Gleeson CJ at paras. 6, 36; Gummow and Hayne JJ at paras. 85-88. See: Zentai v. Republic ofHungary [2006] FCA 1226 at para., 26. 45. Vasiljkovicper Gleeson CJ at paras. 7-10,30; Gurnmow and Hayne JJ at paras. 74-77. 46. Ibid., per Gleeson CJ at paras. 6-8; 47. Ibid., per Gleeson CJ at para., 34; Gummow and Hayne JJ at paras. 109-113; Kirby J at para., 177. See: Barton v. Commonwealth (1974) 131 CLR 477 at 503. 48. Vasiljkovicper Gummow and Hayne JJ at paras. 69-72. 49. Ibid., per Gleeson CJ at paras. 10-15; 34. Cf., per Kirby J at paras. 158-164. 50. Dragan Vasiljkuvic v. Minister for Justice and Customs [2006] FCA 1346 (13 October 2006) ('Customs').
51. 1949,75 UNTS 135 ('Geneva Convention 111'). 52. 1977, 1125 UNTS 609.
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basis in Australian State l e g i ~ l a t i o nThe . ~ ~ Court adjourned the application on the basis that the State magistrate should first determine Vasiljkovic's eligibility for surrender under the Act, before the question raised could be de~ided.'~ At the end of 2006 the matter remained within the Australian court system.
*
Zentai v. Republic of Hungaly & Ors [2006] FCA 1226, <www.austlii.edu.adauicases/ cthlfederal-ct/2006/1226.rtf>.
The Republic of Hungary sought the extradition of Charles Zentai for war crimes. The applicant, Zentai, sought a declaration that sections of the Act were invalid as being beyond the legislative power of the Commonwealth. The applicant argued that the Act conferred fkctions on State magistrates without legislative approval by a State; that State officials such as magistrates did not have the capacity to act in international affairs such as extradition; and that it was constitutionally incompatible for a State magistrate to exercise federal executive powers. On 12 September 2006 Justice Siopis dismissed the challenge on all three grounds, holding that the Act was valid as it did not confer executive power on State magistrates. Rather, the power to be exercised was a non-judicial function (persona designate) and not in the magistrates capacity as State officials.55Not only did the Magistrates Court Act 2004 (Western Australia) provide the requisite legislative but State officials could perform tasks in international affairs for the Commonwealth in a personal capacity." Accordingly, the applications were dismissed. Targeting during armed conjlict * Conflict in Iraq As discussed in the 2004 Yearbook of International Humanitarian ~ a w , " the Australian Defence Force (ADF) contributed to a number of efforts and operations in Iraq as part of the US-led Coalition Provisional Authority ('the CPA'). Specifically, during the conflict in Iraq in March 2003, Australia influenced coalition military policy in relation to targeting. Details of this are summarised in a book published in 2006 by Greg heri id an.'^ During the 'conventional combat phase', Australia was a member of the final targeting board which approved the targets that the coalition would hit, including which individuals were to be targeted and what weapons could be used. The United States, Britain and Australia as members of the coalition had the ability to veto any target nominated.
53. Customs, at para., 28. 54. Ibid., at paras. 29-30. 55. Zentai v. Republic of Hungary [2006] FCA 1226 per Siopis J at paras. 24-25 ('Zentai'). 56. Under s.6(5) of the Magistrates Court Act 2004 (WA) the Governor of WA could confer on the magistrate ' ... functions of another office or appointment ...' which His Honour held covered Commonwealth functions: Zentai at paras. 10-12, 32-35. 57. Zentai at para., 40. 58. See the Australian entry in 7 YIHL (2004) pp. 449-451. 59. G. Sheridan, The Partnership: The Inside Story of the US-Australian Alliance Under Bush and Howard 1st edn. (Sydney, University of New South Wales 2006) pp. 70-73.
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In his book Sheridan states that Australia vetoed a number of targets on the basis that certain targeting would have been against the coalition's strategic objectives, militarily unnecessary and against the laws of armed conflict. At one stage, when the coalition was expecting a fight to enter Baghdad, Australia vetoed three of five proposed US air force weapons systems on the basis that the bomb proposed to be used was not accurate for a radius of less than 16 metres and was unsuitable for use in a built-up area. In an interview, the Defence ~ i n i s t e r ~stated ' that Australia's targeting policies differed from the US in that they were more restrictive, due to the fact that Australia is a party to various conventions that the United States is not, such as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, ('Ottawa onv vent ion')^' and the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed ~ o n f l i c t s . ~ ~
Deployment of Australian troops In 2005 and 2006 Australia troops were located in Iraq, Afghanistan, the Solomon Islands and Timor-Leste. In November 2006 Australia had 1 400 ADF personnel contributing to the reconstruction and rehabilitation of Iraq, 360 conducting reconstruction and providing air mobility in Afghanistan, 925 assisting with peace and stability in Timor-Leste, 140 serving with the Regional Assistance Mission in the Solomon Islands and 50 personnel in Tonga supporting the Tongan security forces in stabilising the situation following riots on ~ 300 ADF personnel were also deployed on security tasks in 16 November 2 0 0 6 . ~Around the Australian maritime protection zone.64 On 24 May 2006 Timor-Leste requested that Australia send defence forces to Timor-Leste to help in maintaining and re-establishing public order amidst ongoing gang violence.65On 26 May 2006 Australia confirmed it would continue the deployment of almost 1 800 ADF personnel to ~ i r n o r - ~ e s tOn e . ~28 ~ May 2006 the Australian Federal Police (AFP) confirmed that a 45-member team would be deployed to Timor-Leste in support of the ADF force effort, to assess the situation on the ground in Timor-Leste and provide advice to the ADF in relation to law and justice issues.67 Australia has stated that it is probable that
60. ABC Television, 'Hill backs PM's statement on targeting policies', Lateline, 18 March 2003 ~www.abc.net.au/lateline/content/2003/s8 10463.htm>. 61. 1997, [I9991 ATS3. 62. 1977,1125 UNTS3. 63. Department of Defence, 'ADF Operations Update Media Brief' (Press Release, 23 November 2006) <www.defence.gov.au/media~SpeechTpl.cfm?entId=6157>. 64. Department of Defence, Global Operations (2003) Department of Defence <www.defence.gov. au/globalops.cfm>. 65. The Commonwealth Treasurer (Peter Costello), 'The Acting Prime Minister's Press Conference on the Subject of East Timor', (Press Conference, 24 May 2006) . 67. Australian Federal Police, 'AFP Deploy to East Timor' (Press Release, 28 May 2006) Cwww. afp.gov.au/media~releases/nationaV2006/afp~deploys~to~east~timor2~.
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Australian trwps will remain in Timor-Leste until May 2007.~ku1esof Engagement were set by the ADF, in agreement with the Timor-Leste authorities, as to the force composition and its role and cooperation with the Timor-Leste Defence ~ o r c e s . ~ ~ On 17 November 2006, following a request from the Government of Tonga after mass rioting, Australia and New Zealand announced that a joint force of military personnel and police would be deployed in ~ o n g a . ~Australia ' sent approximately 50 ADF personnel and 34 AFP officers to support the Tongan Security Forces and the Tongan Police service." The Department of Defence stated that the deployed troops would be armed, but did not reveal the specifics of its Rules of ~ n ~ a ~ e m e n t . ~ * In April 2006, the Australian Government deployed up to 110 troops to the Solomon Islands, followed by approximately 70 AFP officers, after an outbreak of violence in Honiara and in response to a request from the newly-elected Prime Minister and caretaker Prime Minister of the Solomon ~ s l a n d s . ' ~
Detention ofAustralian citizen at Guantanamo Bay * Parliamentary debate In 2005 and 2006 David Hicks, an Australian citizen, continued to be held in detention by the United States in GuantAnamo Bay. Mr Hicks was captured in Afghanistan in early December 2001. Mr Hicks was transferred to Guantanamo Bay in January 2002. He was charged by US authorities on 10 June 2004 with three offences: conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy. Following ~ the the Supreme Court of the United States' decision in 2006 in Hamdan v. ~ u m s f e l d , 'that Military Commission process was illegal and in violation of the Geneva Conventions, 75 the original charges against Mr Hicks could not proceed. As at 31 December 2006 Mr Hicks remained in detention without charge. The Australian government has stated that Mr Hicks
68. Minister for Foreign Affairs (Alexander Downer), 'Transcript, Interview Sunday program' (Transcript, 28 May 2006) . 69. The Commonwealth Treasurer, Press Conference, 24 May 2006, supra 65; 53. 70. Prime Minister John Howard, 'Transcript of the Prime Minister the Hon John Howard MP Joint Press Conference with the Prime Minister of New Zealand, Helen Clark on the Subject of Tonga' (Transcript, 17 November 2006) ~http:lIpandora.nla.gov.adpan/1005212006122 1-0000Iwww.pm.gov. aulnewslinterviewslInterview2256.html~. 7 1. Department of Defence, 'ADF Support to Tonga' (Press Release, 18 November 2006). 72. Ibid. 73. Prime Minister John Howard, 'Transcript of the Prime Minister the Hon John Howard MP Press Conference on the Subject of Troop Deployment to the Solomon Islands' (Transcript, 19 April 2006) ('ICRC Annual Report 2005'). 97. Ibid. 98. Ibid., pp. 227-228. 99. Ibid., p. 228.
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Implementing a decision of the High Representative, in January 2005 the RS appointed a working group to study documentation produced by the Srebrenica Commission. It was established by the authorities of RS to investigate the Srebrenica massacre, with the purpose of identifying those implicated. In its first report in March, the working group presented a list of 892 suspects still reportedly employed in RS and BiH institutions. In April 2005 the preliminary list was forwarded to the Prosecutor of BiH. In September 2005 a further list was presented by the working Missing Persons * ICRC
The ICRC provided legal and technical assistance to the authorities in charge of creating official central records on missing persons, of implementing the Law on Missing Persons and of establishing the Missing Persons Institute. The agreement establishing the Missing Persons Institute, signed by the Council of Ministers and the International Commission on Missing Person in August, was ratified by both Houses of Parliament in ~ecember.'"
*
Exhumation of mass grave
In June 2005 the exhumation was completed of a secondary mass grave in Lipje, near Zvornik, containing the incomplete bodies of approximately 240 people. The mortal remains are believed to be victims of the Srebrenica massacre. Of the estimated 7 000 - 8 000 Bosniaks killed in Srebrenica in July 1995, by June 2005 approximately 2 000 had been exhumed and identified.lo2 Refugees * According to the United Nations High Commissioner for Refugees field mission in BiH between January - May 2005 approximately 3 000 refugees and internally displaced persons returned to their pre-war homes.Io3 Accountability ofpeacekeeping forces * Compensation claim
In January 2005 the Starovlah family received a reply from the NATO headquarters in Sarajevo rejecting their claims for compensation. On the night of 3 1 March - 1 April 2004 Orthodox priest Jeremija Starovlah and his son were seriously wounded when United States
100. Amnesty International Report 2006, 'Europe and Central Asia: Bosnia-Herzegovina' . 160. Court of Bosnia and Herzegovina, 'News: ICTY accused PaSko LjubiEiC transferred to Bosnia and Herzegovina', 22 September 2006, <www.sudbih.gov.ba/?id=23O&jezik=e>. 161. Amnest International, 'Public Statement: Bosnia and Herzegovina: Withdrawal of citizenship must not result in human rights violations', 16 June 2006, .
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High Representative Decision Enacting the Law on Amendment to the Law on Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the use of Evidence Collected by ICTY in Proceedings before the Courts in BiH, 19 June 2006. <www.ohr.int/decisions/judicialrdec/default.asp?content~id=37437>. Decision Enacting the Law on Amendments to the Criminal Procedure Code of BiH, 19 June 2006. <www.ohr.in~decisions/judicialrdec/default.asp?content~id=37429>. High Representative amended the Criminal Procedure Code to extend the duration of post-indictment from one year to three years for the most serious cases, including war crimes, 16 June 2006. ~www.ohr.in~ohr-deptlpresso/pressr/default.asp?content~id=37434>. The High Representative signed a Registry Agreement with the Presidency of BiH, transferring responsibilities originally given to the registrar to a Transition Council comprised primarily of representatives of the BiH institutions. Inter alia, the power to appoint internationaljudges and prosecutors is transferred from the High Representative to the High Judicial and Prosecutorial Council, signed August 2006. <www.ohr.int/print/?content-id=37785>. Cases 1. Verdicts
* Abdulahim
Maktouf case, Court of BiH, Sarajevo - Section I for War Crimes, 5 April
2006. According to the final verdict the accused was found guilty of being an accessory to the taking of three Croat civilians as hostages by the "El Mujaheed" unit in Travnik in 1993.In committing these acts the accused committed the criminal offence of war crimes against civilians. He was sentenced to five years
*
Dragoje PaunoviC case, Court of BiH, Sarajevo - Section I for War Crimes, 26 May
2006. The Court found the accused guilty of crimes against humanity and sentenced him to 20 years imprisonment. According to the verdict, in the period between May - September 1992,the accused ordered and carried out persecution against the Bosniak civilian population from the Rogatica area on political, national, ethnic, cultural and religious grounds by committing murders and other inhumane acts.'63 On 27 October 2006 the Appellate Panel confirmed the first instance verdict.164
162. Court of Bosnia and Herzegovina, ~www.sudbih.gov.baJfilesldocsipresudel2OO6/MaktoufE BHS-KPZ-32-05.pdB. 163. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/presude/2006/Pa BHS-X-KR-05-16.pdD. 164. Court of Bosnia and Herzegovina, ~www.sudbih.gov.b~filesldocslpresude/2006/ XKRZO5 16-PAUNOVIC-DRAGOJE-PRESUDA.pdP.
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*
453
Boban Sirnii~case, Court of BiH, Sarajevo - WCC, 11 July 2006.
The Court found the accused guilty of crimes against humanity and sentenced him to five years imprisonment. The panel found the accused guilty of aiding in the enforced disappearance and rape of Bosnian civilians in the 'Hasan Veletovac' school premises in ViSegrad, which occurred as part of widespread and systematic attacks by the Serb Army, police and paramilitary groups directed against the Bosniak civilian population in the area of ViSegrad between April -July 1992.'"5
*
Marko Samardija case, Court of BiH, Sarajevo - Section I for War Crimes, 3 November 2006.
The Court found the accused guilty of crimes against humanity and sentenced him to 26 years imprisonment. On 10 June 1992 the accused, as commander of the 3rd Company of the Sanica Battalion within the 17th Light Infantry Brigade, ordered his soldiers to remove all Bosniak male civilians in the BrkiC and BalagiC Brdo villages from their houses and to take them to the Jezerine plain. All men between the ages of 18 - 60 were taken with their hands behind their backs to the courtyard of the Biljanina Primary School. Some of these Bosniak men were detained in classrooms from which they were brought out in groups of five - 10 and executed. The accused and his subordinates moved the remaining men, while beating them, onto buses and they were transported to LaniSte where most of them were killed. He also took part in the gathering and transfer of the bodies of the victims. These bodies were exhumed from the LaniSte, Crvena Zemla and Biljani mass graves during 1996. At least 144 persons were killed with the use of firearms.'66
*
KovaEeviC Nikola case, Court of BiH, Sarajevo - Section I for War Crimes, 3 November 2006.
The accused was found guilty of crimes against humanity and sentenced to 12 years imprisonment. According to the verdict, in the period May - August 1992, he participated in a wide and systematic attack by the Army of the RS of BiH against the civilian population of the Sanski Most municipality, in which he committed, aided and instigated the persecution of Muslims and Croats. The accused, alone or together with other members of the military and the police, detained and tortured civilians in various facilities. In June and July 1992 the accused participated in taking detained civilians to the ManjaEa camp and in beating civilians upon their arrival at the camp. On 6 June 1992 the accused took part in the severe beating of a number of civilians who were brought to the ManjaCa camp, causing grievous injuries. The accused also participated in the removal of the bodies of these civilians, which were never found. He also took part in the forcible transfer of 60 civilians to the ManjaEa camp. The detainees were placed on a single truck and crammed under a tarpaulin so that at
165. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docslpresude/2006/Simsic~ BHS-X-KR-05-04.pdB. 166. Court of Bosnia and Herzegovina, <www.sudbih.gov.ba~files/docs/presude/2006/Marko~Sa rnardzija~-F're~uda~-~BHS~pdf~.
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least 19 of them suffocated. The bodies of these victims were exhumed from the 'USCe Dabar' mass grave in Sanski ~ o s t . ' ~ '
* Radovan StankoviC case, Court of BiH, Sarajevo - WCC, 14 November 2006. The accused was found guilty of crimes against humanity and sentenced to 16 years imprisonment. In the period August - October 1992 the accused, as a member of the Miljevina battalion (within the FoCa tactical brigade), participated in a wide and systematic attack of the Army of the Serb Republic of BiH against the non-Serb civilian population of the FoCa municipality. Together with other individuals he formed a detention centre for women in the 'Karaman House', which was known by soldiers as 'The Brothel'. Together with other individuals, he brought to this detention centre, held captive, and supervised at least nine women, most of whom were juveniles. He claimed one of the detainees for his own use, forcing her to have sexual intercourse with him every night except for a period of a few days after he had been wounded. He frequently raped her while other individuals were present in the same room. In October 1992 he transferred this detainee to another location where he forced her to have sexual intercourse with him and to perform forced 1 a b o ~ r . I ~ ~
*
Nedo Samaradiii. case, Court of BiH, Sarajevo - Section I for War Crimes, Sarajevo, 13 December 2006.
According to the first instance verdict delivered on 7 April 2006, the accused was found guilty of crimes against humanity and sentenced to 13 years and four months imprisonment. The offences that the accused was convicted of were committed in the period between April 1992 - March 1993 in, among other locations, the Rataje village and in the socalled 'Karaman House' in Miljevina, municipality of ~ 0 ~ a . l ~ ~ According to the final verdict, delivered on 13 December 2006, the accused was again found guilty of crimes against humanity but sentenced to 24 years imprisonment. The accused, as a member of the Army of the RS, together with other soldiers, conducted the persecution of the Bosniak civilian population on national, ethnic, religious and gender grounds. He forced victims into sexual slavery, raped them, and conducted other inhumane acts, intentionally causing them great suffering, serious physical injuries and harm to their health. In the period between June - September 1992, together with Nikola BrEic and Radovan StankoviC, he held several Bosniak women as sexual slaves in the 'Kraman House' in Miljevina, which was used as a detention camp for women. The women were forced to engage in sexual intercourse with soldiers coming into the house on a daily basis. The accused personally forced detained women to have sexual intercourse with him.l7'
167. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/presude/2006Mikola~Ko vacevic---Presuda---BHS.pdD. 168. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfiles/docs/presude/2006JRadovan~ Stankovic--_Presuda---BHS.pdD. 169. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfilesldocs/presude/2006/Samardzic~ BHS-X-KR-05-49.pdB. 170. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/presude/2006Medo~Sa mardzic--_drugostepena-Pre~uda~--BHS.pdB.
Correspondents' Reports
*
455
Nikola Andrun case, Court of BiH, Sarajevo - Section I for War Crimes, 14 December 2006.
The accused was sentenced to 13 years imprisonment. The Court found the accused guilty of war crimes against civilians. In 1993, he acted in capacity of the Deputy Commander of the Gabela Detention Camp in the Municipality of Capljina, and as a member of the Knez Domagoj Brigade of the Croatian Defence Council (HVO). He tortured and participated in the torture of detained civilians, behaved in an inhumane manner towards the detainees and used methods of intimidation and terror. The accused, together with another individual, transferred a detainee to the police station in Capljina where he participated in physically and mentally abusing this detainee. Together with the commander of the Gabela Detention Camp, on two occasions in August and September 1993, the accused transferred a group of Bosniaks from the Gabela Detention camp to the Silos detention camp near Capljina with the intent of preventing representatives of the ICRC from registering the detainees. 171
*
Samir BejtiC case, Sarajevo Cantonal Court, 13 July 2006.
The accused was found guilty for war crimes against civilians and sentenced to 14 years and six months imprisonment.'72
*
Novo Rajak case, Sarajevo Cantonal Court, 26 November 2006.
The accused, as the police officer in the ViSegrad police station, was found guilty of war crimes against civilians in ViSegrad in April, May and June 1992. Together with members of Serb paramilitary forces, he participated in attacks on the villages Cmi Vrh and Kabernik. He threatened, arrested, tortured and mistreated Bosniaks and participated in the criminal offence of murder. The Court sentenced him to 14 years imprisonment.'73
* Milanko
VujanoviC case, Banja Luka District Court, 3 March 2006.
The defendant was indicted in March 1993 for the killing of civilians on 19 October 1992 in Blagaj Rijeka near Novi Grad. The Court found the accused guilty for war crimes against civilians and on 3 March 2006 sentenced him to 20 years imprisonment.'74
*
Zikrija Ljevo and others (Vernes ZahiroviC, BeCir OmanoviC, Habib Cbpelj, Husnija OruCeviC) case, Mostar Cantonal Court, 29 March 2006.
171. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfilesldocslpresude~ Andrun---Presuda---BHS.pdP. 172. Voice of America News, ~www.voanews.cornibosnian~archivei2006-0712006-0713-voa4. cfm>. 173. See Nezavisne Novine [Independent News], 'Novo Rajak osuden na 14 godina zatvora' ['Novo Rajak sentenced to 14 years imprisonment'], <www.nezavisne.com/vijesti.php?vijest= 2803&meni=6>. 174. Banja Luka District Court, <www.okruznisud-bl.com/index.htm>.
456
Correspondents' Reports
The accused were found guilty of war crimes against prisoners of war. Zikrija Ljevo was sentenced to seven years imprisonment. Vemes ZahiroviC was sentenced to two years imprisonment. BeCir OmanoviC and Husnija OruEeviC were each sentenced to one year and six months imprisonment.
* Momir Skakavac case, Trebinje District Court, 24 March 2006. This war crimes trial involved charges of inhuman treatment, illegal detention, and rape. According to the indictment, in early June 1992 Momir Skakavac forcibly took Bosnian Muslim Atif Hambo from his house in Miljevina (near Fo[E]a); Hambo was never seen again. During the summer of 1992, Skakavac and other members of the Bosnian Serb army allegedly kidnapped three Muslim women from their apartments. The women were taken to a cattle farm and forced to work there. . ..[B]etween August and November 1992, Skakavac allegedly visited a house in which a Muslim women, "no. 120", was held prisoner, and raped her on several occasions. 'I6 On 24 March 2006 the trial ended with the acquittal of the defendant.17'
*
Fikret Boskailo case, Trebinje District Court, 6 April 2006.
The defendant was originally charged with war crimes for violating international law applicable in wartime arising out of the pillage of civilians' property and large scale illegal and arbitrary destruction and appropriation of property in the area of Capljina in 1992. '78 The trial ended with the acquittal of the defendant on 6 April 2 0 0 6 . ' ~ ~
2. Ongoing trials at the end of 2006 * MitroviC Petar and others (MiloS Stipar, Milenko TrijiinoviC,Brano DiiniC, Aleksandar RadanoviC, Slobodan JakovljeviC, Miladin StevanoviC, Velibor MaksimoviC, Dragiia ZivanoviC, Bvanislav Medan, Milovan MatiC) case, Sarajevo Cantonal Court. The accused are indicted for the crime of genocide committed in Srebrenica in 1995 pursuant to Article 171 of the Criminal Code of BiH. The trial started on 9 May 2006 and is still ongoing.180
*
Radislav Ljubinac case, Court of BiH, Sarajevo Section I for War Crime. -
175. OK0 War Crimes Reporter, Issue 3 (2006), p. 29, <www.okobih.ba/files/docs/Reporter/2006~ 3-OKO-WCR.pdB. 176. Human Rights Watch Report, 'A Chance for Justice', supra 121; p. 10. 177. DAN1 Magazine, ~www.bhdani.com/default.asp?kat=fok&broj~id=467&tekst~rb=3~. 178. Ibid. 179. Infobiro, ~ w w w . i d o c . b a / d i g i t a l a r c h i v e / p u b l i c / b r o w s i n g / b s /code/O 1.01.04/year/2006/month~4iday/7/codel/Ol.01~. 180. Court of Bosina and Herzegovina, < w w w . s u d b i h . g o v . b a / f i l e s / d o c s i o p t u m i c e ~ P TUZN1CA.pdP.
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On 15 May 2006 the indictment was confirmed against the accused. He was charged with crimes against humanity. The offences outlined in the indictment were allegedly committed between May - November 1992 in the area of the Rogatica municipality. Thc accused was charged with participation in the persecution of the Bosniak population from the area of 1x1 Rogatica on political, national, ethnic, cultural and religious grounds.
*
Dragan ZelenoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
Section I for War Crimes of the Court of BiH issued an order according to which Dragan ZelenoviC is to be immediately transferred to the ICTY in The Hague. The amended indictment which the ICTY confirmed on 7 October 1999 charged him with crimes against humanity and violations of the laws of customs of war in the area of FoEa, between July November 1992. According to the allegations in the indictment, he was one of the subcommanders of the military police and a paramilitary leader in FoEa. On 8 June 2006, at the Sarajevo International Airport, the accused was handed over to the BiH State Border Service by Russian Federation a u t h ~ r i t i e s . 'On ~ ~ 8 July 2006 he was physically transferred to The Hague. 'The indictment alleges that he raped, sexually assaulted and participated in gang-raping of women in a number o f . . . places, including the gang-raping of a 15-year-old girl in the Buk Bijela detention center in July 1992'."~ ZelenoviC pleaded guilty to seven counts in the indictment, where rape and torture were qualified as crimes against humanity. The same acts were cumulatively charged in the indictment as violations of the laws or customs of war. The prosecution dropped those charges after the accused pleaded guilty.'84 At the end of 2006 the sentencing judgement was still pending.
*
Goran and Zorun DamjanoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 9 June 2006 and the trial started on 21 September 2006. The accused are charged with war crimes against civilians. According to the allegations in the indictment Goran and Zoran DamjanoviC, as members of the Army of the Serb Republic of BiH, took active part in the beatings of a group of 20 - 30 male Bosniak prisoners in Bojnik, Novi Grad municipality, Sarajevo on 2 June 1992.Is5
181 . Court of Bosnia and Herzegovina, 'News: Cases in trial or on appeal against verdict X-KR-051 154 - Ljuhinac Radisav', <ww.sudbih.gov.ba~?opc~a=predmeti&id=30&~ezik=e>.
182. Court of Bosnia and Herzegovina, 'News: Dragan Zelenovic to be transferred to International Criminal Tribunal for former Yugoslavia (ICTY)', 9 July 2006, <ww.sudbih.gov.ba/?id=l66&jezik= e>. 183. lnternational Criminal Tribunal for the Former Yugoslavia, 'Press Release: Dragan Zelenovic in Tribunal Custody', I0 June 2006, ~www.un.orglicty/pressrea112006/p1089-e.htm~. 184. Sense Tribunal, 'ICTY: Dragan Zelenovic', 16 February 2007, . 185. Court of Bosnia and Herzegovina, 'Cases in trial or on appeal against verdict: X-KR-051107 Damjanovid Goran and Zoran', <www.sudbih.gov.ba~?opcija=predmeti&id=32&jezik=e~.
458
*
Correspondents' Reports
Goran Bencun and Zdravko Bozik case, Court of BiH, Sarajevo Crimes.
-
Section I for War
On 3 July 2006 [a] preliminary proceeding judge ordered custody of one month for Goran Bencun and Zdravko BoziC. The Prosecutor's Office of BiH suspects these two persons of participating, as members of the Republika Srpska Army, in the murders of Bosniak civilians from Srebrenica, in the area of Pilica in July 1995. The authorities of the United States of America deported Bencun and BoiiC to BiH on June 30,2006 for breaches of immigration reg~1ations.l~~
*
Gojko Jankovii case, Court of BiH, Sarajevo - Section I for War Crimes.
According to the second indictment the accused was charged with the criminal offence of crimes against humanity. It is alleged that between April 1992 - February 1993 the accused, as the leader of a paramilitary group, ordered, committed, aided and incited the rape of a Bosniak woman in the area of ~ 0 E a . l ~ ~
*
Pasko LjubiEi'C case, Court of BiH, Sarajevo - Section I for War Crimes.
The criminal proceedings involving Mr. LjubiEic have been referred to the authorities in BiH by a decision of the ICTY Referral Bench made in accordance with Rule 11 bis of the ICTY's Rule of Procedure and Evidence. On 22 September 2006 the accused was transferred to BiH. He was charged with crimes against humanity, war crimes against civilians and violating the laws and practices of warfare. The indictment alleges that in the period between January - July 1993 the accused participated in a widespread and systematic attack on the Bosniak civilian population of the Vitez and Busovaca municipalities by HVO forces. Allegedly, the accused was the commander of the 4th Military Police Battalion, which was active in the Central Bosnia Operative Zone (CBOZ) of the HVO. It is alleged that he exercised both formal and de facto control over the members of the HVO Military Police in the CBOZ and that on 25 January 1993 the accused gave an order to members of the 4th Military Police Battalion to attack the Bosniak civilian population of Busovaca, which resulted in the death of 27 Bosniak civilians. It is further alleged that the accused ordered the looting and destruction of Bosniak homes and businesses and that he personally participated in this attack. On the morning of 16 April 1993 the accused allegedly participated in the planning of an attack on the villages of AhmiCi, Nadioci, PiriCe and Santidi and conveyed orders to members of the 4th Military Police Battalion. This included an order that all adult Bosniak men be killed and the entire Bosniak population of the villages expelled. During this attack, around 100 Bosniak civilians were killed, the entire Bosniak population of the villages was expelled, their homes were destroyed, numerous persons
186. Court of Bosnia and Herzegovina, 'News: Custody ordered for two war crimes suspects' 3 July 2006', <www.sudbih.gov.ba/?id=18l&jezik=e>. 187. Court of Bosnia and Herzegovina, ~www.sudbih.gov.b~files/docsloptuznice//Gojko~Janko vic~-~Optuznica~-~BHS~-~O4Juli2006.pdB.
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suffered serious mental and physical injuries, and the two mosques in the village of AhmiCi were blown
*
MejakiC ~ e l j k oand others (Morntilo Gmban, DuSan FuStar, Dus'ko KneieviC) case, Court of BiH, Sarajevo - Section I for War Crimes.
On 9 May 2006 the accused were transferred to BiH from Scheveningen. The indictment was confirmed o n 14 July 2006 and the trial started o n 2 0 December 2006. The accused
were charged with the criminal offence of crimes against humanity. The indictment alleges that from April 1992 until the end of 1992 the accused directly participated in the systematic imprisonment of non-Serb civilians in the camps Omarska, Keraterm and Trnopolje, in the context of widespread and systematic attacks carried out by the Army of the RS, Territorial Defence, police and paramilitary units against the non-Serb population in the Prijedor area.I89
*
Zdravko BoiiC and others (Mladen BlagojeviC, ~ e l j k oZarid and Zoran ~ivanovik)case, Court of BiH, Sarajevo - Section I for War Crimes.
The accused were charged with crimes against humanity. The indictment alleges that, as members of the Military Police at the Bratunac Light Infantry Brigade of the Army of the Republic of Srpska (VRS), the accused, inter a h , planned, ordered, instigated and committed offences within a widespread and systematic attack in July 1995 against the Bosniak civilian population of the Srebrenica enclave. Further it is alleged, that on the night between 13 - 14 July 1995, the accused guarded, controlled and secured the detention of 2 000 - 3 000 unarmed Bosniak civilians at the Vuk KaradiiC Primary School in Bratunac by using force or the threat of force. They also allegedly participated in the abuse, beatings and cruel treatment of the detainees. In addition the indictment further alleges that Zdravko BoiiC and Mladen Blagojevic, together with six other members of the VRS, executed at least five unarmed Bosniak civilians in the Vuk KaradiiC Primary school on the night between 13 14 July 1995. According to the indictment, on 14 July 1995, at the Grbavci School in Orahovac, ieljko ZariC and Zoran i i v a n o v i ~separated three unarmed civilian Bosniaks from the other detainees and killed them by firing from automatic firearms.lgO
*
Mitar RaSeviC and Savo TodoviC case, Court of BiH, Sarajevo Crimes.
-
Section I for War
188. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/optuznice//F'asko~Lju bicic---Optuznica--BHS.pdD. 189. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocs/optuzniceiMejakic~optuz nica.pdfi. 190. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/optumice//Zdravko~ Bozic---Optuznica---BHS.pdP.
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Correspondents' Reports
This case was referred to the authorities in BiH on 5 September 2006 from the ICTY.'~'The accused were physically transferred to BiH on 3 October 2 0 0 6 . ' ~ ~
*
Nenad TanaskoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment against the accused was confirmed on 6 October 2006 and charged him with crimes against humanity. It is alleged that he, in the period from April through June 1992, as a reserve policeman, participated in a widespread and systematic attack by the Army of the Serb Republic of BiH, police and paramilitary formations against the Bosnian Muslim civilian population in the territory of the ViSegrad municipality. It is hrther alleged that during this attack hundreds of civilians were killed, tortured, beaten, raped, illegally deprived of their liberty, detained in inhumane conditions and forcibly transferred out of the territory of this municipality. On 3 1 May 1992, the accused allegedly, together with a group of paramilitary soldiers, attacked undefended villages occupied by Muslims and formed a human shield using the captured civilian male residents and threatened to kill anyone who attempted to run away.Ig3
*
Niset Ramit case, Court of BiH
-
Section I for War Crimes.
On 12 October 2006 the indictment against the accused was confirmed. The trial started on 18 December 2006. He was charged with the criminal offence of war crimes against civilians. It is alleged that on 20 June 1992 as the member of a sabotage unit of the Visoko Territorial Defence Headquarters, the accused committed breaches of the Geneva Convention relative to the Protection of Civilian Persons in time of War ('Geneva Convention I V ' ) . ' ~It~ is hrther alleged that, after a group of Serb civilians were surrounded and arrested, the accused escorted them to the Youth club in the village of HlapEeviCi, Visoko municipality. On their way towards the youth club the accused allegedly stopped the group and shot a number of them using a machine gun, which killed four people and wounded two.'95
*
Radrnilo Vukovii. case, Court of BiH - Section I for War Crimes.
The indictment against the accused was confirmed on 13 October 2006 and charged him with war crimes against civilians. It is alleged that in June 1992, as a member of the military
191. International Criminal Tribunal for the Former Yugoslavia, <www.un.orglictylrasevic/appeall decision-eltod-acdec060904e.pdB. 192. Court of Bosnia and Herzegovina, 'News: ICTY accused Mitar RaSeviC and Savo TodoviC transferred to Bosnia and Herzegovina', 3 October 2006, <www.sudbih.gov.ba/?id=238&jezik=e>. 193. Court of Bosnia and Herzegovina, ~www.sudbih.gov.bdfiles/docs/optuznice//Tanaskovic~ BHS-KT-RZ- 146-05.pdB. 194. 1949,75 UNTS 287. 195. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocsloptumiceMiset~Ramic~ optuznica.pdP.
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46 1
forces of RS, the accused physically abused a woman, threatening her life, and took advantage of her unconsciousness to rape her several times.'9h
*
Kreio LuGC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 26 October 2006 and charged the accused with crimes against humanity. It is alleged that during attacks aimed at the Bosniak civilian population in the municipalities of KreSevo, Kiseljak, BusovaEa and Vitez, the accused, in his capacity as a commander of the Military police of the Croatian Defence Council in KreSevo, inter alia, committed and participated in the imprisonment and torture of civilians. Further, it is alleged that in June and July 1993, at the headquarters of the Military police in KreSevo, the accused tortured prisoners of Bosniak ethnicity brought from the camp "Sunje" and ordered his subordinate police officers to do the same.l9'
*
Marinko Marit case, Court of BiH, Sarajevo - Section I for War Crimes.
The Court confirmed an indictment which charged the accused with war crimes against civilians. It is alleged that as a member of the Croatian Defence Council Knez Domagoj Brigade (in his capacity as an investigator in the Brigade's security and information service) in the second half of 1993 in the Gabela Camp, Municipality of Capljina, the accused acted contrary to the provisions of Geneva Convention IV. At the time the indictment was issued the accused was on the run.198
*
MomEilo MandiC case, Court of BiH, Sarajevo Section I for War Crimes -
Mandic's trial started on 6 November 2006 and he was charged with the criminal offence of war crimes against civilians and crimes against humanity It is alleged that, on 6 April 1992, in his capacity as Assistant Minister of the Interior of the so-called Serb Republic BiH, the accused planned, instigated, ordered and aided the unlawful confinement and inhuman treatment of civilians during an attack against the Training Centre for Personnel of the RBiH Ministry of 1nteri0r.l~~
*
Zoran JankoviC case, Court of BiH, Sarajevo Section I for War Crimes. -
The indictment of 6 November 2006 charged the accused with crimes against humanity. Inter aha, it is alleged that on 29 April 1992, together with another individual and a group of members of paramilitary formations, the accused captured a group of Bosniak civilians who had been hiding in the forest area of the Snagovo village in the municipality of Zvor-
196. Court of Bosnia and Herzegovina, ~www.sudbih.gov.bdfiles/docs/optuzniceiRadmilo~Vuko vic-optuznica-BHS.pdP. 197. Court of Bosnia and Herzegovina, 'Cases in trial or on appeal against verdict, X-KR-061298 LutiC KreSo', ~ww.sudbih.gov.bd?opcija=predmeti&id=40&jezik=e>. 198. Court of Bosnia and Herzegovina, ~ w w . s u d b i h . g o v . b d f i l e s / d o c s / o p t u z n i c e i n k o ~ Marie---Optuznica---BHS.pdP. 199. Court of Bosnia and Herzegovina, <ww.sudbih.gov.bdfiles/docs/optuznice//Mandic~(War~
Crimes)_BHS.pdP.
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Correspondents ' Reports
nik. After capturing the group, the accused and his accomplices allegedly took them to an area known as 'RaSidov Han' in Snagovo where, by shooting from automatic riffles, they killed 36 people and wounded three. On the same day, the perpetrators allegedly burned the bodies of the murdered victims to cover up the crime.200
*
~ e l j k Lelek o case, Court of BiH, Sarajevo Section I for War Crimes. -
The indictment charged the accused with the criminal offence of crimes against humanity. Inter alia, it is alleged that as a police officer in Visegrad, the accused committed acts of murder, torture and rape in the period of May, April and June 1992 during a wide and systematic attack of the Serb army, police and paramilitary formations, against the Bosniak civilian population of the ViSegrad municipality. Allegedly, in early June 1992, together with two other individuals, the accused drove two Bosniak women to the Mehmed PaSa SokoloviC Bridge. One of the two women carried a baby who was under the age of six months. Vlatko Pecikoza threw the baby into the air, while the accused allegedly stabbed the baby as it fell, then forced the mother to drink the baby's blood. Subsequently the accused allegedly killed both women. According to the indictment, during the same period, the accused, together with Milan LukiC, raped a woman, assaulting her on ethnic and religious grounds. Further, it is alleged that this woman was raped on a daily basis over a period of 10 days and physically and mentally mistreated by the accused and others while she was held captive.201
*
Marko RadiC, Dragan Sunjib and Damir Brekalo case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 1 December 2006 and charged the accused with crimes against humanity in relation to the following items: murder, imprisonment, torture, sexual violence, persecution, and other inhumane acts. It is alleged that during the period between July 1993 - March 1994, in their capacity as officers and members of the Bijelo Polje battalion of the Second Brigade of the HVO, who took part in an attack against the Bosniak civilian population of the Mostar Municipality, the accused planned, ordered and instigated attacks on Bosniak civilians. Further it is alleged, that Marko RadiC, in his capacity as commander of the Ivan ~taniC-CiCosabotage unit, and later as commander of the Second Brigade of the HVO, is responsible for the killing of prisoners who were killed by persons over whom he had effective control. In September 1993, Damir Brekalo allegedly brought a woman to Marko RadiC and he forced her to have sexual intercourse with him and then ordered an unidentified HVO soldier to rape her. Allegedly, in the period between August 1993 - March 1994, in his capacity as Deputy Commander of Vojno prison facility, Dragan SunjiC participated in establishing the prison facility, and in arresting and unlawfully detaining Bosniak civilians in that prison. The accused allegedly had authority and control over the conditions of the prison facility as well as people working in it. In August 1993, the
200. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba~files/docs/optuznice/Zoran~Janko vic-optuznica.pdB. 201. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/optumice//Zeljko~ Lelek---Optuznica---BiH.pdP.
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accused Damir Brekalo allegedly beat two prisoners who were performing forced labour at front lines in Bijelo Polje, Mostar and on the same evening executed them. In July 1993, the accused allegedly raped a woman in Bijelo ~ o l j e . ~ ' ~
*
Marko Samaradt-ija case, Court of Bosnia and Herzegovina, Sarajevo War Crimes.
-
Section I for
The main trial started on 1 February 2006. The accused was charged with crimes against
humanity. It is alleged that in July 1992 he initiated, aided and participated in the killing of about 250 civilians during the armed and systematic attack on civilians in Biljana, Kluj municipality.203 LEJLAVUJINOVIC
BELGIUM~'~ Legislation * The Law of 5 August 2003 on the Punishment of Grave Breaches of International Humanitarian Law. The law was amended on 22 May 2006.*05 The reasons and the goal of this amendment ~ will not be repeated have been widely stated in the Correspondent's Report for 2 0 0 5 ~ 'and here.
*
The Law of 29 March 2004 relating to cooperation with the Intemational Criminal Court and the Intemational Criminal Tribunals
This lawzo7was amended by the Parliament on 1 July 2006 in order to extend the scope of cooperation to the Special Court for Sierra Leone (SCSL) and to the Extraordinary Chambers for Cambodia (ECSC).~'~ As rightly observed by the Minister of ~ustice,"~the SCSL has not been established by the Security Council in the framework of Chapter 7 of the UN Charter. The SCSL results from an agreement concluded in 2002 between the UN and Sierra Leone.
202. Court of Bosnia and Herzegovina, <www.sudbih.gov.ba/files/docs/optuznice/o~ Radic---Optuznica---BHS.pdP. 203. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocs/optuznice/SAMARDZI JA-OPTUZNICApBHS.pdB 204. Information and commentaries by Eric David, Professeur ordinaire, Free University of Brussels. 205. See 6 YZHL (2003) pp. 466-468. 206. See 8 YlHL (2005) pp. 397 and 402. 207. M.B. [Belgian official journal], 1 April 2004; for the contents of the law, see the report on Belgium 7 YIHL (2004) pp. 456-457. 208. M.B., 29 July 2006 and 2 August 2006. 209. Doc. p a d , Chamhre, 27 Oct. 2005, Doc. 51 20511001, p. 4.
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Correspondents' Reports
The same observation has been made about the ECsC which were established by a Cambodian law adopted in 2001 and modified in 2004 after the conclusion of an agreement in 2003 between the UN and Therefore, in both cases, Belgium is not formally obliged to cooperate with the SCSL or the ECsC and this is stressed in the law which provides that Belgium 'may follow up a request for cooperation' (emphasis added) coming from the SCSL (Article 59) or from the ECsC (Article 65). However, these courts have been established in order to allow a better application of IHL, and Belgium has already received some requests for cooperation.2i2 That is the reason why Belgium decided to adopt the legal instrument enabling it to answer the SCSL's and the ECsC's judicial cooperation requests in a positive way. For the time being, Belgium is not concerned by the presence in Belgium of suspects prosecuted by the SCSL or the ECsC; consequently, the law confines itself to requests relating to the collection of evidence or the protection of witne~ses."~The requests must be sent to the Belgian Minister for Justice (Articles 60 and 66) and they are performed according to the proceedings provided for by the Belgian law (Articles 62 and 68). ERICDAVID
CANADA~'~ Immigration and Asylum * Report (Ninth Annual Report, Canada's War Crimes Program, Activities for the Period of 1 April 2005 to 3 1 March 2006) The first opportunity to screen persons for involvement in international crimes occurs outside Canada when visa officers examine applications of persons who want to come to Canada for past nefarious behaviour. If a person who has been involved in war crimes or crimes against humanity manages to enter Canada, officers in Canada may take action against that person whether they are in the refugee stream, the immigration process, the citizenship process, or even if they have become a Canadian citizen but they hid their war crimes activities when they originally immigrated to Canada. Canadian missions abroad investigated a total of 3 024 potential war crimes cases in the fiscal year 2005 - 2006. Visa offices identify potential war crimes cases through security screening and refer many of them to the Modern War Crimes Unit of the Canadian Border Services Agency (CBSA). Analysts with geographic expertise provide analysis and recommendations on immigrant cases. During the fiscal year 2005 - 2006, visa officials prevented a total of 367 persons from coming to Canada because of allegations of war crimes or crimes against humanity. This number is divided between the refusal of 290 visitors and 77 persons who wanted to settle in Canada on a permanent basis. This includes those re-
210. Ibid., 21 Febr. 2006, Doc. 51 23061001, pp. 5-6, 10. 21 1. Ibid. 212. Ibid., Rapport Mahoux, 25 Apr. 2006, Doc. 3-166113. 213. Ibid., Doc. 51 20511001, p. 5, and Doc. 51 23061001, p. 8. 214. Information and commentaries by Joseph Rikhof, Senior Counsel, Manager of the Law, Crimes against Humanity and War Crimes Section, Department of Justice and Part-time Professor, International Criminal Law, University of Ottawa.
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fused specifically for possible involvement in war crimes or crimes against humanity, those who withdrew when asked for more information and those who were investigated for allegations of war crimes but were refused for other If a potential war criminal manages to enter Canada or is identified as already living in Canada, CBSA officials take the appropriate enforcement action. Persons claiming refugee protection must first complete a Personal Information Form (PIF). After 11 September 200 1, a decision was made to begin front-end screening of refugee claimants, by screening all PIFs for security concerns as well as for possible war crimes or crimes against humanity.
PIFs that raise concerns about possible war crimes are referred for a second, in-depth review that can result in a request by CBSA officers to take part in the refugee hearing process called an intervention. During the fiscal year 2005 - 2006 CBSA officers conducted 1373 in-depth reviews resulting in the filing of 237 interventions before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) based on allegations of war crimes or crimes against humanity. During the same period, CBSA received a total of 123 decisions from the RPD in cases where CBSA had intervened earlier to seek exclusion based on war crimes concerns; 40 individuals were excluded from refugee protection, 53 were not excluded, but were refused as not being credible, and 30 were found to be refugees. When allegations of war crimes or crimes against humanity are made against persons in Canada who are not refugee claimants, the CBSA refers these cases to admissibility hearings before the Immigration Division (ID) of the IRB. Some ongoing refugee cases are also referred to admissibility hearings and the refugee claim is suspended pending the decision. During the fiscal year, 12 admissibility hearings were opened for non-refugee claimants and 22 for asylum seekers. Four refugee claimants and one non-refugee claimant were found inadmissible for war crimes or crimes against humanity and were deported. Two refugee claimants and one non-refugee claimant were found not to be inadmissible based on war crimes or crimes against humanity. The remainder of the cases are pending decision. In 2005 - 2006, 41 persons considered war criminals were removed from Canada. Removal may be delayed for a number of reasons, including court proceedings, problems obtaining a travel document, or a moratorium on removals to that country because of war or serious civil conflict. As of 3 1 March 2006, there were 59 unexecuted removal orders, down from the previous year's cumulative total of 72.216 Cases
*
Application of Article 1(F) of the Convention relating to the Status of Refugees ('Refugee on vent ion')^'^ and section 35(l)(a) of the Immigration and Refugee Protection Act
The Federal Court issued 22 judgements in 2006 of which 19 decisions of the RPD of the IRB pertaining to the exclusion clause lF(a) (crimes against peace, war crimes and crimes against humanity) of the Refugee Convention were examined as part of judicial review
215. Ninth Annual Report, Canada's War Crimes Program, Activities for the Period of April I , 2005 to March 31, 2006 <www.cbsa-asfc.gc.calsecurity-securite/wc-cgiwc-cg2006-eng.html~, 216. Ibid. 217. 1951, 189 UNTS 137.
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proceedings as well as one decision of the ID of the IRE3 and two by visa officers outside Canada involving section 35(l)(a) (genocide, war crimes and crimes against humanity). This is the second highest number of court decisions since 1992 when the Federal Court turned its attention to such cases for the first time signalling a continued interest in this area of law which started a year earlier. All cases dealt with the parameters of complicity of persons involved in crimes against humanity and originated from Central America, South America, Asia and Africa and included the following: ~olombia,2"Sri ~ a n k a ? 'ern?^' ~
218. There were four cases from Colombia, all of which involved members of the Colombian army and in all cases the courts overruled the complicity finding of the RPD. Corrales Murcia (IMM-189505, 6 March 2006); Ruiz Blanco (IMM-4587-05, 19 May 2006); Torres Rubianes (IMM-7245-05, 29 September 2006); and Bonilla Vasqurz (IMM-7285-05,27 October, 2006). 219. There were three cases from Sri Lanka, namely Kasturiarachchi (IMM-2952-05, 7 March 2006) involving a member of the Sri Lankan National Police Force and the Court upheld the exclusion finding of the RPD that the applicant was complicit in the Sri Lankan Police Forces commission of crimes against humanity; Selvanayagam (IMM-5540-05, 29 June 2006) involving a Tamil police officer accused of complicity in crimes against humanity and the Court set aside the exclusion decision of the FWD; and Rathinasigngam (IMM-4111095, 17 August 2006) involving a Hindu Tamil citzen and the Court overruled the exclusion finding of the RPD. 220. There were two cases from Peru, one in which the Court upheld the exclusion decision of the RPD concerning a Peruvian police officer Loayza (IMM-2392-05, 9 March 2006) and another where the exclusion of a member of the Peruvian Navy was overruled Marinas Rueda (IMM-7772-05, 14 June 2006).
Correspondents' Reports
~l ~ a l v a d o r l ~~uatemala?" ' 227
~f~hanistan?"~ a n ~ l a d e s h , " ~
467
~ndia,"~Philip-
pines, ~ z b e k i s t a n , ~ ~l g' e r i a , * ~* n~ g o l a , * ~~' u r n n d i , ~ w ~ ' a n d a and ' ~ ~~ g a n d a . * ~ ~ A number o f general observations can be made from the 2006 jurisprudence. The first observation is that the Federal Court judges w h o were quite critical o f the findings o f the asylum and immigration decision-makers the year before agreed in 2006 in 15 instances with the finding o f involvement in crimes against humanity and overturned only seven decisions.234Not only were decisions overturned with respect to the application of the principles of complicity but also some were overturned on the basis that the RPD had incorrectly characterised a situation as constituting a crime against humanity.235 A s a second observation, the jurisprudence also continues to rely sporadically o n international criminal law, albeit not b y directly incorporating the case law of the ICTY o r ICTR but instead referring236 to the decision o f the Supreme Court o f Canada in the case o f Mugesera which had been decided the year before and which summarises the salient requirements o f crimes against humanity as established b y the international tribunals.237
221. The decision of the RPD to exclude a member of the National Guard and his wife who claimed they were verbally threatened by an armed gang in El Salvador was upheld by the Court in Hernandez Hernandez (Navarro), (IMM-28 18-05,25 January 2006). 222. In the Acevedo case (IMM-4365-05, 12 April 2006), the exclusion of a voluntary collaborator of the Guatemalan army and his son and daughter-in-law was upheld. 223. In the Hamidi case (IMM-10493-04, 14 March 2006), the exclusion of a person who had been a colonel in the KhAD of Afghanistan was overruled. 224. The decision of the RPD to exclude a member of the Bangladesh Awami League (AL), the political party that formed the National Government in Bangladesh at the time, was upheld by the Court in Chowdhuy (IMM-4920-05,7 February 2006). 225. The decision of the RPD to exclude a member of the Chinese Communist Party (CCP) who became the Department Head of the Judicial Burea was upheld in Hun (IMM-2720-05,4 April 2006). 226. In the Ghotara case (IMM-5312-05, 20 March 2006) the Court upheld the decision of the RPD to exclude a member of the Indian police force. 227. In the Sabadao case (IMM-4501-02, 7 March 2006) the Court upheld the decision of the RPD to exclude a lieutenant of the Philippine army. 228. In the Akvamov case (IMM-1780-05, 10 February 2006) the Court upheld the decision of the RPD to exclude a major of Regional National Security Committee in Tashkent and his wife and daughter. 229. The decision of the RPD to exclude a member of the Algerian group FIS (Islamic Salvation Front) was upheld by the Court in Chougui (IMM-7339-05, 17 August 2006). 230. The decision of the RPD to exclude an employee of the Angolan Ministry of Interior (MOI) was upheld by the Court in Justino (IMM-7347-05, 29 September 2006). 231. The decision of the RPD to exclude an employee and member of UPRONA (Unite pour le progres national), the party in power in Burinidi, was upheld by the Court in khburundi (IMM-428 105, 20 March 2006). 232. Tegan,va (IMM-6085-05, 12 May 2006) involved a Rwandan Hutu associated with the Revolutionary Movement for Development (MRND). The Court upheld the RPD exclusion decision. 233. The decision of the RPD to exclude a senior leader of the Lord Resistance Movement (LRM) in Uganda, who applied for admission as a sponsored applicant, was upheld by the Court in Obita (IMM- 1473-05, 10 February 2006). 234. The seven cases were Corrales Murcia; Hamidi; Ruiz Blanco; Marinas Rueda; Selvanayagum; Rathinasigngam; and Bonilla Vasquez. 235. Selvanayagam and Bonilla Vasquez. 236. The cases of Obita, Kasturiarachch, Selvanayagam and Bonilla Vasquez. 237. 2005 SCC 40. See Correspondents' Report on Canada in, 8 YlHL (2005), pp. 41 1-412.
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A third observation is the fact that more than half of the cases, namely 13 instances, dealt with persons with fairly high positions in their organisations, either in military or police organisations or in civilian entities. Examples of positions in the military are lieutenants and a captain in the Colombian armed forces238and a lieutenant in the Philippine armyz39 while police organisations are represented by a major of Regional National Security Coma ~chief ' inspector241and in the Sri Lankan police, a major mittee in ~ z b e k i s t a n , ~ n.~~~ in the Peruvian National and a colonel in the KhAD of ~ f ~ h a n i s t a High positions in civilian hierarchies have been considered in cases involving a high official of the Lord Resistance Movement (LRM) in ~ g a n d aa, high ~ ~ ~diplomatic official of the Burundian government,246a department head of the Judicial Bureau being in charge of two jails and four labour camps in and a senior economist of the Angolan Ministry of the ~nterior.'~~ None of these cases were decided on the basis of the international criminal law concept of command or superior responsibility but rather by using general principles related to complicity as established by the Canadian jurisprudence, especially that of the Federal Court of Appeal in the cases of Ramirez, Moreno, Sivakumav, Bazargan and arb.'^^ In this context the Obita case, involving the LRM, has provided hrther clarification for the complicit liability of a person who is involved in the political wing of an organisation which also has a military component, a so-called hybrid ~ r ~ a n i s a t i o The n . ~ Court ~ ~ was of the view that the Lord Resistance Army (LRA) had been involved in numerous crimes against humanity in Uganda and that the LRM was so intertwined with the LRA that the two organisations were essentially one group or effectively a single entity with a common purpose. Obita held a high position in the LRM and in that capacity he interacted with the LRA; he had knowledge of the atrocities committed by the LRA and became an advocate and active member of the LRA and as a result he was complicit in the crimes of the LRA. The fourth observation is also related to the concept of complicity. In 2005 the Federal Court in general accepted the Canadian version of the international criminal law concept of joint criminal enterprise (JCE) known in Canada as the six factor approach251(in addition to the more traditional forms of complicity of membership in a brutal organisation and aiding and abetting252which it continued to use in 2006). However, the Court was reluctant to
238. Corrales Murcia, Torres Rubianes and Bonilla Vasquez. 239. Sabadao. 240. Akvamov. 24 1. Kasturiarachchi. 242. Selvanayagam. 243. Loayza. 244. Hamidi. 245. Obita. 246. Kaburundi. 247. Han. 248. Justino. 249. For an examination of these principles and case law see J. Rikhof, 'Complicity in International Criminal Law and Canadian Refugee Law: a Comparison', 4 Journal of International Criminal Justice (2006) pp. 7 10-719. 250. Ibid., pp. 718-719. 25 1. See Correspondents' Report on Canada in 8 YIHL (2005), pp. 407-41 1. 252. See Rikhof 2006, supra 249; pp. 710-719 and Correspondents' Report on Canada, 8 YIHL (2005), pp. 407-41 1.
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apply the JCE theory to specific fact situations. This hesitation has been overcome in the 2006 jurisprudence. Persons were excluded on this basis in situations as diverse as the Uzbekistan police;53 the Sri Lankan police;54 the Colombian army,255the Philippine army,256the Minister of the Interior of ~ n ~ o l and a ~the ~ Algerian ' terrorist group FIS (Isla' but one of these seven situations the six factor analysis led to mic Salvation ~ r o n t ) . ~In~all exclusion where the Court examined in detail the factors of method of recruitment, duration of service with the organisation, final rank acquired, age, manner of disassociation and knowledge of the commission of atrocities by the organisation and concluded that the result of such factors established a close enough association between the person and the organisation that complicity could be inferred. The cases of Kasturiarachchi and Torres Rubianes make it clear that not all six factors are of equal importance and it would appear that of the six the factors age and method of recruitment might not figure as prominently as the other four criteria. Civil Law Cases * Zhang et al. v. Jiang Zemin et al. Decision of the Ontario Superior Court of Justice, 17 July 2006. The plaintiffs, who were Falun Gong practitioners, brought an action against Jiang, a former president of China, and others alleging persecution and torture and seeking a total of $20 million in damages. They attempted to effect service of the claim (a prerequisite to have the action initiated in a Canadian court) on China pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial ~ a t t e r s . * This ' ~ was not successfbl because the Chinese government refused to execute the request. The plaintiffs then tried to serve the claim under the State Immunity Act 1985 but were advised by the Department of Foreign Affairs and International Trade that this would not be possible since that Act only permitted service on the head of state while acting in a public capacity and the plaintiffs statement of claim had pleaded that the defendants had acted in a private capacity. The plaintiffs then brought a motion for an order dispensing with service of the statement of claim. The motion was granted on the basis that the plaintiffs had exhausted all their means to serve the defendants. In deciding that it was in the interests of justice to dispense with the service the Court took into consideration the fact that that the plaintiffs were alleging gross violations of fundamental human rights and international law and would be unable to pursue those claims unless the Court dispensed with service, and the impossibility of serving the defendants rested with the Chinese government.260
253. 254. 255. 256.
Akramov. Kasturiarachchi. Torres Rubianes although not in BoniNa Vasquez. Sabadao although in an indirect fashion by not mentioning or analysing the six factors but
instead making inferences to that end. 257. Justino. 258. Chougui although in an indirect fashion by not mentioning or analysing the six factors but
instead referring to a common purpose. 259. l965,2O UhJTS1361. 260. 82 O.R. (3rd) 306.
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Criminal Law Cases * Kunlun Zhang v. Attorney General of Canada, Federal Court of Canada, 2 March 2006. Mr. Zhang requested by letter dated 12 March 2004, that the Attorney-General of Canada grant consent for a private prosecution of 22 individuals for the alleged inflicted torture of Mr. Zhang, a Falun Gong practitioner, in China by individuals who are not Canadian citizens, including charges against the former President of China. The Attorney-General of Canada rehsed the request in the following terms: The case described in your correspondence does not demonstrate that the required threshold can be met. Much of the evidence is not available to Canadian authorities for investigation, assessment, or trial. The persons alleged to have committed the offences are not located in Canada, nor is there a reasonable prospect that they can be brought to trial in Canada. The policy also requires that a prosecution only take place if it is in the public interest to do so. It would not be appropriate, or in the public interest, to allow charges to be laid, and thereby identify and accuse persons of very serious offences, without a full police investigation and a reasonable prospect of being able to bring the case to trial. Mr. Zhang sought judicial review of this rehsal with the Federal Court, which was also denied.26'The Court indicated that [tlhe factors considered by the Attorney General in exercising prosecutorial discretion are "not readily susceptible to the kind of analysis the courts are competent to undertake". While a court must exercise extreme caution before embarking on any review of prosecutorial discretion, such discretion is not irreproachable. The Supreme Court of Canada has accepted that it would be possible to review an exercise of prosecutorial discretion in cases of flagrant impropriety or malicious prosecution. No such impropriety was found in the case at hand since the Attorney General's decision to exercise extraterritorial jurisdiction to prosecute an offence committed abroad gives rise to a number of clear obstacles, including the lack of evidence and difficulty in obtaining the cooperation of the State in which the offence was allegedly committed. These are factors, which the "Decision to Prosecute" policy takes into consideration. In the case at bar, the decision to rehse consent was based on such factors. In my view, this particular refusal in no way suggests that the Attorney General would refuse consent to prosecute in a case where these obstacles could be overcome.
*
Munyaneza Case, Quebec Superior Court, 20 November 2006.
261. T-769-05, 2 March 2006.
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On 19 October 2005 Desire Munyaneza was arrested by the RCMP, the first person
to be indicted under the Crimes against Humanity and War Crimes Act which had come into force in 2000. There are seven counts in the indictment. The first two are genocide for committing murders and serious bodily harm in the town of Butare in southern Rwanda in April 1994. The third and fourth are crimes against humanity by committing murder and sexual violence. The fifth, sixth and seventh are war crimes for committing murders, sexual violence and pillaging. Mr. Munyaneza was detained and bail was denied as a result of the seriousness of the allegat~ons.The tnal has not commenced but 1s expected to begin in early 2007. A motion was filed by Mr. Munyaneza seeking an order to quash or amend the indictment since the Canadian Criminal Code does not allow a count that charges an indictable offence other than murder to be joined in the same indictment to a count that charges m ~ r d e r . ~ The " judge in the case refused to allow the motion based on the fact that the accused was not charged with murder as such but murder as genocide, murder as a war crime and murder as a crime against humanity and these are not the offences contemplated in the section under c ~ n s i d e r a t i o n . ~This ~ ' court decision follows the trend set by the Supreme Court of Canada in the Mugesera case which implies that the contents of the underlying criminal acts of the international offences of genocide, war crimes or crimes against humanity, such as murder, torture or sexual assault are of a qualitative difference to domestic offences with the same nomenclature;2h4 as a result, the international jurisprudence for determining the parameters of such underlying criminal acts should be given preference over the national case law for similar sounding offences.
COLOMBIA^'^ Demobilisation and reintegration process * Constitutional Judgement C-370 of 18 May 2006 in re the unconstitutionality action against the Law No. 975 of 25 July 2005 'by which dispositions are enacted for the reincorporation of members of unlawful organised armed groups that contribute in an effective way to the attainment of the national peace and other dispositions for humanitarian agreements' [Demanda de inconstitucionalidad contra 10s articulos 2, 3, 5, 9, 10, 11.5, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 34, 37numerales5y 7, 46, 47, 48, 54, 55, 58, 62, 69, 70 y 71 de la Ley 975 de 2005 "Por la cual se dictan disposiciones para la reincorporacion de miemhros de grupos armados organizados a1 margen de la ley, que contribuyan de manera efectiva a la consecucion de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios ", y contra la ley en su integridad], (Ref.: File D-6032).
262. Section 589. 263. Case No. 500-73-002500-052. 264. See J. Rikhof, 'Hate Speech and International Criminal Law, the Mugesera Decision by the Supreme Court of Canada', 3 Journal oj'lnternational Criminal Justice (2005) pp. 1129-1130. 265. Information and commentaries provided by Rafael Prieto Sanjuan, Professor of Public International Law and IHL at the Pontificia Universidad Javeriana of Bogota.
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Correspondents ' Reports
Before an arduous, strong, and emotional political debate among different sectors in Colombia, the Constitutional Court examined numerous demands against the 'Law of Justice and Peace'. The Court declared its constitutionality as well as its partial unconstitutionality regarding certain articles. Furthermore, it specified the way in which the law had to be interpreted and applied. Therefore, before commenting on the ruling, it is important to note some of the most important aspects of its context. First of all, it is important to indicate that the armed conflict in Colombia has continued for more than four decades. During this time, an armed insurgency of communist and socialist ideas appeared in guerrilla form and tried to break the hegemony of the traditional political parties (liberal and conservative). However, this is an imperfect democracy, and although the constitutional regime has not been interrupted for half a century, situations of political exclusion have been known to have served as an excuse for the action of armed guerrilla groups. These guerrillas, whose communist ideas lost influence and sources of foreign financing in the 1990s, now turn towards illegal activities such as kidnapping, extortion and drug trafficking. Although these activities reduce their popular support, they increase their economic power to the detriment of the sovereignty of the state. On the other hand, facing the situation of a persistent military tie in the 1980s, a series of groups arose which tried to replace state organisations with paramilitary authorities. However, it became obvious that these organisations were not created by the state for the people's benefit. Although it is certain that the tolerance, complicity and even the legalisation of these groups took place on the part of the government, they have also been denounced. The state has fought them and even initiated judicial processes against several of its members. In the midst of these challenges, Alvaro Uribe Velez (dissident of the liberal party, but of a right-wing tendency) was elected president in 2002. He promised to defeat the guerrillas with the legitimate force of the state and obtain a process for the demobilisation and reintegration of the paramilitary group known as the Autodefensas Unidas de Colombia (AUC). This process was carried out effectively with the idea that members of guerrilla groups generally accepted the government's terms. The reality is that many critics arose from both political and international organisations regarding the reintegration of veterans into the system. These critics were especially concerned with the issue of impunity for serious and systematic violations of human rights and the ability for victims to participate in the process as Consequently, the government presented a law before Congress that was finally approved after much debate subject to an important number of constitutional issues2" that
266. For example, in the last press releases of the Office in Colombia of the United Nations High Commissioner for Human Rights: 'The regulations regarding the "Justice and Peace Law" do not adequately ensure due respect for the rights of victims', 4 January 2006, ~www.hchr.org.colpublico1 comunicados/2006/cp0601EN.pdB, reaffirmed on 13 October 2006, <www.hchr.org.colpublicolcomu nicadosl2006icp0641 .pdD. 267. See Constitutional Judgements (file number in parentheses): C-127106 (D-5966), C-400106 (D-6181), C-455106 (D-6079), C-476/06(D-6081), C-531106 (D-6028), C-575106 (D-5994), C-650106 (D-6029), C-670106 (D-6201) y C-719106 (D- 5964), available at the Court website: Corte Constitucional de Colombia, ~www.constitucional.gov.co/corte>.
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would be later the object of the actions before the Constitutional Court (here the most important decision).26xWe will now discuss the most important aspects of these requirements. Generally, the Constitutional Court (hereinafter, the Court) determined that all penalties imposed on criminals of the armed conflict must maintain a balance between the fundamental rights of the victims and the right to peace included in the National Constitution. Thus the ordinary penalty was suspended in favour of applying the alternative penalty pursuant to Article 24 of Law 975 providing between five to eight years imprisonment for those people found guilty. At the same time, objections arose and certain conditions were added to both the content and application of the law with regard to any detrimental effect that it could cause to the rights of the victims. First of all, as far as the rights of the victims to justice, the Court has declared unconstitutional the prohibition of greater penalties than those established by Article 20.2. If the processed person broke the law after the demobilisation, or if he or she does not confess to some of the crimes that could be proven against him or her later, then he or she will be subject to an accumulated sentence (according to the ordinary law) and not the alternative penalty (according to the special law). This grants the victims and their relatives the right to know the Secondly, the Court eliminated the term of six months that the public prosecutors had to investigate the crimes of people who would have demobilised themselves. Thus, the term begins not as of the moment of the demobilisation, but as of the moment when the public prosecutors initiate their investigation. In the same way, their prison terms will be counted as of the moment of their effective imprisonment and not of that period in which they would have been detained in a concentration zone (Article 3 1, unconstitutional). Thirdly, based on the principle of integral repair, the constitutionality was conditioned on Article 10, paragraphs 2 and 6, and Article 54.2, such that the demobilised persons declared guilty must make reparations to the victims with their own possessions regardless of the legality of their origin. Furthermore, each guilty person will have to respond to the damages that have been caused by other members of the unit (block or front) to which he or she was associated and to inform them of the disposition of those who disappeared in the area in which he or she operated. Finally, the Court held that Articles 70 and 71 were not in compliance with the legal process. This implies the non-admission of the sedition crime, that is to say, the rehsal to consider the paramilitaries as criminals of a political nature. However, this presents the possibility for extradition to other countries upon their requests. The social problem of reintegration of all veterans seems much more complex than the reintegration of its leadersZ7Oas well as the members of Congress or other government officials (councilmen, mayors, etc.,) that financed paramilitary activities. RAFAELPRIETO SANJUAN
268. The report for sentencing was presented by Judges Manuel J. Cepeda, Jaime Cordoba, Rodrigo Escobar, Marco G. Monroy, ~ l v a r oTafur y Clara I. Vargas. Dissenting Judges Jaime Araujo, Alfredo Beltran y Humberto Sierra. 269. Partial unconstitutionality of Art. 25, paras. 1 and 2 of Law 97512005. 270. 'According to the Office of the High Commissioner for Peace, the total number of collectively demobilized paramilitaries reached 3 1,671. However, a high percentage of demobilized persons were not participating directly in the hostilities, and some paramilitaries continue to shun demobilization, such as the Casanare Rural Self-Defence Group and the Cacique Pipinti Front. Most of the paramili-
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See Arab League Model Law in the Algerian section.
DEN MARK^" New Legislation * Law No. 542 of 8 August 2006 amending the Penal Code, the Administration of Justice Code and several other statutes (Strengthening of the effort to combat terrorism); text, in Danish only, available at www.retsinfo.dk). This law introduces amendments to existing Danish legislation considered necessary as a consequence of the Danish ratifications of the Council of Europe Convention on the Prevention of Terrorism of 16 May 2005 and the United Nations International convention for the Suppression of Acts of Nuclear errori ism.^^^ The legislation amending the Penal Code is based on a proposal from the Penal Law Council (Straffelovridet), made public in Government Commission report No. 1478 on Penal Law legislative protection against Terrorism, Copenhagen, 2006.
PETER OTKEN Cases * Case of Alleged Abuse of Iraqi Detainees by Danish Troops in Iraq, 2004. Reported in Ugeskriji for Retsvresen 2006, page 2927 (U.2006.29270, Danish only). For more than a year, during much of 2005 and 2006, the Danish public followed a trial in which five Danish military personnel were accused of mistreating Iraqi detainees during the spring of 2004. The alleged abuse took place in the context of the 2003 Iraq war and the subsequent occupation of that country. The Danish contingent has been operating outside the Iraqi city Basra, in southern Iraq, since mid 2003 and consists of an infantry battalion numbering around 500 men and women. On at least three occasions during the spring of 2004, Danish soldiers detained a number of Iraqis who were suspected of having participated in hostile actions against coalition forces in southern Iraq. The detainees were to be questioned by Danish personnel to determine whether (a) they posed a risk to coalition
tary leaders are detained in a high-security jail. Particularly disturbing is the fact that many middlelevel paramilitary cadres did not demobilize, or rearmed, and are now leading the new illegal armed groups that have been emerging in various parts of the country. These are characterized by close identification with organized crime and drug trafficking. It is a source of concern to the High Commissioner that political and economic structures created by paramilitaries in various areas and sectors of society remain in existence.' In: Human Rights Council, 'Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia. Doc'. NHRCi4148 of 5 March O/PDF/G0711410.pdf?Open 2007, para., 29, ~http:/ldaccessdds.un.org/doc/UNDOC/GEN/GO7/11411 Element>. 271. Information and commentaries by Judge Advocate Peter Otken, LL.M., The Judge Advocate General's Corps, and Prosecutor Andreas Laursen, LL.M., Ph.D., Special International Crimes Office, Copenhagen, as stated. The opinions expressed are solely the authors' personal views and cannot be attributed to any official Danish institution. 272. GA Res 591290, UN Doc. AiRESl591290, 14 September 2005.
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forces, in which case they would be handed over to the British force in the area; (b) they were common criminals, in which case they would be handed over to the local Iraqi authorities; or (c) they were to be released. The five defendants were an intelligence officer and four military police non-commissioned officers (NCOs). All five were charged under the Danish Military Penal Code (DMPC) with dereliction of duty under section 27.273Section 27 is a general and residual provision that covers those duties the violation of which is not specifically mentioned in other provisions of the DMPC. In the case at hand, the duties that the defendants were alleged to have violated were those found in the so-called Soldiers' Card and Commander's Card. Among the requirements of these cards are the duty to adhere to the laws of war, and to treat detainees with respect and dignity. In addition, violations of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ('Geneva Convention IV') Articles 27 and 3 1,274were alleged. Based on a legal opinion from the Danish Ministry of Foreign Affairs, which was not disputed by any of the parties, both the City Court and the High Court found that Geneva Convention IV was applicable to the situation in Iraq during the spring of 2004. The City Court briefly considered whether any of the detainees were covered by the Geneva Convention Relative to the Treatment of Prisoners of War ('Geneva Convention III'),*'~ but found this not to be the case.
The City Court Judgement delivered on 12 January 2006. The City Court found that in the context of questioning the detainees and in order to gain information from them, the Danish intelligence officer had assigned the detainees to kneel with their backs straight on the floor while they were questioned. If they moved, they were placed back in the original position. The intelligence officer was also found to have employed demeaning and derogatory language to address the detainees. The City Court found that the actions of the intelligence officer constituted a serious dereliction of duty under the DMPC. The NCOs were found to have forced the detainees to sit in uncomfortable positions and to have neglected to distribute water and blankets and defacto to have refused the detainees access to toilet facilities. Here, too, the Court found that the four military police NCOs were guilty of a serious breach of their duties. In sentencing the five defendants, the City Court took into account several circumstances surrounding the questioning of the Iraqis. The intelligence officer had, on a number of occasions, participated as an interrogation instructor in military exercises called 'Prisoner of War Exercises', in which officer cadets are trained in resisting interrogation. During the period when the intelligence officer participated in these exercises, the provisions of the ' ~ purposefully breached in order to prepare the cadets for poGeneva ~ o n v e n t i o n s ~were tential harsh treatment by enemy forces. On the basis of the testimony of the head of the
273. The DMCP was amended effective 1 January 2006 and since the relevant provision - section 27 in the amended code is less severe than the previous provision - section 15 - the more recent provision will apply according to the (general) Danish Penal Code, sections 2 and 3. -
274. 1949,75 UNTS 287. 275. 1949,75 UNTS 135.
276. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea,
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Danish Defence Academy, the Court found that the training that the intelligence officer had received at the Academy was now out of date. In spite of instructions given in October 2003 from the Army Operational Command to the Commanding Officer of the Danish Battalion in Iraq to issue directives for the handling of detainees, these were not in place. Furthermore, the intelligence oMicer had on a number of occasions approached higher ranking officers and the legal advisor in order to receive guidance concerning the treatment of detainees, without receiving any specific directions. Considering these mitigating circumstances, the City Court found that the punishment should be remitted according to the (general) Danish Penal Code, section 83. The High Court Judgement delivered on 6 July 2006.
The five defendants, however, appealed the judgement of the City Court to the High Court (0stre Landsret), arguing that they should have been fully acquitted and exonerated. The High Court was presented with more or less the same testimony and evidence as the City Court. Initially, the High Court remarked on section 27 of the DMPC. The High Court pointed out that the recent amendment of the DMCP'" had significantly limited the scope of criminal responsibility. Under the new provision, only a dereliction of duty that may be considered serious or gross is punishable. The High Court went on to point out that when determining whether a dereliction is serious or gross, the character of the act and its duration may be considered. Furthermore, whether the defendant's superiors were informed or maybe even approved of the behaviour in question are relevant factors. In this context, the High Court listed some of the mitigating factors mentioned by the City Court as relevant, not only as mitigating factors but possibly relevant in the initial determination of whether a dereliction of duty may be categorised as serious or gross. The High Court also reviewed the general features of the questioning conducted at the Danish army camp. The High Court found that the intelligence officer applied a specific technique in order to dominate the situation. As part of this approach, which was adopted partly for security reasons, the detainees were firmly escorted to the interrogation tent and were made to sit on the floor and questioning progressed at a high tempo and in a loud voice, including the use of coarse language. The intelligence officer had informed the interpreters beforehand that the questioning might be unpleasant, but that this approach was necessary in order to ensure that the detainees answered the questions. In regards to the described approach, the High Court found it was probably not entirely in accordance with the protection that Articles 27 and 3 1 of Geneva Convention IV seek to provide detainees. This finding was, however, obiter dictum, since, as the Court noted, this specific issue was not before the Court. The principal question was whether section 27 of the DMPC had been violated. The High Court then turned to a legal evaluation of three specific incidents. The central issue concerned the treatment of the detainees during the pre-interrogation detention and during the actual questioning. The charges against the intelligence officer followed by the charges against the NCOs will be discussed below. (i) The Intelligence Officer
1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention 111, supra 275; Geneva Convention IV, supra 274; (collectively, 'Geneva Conventions'). 277. See Danish correspondent's report in 8 YIHL (2005) pp. 419-422.
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With regard to the 9 March incident, two detainees had testified that they had to kneel on the floor with their backs straight during the questioning. The third detainee explained that he had to stand with bent legs. Based on the evidence, the High Court found that the detainees had to sit on the floor but the Court did not specify any particular position. The Court further found that the detainees were not able to change position, and that if they did they were placed back in the original position. The duration of the questioning was not entirely clear. One detainee stated that he was questioned three times, each time for one hour. A second detainee estimated that he was questioned for two hours. The defendant (intelli-
gence officer) explained that each session lasted about half an hour. The Court concluded that each session had been of a limited duration. Based on this finding and on the fact that none of the detainees had filed a complaint, the Court concluded that the treatment to which the detainees had been subjected, on its own did not entail any violation of the charged provisions (i.e., neither the Soldiers' and the Commander's cards nor Articles 27 and 3 1 of Geneva Convention IV). Concerning the 12 April incident, two detainees had testified that they had to kneel on the floor with their backs straight during the questioning. Neither had mentioned that they were physically held in the assigned position. Again the duration of the questioning was not entirely clear, but the Court characterised it as being of a 'shorter duration'. Based on this evidence and on the fact that none of the detainees had filed a complaint, the Court again found that the treatment did not entail any violation of the charged provisions. Finally, about the 9 June incident, the Court found that two of the detainees had to kneel on the floor with their backs straight during the questioning; in addition, one of the two had his ankles crossed behind him. A detailed time log was kept during this incident, and based on this log the Court found that the two detainees had been interrogated for about one and a quarter hours and one hour respectively. The latter detainee suffered from cramping after he was able to abandon the described position. He was subsequently examined by a doctor and found to have suffered no harm. Neither detainee filed a complaint about the treatment. As opposed to the two previous incidents, the Court found that this treatment violated one or some of the charged provisions. It would seem that the duration of the questioning in this latter incident was the distinguishing feature. The High Court, in the context of the charges against the NCOs, paid special attention to the testimony of the Danish battalion Chief Medical Officer. In court, he testified that a person would probably be able to sit on his knees with the legs crossed for about one hour before it became painful and possibly a little longer if the legs were not crossed. In court he was confronted with a statement made to investigators during pre-trial interviews, in which he had stated that the position with crossed legs would become painful after 20 minutes. In court, he answered that it would depend on the individual in question. Finally, the Court found that the intelligence officer had responded to one detainee who had said something like 'you might as well shoot me' by saying 'maybe we will do just that1. (ii)The military police NCOs. The four defendant NCOs were charged in the context of the 9 March and 12 April incidents, including having placed the detainees in stressful positions before the questioning and having assisted in keeping the detainees in the assigned positions during the questioning. They were also charged with not having provided blankets during the night time detention and having denied the detainees water and the use of toilet facilities. All in all, the Court only found that violations of the charged provisions had taken place with regard to the failure to provide blankets. With regard to the stressful positions, the Court reiterated its
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findings concerning the intelligence officer. The Court did not find that any charges over the denial of water or toilet access had been proven.
Conclusion. The High Court found that all five defendants had to some extent violated one or more of the provisions of the Soldiers' and the Commander's Cards andlor Articles 27 and 3 1 of Geneva Convention 1V. It remained to determine whether these violations were sufficiently grave to merit punishment under section 27 of the DMPC. This, the Court found, was not the case. In regard to the intelligence officer, the High Court found that she performed her duty in questioning the detainees. She employed the methods that she had originally been taught, which nobody had told her were no longer applicable. Furthermore, she was given no instructions, and nobody intervened. Finally, nobody was hurt and nobody complained. With regard to the NCOs, the High Court found that the fact that they neglected to hand out blankets did not constitute a serious or gross violation of their duties. Thus, all five defendants were acquitted of all charges.
ANDREAS LAURSEN
DJIBOUTI See Arab League Model Law in the Algerian section.
EGYPT See Arab League Model Law in the Algerian section.
Humanitarian Emergency Help * National Advisory Commission on Human Rights. Opinion on the French Initiative concerning humanitarian emergency help with the Government's answer [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur l'initiative franqaise en matibre de secours humanitaire d'urgence et reponse du Gouvemement]. Adopted 2 1 April 2005. After the Tsunami in South-East Asia in December 2004 France suggested to the UN Secretary-General some measures for a better coordination in assistance and relief operations. The National Advisory Commission on Human ~ i ~ hunderlined t s ~ ~that ~ the French initiative is strictly limited to emergency help operations in the case of natural or technological disasters and does not concern situations of international or non-international conflicts. But these events occur also in areas affected by internal disturbances and tensions, or even
278. Information and commentaries provided by Professor Paul Tavernier, Professor Paris-Sud University (Paris XI), Director, Centre de Recherches et d'Etudes sur les droits de I'Homme et le droit humanitaire (CREDHO). 279. Commission Nationale consultative des droits de I'Homme (CNCDH),<www.cncdh.fr/>.
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insurgency. The Commission emphasised the necessary access to people living in these areas and recommended that any conhsion with a military operation should be avoided. In its answer (30 August 2005), the government stated that the Commission's opinion was transmitted to the Secretary-General.
International Arms Transfers * National Advisory Commission on Human Rights. Opinion on the draft Frame Convention on international arms transfers and Government's answer [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur le projet de Convention-cadre sur les transferts internationaux d'armes et reponse du Gouvernement]. 23 June 2005. The Commission considered that the existing laws concerning arms' trade are not sufficient and encouraged the Government to promote the idea of a new (Frame) Convention limiting trade which leads to violations of human rights and humanitarian law. The Government responded (10 October 2005) that they supported, together with United Kingdom, the adoption in 1998 of the European Code of Conduct on Arms' Exports and that a new British initiative was taken in June 2005 in London during the Ministerial Conference of the G8.
Situations of Internal Disturbances and Tensions * National Advisory Commission on Human Rights. Opinion on respecting human beings fundamental rights in situations of internal disturbances and tensions [Commission Nationale consultative des droits de I'Homme (CNCDH): Avis sur le respect des droits fondamentaux de la personne humaine en situation de troubles interieurs et tensions internes au regard du droit international]. Adopted 22 September 2005. Humanitarian law applies to international and non-international conflict but not 'to situations of internal disturbances and tensions' (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 1, para., 2).280It's true that International Human Rights Law is applicable in all circumstances, but derogations are possible in time of public emergency threatening the life of the nation. In such situations there is a legis vacuum. The Commission suggested in its opinion that some guidelines or principles should be developed. According to the Commission, it is not necessary to negotiate a new legal instrument however a set of principles would remind states and non-state actors as well as individuals of their legal obligations. The Commission stressed the necessity of guarantee mechanisms both on an internal and international level. The Commission expressed its desire that the French Government takes some initiative for providing respect for fundamental rights of the human persons in that 'grey area' of so called situations of internal disturbances and tensions. That opinion was prepared by and is based on a more detailed report on the protection under international law of human beings in situations of internal disturbances or tensions. That report utilises some analysis presented in the PhD thesis of Alexandre Balguy-Gallois: Droit international etprotection de 1 'individu dans les situations de troubles intirieurs et de tensions internes. (University Paris I , 2003).
280. 1977, 1 125 UNTS 609 ('Additional Protocol 11')
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Cluster bombs/Cluster Weapon system * National Advisory Commission on Human Rights. Opinion on Cluster Weapon systems [Commission Nationale consultative des droits de l'homme (CNCDH): Avis portant sur les systkmes d'armes a sous-munitions]. Adopted 21 September 2006 The Commission reminded us of fundamental International Humanitarian Law principles, especially the principle of distinction and the principles of precaution and proportionality (Articles 48, 51 and 57 of Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed which is now ratified by France). France is one of 34 countries producing and keeping in stock cluster munitions. More than a hundred questions were addressed to the Government and three bills were proposed by Members of Parliament (see for example written question no 72252 of Mr. Jean-Michel Couve, Official, 9 August 2005, p.7676 and governmental answer in Official, 6 September 2005, p. 8353). The National Advisory Commission emphasised that cluster weapon systems produce serious damages for civilians, not only during the conflict, when they are used, but also after the conflict, as explosive remnants of war. The Commission is satisfied with France's foreseen ratification of Protocol V to the Conventional Weapons Convention 1 9 8 0 , ~ 'but ~ that protocol is not sufficient for solving the problem of cluster munitions, because it is not a specific instrument and that protocol will be applicable only to future conflicts. The Commission recommended that the French Government will introduce on the national level a ban for use, production, stocking and transfer of such weapon systems and suggested they will promote on the international level a legally binding instrument dealing specifically with cluster bombs and weapon systems. Remnants of War * Protocol on Explosive Remnants of War (Protocol V to the Conventional Weapons Convention 1980). France ratified that protocol on 3 1 October 2006. It entered in force on 12 November 2006. 2001 Amendment to the Conventional Weapons Convention 1980 * Publication of the 2001 Amendment to the 1980 Convention on conventional weapons The Amendment to the Conventional Weapons Convention 1980 was published in Decree no 2005-714, 21 June 2005, Official Gazette, 29 June 2005, p. 10 708. That amendment was adopted in Geneva on 21 December 2001 and entered in force on 18 May 2004. It increases the scope of the Convention to non international conflicts. It was ratified by France on 10 December 2002. Under French Law any international treaty, convention or
281. 1977, 1125 UNTS 3 ('Additional Protocol 1'). 282. Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V) 2003, CCWMSP/2003/2.
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agreement may be invoked before a court or tribunal only if it is published in the Official Gazette, or in another official publication. And under French practice, publication occurs after the entry into force of the treaty, convention or agreement. International Criminal Court (ICC) * ICC Prosecutor's Visit to Paris (May 2006) Mr. Luis Moreno Ocampo, Prosecutor of the International Criminal Court, paid a visit to
Mr. Philippe Douste-Blazy, Minister for Foreign Affairs in Paris in May 2006 to discuss cooperation between France and the ICC. An Agreement was signed on 11 May 2006 by the French Government and the Prosecutor providing for transmission of information. It was also underlined during the visit that the first accused person was transferred to the Court on 17 March 2006, with the assistance of French Army.
*
National Advisory Commission on Human Rights. Opinion on the Bill adapting French Law to the Statute of the International Criminal Court [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur le projet de loi adaptant la legislation franqaise au Statut de la Cour pCnale internationale]. Adopted 29 June 2006.
The opinion was given before the Bill was registered in Parliament. The Commission is satisfied that the Bill provides for adapting French Law to clauses included in the Rome Statute of the International Criminal ~ o u r t concerning ~'~ genocide, crimes against humanity and war crimes and also elements of crimes and general principles. However the Commission expressed its regret that the terms of the Bill are different from those included in the Rome Statute. That is in contradiction with the position adopted by the European Union on 16 June 2003 and will possibly lead to an application of Article 17, para., 1, which provides that a case is inadmissible when it is being investigated or has been investigated by a State which has jurisdiction over it 'unless the State is unwilling or unable genuinely to carry out the investigation or prosecution'. The Commission stressed some precise discrepancies between the Rome Statute and the draft, especially concerning statute of limitations (imprescriptibility) (Article 29) and war crimes (Article 8). The Bill introduces a distinction between 'crimes' and 'criminal offence' ("delit" in French) which does not appear in the Rome Statute. The Commission deeply regrets the confusion introduced in the Bill between jus ad bellum and jus in bello with the reference to Article 51 of the United Nations Charter and they criticised the definition of genocide for including a 'concerted project'; on the contrary, apartheid is not included in crimes against humanity. Moreover there are no provisions concerning universal jurisdiction though the principle of complementarity implies a generalisation of such a jurisdiction. The Commission hopes that France will reconsider its declaration under Article 124 of the Rome Statute.
482
*
Correspondents' Reports
Bill adapting Criminal Law to the institution of the International Criminal Court [Projet de loi portant adaptation du droit penal a l'institution de la Cour pCnale internationale]. Registered by the Presidency of the National Assembly on 26 July 2006.
That Bill was not yet discussed. Cases 1. Iraq War Comit6 contre la guerre en Zrak et autres. State Council [Conseil dlEtat], 30 December 2003, Florence Poirat, Revue Gdn6rale de Droit International Public, 2004 no 2, p.543546.
*
English and American planes were authorised to fly over the French territory during the war against Iraq. The French Government based its decision on the common use between allies and a Committee against the War in Iraq put that decision before a French administrative tribunal. The State Council dismissed the claim considering it does not fall within its jurisdiction because the government's decision could not be separated from conducting foreign relations and thus was an Act of State ('acte de gouvernement' in French). Moreover, the higher administrative tribunal added that Article 6 of the European Convention on Human RightszR4could not be usefully invoked 2. French Guantanamo's Detainees * Nizzar Sassi et al., Court of Cassation, Criminal Chamber, 4 January 2005, Florence Poirat/ Nicolas Haupais, Revue Gdnirale de Droit International Public, 2005 no 2, p.488-500. The Court of Cassation quashed the judgement of the Chamber of the instruction of the Court of Appeal in Lyon because it did not review the detention conditions under the Geneva Convention Relative to the Treatment of Prisoners of and the International Covenant on Civil and Political That decision is a procedural one but it could lead to wider prospects. 3. Death penalty in war times * International Commitments on abolition of the Death Penalty, Constitutional Council [Conseil constitutionnel], decision no 2005-5241525lDC of 13 October 2005, Florence Poirat/Guillaume Le Floch, Revue Gknerale de Droit International Public, 2006 no 1 , p.206-2 17. The Constitutional Council ruled that the second optional Protocol to the International Convention on Civil and Political Rights, aiming at the abolition of the death penalty,287which
284. 285. 286. 287.
1950,213 UNTS221. 1949,75 UNTS 135. 1966,999 UNTS 17 1 . 1991, 1642 UNTS414.
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abolishes the death penalty except in war time and which can not be denounced is contrary to the 'essential conditions of national sovereignty exercise' ['conditions essentielles d'exercice de la souverainete nationale'] and thus it is inconsistent with the Constitution. Therefore the optional protocol can only be ratified after the Constitution is amended. That is not the case with Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circums t a n c e because ~ ~ ~ ~ there is a clause authorising denunciation. 4. International Criminal Tribunal for Rwanda * Decree no 2005-729,29 June 2005 publishing the Agreement between the Government of the French Republic and the United Nations Organisation concerning the execution of penalties delivered by the International Criminal Tribunal for Rwanda, signed in Arusha on 14th March 2003 ; Oficial Gazette, n0152, 1 July 2005, p. 10866, doc no 10. PAULTAVERNIER
Production of Military Equipment * Act CIX12005 on the authorisation process related to production of military equipment and military services [2005. Cvi CIX. torveny a haditechnikai termekek gyartasanak es a haditechnikai szolgaltatasok nyi?jtasanak engedelyezesCrol]. Adopted on 3 October 2005. Oficial Journal (Magyar Kozlony), No. 138 (IX. 19.) <www.complex.hulkzldab' t0500109.htm/t0500 109.htm#kagy 1>. Protection of Cultural Property * Parliamentary Resolution 4812005 (VI. 4) on the ratification of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed [4812005. (VI. 4.) OGY hatarozat a kulturklis javak fegyveres 6sszeiitkozes eseten valo vCdelmero1 szolb 1954. evi Hagai Egyezmeny Masodik Kiegeszito Jegyzokonyvenek megerositeserol]. Adopted on 30 May 2005. Oficial Journal (Magyar Kozlony), No. 75 (VI. 4.) <www.complex.hu/extemal.php?url=3~. Status of Forces Agreement * Parliamentary Resolution 5612005 (VI. 10) on the ratification of the EU-SOFA on the status of military and civil staff of military forces ordered to European Union institutions and military and civil staff deployed for military actions of the European Union in connection with preparation for and accomplishment of tasks, including trainings mentioned in para., 17 (2) of the treaty on the European Union [5612005. (VI. 10.) OGY hatarozat az Europai Unio tagallamai kozott, az Europai Uniorol szolo szerzod6s 17.
288. 2002, ETS 187. 289. Information and commentaries provided by Dr. Eszter Kirs, Department of International law,
University of Miskolc. 290. 1999,38 ILM 769.
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cikkknek (2) bekezdeskben emlitett feladatok, koztiik gyakorlatok, elokCszitesevel 6s vkgrehajtasaval osszefCiggCsben az Europai Unio rendelkezesere bocsathato parancsnoksag Cs hadero europai unios intezmenyekhez kirendelt katonai torzsenek es polgar1 allomanyanak, valamint az Europai Unio ezzel osszefiiggtsben torteno fellCptse celjab61 a tagallamok rendelkezesre bocsatott katonai torzsCnek es polgari allomanyanak jogallastir61 (EU-SOFA) szolo Megallapodas megerositi.serol]. Adopted on 6 June 2005. Oficial Journal (Magyar Kozlony), No. 77 (VI. 10.) <www.complex.hu/external. php?url=3>. Education * The ICRC Regional Delegation for Central Europe (Budapest) organised the 1st Regional Friedrich Born Essay Competition open for undergraduate and postgraduate students and young practitioners and the 2nd Regional Friedrich Born Moot Court Competition on International Humanitarian Law which took place on 15 19 November at the Eotvos Lorand University, Budapest. -
Protection of Cultural Property * Act XXIXl2006 on the promulgation of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and on the modification of the Act IV11978 on the Criminal Code [2006. evi XXIX. torveny a kulturalis javak fegyveres osszeutkozes eseten valo vedelmerol szo16 1954. evi Hagai EgyezmCny Mhodik Kiegeszito Jegyzokonyvenek kihirdeteserol 6s a Biinteto Torvenykonyvrol szolo 1978. evi IV. torveny modositasar61] Adopted on 6 February 2006. Oficial Journal (Magyar Kozlony), No. 21. (11. 23.) ~www.cornplex.hu/kzldat/tO600029.htrn/ t0600029.htm>. International Criminal Court * Act XXXI/2006 on the promulgation of the Agreement on the privileges and immunities of the International Criminal Court [2006. h i XXXI. torvkny a Nernzetkozi Buntetobirosag S t a ~ t u m aReszes ~llamainakElso Kozgyiilese altal, 2002. szeptember 10en, New Yorkban elfogadott, a Nemzetkozi Biintetobirosag kiv8ltsigairol es mentessegeirol szolo Megallapodas kihirdeteserol] Adopted on 6 February 2006. Oficial Journal (Magyar Kozlony), No. 2 1. (11. 23 .) . Additional Distinctive Emblem of the Red Crystal * Act LXXVIIV2006 on the promulgation of the Protocol additional to the Geneva Conventions of 12 August 1949 relating to the adoption of an additional distinctive emblem (Protocol 111) [2006. evi LXXVIII. torveny az 1949. augusztus 12-en alairt Genfi Egyezmenyek egy tovabbi megkulonbozteto jelveny elfogadasarol szolo, Genfben, 2006. junius 19-Cn alairt Kiegeszito Jegyzokonyvenek (111. Jegyzokonyv) kihirdetkserol] Adopted on 9 October 2006. OfJicial Journal (Magyar Kozlony), No. 129. (X. 20.)
<www.complex.hu/kzldat~t0600078.htm/t0600078.htm>.
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Nuclear Weapons * Act LXXXII12006 on the promulgation of the Agreement between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the European Atomic Energy Community and the International Atomic Energy Agency in implementation of Article 111, (1) and (4) of the Treaty on the Non-Proliferation of Nuclear weaponsz9' and its Additional Protocol [2006. Cvi LXXXII. tiirveny a nukleiris fegyverek eltejedesenek megakadalyozasarol szolo szerzodes 111. cikk ( 1 ) 6s (4) bekezdesenek vegrehajtasarol szolo biztositkki megallapodas es jegyzokonyv, valamint a megallapodashoz csatolt kiegeszito jegyzokonyv kihirdeteserol] Adopted on 30 October 2006. Official Journal (Magyar Kozlony), No. 137. (XI. 10.) <www.complex.hu/ kzldat/t0600082.htm/t0600082.htm>. Participation to Peacekeeping Operation * Parliamentary Resolution 4412006 (X. 10) on the Hungarian Participation to the UN Peacekeeping Operation (UNIFIL) in Lebanon [4412006. (X. 10.) OGY hatarozat az ENSZ libanoni bekefenntarto missziojaban (UNIFIL) valo magyar rCszvCtelrol]. Adopted on 9 October 2006. Oflcial Journal (Magyar Kozlony), No. 124 (X. 10.) <www.complex.hu1external.php?url=3>. With its resolution 4412006 (X. 10) the Parliament authorised the government to send six military cartographers to Lebanon and approved that the government had deployed 12 border guards in order to work in the United Nations Interim Force in Lebanon (UNIFIL). ESZTER KIRS
Cases * Union of India v. Satyanand Singh Administrative separation of a Non-Commissioned Officer (NCO) of the regular Army who was examined by a medical board and found to be suffering from Neurotuberculosis on account of AIDS was upheld by Madhya Pradesh High The Court held that AIDS is not an ordinary sexually transmitted disease as it causes gross limitation on physical capacity and stamina. Regulations for the Army para., 355(f) stipulate that a soldier is not to be discharged from service solely on account of his having contracted a sexually transmitted disease (STD). But if the STD affects the immune system, corrodes stamina, incapacitates a man, a person working in the Army would come within the ambit and sweep of Rule 13 of the Army Rules and no fault can be found with the discharge.
*
Union of India v. Mohamad Yasin Ansari
291. 1968,729 UNTS 161. 292. Information and commentaries by Nilendra Kumar. 293. Reported in (2007) Military Law Journal MP.
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Correspondents ' Reports
In this landmark judgement294Allahabad High Court held that the combatant forces, and especially the Army, can understandably retain personnel with a particular degree of disability. The Court held it cannot extend the large scale benefit given by Parliament under the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 even to a lower category of disabled persons, i.e., who are less than 40% disabled. The controversy related to a discharge from the military service due to disability without disability pension. The disabilities were suffered while in service. The petitioners had sought relief of reinstatement into the service until the age of superannuation.
National Human Rights Commission * Annual Report National Human Rights Commission (NHRC)'s annual report for 2003 - 2004 was tabled in both houses of Parliament on 7 and 8 March 2006. The report contained amongst other matters a chapter entitled Review of Laws, Implementation of Treaties and other Intemational Instruments on Human Rights. This included humanitarian law instruments such as the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts ('Additional Protocol I ' ) . ~The ~ ~full text of the annual report is available on the Commission's website: <www.nhrc.nic.in>.
*
UN Convention against Torture
NHRC called for ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('Convention against ~ o r t u r e ' ) The . ~ ~instrument ~ was signed by Govemment of India in 1997 but is yet to be ratified.
*
National Human Rights Institutions
NHRC India has been nominated to represent the Asia Pacific Region in the International Coordinating Committee (ICC) of National Human Rights Institutions (NHRI).
*
Civilian killings
During September 2006 NHRC took suo-motu cognizance on the killing of three civilians by the Army in Kupwara District of Jammu & Kashmir. The Commission took notice of a newspaper report published in The Hindu (a newspaper based at Chennai) dated 13 August 2 0 0 6 . The ~ ~ ~Commission, after observing the report, said that if its contents were true, they raise a serious matter of violation of human rights of citizens. The Commission directed that a copy of the newspaper report be send to the Defence Secretary, Govemment of India for
294. 295. 296. 297. 2006.
Reported in (2006) Military Law Journal, Allahabad 177. 1977, 1125 UNTS3. 1984, 1465 UNTS 85. S. Bukhari, ' 3 civilians mistakenly killed by Army in Kupwara' in The Hindu, 13 August
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his comments within two weeks. However it is not known whether a report was received or what were its contents.
*
National legislation on refugees
During 2006, the NHRC indicated a need for a National Legislation to deal with the problem of refugees in India and has recommended the same to the Indian Government. The Government has accepted it in principle. The Commission stressed that there has to be a clear definition of refugees so that it is not confused with other forms of migrant population. This issue needs to be addressed so that the benefits percolate to the bona fide refugees.
NILENDRA KUMAR
IRE LAND^^' International Criminal Law/International Humanitarian Law * International Criminal Court Act 2006, No. 3012006. Adopted and entered into force 3 1 October 2006. <www.oireachtas.ie/documents/bills28/acts/2006/a3006.pdf>. The International Criminal Court Act 2006 (the Act) was passed as the final version of the International Criminal Court Bill 2003, whose purpose was to give legal effect to the Rome Statute of the International Criminal Court of 17 July 1998 ('Rome The Rome Statute created the International Criminal Court (ICC), whose jurisdiction extends over genocide, crimes against humanity, war crimes, and the crime of aggression (as yet to be defined for the purpose of the Statute). The Act coordinates substantive and procedural Irish criminal law with the needs of the ICC, joining official support for the ICC with provisions ensuring Irish legal sovereignty. Part 1 outlines the terminology and definitions for the Act and sets guidelines for judicial interpretation of its provisions. Section 2, subsection 3, declares that 'judicial notice shall be taken of the [Rome] Statute,' thereby incorporating the statute into domestic courts' decisions. Part 2 outlines domestic jurisdiction in ICC offences. Section 9 defines 'ICC offence' as a crime within one of the following four categories: genocide, a crime against humanity, a war crime or an ancillary offence. Because the Rome Statute addresses the crime of genocide, section 7 repeals the Genocide Act 1973. Section 10 describes the punishment for those offences as ranging between confiscation of property and life imprisonment. Section 12 establishes the scope of ICC territorial and personal jurisdiction over Irish nationals. (The ICC does not have universal jurisdiction, or jurisdiction over an offence committed in any state by a person of any nationality.) Section 13 establishes complementarity. A key element of the Rome Statute, complementarity preserves the supremacy of domestic law so long as the national courts are able or willing to put suspected perpetrators of international crimes to trial.
298. Information provided by Ray Murphy, Irish Centre for Human Rights, National University of Ireland, Galway, Ireland. 299. 1998,2187 UNTS 90.
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Part 3 provides a framework for the interaction between the ICC and the Minister of Justice, Equality, and Law Reform within the context of requests for the arrest and surrender to the ICC of persons under Irish jurisdiction. It implements the Rome Statute's Article 91(2)(c) requirement that the surrender procedures are no more burdensome than those applicable to extradition requests to which Ireland is a party. The Act balances Irish sovereignty with its participation in an international court by allowing the Minister to challenge and postpone ICC requests for a person's arrest and surrender (sections 17- 19). Section 25, subsection 6, permits the appeal to the Supreme Court of a surrender order, but only on a point of law. Part 4 addresses ICC requests to freeze assets and enforce its orders. Section 38 permits the High Court to freeze property and assets upon the ICC's request to the Minister, subject to certain limitations. Section 40 provides for a process through which the High Court can enforce ICC reparation orders. Part 5 addresses ICC requests for identification evidence. Section 50 includes provisions designed to protect civil liberties, including limitations regarding the use of the evidence (subsection 3) and a consent requirement (subsection 4). Section 51 allows for the issuance of search warrants so that the Garda Siochana (police) may comply with ICC evidence requests. Section 52 addresses ICC requests for evidence from those other than the persons under ICC investigation or arrest; those persons shall have the same rights as they would in an Irish court (subsections 4-5). Section 53 applies to the questioning of a person whom the ICC suspects has committed an offence within the jurisdiction of the Court; such a person must consent to be questioned and must know his or her rights, and the questioning must be videotaped (subsections 4-5). Sections 54-56 address procedural issues related to summonses and other judicial documents and the transfer of persons. Part 6 (Miscellaneous) addresses the situation of the ICC sitting in Ireland, providing for the legitimacy of Court orders (section 58), the power of the Prosecutor (section 59), and the privileges and immunities of court members (section 60 and 61). Defence Forces and international operations * Defence (Amendment) Act 2006, No. 2012006. Adopted and entered into force 23 December 2006, <www.oireachtas.ieldocumentslbills28/acts/2006lA2006.pdb.
Ireland's status as a neutral state limits the Permanent Defence Force's activity abroad and complicates its involvement in international peacekeeping missions. When an international United Nations (UN) force went to the Congo in 1960, Ireland passed the Defence (Amendment) Act 1960 to temporarily authorise the participation of Irish forces in the mission. Section 7 of the Defence (Amendment)(No.2) Act 1960 repealed the previous statute and established permanent authorisation for the participation of troops from the Permanent Defence Force in international police missions abroad. This permanent authorisation had builtin limitations: it required that the UN Security Council or the General Assembly establish the force, and it required previous approval of Dail ~ i r e a n n(Irish parliament) in certain circumstances. The subsequent Defence (Amendment) Act 1993 vaguely defined the 'International United Nations Force' envisaged in the 1960 and 1993 Acts as an 'international force or body established by the Security Council or General Assembly of the UN'. As peace operations became increasingly independent from the UN, such as the 1995 - 1999 mission in Macedonia that lost its UN mandate and became EU-led, these restrictions began to preclude Irish forces from participation altogether. Ireland reiterated its commitment to
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restricted involvement in international military forces at the Seville European Council in June 2002, where it made a National Declaration that Irish Defence Forces could not participate in overseas operations without satisfying the 'triple lock' mechanism of UN, Irish Government, and Dail ~ i r e a n n(parliament) authorisation. These statutes and policies failed to clarify the position regarding Irish Defence Force's potential involvement in non-UN authorised humanitarian operations and EU-led peacekeeping or monitoring missions. The Defence (Amendment) Act 2006 (hereby referred to as the Act) sought to clarify some o f these issues.
Section 1 of the Act clarifies the definition of 'International United Nations Force' to reflect the changes in UN-supported international peace operations and the rise of UN-sanctioned operations conducted by regional organisations. The Act defines such a Force as 'an international force or body established, mandated, authorized, endorsed, supported, approved or otherwise sanctioned by a resolution of the Security Council or the General Assembly of the United Nations' (emphasis added). This section also includes a definition for what 'training' means for military personnel abroad. Section 2 amends the Defence (Amendment) (No. 2) Act 1960 and Defence Act 1954 to reflect the provisions of Section 1 of this Act. Section 3 specifies for which purposes the Government may despatch Permanent Defence Force personnel abroad other than for service in international UN forces. Such purposes include training, reconnaissance, representative duties, humanitarian tasks, sporting events and inspections. Section 4 states that all members of the Permanent Defence Force, even those who enlisted prior to the passage of the Act, are liable for overseas service in UN operations and in missions outlined in section 3. This new approach updates the 1960 and 1993 Defence Acts, which had exempted military personnel who had enlisted prior to the enactment dates of those statutes. Subsection (2) of the Act exempts those who enlisted prior to 1 July 1993 from all overseas service except for service as part of an international UN-established policing force. Section 8 allows a contingent or member of the Permanent Defence Force to assemble overseas prior to deployment as part of an International UN Force, so long as the Dail ~ i r e a n n(parliament) has passed a resolution authorising the despatch. This section is intended to allow for rapid response deployment of supplies and troops. Section 12 repeals sections 3 and 4(7) of the Defence (Amendment) (No.2) Act 1960, section 296 of the Defence Act 1954, and the entire 1993 Act. Section 13 provides for an annual report from the Minister of Defence to Dail ~ i r e a n n (parliament) regarding any overseas operations from the previous year. This Section preserves a provision that already existed in the now-repealed 1993 Act. Criminal law * Criminal Justice Act 2006, No. 2612006. Adopted and entered into force 16 July 2006,
<www.oireachtas.ie/documentshills28/acts/2006/A2606.pdB. This Act amends Irish criminal law with recommendations from reports prepared by the Department of Justice, Equality, and Law Reform. The Act was intended to make the Garda Siochana (police) more effective and restructure youth justice. Part 1 of the Act addresses Preliminary and General Matters, such as the definitions contained in the Act, regulation-making powers, and expenses and funding.
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Part 2 increases the investigative powers of the Garda Siochana with regards to crime scenes, searches and seizures, arrest procedures, and forensic sampling. This Part relies upon the reasonableness standard in the designation of a place as a crime scene (section 5), in the issuance of a search warrant (section 6), in the use of force during the execution of a search warrant (section 6, subsection 2), in the taking of suspected evidence without a warrant (section 7), and in the extension of a person's detention during the investigation of an offence (section 9). It remains to be seen how this codified reasonableness standard will be interpreted and applied by the courts. Part 2 allows the arrest without warrant of persons who obstruct or attempt to obstruct the execution of a search warrant or who give a false or misleading name or address to the Gardai executing the warrant (section 6, subsection 3). Part 2 also increases police power to detain suspects (section 9), to compel suspects to agree to a photograph and fingerprinting (section 12), and to retain photographs, palm prints, fingerprints, and forensic samples in the absence of proceedings (sections 13 and 14). Section 14 allows for mouth swabs and saliva samples to be taken without consent. Part 3 changes the common law rules surrounding the admissibility of certain witness hearsay statements. The result is to increase the circumstances under which such statements are admissible for the truth of the matter contained therein. Section 16 outlines the circumstances under which statements made to the Gardai outside of court can be admissible during trial. Part 4 addresses appeals in criminal proceedings and extends the prosecution's ability to seek appellate review. Section 21 permits the Attorney-General or Director of Public Prosecutions to refer a question of law to the Supreme Court without prejudice. Section 23 amends the Criminal Justice Act 1993 to allow a court to extend the deadline for the prosecution to apply for the review of a sentence. Part 5 amends the firearm acts to strengthen laws that govern civilian firearm use. The Act both tightens regulatory measures and increases fines and penalties for firearm violations. Part 7 updates the criminal law regarding organised crime and conforms Irish law to the government's obligations under the United Nations Convention against Transnational Organized crime3'' and the EU Joint Action regarding criminal organisation. Section 71 addresses the offence of conspiracy as committed both inside and outside the state by or against Irish nationals. Section 72 concerns organised crime, allowing for the conviction of persons who assist a criminal organisation to commit a serious offence without requiring the prosecution to prove that the organisation actually committed the offence, that the person actually helped the criminal organisation, or that the person knew the specific nature of the offence. The remainder of the Act, inter aha, addresses the misuse of drugs and creates new offences relating to drug importation (Part 8), obligates drug trafficking offenders to provide the authorities with certain information (Part 9), changes the range of sentences available to the courts (Part lo), and provides for civil proceedings as a response to adult and child anti-social behaviour (Parts 1 1 and 13). RAYMURPHY
300. GA Res 55/25, UN Doc. AIRESl55125, 15 November 2000.
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IRAQ See Arab League Model Law in the Algerian section.
Government Action 1. Second Lebanon War
*
Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A1601937-S/2006/5 15 (12 July 2006) .
Following Hizbollah's incursion into Israel in which it abducted two soldiers and killed others, Israel opened a military campaign ('Operation Change of Direction'). On the same day it sent the following message to the UN Secretary-General and President of the Security Council: It is with a great sense of urgency and grave concern that I write you this letter of strong protest about the grave events occumng today on Israel's northern border with Lebanon. This morning, Hezbullah terrorists unleashed a barrage of heavy artillery and rockets into Israel, causing a number of deaths. In the midst of this horrific and unprovoked act, the terrorists infiltrated Israel and kidnapped two Israeli soldiers, taking them into Lebanon. Responsibility for this belligerent act of war lies with the Government of Lebanon, from whose territory these acts have been launched into Israel. Responsibility also lies with the Government of the Islamic Republic of Iran and the Syrian Arab Republic, which support and embrace those who camed out this attack. These acts pose a grave threat not just to Israel's northern border, but also to the region and the entire world. The ineptitude and inaction of the Government of Lebanon has led to a situation in which it has not exercised jurisdiction over its own territory for many years. The Security Council has addressed this situation time and time again in its debates and resolutions. Let me remind you also that Israel has repeatedly warned the international community about this dangerous and potentially volatile situation. In this vacuum festers the Axis of Terror: Hezbollah and the terrorist States of Iran and Syria, which have today opened another chapter in their war of terror. Today's act is a clear declaration of war, and is in blatant violation of the Blue Line, Security Council resolutions 425 (1978), 1559 (2004) and 1680 (2006) and all other
301. Information and commentaries by Dr. Yael Ronen, Ono Academic College, Israel. The reporter is grateful to Mr. Shlomi Zachary for his assistance in gathering information for the report; and to Ms. Ady Schonmann, Legal Advisor's Office, Ministry of Foreign Affairs; Lt. Nimrod Karin, International Law Dept., Military Advocate General's Office; and Lt. Nir Keidar, Office of the Legal Advisor for Judea and Samaria, for their comments on previous drafts. Responsibility for errors remains with the reporter.
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relevant resolutions of the United Nations since Israel withdrew from southern Lebanon in May 2000. Israel thus reserves the right to act in accordance with Article 51 of the Charter of the United Nations, and exercise its right of self-defence when an armed attack is launched against a Member of the United Nations. The State of Israel will take the appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorizes our citizens.. .
*
'IDF~" response to Hizbollah Aggression from the Territory of Lebanon' Government Decision 258, 12 July 2006 <www.pmo.gov.i1/PM0/Government/Decisions/2006/07/des258ht (in Hebrew). <www.pmo.gov.il/PMOEng/Archive/Press+Releases/2OO6/O7/spokegove 120706.htm> (in English).
The Government adopted the foklowing decision: Following Hizbollah aggression from Lebanese temtory: a. A very grave event occurred today inside the temtory of the State of Israel. A Hizbullah force crossed our northern border and attacked a routine IDF patrol. As a result of this attack, eight soldiers were killed, soldiers and civilians were wounded and the invading force abducted two soldiers to Lebanese territory. b. This action, along with the events of the past month, creates a new and complex reality that compels us to deal with it. Today's attack, like the 25.6.06 attack at Kerem Shalom, is the product of those who perpetrate terrorism and those who give it shelter. c. Israel views the sovereign Lebanese Government as responsible for the action that originated on its soil and for the return of the abducted soldiers to Israel. Israel demands that the Lebanese Government implement UN Security Council Resolution # 1559. d. However, there is no doubt that Hizbullah, a terrorist organization operating inside Lebanon, initiated and perpetrated today's action; Israel will act against it in a manner required by its actions. e. Israel must respond with the necessary severity to this act of aggression and it will indeed do so. Israel will respond aggressively and harshly to those who carried out, and are responsible for, today's action, and will work to foil actions and efforts directed against it. f. The international community understands that every country, including Israel, must act aggressively against enemy targets such as Hizbullah.. .
... The Prime Minister instructs the IDF to make efforts to avoid as much as possible harm to civilians. All must be done to avoid such injury, according to tradition and the sense of responsibility that we show to civilians of the other side.
302. Israeli Defence Force (hereafter 'IDF').
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* See also Israel's statement before the Security Council, SiPV.5489, 14 July 2006 <www.un.org/Depts/dhl/resguide/scact2006.htm>.
*
'Security Council Resolution 1701 Regarding a Cease Fire' Government Decision no. 373 of 13 August 2 0 0 6 ~ ' ~ <www.pmo.gov.illPMOIArchiveiDecisions/2006/08/des373.htm (in Hebrew). The Government of Israel declares that it has decided to accept Security Council Resolution 1701 and it will act in accordance with its commitments under this Resolution.
*
+
Statements by the Prime Minister, Minister of Foreign Affairs and other Government officials related to the conflict in Lebanon are available at <www.mfa.gov.il/MFA/Ter rorism-+Obstacle+to+Peace/Terrorism+from+Lebanon-+Hizbulla~izbull~+a~ack +in+northern+Israel+and+Israels+response+ 12-Jul-2006.htm>. Name of the military campaign in Lebanon in July - August 2006, Government of Israel Decision 1468, 25 March 2007 <www.pmo.gov.ilPMO/GovernmentiDecisions/2007/03/des1468.htm> (in Hebrew).
The Government decided that the military action in Lebanon in July - August 2006 shall be called 'The Second Lebanon War'.
2. Operation Summer Rains in the Gaza Strip On 25 June 2006 in the course of an infiltration and attack by Hamas members in the area of Kibbutz Kerem Shalom, an IDF officer and a soldier were killed, a soldier was abducted, and four others were wounded. + Cabinet communique of 25 June 2006 <www.mfa.gov.il/MFA/Government/Communiques/20O6/Political-Securi~+Cabinet +convenes+to+discuss+abducted+soldier+25-n-200 .htm>. 1. Israel views the terrorist incident that occurred today with utmost severity. The Palestinian Authority (PA) - the PA Chairman and the PA government - is responsible for the event with all this implies. 2. Israel will take all necessary actions in order to bring about the release of abducted soldier Cpl. Gilad Shalit. This objective has top priority and, to this end, the Cabinet approves all the preparations that were presented to it by the security establishment. 3. The PA will bear full responsibility for any harm to Cpl. Shalit. No person or organization will have immunity at this time. 4. The Cabinet approves the security establishment's recommendations to prepare and deploy the necessary forces in order to be ready for urgent military action as obligated by the PA's actions and intentions.
303. SC Res 170112006,UN Doc SIRESI1701, 11 August 2006. The Resolution calls for full cessation of the hostilities; deployment of the Lebanese Army and UNIFIL in southern Lebanon; Israeli withdrawal from southern Lebanon and the extension of Lebanon's control over all of its territory.
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5. Prime Minister Ehud Olmert and Defence Minister Amir Peretz will decide to approve actions against targets among the terrorist organizations and the PA according to the recommendations of the security establishment. 6. Contacts will continue with the international community in order to maintain the international pressure on the PA leadership with the objective of bringing about Cpl. Shalit's release.. . Communique of the Political-Security Cabinet, 5 July 2006
<www.mfa.gov.i1/MFA/Government/Communiques/2006Political-Security+Cabinet +Communique+S-Jul-2006.htm>.
...The goals of the operation, as we have defined them from the outset, are and remain the release of abducted Cpl. Gilad Shalit and the cessation of the firing of rockets and mortars. Our position is, and remains, that there will be no negotiations on a release of prisoners in exchange for Cpl. Shalit and that Israel views the Palestinian Authority as responsible for returning Gilad to Israel safe and sound. Against the background of the abduction and the continued firing of rockets and mortars, including the firing of a Kassam rocket at Ashkelon, preparations must be made in order to bring about a change in the rules of the game and in the modus operandi vis-avis the PA and Hamas according to the parameters presented by the security establishment. The Cabinet authorizes Prime Minister Ehud Olmert and Defense Minister Peretz to instruct the security establishment to continue its preparations for prolonged and graduated security activity in order to achieve the goals that have been determined and to carry out approved actions as follows: * Striking at Hamas in the Gaza Strip and in Judea and Samaria, with emphasis on striking at institutions and infrastructures that serve terrorism; * Continuing and increasing counter-terrorist actions, including those aimed at Kassam cells; * Reducing terrorists' freedom of movement by continuing to section off the Gaza Strip and striking at infrastructures that serve terrorism; * Foreign Minister Tzipi Livni will continue to apply diplomatic pressure, via the international community, on the Syrian leadership in order to bring about the release of Cpl. Shalit; * Avoiding - as much as possible - harming the civilian population that is not involved in terrorism; * Responding comprehensively and immediately to all humanitarian needs. .. .
*
Cabinet communiquC of 9 July <www.mfa.gov.iVMFA/Government/Communiques/2006/Cabinet+Communique+9Jul-2006.htm>.
1. ...The Foreign Minister said that it was clear to all that Israel's right to defend itself includes actions against the firing of Kassam rockets and that Israel has a legitimate and uncontested right to act to bring about the release of Cpl. Shalit. Prime Minister Ehud Olmert summarized the Cabinet discussion as follows:
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... c. Regarding the conduct of military operations, there is no intention and no planning to reoccupy the Gaza Strip in order to remain there; ground actions are in order to achieve certain goals within a defined period. d. A timetable cannot be set for the above operation in advance. However, it does have an international dimension; the IDF has been fighting for almost two weeks and the international response to the results of the fighting has been low-key. The actions initiated by Defense Minister Peretz, and the Foreign Ministry's international activity, are being carried out in the proper measure and at the proper pace, thus allowing Israel military freedom of action and maintaining its ability to receive international backing. e. Israel's position on the prisoner issue is clear and unequivocal: 'We will not negotiate with Hamas regarding an exchange of prisoners.'
*
Further statements on Operation Summer Rains are available at <www.mfa.gov.il/MFA/
MFAArchive/2000~2009/2006/Gaza%20kidnapping%2025-Jun-2006~. 3. Internal IDF Law Enforcement regarding Operations in the West Bank * IDF reporting procedure concerning incidents involving Palestinians casualties ~www.btselem.org/Hebrew/Legal~Docurnents/2005 1120-Newgrocedure-formilia try-investigations.pdf> (in Hebrew). In November 2005 The IDF Chief-of-Staff introduced a new procedure for internal investigations of cases involving the IDF in which civilians not taking part in life-threatening hostilities are injured or killed. According to the procedure, the Chief-of-Staff will be informed within 48 hours of any incident in which a civilian not taking part in life-threatening hostilities is injured or killed. The procedure also applies in cases of doubt as to the involvement of the victim in such hostilities. The commanders of the operating forces are responsible for documenting and reporting any such incident immediately, insofar as possible. The area commander is responsible for the conduct of an investigative report to be forwarded to the Chief-of-Staff within no more than 21 days. In addition, the investigative report is forwarded to the Military Advocate General (MAG), who decides whether or not to order a criminal investigation. At the time of writing the procedure is under judicial review.
Legislation 1. Entry into Israel Citizenship and Entry (Temporary Provision) Law, 2003 Citizenship and Entry (Temporary Provision) (Extension of the Law's Application) Order, 17 July 2007, Regulation Compilation No. 6500 (17 July 2006) p. 1 0 0 2 . ~ ~ ~
*
304. See report on Israel in 8 YIHL (2005),p. 432
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The Government, upon approval of Parliament, extended the application of the Law by six months, until 16 January 2007. 2. Freedom of Movement in the West Bank * Directives on Traffic and Transportation (Restriction of Travel in Israeli Cars) (Judea and Samaria), 5767-2006 (not in force) <www.yesh-din.orglsite/imageslMilitary%2Oordero/02O-%20eng.pdfS.. <www.yesh-din.orglsite/images/HCJ196-07Eng.pdB. The directives were issued by the military commander in the West Bank on 19 November 2006. They prohibit residents of Israel from transporting non-Israelis in the West Bank in cars carrying Israeli registration. This prohibition is subject to exceptions, where the nonIsraeli passenger holds a permit to enter Israel or to work in the settlements. Also exempt from the prohibition are Israeli drivers of Israeli bus routes in the West Bank, Israelis transporting their immediate relatives; and soldiers and policemen. In early January 2007 a petition was submitted to the High Court of Justice against the Directives on the grounds that they create an apartheid regime, violating Articles 3, 13 and 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ('Geneva Convention I V ' ) , ~ ' ~Article 85(4)(c) of the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts ('Additional Protocol I ' ) ~ ' ~as , well as international human rights law and Israeli law. Two days prior to the entry into force of the Directives, the military commander in the West Bank announced the freezing of the order because of both operational and unsettled legal issues. The order was later annulled.
Cases
1. Status of military campaign in Lebanon Beilin and Others v. The Prime Minister and Others HCJ 6204106, 6235106, 6274106 Supreme Court of Israel, Judgement of 1 August 2006
*
. 382. Resolution of the Supreme Council of the Republic of Lithuania No. 1-2683 of 30 June I992 on the decision adopted by the citizens of Lithuania on referendum of 14 June 1992. Valstyhes Zinios, (1992), NO.21-615.)
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1940 as a necessary and timely step. In June 1940, Russia accused Estonia of forming a conspiracy together with Latvia and Lithuania against it, and issued an ultimatum, demanding among other concessions that more Soviet troops be allowed to enter the three countries. In the following month, local communists loyal to the Soviet Union won parliamentary 'elections' in all three countries, and in August these parliaments asked the Soviet government for accession to the Soviet Union. As a result, the three states were formally annexed.383 Landmines
* *
Treaty Implementation Workshop in Minsk. Belarus Stockpile Destruction Event .
Lithuania cosponsored an international workshop on the implementation of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction ('Ottawa re at^')^^^ held in neighbouring Belarus from 22 - 24 May 2006. This event marked the beginning of a project to destroy Belarus' stockpiles of non-PFM antipersonnel mines - over 300 000 mines - managed by the NATO Management and Supply Agency (NAMSA). Belarus possesses a stockpile of almost 3.4 million PFM mines, which cannot be destroyed by open detonation because of their chemical explosives - will be destroyed through a project funded by the European Commission (EC) that is set to begin in January 2 0 0 7 . ~ ~ '
RYTISSATKAUSKAS
MAURITANIA See Arab League Model Law in the Algerian section.
MOROCCO See Arab League Model Law in the Algerian section.
383. 'Russian intelligence justifies Soviet annexation of Baltic states', 23 November 2006, RIA Novosti, . See also 'NATO-supported destruction of landmines on track in Belarus', NATO Update, 5 December 2006, <www.nato.int/docu/update/2006/12-december/e1205a.htm~.
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THE NETHER LANDS^'^ Cases 1. War Crimes Prosecutor v. G. Kouwenhoven, Hague District Court 7 June 2006, LJN: AX7098 (English translation: AY 5 160).
*
Kouwenhoven, a Dutch timber merchant, was inter uliu charged as a co-perpetrator, abettor or accomplice for his involvement in war crimes that were committed in the period between 1 December 2000 and 3 1 December 2002 in Liberia andor Guinea, West Africa, by persons belonging to one of the combating parties in an armed conflict in those countries. The Hague District Court found that during the internal armed conflict in Liberia in that period such war crimes (including torture rape, looting and acts of violence against civilians) had indeed taken place, possibly by security forces employed by the timber companies of which Kouwenhoven was director. However, the Court was not convinced by the evidence that Kouwenhoven, as a co-perpetrator, abettor or accomplice had been involved in those crimes. The Court did find Kouwenhoven guilty of having supplied weapons to Charles Taylor (then President of Liberia) andlor a legal entity in Liberia in the said period together and in conjunction with others, contrary to an arms embargo that, as a consequence of Security Council Resolutions 1343 (2001) and 1408 (2002),~'~ had been imposed on Liberia under the Dutch Sanctions Act 1977. The Court sentenced Kouwenhoven to eight years imprisonment, which is the maximum penalty that could be imposed for the offence. Both Kouwenhoven and the Prosecution have appealed to the Appeals Court in The Hague.
2. Extradition * Prosecutor v. K! A1 Delaema, Supreme Court of the Netherlands, 5 September 2006, LJN: AY3440, Nederlandse Jurisprudentie 2007, 10. The United States had on the basis of the extradition treaty between the United States and the Netherlands requested the extradition of Wesam A1 Delaema, a Dutch national born in Iraq, for having conspired to kill United States nationals in Iraq. According to the indictment, in or about October 2003, A1 Delaema had traveled from the Netherlands to an area in or around Fallujah, Iraq, where he had, together with co-conspirators, hid destructive devices in a road, which were to be detonated and would destroy American vehicles driving on the road and kill Americans in those vehicles. The extradition request was accompanied by the following statement by the United States authorities:
386. Information and commentaries by Professor emeritus Nico Keijzer and by Dr. Elies van Sliedregt, Associate Professor of criminal law at Vrije Universiteit, Amsterdam. 387. SC Res 134312001, UN Doc. SlRESl1343, 7 March 2001; SC Res 140812002, UN Doc. Sl RES/1408,6 May 2002.
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The Government of the United States assures the Government of The Netherlands that upon extradition to the United States, A1 Delaema will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, A1 Delaema will not be prosecuted before a military commission, (...); nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant. At the Rotterdam District Court's extradition hearing, A1 Delaema's defence lawyer claimed that the alleged conspiracy was not punishable, because it occurred in the context of an international armed conflict. The District Court rejected the plea, without discussing the issue of A1 Delaema's possible status as an Iraqi. Appeal has been lodged with the Supreme Court. The Supreme Court considered it a condition for the alleged conduct being justified to be that A1 Delaema belonged to the armed forces of a Party to the conflict. The Supreme Court held that insufficient facts and circumstances had been brought forward in this case to support the conclusion that this condition had been fulfilled. The appeal was rejected.
*
W A1 Delaema v. the Netherlands, Hague District Court, 9 December 2006, LJN: AZ4647.
This decision concerns a request for an injunction against extradition. The Minister of Justice by decree of 11 October 2006 decided to extradite Wesam A1 Delaema to the United States. In his decree, the Minister considered it to be sufficiently guaranteed that A1 Delaema, in case a custodial sentence would be imposed, should be enabled to serve his sentence in the Netherlands (this being a general condition for extradition of Dutch nationals). At the hearing of The Hague District Court, A1 Delaema put forward that by being extradited he would be exposed to the real risk of a flagrant violation of his rights under Articles 3 and 6 of the European Convention of Human Rights (ECHR).~'~ The Court held, however, that no facts or circumstances were put forward that would justify such fear. The injunction was refused. On 27 January 2007, A1 Delaema was extradited to the United States.
*
Kesbir v. The Netherlands: Supreme Court of the Netherlands, 15 September 2006, LJN: AV7387.
This decision concerns a request for an injunction against extradition. Turkey requested the extradition of Mrs. Kesbir to be prosecuted for being a member of the Presidential Council of the Partiya Karkari Kurdistan (PKK), for having been involved in the training of female terrorists, and for having participated in a number of armed assaults in Turkey. Defence counsel for Kesbir had argued that the offences with which his client was charged were not punishable under Dutch law because they concerned lawful belligerent acts committed during an internal armed conflict pursuant to Common Article 3 of the
388. 1950,213 UNTS 221.
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Geneva ~ o n v e n t i o n s . ~However, '~ the Supreme Court of the Netherlands had rejected this plea. Kesbir further claimed that by being extradited she would be exposed to the real risk of being tortured and maltreated in violation of Article 3 ECHR, and that her rights under Article 6 ECHR would be flagrantly violated. The Supreme Court had then urged the Minister of Justice to request from the Turkish authorities guarantees that Kesbir would be treated according to the norms laid down in the ECHR. The Minister had complied with the Supreme Court's suggestion and had asked for diplomatic guarantees. Having been assured by the Turkish Embassy that Kesbir would receive a fair trial and would enjoy the full rights emanating from the ECHR, the Minister had then decided to extradite her. Kesbir then in summary proceedings before The Hague District Court applied for an injunction forbidding the State of the Netherlands to execute the Minister's decision. The Hague District Court indeed prohibited Kesbir's extradition to Turkey. The Hague Appeals Court took into account that, notwithstanding recent unmistakable improvements, torture and similar practices still occur in Turkey, and it took notice of Kesbir's extremely vulnerable position, because of her high profile as a Kurdish woman, her high position within the PKK, and because of the serious accusations against her. The Hague Appeals Court therefore deemed the assurances given by Turkey not sufficiently specific and confirmed The Hague District Court's decision. It held that at least it should be guaranteed that the Turkish authorities will take care that no judicial or other functionaries will submit Kesbir to torture or any other kind of inhuman treatment, including sexual violence. The State lodged an appeal with the Supreme Court. The Supreme Court, considering that the Appeals Courts' judgement did not display any incorrect conception of law, rejected the appeal.
NICOKEIJZERA N D ELIESVAN SLIEDREGT
NEW
ZEAL AND^^'
Arms Control * Arms Amendment Bill (No. 3) 2005. * Parliamentary Debates, pp. 19779-1979 1 (12 April 2005)
<www.parliament.nzien-NZ/PBiDebatesiDebates/>. At the time of the last report, the Law and Order Select Committee of Parliament had conducted an examination of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Na-
389. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'). 390. Information and commentaries by Treasa Dunworth, Senior Lecturer, Faculty of Law, University of Auckland. The assistance of Brigadier Riordan, ONZM, BA LLB(Hons), LLM(Comell), New Zealand Defence Force and Alex Smithyman, Minishy of Foreign Affairs and Trade are gratefully acknowledged. All opinions and any errors remain the author's own.
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tions Convention against Transnational Organized but had been unable to reach agreement as to whether New Zealand should accede to the ~ r o t o c o lNotwithstanding .~~~ the lack of agreement in Committee, Cabinet agreed that it should be ratified once legislation was put in place.393To that end, the Arms Amendment Bill (No. 3) was introduced to Parliament on 18 February and was read for the first time on 12 April 2005 and referred to the Law and Order Submissions on the Bill closed on 8 June 2005 but, probably reflecting the earlier but continuing lack of agreement in the course of the treaty examination process, the Committee is not due to report back to Parliament on the Bill until November 2007. Women in Armed Forces
*
*
Human Rights (Women in Armed Forces) Amendment Bill 2006. Parliamentary Debates, pp. 5249-5261 (6 September 2006) <www.parliament.nz/enNZ/PB/DebateslDebates/>.
New Zealand started the process of withdrawing its reservation to the Convention on the Elimination of all Forms of Discrimination Against Women ( C E D A W ) ~ with ~ ~ respect to service of women in combat roles in the Armed Forces and Police. New Zealand acceded to the CEDAW in 1985 and at the time reserved the right not to apply the provisions of the Convention in so far as they are inconsistent with policies of recruitment into situations involving armed combat. Reflecting that position, section 33 Human Rights Act 1993 provided that nothing prevented preferential treatment based on sex to any member of those forces who had the duty of serving in an active combat role. The CEDAW Committee, in its Concluding Comments to New Zealand's fifth report, invited New Zealand to reconsider its reservation. The Human Rights (Women in Armed Forces) Amendment Bill 2006 was introduced to Parliament on 24 August 2006. The First Reading was conducted on 6 September 2006 and referred to the Foreign Affairs, Defence and Trade Select Committee of Parliament for conide era ti on.^^^ The Select Committee reported back to the House on 15 December 2006, recommending that the Bill be passed. It is anticipated that the Bill will be enacted in 2007, paving the way for the reservation to be removed. There will, in fact, be no practical impact, because the Defence Force rescinded the policy of not allowing women in combat roles in 2000.~~' Attempted war crimes prosecution of Mosche Ya 'alon * Janfrie Julia Wakim v. Lieutenant General Mosche Ya'alon, Decision of His Honour
Judge A. Deobhakta on ex parte Application for Issue of Warrants to Arrest, CIV-2006004, 27 November 2006 (Auckland District Court).
391. UN Doc. AIRESl551255 (2001). 392. See 7 YZHL (2004) pp. 548-549. 393. The New Zealand Parliament, and thus its Select Committees, does not have the power to approve or disapprove of ratification of an international treaty - that remains an Executive prerogative. 394. New Zealand Parliamentary Debates, Vol. 625, pp. 19779-19791 (First Reading). 395. 1979, 1249 UNTS 13. 396. New Zealand Parliamentary Debates, Vol. 633, pp. 5249-5261 (First Reading). 397. Defence Force Order 0512000.
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* Janfrie Julia
54 1
Wakim v. Lieutenant General Mosche Ya'alon, Final Decision of His
Honour Judge A. Deobhakta, CIV-2006-004, 29 November 2006 (Auckland District Court). Mosche Ya'alon was Chief of Staff of the Israeli military from 9 July 2002 to 1 June 2005. The acts underlying the attempted prosecutions related to events which occurred on the 22 July 2002 when the A1 Daraj neighbourhood of Gaza City was bombed, in an attempt to target Salah Shehadeh, a commander of Hamas. At the time of the bombing, the Respondent was the Chief of Staff of the Israeli Defence Force. When Mosche Ya'alon arrived in New Zealand on a short visit, the Informant applied to the District Court seeking warrants to arrest the Respondent by way of a private prosecution. The Information alleged that Ya'alon had committed an offence against section 1l(1) International Crimes and International Criminal Court Act 2000 (NZ) and section 3(1) Geneva Conventions Act 1958 (NZ). Although both the International Crimes and International Criminal Court Act 2000 and the Geneva Conventions Act 1958 do have extra-territorial effect,398that is balanced by requiring the consent of the Attorney-General for prosecutions to proceed.399 The District Court found that the Informant had made out a prima facie case for the issue of arrest warrants and made the Before those warrants were executed, however, the Attorney-Genera1 filed a warrant staying further proceedings. The Court subsequently cancelled the arrest warrants. 40 1
Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel of 1994 * Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination of the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (November 2006) <www.parliament.nz/en-NZ/PB/Presented/SCs/>. Having taken a leading role in its negotiation, New Zealand signed the Protocol in September 2006. The Foreign Affairs, Defence and Trade Select Committee of Parliament completed international treaty examination in November 2006, clearing the way for ratificati~n.~ Before ' ~ that can happen, domestic legislation will need to be amended reflecting the expanded scope of the Protocol to include under the definition of United Nations Operations, peace building and emergency humanitarian operations.403
398. Sections 8 and 3(1) respectively. 399. Sections 13 and 3(5) respectively. 400. Janfrie Julia Wakim v. Lieutenant General Mosche Ya alon, Decision of His Honour Judge A. Deobhakta on ex parte Application for Issue of Warrants to Arrest, CIV-2006-004,27November 2006 (Auckland District Court). 401. Janfrie Julia Wakim v. Lieutenant General Mosche Ya hlon, Final Decision of His Honour Judge A. Deobhakta, CIV-2006-004,29November 2006 (Auckland District Court). 402. Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination ofthe Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (November 2006).
403. Section 2, Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980.
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol 111) New Zealand signed the Protocol on 19 June 2006 at the 29th International Conference of the International Federation of Red Cross and Red Crescent Societies in Geneva. Ratification is expected in 2007 when international treaty examination procedures have been completed. Minor amendments will be needed to domestic legislation to reflect the protection of the red crystal, including to the Geneva Conventions Act 1958 and the Flags, Emblems and Names Protection Act 1981. International Conventionfor the Suppression ofActs of Nuclear Terrorism * Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination of the International Conventionfor the Suppression of Acts of Nuclear Terrorism (July 2006) < w w w . p a r l i a m e n t . n z / e n - N Z / P B / P r e s e n t e d ~ . New Zealand signed the Convention in 2005 when it opened for signature. International treaty examination was completed on 21 July 2006. The only remaining task before ratification is to complete the necessary domestic legislation which is expected to be enacted during 2007 as part of an amendment to the Terrorism Suppression Act 2003.
TREASA DUNWORTH
OCCUPIED PALESTINIAN T E R R I T O R I E S ~ ~ ~ The year has seen a shift in the type of violations of IHL committed in the OPT, as well as increased complexity in the parties involved in developments in the OPT which had IHL repercussions. Whilst Palestinian violence directed at the Israeli occupation army and Israeli civilians has continued to decrease, Israeli violations of IHL, and internal Palestinian violence have increased significantly, especially in the Gaza The West Bank situation remained similar to that which has prevailed during 2005: limited, close to no Palestinian violence and intense, disproportional Israeli military attacks against the Palestinian civilian population of the OPT. The list of Israeli violations of IHL is long, but this report focuses on the most notable of these, which include, in addition to wilful killing of civilians, wanton destruction of property, collective punishment, illegal expropriation of land to support the Israeli policy of continued and accelerated settlement expansion, and detention without trial. These and other violations of IHL were committed in the OPT, mostly by the Israeli occupation army, with official sanction and full impunity, as is demonstrated below.406
404. Information and commentaries by Dr Mustafa Mari, Professor of Law and Human Rights, School of Graduate Studies, Birzeit University, Birzeit, Palestine. The views presented here are those of the author and do not necessarily represent those of any group with which the author is affiliated. 405. Palestinian violence directed at Israeli targets has continued to decrease during the year, following unilateral ceasefire Palestinian groups declared during 2005. See report on OPT in 8 YIHL (2005) p. 478. 406. For information on these and other violations, see 'Israel and the Occupied Temtories' in Country Reports on Human Rights Practices - 2006, released by the Bureau of Democracy, Human Rights, and Labor, U S . Department of State, 6 March 2006, <www.state.gov/g/drl/rlsibrrpt/2006/
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Civilian deaths and extra-judicial killings As mentioned above, Palestinian violence directed at Israeli targets remained below levels which have prevailed during the preceding years since the beginning of the second Intifada. According to the Israeli human rights group, B'Tselem, 17 Israeli civilians and 6 Israeli security personnel were killed during 2006 as a result of Palestinian violence, compared to 41 civilians and 9 security personnel during 2 0 0 5 . ~ ~ ' While Palestinian violence has continued to decrease, violations of IHL principles and rules in the OPT, in some cases amounting to war crimes, perpetrated by the Israeli occupation army have risen during the reporting period. During 2006, B'Tselem has documented the killing by Israeli security personnel of 662 Palestinian civilians, compared to 190 during 2 0 0 . 5 . ~Of ~ ~those killed during 2006, 141 were minors, and 24 civilians killed during assassination operations of which they were not, by Israeli admission, targek409 Also according to B'Tselem, 327 of the 662 Palestinians killed during 2006 were killed during operations in which they did not take In addition, since 2000, 41 Palestinian civilians have been killed by Israeli civilians:" who settle illegally in settlements constructed in the OPT, contrary to IHL provis~ons.
Wanton destruction ofproperty The year 2006 also witnessed an increase in the number of houses demolished for alleged military purpose. According to Al Mezan Center for Human Rights, a total of 1 022 homes in Gaza, in which over 11 000 Palestinian civilians live, were destroyed by the Israeli occupation forces during 2006.~" Of these, 187 houses were totally destroyed and the remaining suffered partial destruction. B'Tselem puts the total number of Palestinian homes destroyed for alleged military purposes during 2006 at 3 18, which is much higher than the total of 17 for
78854.htm>. See also Human Rights Watch, World Report 2007 (January 2007) <www.hnv.orgl wr2k7/pdfs/israelopt.pdP; and the numerous publications of Al-Haq at <www.alhaq.org>,and B'Tselem at <www.btselem.org>. 407. Figures are correct as of 29 November 2007. See B'Tselem, Fatalities Statistics <www.btse lem.org/english/StatisticsiCasualties.asp>. Similar statistics are also provided by the Palestinian Independent Commission for Citizens' Rights (PICCR). See PICCR, Annual Report 2006 (in Arabic), Chapter 2 dealing with Israeli violations, ~www.piccr.org/dmdocuments/AnnualReport~/2006/arab/ part2.pdB. West Bank only statistics are available from Al-Haq, whereas Al Mezan Center for Human Rights reports on casualties in Gaza. See Al-Haq's Monitoring and Documentation Department, ~ i e l dReports (Quarterly publication) <www.alhaq.org/etemplate.php?id=69>;and Al Mezan, Taqrir Ihsai hawl: Jaraim Quwat a1 Ihtilal Bihaq a1 Sukkan a1 Madaniyeen Wamomtalakatehem Fi Qita ' Ghaza Khilal al 'Am 2006 (Statistical Report on Occupation Force's Crimes Against Palestinian Civilans and their Property in the Gaza Strip During 2006) <www.me~an.org/document/stat~2006~ar. pdP. 408. Figures are correct as of 29 November 2007. See B'Tselem, ibid. 409. Ibid. 410. Ibid. 41 1. Ibid. 412. See A1 Mezan, supra 407; p. 4.
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2 0 0 5 . ~ 'These ~ numbers do not include 50 houses in Jerusalem and 44 in the West Bank destroyed allegedly for lack of Despite Israel's formal announcement it has ceased the practice of punitive home demolition, Israeli forces have continued, and according to Human Rights Watch intensified, the destruction of homes in circumstances clearly indicating the destruction was carried out as penalty.415B'Tselem, in its numbers quoted above, did not report on punitive home demolitions in 2006, but the UN Special Rapporteur on adequate housing has also reported receiving 'alarming reports about deliberate attacks by Israeli forces resulting in the destruction of homes, civilian property and infrastructures in the Gaza Destruction of property during 2006 was not limited to house demolition, however. The year 2006 witnessed massive attacks on civilian infrastructure, especially in Gaza, which included destruction of main roads and bridges, and the near-total destruction of the only power station in the Gaza Strip, leaving major parts of the Strip without continuing electricity for months.417
Illegal settlement expansion and the continuing construction of the Wall The Israeli government and its occupation army continue the construction in the OPT of the Wall, despite the adoption on 9 July 2004 by the International Court of Justice of its Advisory Opinion on the legal consequences of its c o n ~ t r u c t i o n .Thus ~ ' ~ far, almost two thirds of the Wall has been fully or partially c ~ n s t r u c t e d . ~ ' ~ According to B'Tselem, using data provided by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the Wall places approximately 8.5 percent of the
41 3. See B'Tselem, Statistics on houses demolished for alleged military purposes <www.btselem. org/englishlRazinglStatistics.asp>. 414. See B'Tselem, Statistics on demolition of houses built without permits in East Jerusalem <www.btselem.org/English/Planning~and~BuildinglEast~Jerusalem~Statistics.asp~ and Statistics on demolition of houses built without permits in the West Bank (excluding East Jerusalem) <www.btse lem.org/English/Planning-and-Building/Statistics.asp>. 415. See, e.g., the discussion related to the decision by Israel, in November 2006, to destroy the home of Mahmoud Barud in Gaza, in Human Rights Watch, 'OPT: Civilians must not be used to shield homes against military attacks' (Press Release, 22 November 2006). See also Human Rights Watch, 'Statement on our November 22 Press Release' (16 December 2006). In the statement, Human Rights Watch concluded that: 'We recognize that it is important to view the planned destruction of Barud's house in light of Israel's longstanding policy in the Occupied Palestinian Territories, sharply increased in Gaza since June, of demolishing houses not as legitimate military targets but as a punitive measure.' Both Human Rights documents are available at ~www.hnv.orglenglishldocsl20061111221 isrlpa14652.htm>. 416. United Nations, 'UN expert urges Israel to stop destruction of houses and infrastructures in Gaza, calls for military sanctions' (Press Release, 10 November 2006) <www.unhchr.chihuricaneihur icane.nsflview0111978086BgBB4C9F4C12572220070A789?opendocument~. 417. See PICCR, supra 407; p. 203. 418. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. For more on the legal issues related to the construction of the Wall, see OPT report in 8 YIHL (2005) pp. 479-480. 419. See B'Tselem, Separation barrier statistics <www.btselem.orglEnglishlSeparation~Banier/ Statistics.asp>.
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territory of the West Bank west of the wall.'*' This and the fact that the Israeli occupation authorities require Palestinians wishing to enter affected temtory to seek an Israeli permit, which is generally hard to obtain, represents de facto (but still illegal) annexation of said territory.
The Israeli unilateral 'disengagement'from ~ a z a : a~year ~ ' later Whilst there was disagreement in academic circles as to the effect of the Israeli disengagement from the Gaza Strip on the territory's legal status, with Israeli scholars generally claiming Israel is no longer the occupier of the Strip, the year 2006 has been witness of events, including lengthy, deep and destructive incursions into the Gaza Strip, which left no question about Israel's status vis-a-vis said territory. The disengagement, decided by the Israeli cabinet in 2004, and camed out in 2005, was clearly adopted with the intention of maintaining Israeli 'effective control' over the Gaza Strip, without bearing the responsibilities which result from belligerent occupation. During 2006, the Israeli occupation authorities have repeatedly sealed off the Gaza Strip, invaded, prevented the travel of Palestinian civilians, including the highest ranking officials of the territory, and placed numerous, unprecedented obstacles to the free movement of goods from and to the Gaza Strip. According to A1 Mezan, Gaza border-crossings have been sealed off completely or partially for Gazan Palestinians by the occupying power for lengthy periods of time, with some crossings being sealed off completely for as many as 189 days during 2 0 0 6 . ~ ~ '
Freedom of movement * Nationality and Entry into Israel Law (Temporary Provision) (Amendment), 5765 2005>'~ <www.kne~~et.g0~.iVprivatelawidata~l6/3/173~3~l . r t B (in ~ e b r e w ) . ~ ' ~ * Adalah et al. v. the Minister of Interior et al., Israeli High Court of Justice, HCJ 7052/ 03, 14 May 2006, ~http:/lelyonl.court.gov.illFilesi031520/070/a4710307052O.a47.pd~ (in Hebrew). See Israeli report for commentary.
420. On this and other Wall statistics, see ibid. 421. For more on the disengagement's implications for the legal status of the Gaza Strip, see M. Mari, 'The Israeli Disengagement from the Gaza Strip: an end of the occupation?' in 8 YIHL (2005) pp. 356-368. 422. A1 Mezan, supra 407; pp. 7-8. 423. This law was reported in the OPT report in 8 YIHL (2005) pp. 482-483. 424. Unofficial English translation provided by Hamoked . 477. Swedish Helsinki Committee for Human Rights, <www.shc.se/sv/l/60/3391>.
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by the Swedish Government. The Russian Lieutenant General Vjatjeslav Ivanovitj Sucharev took part in the exercise and was thus present on the territory of Sweden. During Lieutenant General Sucharev's visit, the Swedish Helsinki Committee filed a complaint for charges of crimes of international law in accordance with Chapter 22 section 6 of the Swedish Penal Code. The alleged crimes were war crimes and crimes against humanity during the armed conflict in Chechnya in December 1999 and January 2000. The alleged crimes were committed against seven civilians. These crimes had been documented by the human rights organisations Memorial (Russia) and Human Rights Watch (USA). According to this documentation the crimes were committed by soldiers from the 138th Motor Rifle Brigade of which Lieutenant General Sucharev was responsible in his capacity as Deputy Commander of the Leningrad Military Area. The complaint was thus based upon the principle of command responsibility of Lieutenant General Sucharev. According to the Swedish Penal Code limitations resulting from generally recognised fundamental principles of public international law or from special provisions in agreements with foreign powers must be observed (Chapter 2 section 6). In this particular case the question of the Lieutenant General Sucharev's immunity from Swedish jurisdiction was a point of concern. Apart from the question of immunity, the Swedish Penal Code also contains another limitation of interest to this case. Chapter 2 section 7a states that 'If an alien has committed a crime in the exercise of an office or duty comprising a general position held on behalf of another state or international organisation, a prosecution for the crime may only be instituted on order of the Government'. Although the prosecutor could institute investigations without an order of the Government he would have needed authorisation from the Government to prosecute Lieutenant General Sucharev. The prosecutor found that before any decision to initiate investigations could be taken, the question of the potential immunity for Lieutenant General Sucharev must be decided upon as well as the probability that the Swedish Government would authorise prosecution in this case. According to the prosecutor there were strong arguments for the fact that the Russian officer had immunity during his presence in Sweden in his capacity as a participant in the exercise 'Snowflake'. He arrived in Sweden after the decision by the Swedish Government to invite the Russian Armed Forces to participate in the exercise. Notwithstanding the question of immunity the prosecutor also took into consideration whether the Swedish Government would authorise prosecution in this case. It was not possible to have a decision at this point by the Government. The prosecutor recognised the fact that he could start an investigation without such authorisation but investigations should not be initiated if the conditions do not include the possibility of reaching a verdict. The prosecutor found that it was not probable that the Government would authorise prosecution in this case. The prosecutor therefore decided not to institute proceedings against Lieutenant General Sucharev based on the fact that he enjoyed immunity from Swedish jurisdiction and that there could be no authorisation by the Government. At the time of the prosecutor's decision, Lieutenant General Sucharev had already left Sweden. There is no mention in the prosecutor's decision regarding the basis for the opinion that Lieutenant General Sucharev could claim immunity from Swedish jurisdiction. The prosecutor refers to the fact that Lieutenant General Sucharev arrived in Sweden because of the aforementioned decision by the Swedish Government. The immunity he thus enjoyed, according to the prosecutor, was based on generally recognised hndamental principles of public international law.
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The decision of the prosecutor has been criticised and the analysis of fundamental principles regarding immunity can certainly be discussed. This is especially so in relation to the severity of the alleged crimes. In the Arrest Warrant Case of 2000, the International Court of Justice (ICJ) found that incumbent ministers of foreign affairs enjoyed criminal immu478 nity from other states based on customary international law. It would be difficult to argue that the reasoning of the ICJ in that case could be applied to a Lieutenant General in the armed forces in relation to the criminal jurisdiction of other states, even if he was invited by the government in that state. The prosecutor's interpretation of the customary law regarding
applicability of state immunity ratione personae thus seems highly questionable in relation to crimes of such severe nature.
UN Human Rights Committee Decision by the Human Rights Committee, UN Doc., CCPRIC/88/D/1416/2005, 10 November 2 0 0 6 . ~ ~ ~
*
In 2001 Mr. Agiza and Mr. Alzery were expelled to Egypt. Sweden had received diplomatic assurances from Egyptian authorities ensuring that the persons in question would not be subject to torture or inhuman or degrading treatment. They were both expelled on the same day the decision of expulsion was taken. At Bromma airport American personnel took control over the process and handcuffed, hooded and allegedly sedated the two men before they were dragged on to the plane. They remained hooded and chained to their hands and feet during the transport to Egypt, which took a little more than five hours. The fact that the Swedish personnel did not prevent this conduct and stopped the enforcement of the expulsion order was criticised by the Swedish Parliamentary Ombudsman. In Egypt they were immediately subjected to torture in prison. Mr. Agiza complained to the Committee against Torture (CAT). CAT found that Sweden had violated the prohibition against torture480when expelling the two men, relying solely on diplomatic assurances from Egyptian authorities. It also underlined the responsibility of Sweden for actions at Bromma airport and referred to the responsibility of states for acts within their jurisdiction^.^^' Mr Alzery filed a complaint with the Human Rights Committee. In November 2006 that Committee found that Sweden had violated the prohibition against torture when Mr. Alzery was expelled to Egypt in 2001. The violations included the treatment at Bromma airport and expulsion in breach of the prohibition of refoulement deriving from Article 7 of the International Covenant of Civil and Political ~ i ~ h t sThe . ~ Human ~* Rights Committee also
478. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). See <www. icj-cij.orgldocket/index.php?pl=3&p2=3&p2=3&code=cobe&case=l2 1&k=36.>. 479. See the decision of the Human Rights Committee, ~http:/ldaccessdds.un.org/doc~DOCl DER/G06/453/50/PDF/G0645350.pdf?OpenElement. See Swedish Helsinki Committee for Human Rights, <www.shc.selsv/2/601483/>. 480. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Puinishment 1984, 1465 UNTS 85 ('Convention Against Torture'). 481. For the facts concerning the expulsion of Mr Agiza and Mr. Alzery, the following national investigations by the Parliamentary Ombudsman and the Parliamentary Standing Committee of the Constitution and the decision by the CAT see: Report on Sweden in 8 YIHL (2005) pp. 5 15-5 17. 482. 1966,999 UNTS 171.
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criticised Sweden for ineffective investigations of the events at Bromma airport. The Committee stated that the State party is under an obligation to ensure that its investigative apparatus is organised in a manner which preserves the capacity to investigate, as far as possible, the criminal responsibility of all relevant officials, domestic and foreign, for conduct in breach of article 7 committed within its jurisdiction and to bring the appropriate charges in consequence'.483 Sweden also received criticism for the absence of an effective remedy of the decision to expel Mr. Alzery. The Committee held that [b]y the nature of refoulement, effective review of a decision to expel to an arguable risk of torture must have an opportunity to take place prior to expulsion, in order to avoid irreparable harm to the individual and rendering the review otiose and devoid of meaning. The absence [of such a review in this case] amounted to a breach of article 7 read in conjunction with article 2 of the onv vent ion.^'^ The Committee also found Sweden to have acted in breach of its obligations under Article 1 of the Optional Protocol to the Covenant on Civil and Political ~ i g h t s . The ~ ' ~ Government executed its expulsion decision without notifying Mr. Alzery's Counsel that such a decision had been reached. This was done even though the Counsel had informed the Government that he would pursue international remedies in case of an adverse decision. According to the Committee Sweden is under an obligation to provide an effective remedy and compensation to Mr. Alzery and to avoid similar violations in the future. OLAENGDAHL
SWITZERLAND~'~ Geneva Conventions * Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the adoption of an additional distinctive emblem (Protocol 111), Dec. 8, 2005. On 14 July 2006, following the expiry of the deadline for holding a referendum, Switzerland deposited the ratification instrument of the Third Protocol additional to the Geneva Conventions of 1949, relating to the Adoption of an Additional Distinctive Emblem. With this second ratification (after Norway), the Third Additional Protocol can come into force.
483. Decision by the Human Rights Committee, para., 11.7, UN Doc., CCPR/C1881D11416/2005, 10 November 2006. 484. Ibid., para., 11.8. 485. 1966,999 UNTS 171. 486. Information and commentaries by Dr. Roberta Arnold, PhD (Bern; hons.), LLM (Nottingham), legal officer within the Swiss Military Justice, Military Tribunal 8, candidate investigating magistrate. Dr. Arnold, a former legal adviser within the Staff of the Chief of the Armed Forces, Swiss Department of Defense, currently works at the Law Firm "Brioschi, Gianella, Timbal & Cometta" in Lugano, Switzerland.
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Switzerland signed the Third Protocol Additional to the Geneva Conventions on 8 December 2005, the day it was adopted by the Diplomatic Conference of the High Contracting Parties in Geneva. This creates a distinctive emblem in addition to those already in existence, i.e., the Red Cross, the Red Crescent, and the Red Lion and Sun. The new emblem takes the form of a square red frame standing on one comer against a white background. The International Conference of the Red Cross and Red Crescent decided on 22 June 2006 that the additional emblem would be called the 'Red Crystal'. Since work started on the new emblem, Switzerland was actively involved in the development and the adoption of the Third Additional Protocol, the purpose of which is to determine a global and lasting solution to the longstanding emblem question. For more information see: The Federal Authorities of the Swiss Confederation, <www. admin.ch/ch/f/rs/cO-5 1 8-523 .html>.
*
International Humanitarian Law Fact-Finding Commission
On 7 December 2006, Switzerland, as depositary country of the four Geneva Conventions of 1949;" invited a diplomatic meeting to elect the 15 members of the fact finding commission (Article 90 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Intemational Armed Conflicts ('Additional Protocol I'))~".There are 68 countries, all of whom are parties to Additional Protocol I, which are entitled to this election. There were 58 countries which attended the meeting. Those elected were: Prof. Ghalib Djilali (Algeria), Prof. Michael Bothe (Germany), Prof. Eric David (Belgium), Dr. Jeanette Irigoin Barenne (Chile), M. Reinado Botero-Bedoya (Colombia), Col. Charles Garraway (UK), Prof. Stelios Perrakis (Greece), Prof. Flavia Lattanzi (Italy), Prof. Akira Mayama (Japan), Prof. Ian Refalo (Malta), Prof. Elzbieta Mikos-Skuza (Poland), Capt. Valery Knyazev (Russian Federation), Prof. Miodrag StarCeviC (Serbia), Dr. Gisela Perren-Klingler (Switzerland) and Col. Hugo Corujo Sanseviero (Uruguay). The new commission will start its work in January 2007. For more information see: The Federal Authorities of the Swiss Confederation, <ww.eda.admin.chiedddelorifillmedidmcom/single.htm?id=9045>. <ww.news.admin.chldokumentation~00002/0001S/index.html?lang=en&msg-id=9045> (English). CCW * Regulation of cluster munitions
487. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Anned Forces at Sea, 1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'). 488. 1977, 1125 U N T S 3
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From 7 17 November 2006 Switzerland hosted in Geneva the 3rd Review Conference of the Convention on the Prohibition or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Exceedingly Injurious or to have Indiscriminate Effects (ccw).~'~ Switzerland re-affirmed its wish for international legally binding regulation of cluster munitions. An agreement was reached between states, with regard to a mandate 'to consider the application and the implementation of existing international humanitarian law for specific munitions which can cause explosive remnants of war, with particular attention to cluster munitions [. . .I'.~'' This discussion mandate represents a positive development within the CCW in that it marks the recognition by the States Parties of the humanitarian problem posed by cluster munitions in particular. -
At the opening of the conference, six countries proposed a mandate to establish a working group to conduct negotiations on a legally binding instrument to address the humanitarian problems posed by certain cluster munitions. This proposal was supported by more than 25 countries - including Switzerland - representing more than a quarter of the States parties to the convention. The support of Switzerland is consistent with the continuity of its commitment within the CCW since the last review conference in 2001. Such a mandate would have represented the most appropriate initiative to attempt to urgently resolve the most serious humanitarian problems. In order to underline its firm intention to find an intemational solution to the problem of cluster munitions, Switzerland joined more than 20 States parties at the end of the conference in signing a political statement on cluster munitions calling for an intemational agreement on this subject. Switzerland thus clearly re-affirms its commitment to intemational regulation of cluster munitions. Switzerland played a pioneering role in underlining the need for regulation in 2001 at the 2nd review conference. It proposed regulating the supply, the reliability, the production, the transfer and the destruction of stocks of certain cluster munitions. At the end of the Conference, Switzerland regretted that it was not possible to reach a consensus on the international law norms concerning anti-vehicle mines. On the other hand, it was pleased with the new programme of sponsorship and the tangible results achieved in promoting the universality of the onv vent ion.^'^ Peacekeeping * Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol.
489. 1980, 1342 UNTS 137. 490. Federal Department of Foreign Affairs, 'Media Release: Conference on classical inhuman weapons: Switzerland re- affirms its determination to achieve intemational regulation of cluster munitions', 29 November 2006, <www.eda.admin.ch/eda/en/orifilimedialmcosingle.html?id=83 18>. 491. Ibid.
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On 18 October, the Swiss Federal Council adopted a message asking parliament to approve the Convention on the Safety of United Nations and Associated ~ e r s o n n e l , 4together ~~ with the Optional ~ r o t o c o l The . ~ ~purpose ~ of the two instruments is to provide legal protection specifically to those active in the field in the context of UN peacekeeping operations. In adopting the message prepared for it by the Federal Department of Foreign Affairs (DFA), the Federal Council recommends that the Swiss parliament approve the two instruments. Swiss legislation already meets their requirements. In thus becoming a
Party to the two instruments, Switzerland is helping to make it difficult or impossible for the perpetrators of attacks against humanitarian personnel to find any "country of refuge" in which they can escape criminal justice. Switzerland's adherence to the instruments is also intended to protect its own citizens, who increasingly participate in UN operations to promote peace. 494
Terrorism With regard to the fight against terrorism, Switzerland decided to strengthen the rule of law by taking note of the proposals addressed to member states of the Council of Europe by the council's Secretary General, Mr Terry Davis. Switzerland welcomed these recommendations, which were made public on 7 September in Strasbourg, supporting in particular the will to improve control over security services, reinforce checks and safeguards in respect of air travel and formulate a response to the problem of the immunity of states in the event of serious infringements of human rights.4q5 The approach adopted by the Secretary General corresponds to Switzerland's longstanding position: if respect for human rights within the context of the fight against terrorism is to be more than just a duty of each state individually, a far-reaching debate on the measures necessary to ensure respect for these rights must be conducted at the international level. The Council of Europe, as a body which has traditionally defended such values as the rule of law and basic freedoms, is an appropriate forum for this purpose.
492. 1994,205 1 UNTS 363. 493. See, GA Report of the Sixth Committee, 'Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel', UN Doc. A1601518, 22 November 2005, ~ h t t p : 1 1 d a c c e s s d d s . u n . o r g i d o c ~ D 0 C / G E N 0 5 1 6 1 4 1 3 D F 0 5 6 1 4 3 . p d 0 p e n E 1 e m e n tGA ; Res 60/42, UN Doc. A/Res/60/42, 6 January 2006. 494. Federal Department of Foreign Affairs, 'Media Release: Adoption by the Federal Council of a message to parliament calling for approval of the Convention on the Safety of United Nations and Associated Personnel and its Optional Protocol', 18 October 2006, <www.eda.admin.chleda/enlorifill
media/mcomlsingle.html?id=7736>. 495. Council of Europe, 'Secretary General Document SG(2006)01, Follow-up to the Secretary General's reports under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SGlInf(2006)5 and SGI lnf(2006)13). Proposals made by the Secretary General', 30 June 2006, <www.coe.int/t/dcipressl source/20060907~DocSG_en.doc>.
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The recent declarations by the President of the United States of America make it all the more essential to address these issues at the international level in order to ensure full respect for human rights in the context of the fight against Peace Operations
On 5 July, the Federal Council discussed the question of future military participation in peace operations by Swiss forces. On the basis of a strategy paper by the DFA and the Federal Department of Defence, Civil Protection and Support (DDPS), the Federal Council examined a concept for increasing preparedness for peace promotion that had already been adopted for 200811 1 development period. The Federal Council decided that in 2009 the DFA and the DDPS should report on the implementation of this concept and should then, if appropriate, apply for a further increase from 2012 onwards. In relation to the 200811 1 development period, the Federal Council decided on 11 May 2005 that by 2008 it would make available 500 army members for peace operations. During the meeting held in July 2006, the Federal Council discussed how and based on which principles these increased capacities should be deployed and what the possibilities were for the long-term development of the army's peace promotion activities. The consolidation of Army XXI continues to be a priority. In the light of the current range of risks and threats, peace operations are a central instrument of international conflict resolution and crisis management. The strategy paper sets out the conditions and the objectives of Swiss participation in peace operations and deals with possible areas of deployment as well as multinational cooperation partners. Among the key requirements are the need for such deployment to be based on UN or Organization for Security and Co-operation in Europe (OSCE) mandates as well as compatibility with Switzerland's neutrality. In addition, this activity should conform to Switzerland's foreign policy goals and should complement its foreign policy activities. The goals of this policy were defined as contributing to Switzerland's security, the peaceful coexistence of nations and international 'burden sharing' in peace promotion as well as exerting international influence and increasing the army's experience and know-how. In the light of current international risks and threats that could also affect Switzerland there would be no geographical restrictions on Swiss deployment in peace operations. The choice of multilateral cooperation partners would depend largely on the defined objectives. The Swiss contributions would continue to take the form of troop provision for military contingents or the provision of high-quality services such as helicopter transport. In
496. Federal Department of Foreign Affairs, 'Media Release: Strengthening the rule of law in the context of combating terrorism', 8 September 2006, <www.eda.admin.chleda/en/orifilimedia/mcorn/ single.html?id=7270>.
Correspondents ' Reports view of our capacity and of international requirements, become increasingly important. 497
the
latter
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aspect will probably
Cases * Federal Court of Justice, 11 September 2006 On 11 September 2006,the Swiss Federal Court of Justice decided that Mr. Niyonteze, who in 2000 had been condemned by a Swiss military appeals tribunal to 14 years detention for violations of the laws of war in connection with the genocide committed in Rwanda in 1994, was to be expelled from Switzerland, since the public interest of the county in his departure was stronger than his private interest in staying. The Court took into consideration the particular gravity of the offences.498 The decisions of the military tribunal and the military appeals tribunal may be found in French and German on the website of the Swiss military justice, at <www.vbs.admin.ch/
internetlvbs/deihome/documentation/oa009.html~. Legislation
A draft law for the revision of the Swiss Criminal Code and the Swiss Military Code aimed at implementing the Rome Statute of the International Criminal was developed and distributed for consultation (Vernehmlassungsverfahren). The draft law and the message thereto are available on the website of the Swiss Federal Department of Justice and Police, at <www.ejpd.admin.ch/ejpd/de/home/dokumentation/i/2005/2005-08-17.html> (in German, French and Italian).
ROBERTA ARNOLD
SYRIA See Arab League Model Law in the Algerian section.
497. Federal Department of Foreign Affairs, 'Media Release: Discussion on Swiss military participation in peace operations', 5 July 2006, <www.eda.admin.chleda~en/orifil/media/mcomisingle.html? id=6034>. 498. See judgement, vom I 1 September 20006 ; For an in depth article, see P. Josi, 'Keine Insel fir Kriegsverbrecher', in: Jusletter, 6 November 2006, <www.weblaw.ch/de/content-edition/jusletter/jusletter.asp?id= 396&lang=de>; See also, NZZ Online, 'Neue Ziircher Zeitung', 28-29 October 2006 (Nr. 251), at 16 <www.nzz.ch/>. For more information see: Foundation Hirondelle, Media for Peace and Human Dignity, <www.hirondelle.org/hirondelle.nsf/0/8b084153c2d4ccedc12567500079be40?OpenDocument~; R. Arnold, 'Military Criminal Procedures and Judicial Guarantees: The Example of Switzerland', 3 Journal of'lnternational Criminal Justice 749, ; Trial Watch, 'Rwanda', ~www.trial-ch.org/en/swiss/cases-in-switzerland/anda.html#c130>; Trial Watch, 'Fulgence Niyonteze', <www.trial-ch.org/en/trial-watch/profile/db/facts/fulgence~niyonteze~ 115.htmb. 499. l998,2 187 UNTS 90. -
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THE DEMOCRATIC REPUBLIC OF T I M O R - L E S T E ~ ~ ~ Truth and Reconciliation * Joint Declaration establishing the Commission of Truth and Friendship, 9 March 2005. On 9 March 2005, in accordance with a decision reached on 14 December 2004, Indonesia and Timor-Leste signed a Joint Declaration establishing the Commission of Truth and Friendship (CTF). According to the CTF's Terms of Reference, the governments of Indonesia and Timor-Leste have chosen to 'seek truth and promote friendship . . . rather than the prosecutorial process'.50' The CTF's objective is to establish the truth surrounding the Popular Consultation in 1999 and to promote r e c o n c i l i a t i ~ n .It~ ~ neither ~ prejudices against prosecutorial processes already underway, nor does it recommend the establishment of another judicial body.'03 On 11 August 2005, the CTF, a 10 member panel based in Bali, commenced work. During 2005 and 2006 the CTF held discussions with the (Indonesian) Investigative Commission into Human Rights Violations in East Timor [Komisi Penyelidik Pelanggaran Hak Asasi Manusia di Emor Timur, or UP-HAM] and the Attorney-General for the Ad Hoc Human Rights Court in The CTF also consulted national and international experts in its examination of the reports of the Special Panels for Serious Crimes (SPSC) and Timor Leste's Reception, Truth and Reconciliation Commission [Comissdo de Acolhimento, Verdade e Reconcilia@o de Timor-Leste], (cAvR)."~ From 20 - 26 February 2006 the CTF made its first visit to Timor-Leste, meeting with members of the Timorese Government, including President Gusmlo, Prime Minister Alkatiri, the Minister of Defence Roque Rodrigues, and the Military Commander of F-FDTL [Falintil - Forca Defenca TimorLeste] Taur Matan Ruak. Those individuals who are to be invited to the CTF's first hearing were formally identified at the CTF's Interplenary session of 7 - 9 December. The first hearing is expected to take place in January 2007.
* *
Final report of the CAVR, 3 1 October 2005 Establishment of the Secretariado Tecnico Pos-CAVR, 20 December
On 31 October 2005 the CAVR presented its Final Report, entitled Chega!, to President Gusmlo. The report documented violations of international humanitarian law and crimes against humanity committed in Timor-Leste during Indonesian occupation (1974 - 1999). In compliance with Timorese legislation, the report was handed to Parliament and Cabinet
500. Information and commentaries by Emily Bell. 501. Terms of Reference for the Commission ofTruth and Friendship, Established by the Republic of Indonesia and the Democratic Republic of Timor-Leste, para., 10. 502. Ibid., para., 12. 503. Ibid., para., 13(e). 504. The CTF held a two-day roundtable discussion with these bodies on 13 - 14 December 2005. 505. These meetings were held on 18 - 24 May 2006.
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on 28 November 2005.~"' The report was handed to United Nations by President Gusmgo on 20 January 2006, as required by the UN Regulations that established CAVR and under Timorese legislation. As of November 2006, the National Parliament had not yet debated the report, had made no official statement on the subject, and had not taken steps to implement any of the Report's recommendation^.^" In November Prime Minister Ramos Horta publicly pledged to have Government and Parliament implement as many of the recommendations in the Final Report as possible."x CAVR was established by the United Nations Transitional Administration in East Timor (UNTAET) in 2001 with a very broad mandate.50911s primary fhnction was to establish the truth regarding human rights violations that occurred across the period of Indonesian occupation and to establish Community Reconciliation Procedures. CAVR's substantive mandate officially ended upon its handing the Final Report to President Gusmiio on 3 1 October 2005. CAVR was formally dissolved by President Gusm5o on 20 December 2005 and on the same day the Secretariado Tecnico Pos-CAVR (STP-CAVR) was established in CAVR's place. 510 STP-CAVR was mandated to, inter alia, preserve the records, files, archives and documentation of CAVR, conclude outstanding administrative work and support the President in the distribution of the Final Report. STP-CAVR's functions are thus purely technical and it is '. . . neither an extension of CAVR nor the long-term institution recommended in the CAVR Report and has no mandate to undertake further reconciliation initiative^'.^" Throughout 2006 STP-CAVR was active on both the national and international level in disseminating the The mandate of the STP-CAVR was originally set to terminate on 20 December 2006; however, its term has been extended by President Gusmiio pending a decision by appropriate authorities as to an appropriate follow-up institution. Below, the main findings of CAVR's Final Report are summarised.
506. See RDTL Law 712003; RDLT Law 1312004; RDLT Law 1112005. The President was required to present the Report to National Parliament and the Prime Minister under Article 2(2) of RDTL Law 1 ll2005. 507. Judicial System Monitoring Program (JSMP), Justice Update: 'The Dissemination of 'Chega!': The Final Report of the CAVR' , November 2006, p. 2, <www.jsmp.minihub.orglJustice% 20update/2006/Ju%20CHEGA~2OCAVR/JU0/020CAVR0/02OEng1i~h~pdD (JSMP, 'The Dissemination of 'Chega!"). 508. CAVR Website, STP-CAVR, 'Disseminating Chega!: Report on the Post-CAVR Technical Secretariat Dissemination Program', Dili, January 2007, p. 4, . 509. UNTAET/REG/2001/10, 13 July 2001. 510. STP-CAVR was established by Presidential Dispatch No. 2012005, 20 December 2005. JSMP has raised concerns about the legal status of STP-CAVR. In particular, JSMP has questioned whether the instrument which created STP-CAVR is constitutionally valid, see JSMP, 'The Dissemination of 'Chega!', supra 507; section 3.1. 5 11. CAVR Website, 'Post-CAVR Technical Secretariat: Profile', . See also STP-CAVR, 'Post-CAVR Update: September-October2006', . 553. Available at: The Timor-Leste Institute for Reconstruction Monitoring and Analysis [Laio Hamutuk], <www.laohamutuk.org/reports/UN/06SOFAs.html>. 554. Ibid., para., 1. 555. Ibid., para., 3. 556. Ibid., para., 5. 557. Letter from the New Zealand Embassy to the Ministry of Foreign Affairs of the Democratic Republic of Timor-Lester, 26 May 2006. Available online: The Timor-Leste Institute for Reconstruction Monitoring and Analysis [Laio Hamutuk],<www.laohamutuk.org/reports~N/06SOFAs.html>. 558. Available at: The Timor-Leste Institute for Reconstruction Monitoring and Analysis [Laio Hamutuk],~www.laohamutuk.org/reports/LIN/06SOFAs.html>.
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pointed acting Prime Minister by President Gusmlo. He was officially sworn in on 10 July 2006. On 2 6 July 2006 ADF forces arrested Alfredo Reinado and some 20 others, some of
whom were also former military personnel. They were arrested without a warrant, on the basis of being a security threat. The group had in its possession handguns, a large quantity of ammunition, and loaded M16 magazines. The arrest was thus initiated not by the Timorese prosecutor's office but by the joint military force. Nonetheless, as required by Timorese law, all persons were brought before a judge within 72 hours o f their arrest. A t this hearing
Reinado and 13 others were ordered to be held in pre-trial detention.55y~ e i n a d oalong , with some 50 others escaped from Dili's main jail on 30 August 2006. He remains at large in East Timor, engaging in sporadic fighting with ADF troops. The Security Council extended mandate of the United Nations Office in Timor-Leste (UNOTIL) until 2 0 August 2 0 0 6 ' ~and ~ when that date was reached it further extended the mandate for an additional five days.56' On 2 5 August 2006 the Security Council established the United Nations Integrated Mission in Timor-Leste (UNMIT).'~~ Throughout this period, Australia maintained command over the joint military force, although the UN Secretary General and Security Council were to revisit this issue by 2 5 October 2006. On 2 7 October 2006 Prime Minister Ramos Horta released a press statement saying that, whilst the Parliament had expressed a preference for a UN peace keeping force in TimorLeste, the Government was going to request Australia and New Zealand to maintain their contingent forces as 'green helmets'. The agreement(s) established in May were to continue whilst trilateral negotiations between Timor-Leste, Australia and the UN were underway. These negotiations were aimed at clarifying the role, expectations, and responsibilities of all parties. The Prime Minister also indicated that this decision had been communicated to the UN Secretary General on 18 October 2 0 0 6 . ~ ~ '
Cases 1. Special Panels for Serious Crimes
The SPSC held their final hearings in May 2005. From as early as mid 2004 the Serious Crime Unit (SCU) had slowed down and even prevented certain cases going to trial so that the SPSC could be sure that existing cases would be finalised by 2 0 May 2 0 0 5 , ~the ~ ~date when the mandate of the United Nations Mission of Support in East Timor (UNMISET) ended565and the UN ceased funding for the SPSC and the SCU. At the end of its mandate
559. JSMP, 'The Case of Alfredo Reinado' 8 Justice Update (July 2006) <www.jsmp.minihub.org/ Justice%20updatei2006/AlfredolEng.pdP. 560. SC Res 1690, UN Doc SIRES11690 (2006), 20 June 2006. 561. SC Res 1703, UN Doc SIRES11703 (2006), 18 August 2006. 562. SC Res 1704, UN Doc SIRES11704 (2006), 25 August 2006. 563. Media Release of Prime Minister, 27 October 2006 <www.pm.gov.tpi27oct06b.htm>. 564. D. Cohen "'Justice on the Cheap" Revisited: The Failure of the Serious Crimes Trials in East Timor' (2006) 80 Analy.~iis,frothe East-West Center 1, p. 4. 565. UNMISET was established by SC Res 1410, UN Doc. SlRESl141012002, 17 May 2002 for an initial period of 12 months. 11smandate was extended to 20 May 2005 by SC Res 1480, UN Doc Sl
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Correspondents' Reports
in May 2005, the SPSC had indicted some 440 defendants, and completed approximately 55 cases involving 87 defendants and resulting in 84 convictions.566 The government of Timor-Leste had repeatedly indicated that it did not want to bear the burden of the serious crimes process once the mandate of the SPSC and SCU ended, preferring the continuation of a tribunal under the auspices of the U N . However, ~ ~ ~ this did not and there was considerable confusion in the months leading up to and immediately after 20 May 2005 in relation to whether persons already indicted by the SPSC would be tried if they returned to Timor-Leste and, if so, in what forum.569In September 2005, 88 Serious Crimes Cases were transferred to the Dili District Court, which now has responsibility for prosecuting individuals indicted by the S P S C . ~ ~Since ' August 2005, several individuals indicted by the SPSC have been apprehended, brought before Dili District Court, and detained.571The Judicial System Monitoring Project has suggested that this indicates that persons within Timor-Leste's jurisdiction will not be granted immunity despite the establishment of the C T F . ~ ~ '
RESl1480 (2003), 19 May 2003; SC Res 1543, UN Doc SRESl1543 (2004), 14 May 2004; and SC Res 1573, UN Doc SiRESl1573 (2004), 16 November 2004. 566. JSMP, Justice Report: 'The Special Panels for Serious Crimes hear their final cases', 12-20 May 2005, ~ w w w . j s m p . m i n i h u b . o r g l J u s t i c e % 2 0 u p d a t e ~ J U i s suel2(e).pdD. 567. UN Doc Sl20051459, 15 July 2005, Annex I 'Letter dated 22 June 2005 from the President of Timor Leste to the Security General' p. 4, ~http:/ldaccessdds.un.org/dociUNDOClGENMO5/425123i PDFM0542523.pdf?OpenElemenP;UN Doc S120051458, 15 July 2005, 'Summary of the report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999' para., 90 . 568. UNMISET was succeeded by the United Nations Integrated Mission in East Timor (UNOTIL), established by SC Res 1599, UN Doc SIRES11599 (2005), 28 April 2005. UNOTIL's mandate did not include continuing or establishing a judicial process in Timor-Leste and the UN has not taken steps to follow the recommendation of the UN Commission of Experts that an International Criminal for Timor-Leste be established (see the Report at para., 525). 569. JSMP, Press Release: 'War Crimes Suspect Retums to Timor-Leste' 8 August 2005, .
On the 3 March 2004 Correia, a member of the Besi Merah Putih (BMP) militia, pleaded guilty to the crime against humanity of other inhumane acts for his part in detaining and beating a pro-independence supporter in August 1999. The SPSC found that the offence was part of a widespread and systematic attack by pro-autonomy militia groups against the civilian population and that Correia, as a member of BMP, was aware of this context. Accordingly, the chapeau requirements were satisfied. The SPSC also found that the offence was of such a nature that it was an 'inhumane act'. In making this finding the SPSC referred to the jurisprudence of the ICTY and ICTR, noting that the jurisprudence of the ICTY in Prosecutor v. ~ a s i l j e v i which c ~ ~ ~ specified the requirements of the crime of 'inhumane acts' had been adopted by the SPSC in previous cases.577 Correia was convicted of the crime against humanity of inhumane acts and was sentenced to three years imprisonment on 9 March 2004. He had also been charged with two counts of the crime against humanity of murder, but these charges were dropped by the
573. Section 6 of UNTAET/REG/2000115, 6 June 2000, <www.un.org/peace/etimor/untaetR/ Reg00 15E.pdD. 574. See section 10 of UNTAETIREG/2000/11, 6 March 2000, <www.un.orglpeace/etimor/un taetR1RegI 1.pdB. 575. Human Rights Watch, Press Release: 'East Timor: Martial Law Will Make Things Worse', 7 September 1999, . 576. IT-98-32, Judgment of 29 November 2002. 577. See Prosecutor v. Jose Cardoso - Case No. 412001 (5 April 2003).
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Prosecutor upon Correia pleading guilty to the crime against humanity of other inhumane acts.
*
The Prosecutor v. Beny Ludji & Another
-
Case No. 16/2003 (19 May 2004), <www.
jsmp.minihub.org/Court%20Monitoring/SPSC/Docuents/2003/16-2003%20Beny% 20Ludji%20et%20al! 16-2003%20Beny%20Ludji%20Judgment.pdP. On 4 April 2003 the two accused were charged with the crime against humanity of murder. At the time of the murder, Ludji was the Company Commander of the Aitarik militia in the Caicoli region. The second accused was a minor at the time the offences were committed. It was alleged that Ludji had threatened to kill independence supporters and, in particular, that he threatened to kill Guido Alves Correia, a member of the CNRT.~'~ Both of the accused pleaded guilty to the crime against humanity of murder on 3 May 2004. On the 19 May 2004 Ludji was sentenced to eight years imprisonment and the second defendant was sentenced to two years. This was the first case where an Indonesian national who was present in Timor-Leste was charged with crimes against humanity arising from the violence in 1999. All other Indonesian nationals charged by the SPSC have been outside Timor-Leste, either in Indonesia, West Timor, or another Indonesian territory.
*
The Prosecutor v. Florido Morreira - Case No. 2912003 [2004] TPSPSC 16 (19 May 2004), <www.jsmp.minihub.org/Court%20Monitoring/SPSCiDocuments!2003/29-
2003%20Florindo%20Morreira~29-2003%20Florindo%20Morreira%20Judgment.pdP. Morreira was allegedly a member of the Aitarak militia, and was charged with two counts of crimes against humanity: murder and torture. He was acquitted of both charges on 19 May 2004 on the basis that the evidence presented in court was insufficient to sustain a conviction.
*
The Prosecutor v. Florenco Tacaqui (Passabe Case) - Case No. 20/2001 [2004] TPSPSC 28 (9 December 2004), <www.jsmp.minihub.orglCourt%20Monitoringl SPSC/DocumentsROO1120-2001%20Simao%20Lopes%20et%20a1!20-2001%20Floren cio%2OTacaqui%20Judgment.pdP.
Tacaqui was one of 11 accused charged with eight counts of crimes against humanity. These were: (1) imprisonment or other deprivation of physical liberty in violation of fundamental rules of international law; (2) inhumane acts intentionally causing great suffering or serious physical injury to body or mental and physical health; (3) murder; (4) inhumane acts causing great suffering or serious injury; (5) deportation or forcible transportation of population; (6) extermination; (7) inhumane acts causing great suffering or serious injury; (8) persecution. These counts related to, inter alia, the killing of 18 civilian men on 8 September 1999 and the killing of 47 civilian men on 10 September 1999. Tacaqui was the only one of the accused within Timorese territory. Since receiving his arrest warrant, Taca-
578. The Conselho Nacional de ResistZnncia Timorense or National Council of East Timorese Resistance.
Correspondents' Reports
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qui had largely refused to speak and he remained completely silent throughout his trial. This behaviour raised some questions regarding Tacaqui's competence, but based on expert evidence the Court found that he was fit to stand trial. Tacaqui was convicted on 9 December 2004 of counts 1, 2 and 'part of the crimes described in counts 3, 4 and s ' . ~He ' ~ was acquitted of charges 5 , 6 , and 7.
The Prosecutor v. Agostinho Cloe, Agostinho Cab, Lazarus Fuli, and Antonio Lelan Case No. 412003 [2004] TPSPSC 22 (16 November 2004), <www.jsmp.minihub.org/
Court%2OMonitoringlSPSClDocuments/200314-2003%20Anton%20Lelan%20Sufa% 20et%20a1104-2003%2OAgostinho%20Cloe%20et%2Oa1%20Judgment.pdB. The Prosecutor v. Lino Beno - Case No. 4b12003 [2004] TPSPSC 24 (16 November <ww.jsmp.minihub.orglCourt%20MonitoringlSPSC/Documents/2003142004),
2003%2OAnton%20Lelan%20Sufa%20et0/02Oa1/04b-2003%2OLino%2OBeno%20judg ment.pd+. The Prosecutor v. Domingos Metan - Case No. 4~12003[2004] TPSPSC 23 (16 November 2004), <www.~smp.minihub.org/Court%20Monitoring/SPSC~ocuments120031
4-2003%20Anton%20Lelan%20Sufa%20et%20allO4c-2OO3%2ODomingos%2OMetan %20judgment.pdD. The Prosecutor v. Anton Lelan Sufa Case No. 4al2003 [2004] TPSPSC 25 (25 November 2004), <ww.jsmp.minihub.orgiCourt%20Monitoring/SPSC/Documents/20031 -
4-2003%2OAnton%20Lelan%20Sufa%2Oet%20a1/04a-2003%20Anton%20Lelan% 20Sufa%20Judgment.pdB. Anton Lelan Sufa, Agostinho Cloe, Agostinho Cab, Lazarus Fuli, Antonio Lelan, Lino Beno, Domingos Metan and Lazarus Tael were charged on 15 February 2003 with two counts of crimes against humanity, being murder and torture. The charges related to the beating, killing and intimidation of individuals who had voted for autonomy. The charge of the crime against humanity of torture was later amended and the accused were charged with the crime against humanity of other inhumane acts. The charges against Lazarus Tael were dropped when the Prosecution issued an amended indictment on 23 July 2004. On 25 October 2004 Cloe, Cab, Fuli and Lelan pleaded guilty to the charges against them. They were sentenced on 16 November 2004 to terms of imprisonment of four years (Cloe) and five years (Cab, Fuli and Lelan). In relation to the charge of the crime against humanity of murder the SPSC found that the accused, who were members of the Sakunar militia, acted in collaboration and intentionally contributed to the victim's death, knowing that their criminal acts were part of a systematic attack on the civilian population. The fact that the UNTAET Regulation defining the crime against humanity of murder was not in force when the acts were committed was 'irrelevant' as the crime is based on customary
579. See, The Prosecutor v. Florenco Tacaqui (Passabe Case) - Case No. 2012001 [2004] TPSPSC 28 (9 December 2004) p. 49. The accused was found guilty of each of the charges in 3, 4, and 8 but only in relation to some of the facts alleged in the indictment. So, e.g., he was found guilty of persecution in relation to some, but not all, of the facts alleged in count 3. For more extended commentary and criticism of this judgement, see D. Cohen, 'Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor', (Honolulu, East-West Center 2006), No. 9 EastWest Center Special Reports, p. 6 1 .
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international law, and fell within the SPSC's jurisdiction. In relation to the crime against humanity of inhumane acts, the SPSC found that the accused's acts, i.e., beating of the victim, were of sufficient gravity to constitute an inhumane act. In relation to both charges, the accused were found individually responsible. The SPSC cursorily rejected the accused's arguments for the exclusion of responsibility on the grounds that they were coerced. On 25 October 2004 Beno pleaded guilty to one charge of the crime against humanity of other inhumane acts. Beno's trial was severed so that he could be tried on the remaining count, the crime against humanity of murder. On 27 October 2004, after his co-accused, who had already pleaded guilty, gave evidence for the Prosecution, Beno also pleaded guilty to the charge of the crime against humanity of murder. The legal reasoning of the SPSC in this case was virtually identical to that in the case of Cloe et al. Beno was sentenced to five years imprisonment on 16 November 2004. Also on 25 October 2004, Metan pleaded guilty to the charge of the crime against humanity of murder, and his case was severed so he could be tried for the crime against humanity of other inhumane acts. The Prosecution subsequently withdrew the charge of the crime against humanity of other inhumane acts and on 16 November the Court sentenced Metan to five years imprisonment. The legal reasoning of the SPSC in its judgement was virtually identical to that in the case of Cloe et al. Sufa pleaded guilty to two counts of the crime against humanity of murder and one of other inhumane acts on 8 November 2004. Sufa was a village leader of the Sakunar militia who, on instructions from the village chief, had ordered members of his militia group to commit certain violent acts, including murder. The SPSC held that Sufa was individually responsible for the two murders as he ordered members of his militia group to kill the victims, knowing that his orders would be followed. Further, the SPSC found that Sufa bore superior responsibility, as he neither prevented the commission of the criminal acts nor punished his subordinates. The SPSC held that Sufa's more indirect responsibility (i.e., as a superior) for the crime was subsidiary to his direct responsibility (i.e., as an individual). Sufa was sentenced to seven years imprisonment on 25 November 2004.
*
The Prosecutor v. Alarico Mesquita, Florindo Moreira, Domingos Amati, Francisco Matos, Laurindo Da Costa, Laurenqo Tavares, Mateus Guterres, Angelino Da Costa Case No. 2812003 [2004] TPSPSC 27 (6 December 2004), <www.jsmp.minihub.org/
Court%20Monitoring/SPSCDocuments/2003128-2OO3%2OAlarico%2OMesquita%2Oet %20a1/28-2003%20Alarico%20Mesquita%20et%20al%2OJudgment.pd.
The indictment, issued on 25 October 2003, charged all of the accused with two counts of crimes against humanity, constituted by acts of persecution (abduction) and torture. On 6 December 2004 the SPSC found all eight accused guilty of the crime against humanity of torture. Mesquita, Morreira, Amati, and Matos were also convicted of the crime against humanity of persecution. They were sentenced to between five - six years and eight months imprisonment. The SPSC found that the accused, who were members of the Aitarak militia, had stopped three men in a car at a roadblock on 8 May 1999. Four of the accused dragged one of the car's occupants out and subsequently took him to a nearby TNI compound. Soon after, a second vehicle was stopped at the roadblock. An occupant of this car was pulled from the car and subsequently dragged, tied up, and taken to the nearby TNI compound. The Court found that the setting up of the roadblock, stopping of vehicles, and forcing the victims to proceed to the compound was, in itself, unlawful detention.
Correspondents ' Reports
591
In relation to the crime against humanity of persecution, the SPSC noted that whilst the crime of persecution is generally accepted in international criminal law as a crime against humanity, it is not well defined by doctrine and jurisprudence. Under UNTAET Reg 20001 15 (which is framed in the same terms as the Rome Statute of the International Criminal a connection between persecutory intent and another crime against humanity or another crime within the jurisdiction of the Court is required. In the present case, the Prosecutor had defined 'persecution' in connection with the crime of abduction. However, the crime of abduction is neither a crime against humanity, nor a crime within the SPSC's jurisdiction. Nonetheless, upon the facts of the case, the accused's conduct constituted a 'severe deprivation of physical liberty in violation of fundamental rights of international law', and thus fell within section 5.l(e) of UNTAET Reg. 2000115. Even though the deprivation of liberty was not extended, it was considered severe because of the conditions in which it took place, namely unlawful detention coupled with extreme violence. In relation to the crime of torture, the SPSC noted that, contrary to the constitutive statutes of other international criminal tribunals, UNTAET Reg. 2000/15 includes torture as both a crime against humanity and as a separate, autonomous crime. In relation to torture as a crime against humanity, the SPSC followed the jurisprudence of the ICTY, ICTR, and International Criminal Court (ICC), holding that no specific intention on the part of the accused was necessary. It was enough to prove that the accused intentionally caused physical suffering to the victim(s), in this case this took the form of severe beatings whilst the victims were restrained. On 16 July 2005 the Court of Appeal combined the convictions for the first four defendants so that each was convicted of one crime against humanity (torture and enforced disappearance). Their sentence was reduced to five years and six months, whilst the sentence of the remaining defendants was reduced to four years and six months. 58' 2005
*
The Prosecutor v. Domingos Amati und Francisco Matos Case No. 12/2003 (20051 TPSPSC 3 (28 February 2005), ~www.jsmp.minihub.org1Court%20MonitoringlSPSC/ -
Documents/2003112-2003%20Dominggos%2OAmati%20et%20all12-2003%20Domin gos%20Amati%20and%20Francisco%20Matos%20Judgment.pdfi. On the 9 December 2003 the Court of Appeal remitted this case to the SPSC for hearing.582 Armati and Matos were charged with murder in violation of section 8 of UNTAET Regulation 200011 5 and Article 340 of the Indonesian Penal Code. Both of the accused had been convicted in a separate case (Case No. 2812003) and were serving out their sentences at the time this case was heard by the SPSC. On 28 February 2005 the SPSC convicted both of the accused of murder in violation of section 8 of UNTAET Regulation 2000115 read in conjunction with Article 338 of the Indonesian Penal Code (i.e., manslaughter). Both accused were sentenced to seven years
581. Court of Appeal judgement, Available at JSMP website, <www.jsmp.minihub.orgiCourt% 20Monitoring/SPSC/Documents/2003/28-2003%20Alarico%20Mesquita%20et~20a1/28-2003~ 20AIarico%20Mesquita%20et%2Oal%20Final%20COA.pdD. 582. See report on East Timor in 6 YIHL (2003) p. 489.
592
Correspondents' Reports
imprisonment on 5 April 2005. The Court of Appeal subsequently reduced their sentences to six years.
*
The Prosecutor v. Aparicio Guterres - Case No. 18d2003 [2005] TPSPSC 2 (28 February 2005), ~www.jsmp.minihub.org/Court%20Monitoring/SPSC~ocuments/2003/
18a-2003%20Apricio%20Guterres%20et%20al/18a-2003%20Aparicio%20Guterres% 20Judgment.pdB. The accused was a member of the Dadurus Merah Putih militia and was charged with the crime against humanity of murder for the killing of survivors of the Maliana Polisi Resort (District Police) compound massacre in Mulau in September 1999. On 28 February 2005 the Court found that there was insufficient evidence to lead to a conviction and the Prosecution's request for withdrawal of the indictment was refused. The accused was acquitted.
*
The Prosecutor v. Josep Nahak - Case No. l a/2004 [2005] TPSPSC 4 (1 March 2005),
<www.jsmp.minihub.org/Court%20Monitoring/SPSC/Documentsi20041a-2004% 20josep%20Nahak/O 1a - 2 0 0 4 % 2 0 J o s e p % 2 0 N a h a k % 2 0 D e c i s i o n % 2 0 o n ~ e tency.pdB. Nahak was originally indicted on 15 March 2004 along with Sisto Barros and Cesar Mendonca, charged with crimes against humanity including murder, attempted murder, forcible deportation and persecution. He was subsequently severed from that indictment following defence motions challenging Nahak's competency to stand trail. On 1 March 2005 the SPSC held that Nahak was not competent to stand trial and the case against him was adjourned sine die. The Court held that, should new evidence arise or should the defendant's condition change, the Prosecutor could request the Court to review and reconsider the issue of the defendant's competency.
*
The Prosecutor v. Domingos de Deus - Case No. 2d2004 [2005] TPSPSC 5 (12 April <www.jsmp.minihub.org/Court%20Monitoring/SPSC/Documents/2004/2a2005),
2004%20Dominggos%2Ode%20Deus/02a-2004%20Domingos%20de%20Deus% 20Judgment%20and%2Odissenting%2Oopinion.pdD. The accused was indicted on 29 October 2004, charged with three crimes against humanity (two charges of murder and one of attempted murder). De Deus was a TNI soldier, ranked Lieutenant Police, and in 1999 was Chief of the village of Malabe and militia chief (Pancasila) of an area covering six villages. On 16 July 2005 the accused was convicted of two counts of murder and one count of attempted murder as crimes against humanity and was sentenced to two years imprisonment. Although the SPSC found that de Deus did not actually inflict wounds on the victims, it found that he was part of an organised force that was intent on killing UNAMET staff as part of a systematic attack on independence supporters and that he was therefore responsible as he formed part of a joint criminal enterprise. The SPSC also found that the group intended to cause the death of the victims and de Deus himself '...was at least aware that the death of the victims would occur in the ordinary course of events'. Further, the SPSC found that the accused was not a person of authority who could have saved the victims (although there was a dissenting opinion on this point).
Correspondents ' Reports
*
593
The Prosecutor v. Francisco Pedro - Case No. 1/2001 [2005] TPSPSC 6 (14 April 2005), ~ww.jsmp.minihub.orgi~ourt0/~20~onito~ng/SPSC~ocument~/ 1101200 1%20Francisco%20Pedro/O 1-2001%20Francisco%20Pedro%20Judgment.pdP.
Pedro was a member of the Firmi militia and was allegedly involved i.1 violence that occurred near Batugade, Bobonaro district on 15 September 1999. He was originally indicted on 13 January 2001. An amended indictment, filed 9 July 2001, charged Pedro with two charges of murder, and one charge of attempted murder. At a preliminary hearing on 23
May 2001 the SPSC dismissed the case on the basis that the indictment was not pleaded properly. A new indictment was filed on 14 December 2004, charging Pedro with crimes against humanity of other inhumane acts, torture, murder, and attempted murder. The defence filed a motion to dismiss the indictment on the grounds that the charges had already been dismissed by the SPSC. On 11 February 2005 the defence motion to dismiss the indictment was denied. On 10 March 2005 the Court of Appeal upheld the decision to deny the defence motion to dismiss the indictment. On 3 1 March 2005 Pedro pleaded guilty to crimes against humanity of other inhumane acts, murder and attempted murder. On the same day, the SPSC rendered its judgement, finding that the acts of the accused were part of 'a country-wide campaign of violence organised and controlled by the Indonesian Armed-Forces.. .' against the civilian population and that Pedro's actions were done with knowledge of this systematic attack. In relation to the charge of the crime against humanity of other inhumane acts, Pedro's acts were of sufficient gravity to come within the definition of 'inhumane acts' as accepted by the ICTR and ICTY, and Pedro bore individual responsibility as he aided the commission of the offence at issue. In relation to the charge of the crime against humanity of murder, the fact that the UNTAET Regulation defining the crime against humanity for which Pedro was charged was not in force on 15 September 1999 (i.e., when the acts were committed) was 'irrelevant' as that crime is based on customary international law. Under section 9.1 of the Timorese Constitution customary principles of international law are part of the legal system of East Timor. As section 9.1 is one of the 'Fundamental Principles' of the Constitution, it takes precedence over the personal right enshrined in section 3 1.5 that criminal law shall not be enforced retroactively. Pedro bore responsibility for these acts as he killed the first victim as an individual, and killed the second victim jointly with another (i.e., co-perpetration). In relation to the charge of the crime against humanity of attempted murder, Pedro had performed a significant step towards the completion of murder and was thereby responsible for attempted murder, in accordance with the jurisprudence of the ICC. The SPSC sentenced Pedro to a total of eight years imprisonment.
*
The Prosecutor v. Rudolfo Correia - Case No. 2712003 [2005] TPSPSC 8 (25 April <www.jsmp.minihub.orgiCourt0/020Monitoring/SPSCDocuments/20031272005),
2003%20Rudolfo%20Comeia~27-2003%20Rudolfo%20Alves%2OCo~eia%20Judg ment.pdf >. The accused was a TNI soldier based in Hera who was indicted on 25 September 2003 for the crime against humanity of murder. The incident to which the indictment related was
594
Correspondents' Reports
also the subject of indictment no. 2 4 1 2 0 0 3 . ~The ~ ~ defence had sought to have the indictment withdrawn on the basis that autopsy evidence proved that the crime could not have been committed in the way the Prosecution alleged (i.e., with a shot to the head). The Court did not allow this motion. On 19 April 2005 the SPSC convicted Correia of the crime against humanity of attempted murder and sentenced him to five years imprisonment. In making its finding the SPSC found that Correia was part of a group of TNI soldiers who, on the 6 September 1999, apprehended three civilians, then questioned them, beat them, and forced them to walk towards a nearby river. During the walk, Correia told one of the soldiers in the group to shoot one of the civilians, which he then did. Further, the SPSC found that these acts took place within the context of a widespread and systematic attack against the Timorese civilian population. The SPSC held that Correia was criminally responsible for the crime because Correia did 'order, solicit or induce' another soldier to shoot the victim in the head, having both the intention to cause the victim's death and '...every reason to believe that his order would be obeyed'.584Whilst the cause of the victim's death could not be established, it was sufficient that there had been substantial steps taken towards the commission of the crime of murder so as to establish that the crime was attempted. The Court of Appeal subsequently upheld the sentence handed down by the SPSC."' The Prosecutor v. Januario da Costa and Mateus Punef Case No. 2212003 [2005] TPSPSC 7 (25 April 2005), <www.jsmp.minihub.orgiCourt%2OMonitoring/SPSCl Documents/2003122-2003%20Januario%20da%20Costa%20et%20a1/22-2003%20Ja nuario%2Oda%20Costa%20e%20Mateus%2OPunefo/o2OJudgment.pdfi. -
By indictment issued 17 August 2003 the accused were charged with six counts of crimes against humanity, which included the murder of 18 people, inhumane acts committed, forcible transfer of population or deportation, extermination, inhumane acts, and persecution. Both of the accused were members of the Sakunar militia. The first three counts related to a militia raid on three villages in the Oecussi district on 8 and 9 September 1999, during which 18 people were killed. The last three counts related to the Passabe Massacre of 10 September 1999, where 47 men were killed. In its judgement of 13 April 2005 the SPSC found that the acts were 'reprisals' against communities which had supported independence in the poll held on 30 August 1999. The Court further held that the acts were part of a systematic operation run by the Sakunar militia which raided the villages of Nibin, Tumin and Kuibiselo and that this operation was '. . . part of a wide scenario of widespread and/or systematic attack against the civilian popu~ation'.586
583. Prosecutor v. de Cawalho, Adolfo, da Costa Oliveira, Lt Yuli, Lt Untung, Pinto, Malekat, Watulari, da Silva, da Silva, Malimeta, Beremau, Sousa, Teebuti, Malirneta, Soares, Soares, Gudinho. According to JSMP the accused are currently at large, see JSMP, 'SPSC Case Information 2003', <www.jsmp.minihub.org/Language~English/spsc2003~english.htm~. 584. Judgement, paras. 73-74. 585. See JSMP, 'SPSC Case Information 2003', supra 583 . 586. For more extended commentary and criticism of this judgement, see Cohen, 'Indifference and Accountability', supra 579; p. 76.
Correspondents ' Repovts
595
Da Costa was convicted of two counts of crimes against humanity of murder, and two counts of crimes against humanity other inhumane acts and sentenced to 12 years imprisonment. The SPSC found that, while there was no direct evidence that da Costa had destroyed property or killed people, there was evidence that he gave orders, encouraged and threatened others. He was therefore convicted on the first two counts on the basis of his participation as a commander. His conviction on counts four and five rested on evidence of his direct participation. Punef was convicted of one count of the crime against humanity of murder and one count of the crime against humanity of other inhumane acts. He was sentenced to 10 years imprisonment.
*
The Prosecutor v. Franciso Perreira - Case No. 34/2003 (20051 TPSPSC 9 (27 April <www.jsmp.minihub.org/Court%20Monitoring/SPSC/Documents/20031342005), 2003%20Francisco%2OPerreira%2Oet%2Oa1/34-2003%20Francisco%20Pereira% 20Judgment.pdA.
The accused was charged with the crimes against humanity of murder and persecution. In relation to the murder charge, it was alleged that the accused was a member of the Mahidi militia in 1999. On 17 April 1999 the victim, a known independence supporter, was arrested by militia members and detained at their post in Zumalai. He was later hacked with a machete by the accused and shot by another. The charge of persecution related to the accused's alleged responsibility for the detention, assault and torture of suspected independence supporters in April and May 1999. On 27 April 2005 the accused was convicted of attempted murder and persecution as crimes against humanity, and sentenced to three years imprisonment.5R7The SPSC rejected the accused's challenge to the SPSC's jurisdiction to hear the case, holding that section 163 of the Constitution granted the SPSC jurisdiction over all investigated cases until the replacement of the panels in Timor-Leste's new judicial structure. The SPSC also rejected the accused's argument that the acts of violence were isolated incidents, unrelated to the broader context of violence in Timor-Leste at the time. The Prosecution appealed against the sentence and on 31 August 2005 the Court of Appeal increased the conviction to murder and the sentence from three to seven years.
*
The Prosecutor v. Wirunto et al. - Case No. 512003 [2005] TPSPSC 10 (5 May 2005),
<www.jsmp.minihub.org/Court%20Monitoring/SPSC/Documents/2003/05-2003% 20Wiranto%20et%20al/05-2003%20Decision~. On 24 February 2003 Wiranto and seven others were indicted for the crimes against humanity of murder, deportation or forcible transfer of population, and persecution. The indictment further alleged that the defendants were responsible both as individuals and as persons having command responsibility. General Wiranto was Commander of the Indonesian Military (then ABRI) from February 1998 until October 1999, that is, the period up to and immediately after the Popular Consultation. On the day the indictments were issued the
587. Ibid., p. 80.
596
Correspondents' Reports
Prosecutor also filed a 'Request for Warrants of Arrest' for each of the defendants. During the period when these requests were being considered, five of the seven defendants were brought before the Ad Hoc Human Rights Court in ~ a k a r t a . ~ ~ ' On or before 5 May 2005 the SPSC issued arrest warrants for all eight defendants. The Court issued a judgement on 5 May 2005, holding that the principle of ne bis in idem does not apply at the arrest warrant stage of the proceedings. Thus, any prior trial or adjudication of the defendants before the Ad Hoc Human Rights Court did not bar the issue of arrest warrants. The Court did not consider the application of the ne bis in idem principle to the facts of the present case.
*
The Prosecutor v. Sisto Barros and Cesar Mendonca - Case No. 112004 [2005] TPSPSC 11 (12 May 2005), <www.jsmp.minihub.org/Court%20Monitoring/SPSC/ Documents/2004101-2004%20Sisto%20Barros%20et%20al/O1-2004%20Judgment. pdB.
On 29 April 2005 the accused were convicted of two counts of the crime against humanity of murder, one count of the crime against humanity of attempted murder, and one count of the crime against humanity of persecution. They were each sentenced to nine years imprisonment. The accused were members of the Laksaur militia, and had been party to several attacks on civilians who had voted for independence in the August poll. During these attacks several people were killed and injured. The SPSC found that the accused had acted as members of a group with a common purpose, had directly contributed to the commission of crimes, and had acted with the intention of advancing this criminal activity. Thus, the SPSC found that the accused bore individual criminal responsibility as they were party to a joint criminal enterprise. This was the final decision handed down by the SPSC before the end of its mandate on 20 May 2005. The Court of Appeal subsequently upheld the sentences.5s9
2. Court of Appeal The Court of Appeal has jurisdiction to hear cases on appeal from the SPSC.~~' 2004 * The Prosecutor v. Francisco dos Santos Laku - Case No. 2812001 (31 May 2004), <www.jsmp.minihub.org/Court%20Monitorin~SPSC~ocuments1200 1108-2001% 20Francisco%20dos%20Santos%20Laku/08-2001 'Y02OFransico?402OD.S.%2OLaku% 20COA%20Fina1%20Decision.pdf >.
588. The defendants brought before the Human Rights Court were Suratman, Sudrajat, Damiri, Muis, and Soares (the first two were acquitted, the latter three were convicted but their convictions were overturned on appeal). No charges were brought at the Human Rights Court against Wiranto, Makarim or Syahnakri. 589. See JSMP, 'SPSC Case Information 2004', <www.jsmp.minihub.org/Language-English! spsc2004-english.htm>. 590. UNTAETiREG/2000/11, 6 March 2000, sections 14 and 15 available at <www.un.org/peace/ etimorluntaetRiReg11.pdfi.
Correspondents' Reports
597
The accused was an intelligence officer with the TNI, based in Maliana. He was convicted on 13 June 200 1 of one charge of murder for ordering the killing of a man and sentenced to eight years imprisonment.591 His sentence was increased to nine years by the Court of Appeal on 3 1 May 2004.
*
The Prosecutor v. Anastacio Martines and Domingos Gonqalves - Case No. 11/2001 (14 September 2004), <www.jsmp.minihub.orgiCourt%20MonitoringlSPSCIDocu mentd200 1111-2001%20Anastacio%2OMartins%20et%20al/ 11-200 1%20Domingos%
20Gonsalves%20COA%20Fina1%20Decision%20POR.pd~. Gonqalves, a member of the BMP militia, was convicted on 13 November 2003 of crimes against humanity of murder (three counts), and forcible transfer of population. The Court of Appeal rejected his appeal on 14 September 2004.
*
The Prosecutor v. Paulino de Jesus
-
Case No. 612002 (4 November 2004), <www.
jsmp.minihub.org/Court%20Monitoring/SPSCIDocumentsl2002106-2002%20Paulino %20de%20Jesus/6-2002%20Paulino%2ODe%20Jesus%2OCOA%2OFinal%20Decision %2O.pdb. De Jesus, a member of the TNI in the village of Louba, was charged with one count of murder. He was acquitted by the SPSC on 26 January 2 0 0 4 . ~ ~On ' 4 November 2004 the Court of Appeal overturned the acquittal and convicted de Jesus of crimes against humanity of murder and attempted murder, sentencing him to 15 years imprisonment.
*
The Prosecutor v. Augusto Asameta Tavares - Case No. 212001 (24 November 2004),
<www.jsmp.minihub.orgiCourt%20Monitoring/SPSCIDocuments12001102-2001% 20Augusto%2OAsameta/02-2001%20Augusto%20Tavares%2OCOA%20Fina1%20Deci sion.pdD. On 15 July 2001 the SPSC convicted Tavares of the murder of a CNRT supporter in memo village on 7 September 1999 and sentenced him to 16 years imprisonment.593On 24 November 2004 the Court of Appeal reduced the sentence to nine years. 2005 * The Prosecutor v. Marcelino Soares
-
Case No. 1112003 (17 February 2005), <www.
jsmp.minihub.org/Court%20Monitoring1SPSCIDocuents/2003/11-2003%20Mar~eli
591. Judgement available at: <www.jsmp.minihub.org/Court%20MonitoringiSPSC/Documentsl 200 1108-2001%20Francisco%20dos%2OSantos%20Laku/08-2001%20Francisco%20dos%2OSantos %20Laku%20Judgment.pdP. 592. The Prosecutor v. Paulino de Jesus - Case No. 612002 [2004] TPSPSC 1 (28 January 2004), unofficial English translation available at ~ w w w . j s m p . m i n i h u b . o r g / C o u r t % 2 O M o n i t o ~ o c u
ments/20Q2/06-2002%2OPaulino%20de%20JesuslO6-2OO2Y020Paulino~2OdeY02OJesus~02O~udgment
%20English,pdB. 593. Judgement available at ~www.jsmp.minihub.org/Court%20Monitoring/SPSC/Documentsl 200 1102-2001%20Augusto%20Asameta102-2001%20Augusto%20Asameta%20Tavares%20Judg ment.pdf-.
598
Correspondents'
Reports
no%20SoaresIll -2003%20Marcelino%20Soares0/02OCOA%2OFinal%2ODecision0/02O. pdb. Soares was a Babinsa - a village level Commander - of the TNI in the village of Hera. He was charged with the crimes against humanity of murder, torture, and persecution by unlawful detention in relation to the treatment of members of the group ESTAFET, a proindependence group, and the subsequent murder of Luis Dias Soares on or about 20 April 1999. Soares was convicted on 11 December 2003 for crimes against humanity of murder, torture, and persecution and was sentenced to a total of 11 years imprisonment.594The SPSC found that Soares bore command responsibility for the acts of his subordinates, who inflicted severe wounds on Luis Dias Soares, causing his death. The decision of the SPSC was affirmed by the Court of Appeal on 17 February 2005.
*
The Prosecutor v. Umbertus Ena and Carlos Ena - Case No. 512002 (18 March 2005), <www.jsmp.minihub.orglCourt%20Monitoring/SPSCiDocuments/2002105-2002% 20Umbertos%20Ena%20et%20a1/05-2002%20Umbertos%2OEna%2OCOA%2OFinal% 20Decision.pdb.
The accused were alleged members of the Sakunur militia, which operated in Oecusse from April - October 1999. They were both originally indicted on 5 June 2002 for crimes against humanity (murder, attempted murder, and, alternatively, inhumane acts). The indictment was amended on 16 October 2003 to charge the accused with the crimes against humanity of murder and inhumane acts. On 23 March 2004 the Court delivered its judgement.595The SPSC found that the Sakunur militia operated in close cooperation with the TNI and engaged in a widespread and systematic attack on the civilian population. Carlos Ena was found not guilty, whilst Umbertus Ena was convicted of both counts and sentenced to 11 years imprisonment. On 18 March 2005 the Court of Appeal dismissed Umbertus Ena's appeal.
*
The Prosecutor v. Rusdin Maubere - Case No. 2312003 (18 March 2005) <www.jsmp. minihub.orglCourt%20MonitoringlSPSCiDocuments12003/23-2003%20Rusdin% 20Maubere/23-2003%20Rusdin%20Maubere%20COA%2OFinal%2ODecision.pd~.
The accused was a member of the TNI, based in Liquica. It was alleged that he, along with other members of the TNI and various militia groups, and under the command of a Tome Diogo, went in search of the victim, a pro-independence supporter, and killed him. On 5 July 2004 the charges against the accused were qualified by the SPSC and he was convicted
594. The Prosecutor v. Marcelino Soares - Case No. 11/2003 [2003] TPSPSC 12 (1 1 December 2003), <www.jsmp.minihub.org/Court0/020Monitoring/SPSC/Docuents/2003111-2003%20Marce1i
no%20Soares/11-2003%20Marcelino%20Soares%20Judgment.pdP. 595. The Prosecutor v. Umbertus Ena and Carlos Ena - Case No. 512002 [2004] TPSPSC 11 (23 March 2004), ~www.jsmp.minihub.orgiCourW020Monitoring1SPSC/Documents/2002/05-2002%
20Umbertos%20Ena%20et%20aV05-2002%20Umbertos%20Ena%20and%20Carlos%20Ena% 20Judgment.pdB.
Correspondents' Reports
of the crime against humanity of murder.596On18 March
599
2005 the Court of Appeal in-
creased his sentence to eight years imprisonment.
*
The Prosecutor v. Mateus Lau (Ena Poto) - Case No. 1012003 (12 April 2005)
The accused was indicted on 28 February 2003, charged with the crimes against humanity of murder. It was alleged that the accused, a member of the Sakunar militia, hacked to death a civilian who was attempting to flee to West Timor on 9 October 1999. The accused was convicted on 16 November 2004 and sentenced to eight years imprisonment. 597 On 12 April 2005 the Court of Appeal upheld his conviction and sentence. 3. Presidential Decrees reducing sentences of individuals convicted by the SPSC. During 2004 and 2005 President GusmZo issued several Presidential Decrees reducing the sentences of various individuals who had been convicted and sentenced by the SPSC.
*
* *
Decreto do Presidente da Republica no. 1212004, 19 May 2004 <www.mj.gov.tlljornall pagelIdpr12-04.htm>. Decreto do Presidente da Republica no. 1312004, 19 May 2004 <www.mj.gov.tl/jornal/ pagelldpr 13_04.htm>. Decreto do Presidente da Republica no. 2112004, 19 May 2004 <www.mj.gov.tl/jornall pagelldpr2 1-04.htm>.
On 19 May 2004, three persons convicted in the Los Palos case5" had their sentences reduced by presidential dccrce. The sentences of Paulo da Costa, JoZo da Costa and Joni Marques were reduced to 25 years imprisonment from 33 years and four months. The three were among 10 persons who had been convicted of crimes against humanity by the SPSC in this case.
*
Decreto do Presidente da Republica no. 112005, 19 May 2005, <www.mj.gov.tlljornall page lldp I-05.htm>.
Augostino da Costa was convicted on 16 July 2001 of one charge of murder of a UNAMET local staff member and Falintil supporter that took place on 3 1 August 1999, and sentenced
596. The Prosecutor v. Rusdin Maubere Case No. 2312003 (5 July 2004), <www.jsmp.minihub. org/Court%20Monitoring/SPSC/Documentsi2003123-2003%20Rusdin%20Maubere123-2003% 20Rusdin%20Maubere%2OJudgment%20Eng.pdf >. This case has been subject to criticism on the basis that the accused was convicted of a crime that he was not charged with and had no opportunity to defend himself against. For example, see Cohen, '"Justice on the Cheap" Revisited', supra 564; and Cohen, 'Indifference and Accountability', supra 579; p. 77. 597. The Prosecutor v. Mateus Lao (Ena Poto) Case No. 1012003 [2004] TPSPSC 26 (3 Decem~www.jsmp.minihub.orglCourt%2OMonitoringlSPSClDocumentsl2003/10-2003% ber 2004), 20Mateus%201au/I0 - 2 0 0 3 % 2 0 M a t e u s % 2 0 L a o ~ . 598. The Prosecutor v. Joni Marques, Manuel da Costa, Joao da Costa aka Lemorai, Paolo da -
-
Costa, Amelio da Costa, Hilario da Silva, Gonsalo dos Santos, Alarico Fernandes, Mautersu Monis, and Gilberto Fernandes - Case No. 912000 (1 1 December 2001) See JSMP, 'SPSC Case Information 2000', <www.jsmp.minihub.orglLanguage~Englishlspsc2000~english.htm>.
600
Correspondents' Reports
to 15 years imprisonment (The Prosecutor v. Augostino da Costa, Case No. 712000). His sentence was reduced by one year by Presidential Decree on 19 May 2005.
*
Decreto do Presidente da Republica no. 312005, 19 May 2005, <www.m~.gov.tlljomall pagelldp3-05.htm>.
Anastacio Martines was convicted on 13 November 2003 of two counts of crimes against humanity for acts that occurred in September 1999, and sentenced to 11 years and six months imprisonment (The Prosecutor v. Anastacio Martines & Domingos Goncalves, Case No. 1112001). His sentence was reduced by one year by Presidential Decree on 19 May 2005.
*
Decreto do Presidente da Republica no. 612005, 19 May 2005, ~www.m~.gov.tl/jomall page 1ldp6-0 5.htm>.
Carlos Soares was convicted on 15 May 200 1 of one charge of murder that took place early September 1999. In giving its judgement, the SPSC had accepted that the accused had been ordered to shoot people who were hiding but did not find that this constituted duress (The Prosecutor v. Carlos Soares, Case No. 1212000). He was sentenced to 15 years and six months imprisonment, and this was reduced to 13 years by the Court of Appeal on 11 February 2 0 0 4 . ~His ~ ~sentence was further reduced by one year by Presidential Decree on 19 May 2005.
*
Decreto do Presidente da Republica no. 1312005, 19 May 2005, ~www.mj.gov.tlljomall page l /dp 13-05 .htm>.
Lino de Carvalho was convicted on 17 February 2004 for crimes against humanity that took place in September 1999, and sentenced to seven years imprisonment (The Prosecutor v. Lino de Cawalho, Case No. 1012001). His sentence was reduced by one year by Presidential Decree on 19 May 2005.
*
Decreto do Presidente da Republica no. 1612005, 19 May 2005, <www.mj.gov.tlljomall page 1/dp 1 6-05 .htm>.
Victor Manual Alves was charged with one count of murder, and convicted on 18 June 2004 of death by negligence under Article 359 of the Indonesian Penal Code. He was sentenced to one year imprisonment, suspended immediately (The Prosecutor v. Victor Manual ~ ~ ~26 April 2005 the Court of Appeal increased this sentence Alves - Case no. 1 1 2 0 0 2 ) . On
599. See JSMP, 'SPSC Case Information 20001, ~www.jsmp.minihub.orglLanguage~English1 spsc2000-english.htm>. 600. Judgement available at ~www.jsmp.minihub.org/Court%20Monitoring/SPSClDocuments/ 200210 1-2002%20Victor%20Manuel%20Alvesl01-2002%20Victor%20Manuel~2OAlves%20Judg ment.pdf >.
Correspondents' Reports
60 1
to two years imprisonment.60' Soon after his return to custody, Alves was granted immedi602
ate release by Presidential Decree on the 19 May 2005.
*
Decreto do Presidente da Republica no. 1712005, 19 May 2005, <www.mj.gov.tlljornal/ page1 ldp 17-05.htm>.
Joseph Leki (aka Yosep Leki) was convicted on 11 June 2001 of two charges of murder of pro-independence supporters on 25 and 26 September 1999 (The Prosecutor v. Joseph Leki, Case No. 512000). The Court found that he had acted under duress (immediate threat of death), but that he remained criminally responsible and sentenced him to 13 years imprisonment. 603 On 19 May 2005 his sentence was reduced by one year by Presidential Decree. Pending
*
Draft Law (301115) On Truth and Clemency
In late 2006 a Private Members Bill was introduced into Parliament. This Bill made a number of suggestions in relation to outstanding justice issues arising out of the CAVR Final Report and the work of the STP-CAVR. The Draft Law proposed that a Commission for Truth and Harmonisation be established as well as proposing measures for granting amnesty and clemency. The Bill was subject to public hearings by the Parliament's Commission A, and has been criticised by STP-CAVR on several grounds, including that the proposed Commission is merely a duplication of existing bodies, and for its lack of specificity regarding the means by which amnesty andlor clemency is to be granted.604 EMILY BELL
TUNISIA See Arab League Model Law in the Algerian section.
UNITED ARAB EMIRATES See Arab League Model Law in the Algerian section.
601. Appeal judgement available at <www.jsmp.minihub.org/Court~20Monitoring/SPSC/Docu ments/2002/01-2002%20Victor%20Manuel%20Alves/0 1-2002%20Vitor%20Manuel%20Alves% 20Fina1%20COA%20Decision0/02OPOR.pdP. 602. Order for immediate release available at <www.jsmp.minihub.orglCourt%20Monitoring/ SPSC/Documents/2002/01-2002%20Victor%20Manuel%20Alves/O 1-2002%20Victor%20Manuel% 20Alves%20Immediate%20Release0/02OOrder.pdP.
603. See JSMP, 'SPSC Case Information 2000', supra 599. 604. STP-CAVR, Comment.~: Draft Law (30/1/5) on Truth and Clemency, I 2 February 2007.
602
Correspondents' Reports
Amnesty * Implementation of the Amnesty Act in Northern Uganda In response to numerous failed military attempts to resolve the conflict in Northern Uganda which have had disastrous consequences for civilians, the Ugandan Parliament, under pressure from civil society groups, enacted the Amnesty Act in 2 0 0 0 . ~ ' This ~ Act allows a reporter607to be granted amnesty when he or she 'reports to the nearest army or police unit, a chief, a member of the executive committee of a local government unit, a magistrate or a religious leader within the 10cality';~'~'renounces and abandons involvement in the war or armed rebellion' and 'surrenders at any such place or to any such authority or person any weapons in his or her possession'.609 Once the person fulfils the conditions of amnesty he is issued with a Certificate of ~ n m e s t y . 'Seen ~ ' ~ primarily as a tool for ending the war, [this process] has allowed a significant number of combatants to escape from the rebels and, in theory, return to their c~mmunities.'~" The Act creates the Amnesty Commission as the body responsible for providing overall leadership, guidance and coordination in the implementation of the a m n e ~ t y . ~In" addition to performing this quasi-judicial function of granting amnesty and issuing Certificates of Amnesty, the Amnesty Commission is also tasked with raising awareness of potential reporters and sensitising the public on the Amnesty Act, facilitating and monitoring demobilisation, reintegration and resettlement of reporters and promoting dialogue and reconciliation within the framework of the Amnesty Act (2000)."~ Since the enactment of the Act, 'over 2 1,000 reporters have been granted amnesty, out of which 19,000 have received initial reinsertion or resettlement kits.' The breakdown is as follows: 17 106 (79 percent) are male; 4 547 (21 percent) are female; and out of the 21 0 0 0 , 6 718 are below 18 (12 - 1 In implementing the Act, the Amnesty Commission has categorised reporters into two broad categories of ex-combatants and non-combatants. 'Combatants are those who have -
-
605. Information and commentaries by Emmanuel Kasimbazi, Senior Lecturer, Faculty of Law, Makerere University and Senior Partner, Kasimbazi and Company Advocates, Kampala, Uganda. 606. The Amnesty Act, Chapter 294 Laws of Uganda 2000. It is an Act to provide for an amnesty for Ugandans involved in acts of a war-like nature in various parts of the country and for other connected purposes. This Act commenced on 21 January, 2000. 607. A reporter is defined under Section 1 (e) as 'a person seeking to be granted amnesty under the Amnesty Act'. 608. Section 3(l)(a) of the Amnesty Act, supra 606. 609. Ibid, Section 3(l)(b). 610. Ibid, Section 3(l)(d). 61 1. L. Hovil and J. R. Quinn, 'Peace First, Justice Later: Traditional Justice in Northern Uganda' Working Paper No. 17, Refugee Law Project, 2005, p. 4, ~www.refugeelawproject.org/resources/ papers/workingpapers/RLP.WP 17.pdP. 612. Sections 6 and 8, Amnesty Act, supra 606. 613. Ibid. 614. United Nations Disarmament, Demobilisation and Reintegration Resource Centre, Country Programme: Uganda,December 2006, ~www.unddr.org/countryprogrammes.php?c=37~.
Correspondents' Reports
603
taken up arms to fight and non-combatants are dependents, camp works
and porters, and ,h\5 other abducted persons. Both categories include women and men, adults and children. One of the issues of concern is that '[tlhe Amnesty Act is silent on the age of thc pcrson to be granted amnesty. After carehl consideration, the Amnesty Commission has concluded that only children over 12 years old can qualify for amnesty, since this is the age of criminal responsibility in ~ ~ a n d a ' . " 'This issue has raised concern among child rights advocates who argue that 'granting amnesty to children would incriminate children who are victims of the insurgency, particularly those abducted by the [Lord's Resistance Army]'. On the other hand, the Amnesty Commission argues that 'granting amnesty to children over 12 years old was necessary to protect them against criminal charges'.617 Another issue of concern is the need to end a 'blanket amnesty' which has created a situation where persons who had obtained Amnesty Certificates later reengaged in rebellious activities against the It has been suggested that the Amnesty Act be revised to deny those who reengage in rebellious activities after being granted amnesty the opportunity to benefit from the amnesty again.'19
*
The Prosecution of LRA Leaders versus the Use of the Amnesty Act in Northern Uganda
The situation in Northern Uganda was referred to the Prosecutor of the International Criminal Court ( K C ) by the government of Uganda in December 2003. In its July 2004 Decision, the Court's Presidency assigned the situation to Pre-Trial Chamber 11.'~'
On 13 October 2005, Pre-Trial Chamber I1 unsealed the warrants of arrest for five senior leaders of the Lord's Resistance Army (LRA) for Crimes against Humanity and War Crimes committed in Uganda since July 2002. The Chamber concluded that "there are reasonable grounds to believe" that Joseph KONY, Vincent OTTI, Okot ODHIAMBO, Dominic ONGWEN and Raska LUKWIYA "ordered the commission of crimes within the jurisdiction of the Court." ... According to the allegations set out in the warrants of arrest, the LRA is an armed group which "has established a pattern of brutalization of civilians by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have
615. Ibid. 616. Ibid., section 88 of the Children Act, Chapter 59 Laws of Uganda. A child in this Act is defined as a person below the age of 18. 617. Ibid. 618. J. Maseruka and C. Ariko, 'Scrap Blanket Amnesty, Says Onega' in The New Ksion, 14 August 2007. 619. Ibid. 620. See International Criminal Court, 'Decision assigning the situation in Uganda to Pre-Trial Chamber II', ICC-02104-1, 5 July 2004, <www.icc-cpi.inticases~GD/~0204/~0204~docPresidency. htmb.
604
Correspondents' Reports
been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army (UPDF) and civilian c~mrnunities."~~' The intervention of the ICC in the Northern Uganda conflict is necessary particularly due to the inability of the national courts to prosecute LRA rebels. However, this intervention faces a number of challenges, legal or otherwise, that may hinder the successful prosecution of LRA rebels and the peace building process in Northern Uganda. The use of the ICC may make it more difficult to negotiate an end to the conflict because while the Amnesty Act, which grants amnesty and resettlement packages to rebels who disarm and denounce the rebellion, seeks to forgive, the ICC approach seeks to prosecute. These represent two contradictory approaches to the peace building process. The use of the Amnesty Act in the case of the LRA rebels is opposed by the United Nations and the International Committee of the Red Cross, who maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. The two contradictory positions of reconciliation and prosecution may make the peace building process in Northern Uganda more complex.
Torture
*
Interpretation of torture cases in Northern Uganda under the Convention against Torture.
Uganda ratified the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment N CAT)'^^ in 1986. CAT defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from. inherent in or incidental to lawhl sanctions.623 This definition envisages torture by government officials and does not cover torture by nongovernment persons or agencies. Torture cases in Northern Uganda are reported to have been committed by both the LRA rebels and the Uganda People's Defence Force (UPDF). This raises a controversy in the interpretation of 'torture' as defined under CAT. It appears from this definition that the LRA rebels cannot be prosecuted for the acts of torture under CAT.
621. International Criminal Court, 'Press Release: Warrant of Arrest unsealed against five LRA Commanders', 14 October 2005, <www.icc-cpi.int/press/pressreleases/114.html>. 622. 1984, 1465 UNTS 112. 623. Article l(1)
Correspondents' Reports
605
The Uganda Human Rights Commission has attempted to give a broader definition of torture in the Ugandan context in its tribunal decision of Tumuramye v. Gerald Bwete & others624in which it held that private individuals can also be held liable for torture. Refugees * Enactment of the Refugees Act. In 2006, the Parliament of Uganda passed the Refugees Act (2006). This Act repeals the Control of Alien Refugees Act ( 1 9 6 0 ) . ~ ~The ' Act 'has been [recently] commenced and is in force with the exception of certain parts that require additional institutional and structural establishments beyond the existing structures'.626 Overall the new Act 'reflects international legal standards of rehgee protection provided in the 1951 Convention Relating to the Status of Refugees and its 1967 protocol as well as the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in ~ f r i c a . " ~ Section ' 3 of the Act provides that granting of refugee status is a humanitarian act, and therefore
for the avoidance of doubt, the granting of refugee status to any person ... does not imply any judgment of, or may not be construed as an unfriendly act towards, the country of origin of the person granted refugee status, but must be regarded as a peaceful and humanitarian act extended to that person as part of his or her human rights. This Act is 'progressive, human rights and protection oriented'.62R Section 4 provides qualifications necessary for one to be granted refugee status. Under this section, a person qualifies to be granted refugee status if: (a) owing to a well-founded fear of being persecuted for reasons of race, sex, religion, nationality, membership of a particular social group or political opinion, that person is outside the country of his or her nationality and is unable, or owing to that fear, is unwilling to return to or avail himself or herself of the protection of that country; (b) not having a nationality or being outside the country of his or her former habitual residence owing to a well-founded fear of being persecuted for reasons of race, sex, religion, membership of a particular social group or political opinion, that person is unwilling or unable to return to the country of his or her former habitual residence; (c) owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either a part or the whole of his or her country of origin or nationality, that person is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin or nationality;
624. Complaint No. UHRC 264199. 625. Article 49(1) Refugees Act (2006). 626. Refugee Law Project, 'Critique of the Refugees Act (2006)', p. 3, <www.refugeelawproject. orglresources/legalres/RefugeesActRLPC~.
627. Ibid. 628. Ibid.
606
Correspondents' Reports
(d) owing to a well-founded fear of persecution for failing to conform to gender discriminating practices, that person is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside the country of origin or nationality; (e) that person is considered a rehgee under any treaty obligation to which Uganda is a party, or any law in force at the commencement of the Act; or (0that person is a member of a class of persons declared to be refugees under . . . [this] Act. Section 28 provides for refugee entitlements under international conventions. It thus provides that every refugee in Uganda is entitled to rights and is subject to obligations pro~ ~ OAU and 'any vided for or specified in the Geneva ~ o n v e n t i o n s , 6the other Convention or instrument relating to the rights and obligations of refugees to which Uganda is a party'. The Act establishes institutions to deal with administrative matters relating to refugees. Under section 11 the Act establishes the Refugee Eligibility Committee, whose main function is to 'consider and deal with applications for refugee status' in ~ ~ a n d aSection . ~ ~ ' 16 establishes the Refugee Appeals Board whose main function is to 'receive and hear appeals from the decisions of the Eligibility Committee on questions of law and procedure.'632 These two institutions are 'guided by the principles laid down in relevant or applicable international conventions or in~tmments'.~~'
EMMANUEL KASIMBAZI
UNITED
KINGDOM^^^
Armed Forces Discipline Code * Armed Forces Act 2006 (UK). The Armed Forces Act 2006 establishes a uniform code of discipline for all three armed services. It will be brought into force in stages with the process being completed by the end of 2 0 0 8 . ~ 'The ~ Act replaces the separate discipline codes of the Army Act 1955, the Air
629. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949, 75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949,75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'). 630. 1969, 1001 UNTS 45. 631. Section 12. 632. Section 17. 633. Section 37. 634. Information and commentaries by Peter Rowe, Professor of Law at Lancaster University. 635. See Select Committee on the Armed Forces Bill 2005-06, Special Report of Session 2005-06, HC 828-11, Ev.9, 447.
Correspondents ' Reports
607
Force Act 1955 and the Naval Discipline Act 1957. It is discussed here since it will be the appropriate machinery for the trial of a British serviceman or woman for an offence alleged ~ ~a related ~ ofto be contrary (inter alia) to the International Criminal Court Act 2 0 0 1 or fence against the criminal law of England and Wales or against service disciplinary law committed during armed conflict or during the occupation of territory. In addition to consolidating much of the law set out in various statutes it creates one court-martial (instead of the different forms of this court which previously existed) and a uniform form of summary hearing. One of the aims expressed in Parliament (and in previous reforms to the statutes governing the armed forces) was to bring the service justice system, as far as possible, in line with that applicable to civilians. The opportunity has been taken in the Act to formulate the service offences in more modem language but the pre-existing structure of service disciplinary offences and the incorporation of the criminal law of England remains. A soldier who commits what is a breach of international humanitarian law may be charged with a service offence or an offence against the criminal law of England. Some, but not all, breaches of international humanitarian law may be incorporated into English law and thus be capable directly of forming a charge. The International Criminal Court Act 200 1 incorporates the crimes under the Rome Statute of the International Criminal into English law and thus a soldier may be charged under the Armed Forces Act 2006 with the criminal law offence, for example, of committing a war crime as defined under the Rome Statute, Article 8. He could be tried by the court-martial in the United Kingdom or elsewhere. The 2006 Act makes a significant change in the law relating to a possible conflict of jurisdiction between the service legal system and that of the civilian court. Under the preexisting law a commanding officer had the power to dismiss a charge against someone under his command. Should this be done the soldier would not be subject to any further proceedings based on the facts of that charge within the military system. If, despite this, a prosecution was considered appropriate it would have to be brought in a civilian court. Such a situation arose in 2004 when the commanding officer of a soldier dismissed charges against him relating to acts committed in Iraq. The Attorney-General decided, nevertheless, to refer the matter to the civilian prosecuting authorities (the Crown Prosecution Service) which subsequently brought a charge against him before a civilian c o ~ r t . ' ' ~In due course, a High Court judge decided that there was sufficient evidence to proceed to trial but the Director of Public Prosecutions made a decision not to proceed with the case.639These events led to considerable discussion in Parliament. The main substance of the argument against the Attorney-General's decision to refer the matter to the (civilian) Crown Prosecution Service was that it was unfair to the soldier to resurrect a charge which had been
636. By s., 51 of this Act the crime of genocide, a crime against humanity and a war crime, as defined in Arts. 6-8 of the Rome Statute 1998, are crimes under English criminal law if committed by a person subject to service jurisdiction (in addition to others). 637. 1998,2187 UNTS 90. 638. See House of Lords, Hansard, Vol. 678, col. 1294 (1 6 February 2006). Further discussion of this case can be found in the Select Committee on the Armed Forces Bill, Special Report of Session 2005-06, HC 828-1, paras. 52-56. (2006). A similar referral was made by the Attorney-General following the shooting of Mr Zaher Zaher, an Iraqi civilian. See House of Lords, Hansard, Vol. 68 1, co1.262 (27 April 2006). 639. House of Lords, Hansard, Vo1.678, col. 1295.
608
Correspondents' Reports
dismissed by his commanding officer and the fact that there had been considerable delay in bringing the case before the civilian courts. The 2006 Act removes from the commanding officer the power to dismiss a serious charge.640Instead, he must refer it to the service police who will, in turn refer it to the Director of Service Prosecutions. Only the latter may decide not to prosecute.64' In this way, a very senior lawyer performing the role of a prosecuting authority (rather than a senior officer within the chain of command) is the sole judge of whether a serious charge should be brought against a soldier. In practical terms he will be guided by whether the soldier has complied with his rules of engagement in a theatre of operations, such as in Iraq or Afghanistan (see below). A further change to the jurisdiction of the court-martial is that there is no longer any limitation on it exercising its jurisdiction where a service offence is alleged to have been committed within the United ~ i n ~ d o In mtheory, . ~ ~ therefore, ~ the court-martial (rather than a civilian court) could try a soldier for a criminal offence committed within the United Kingdom during the course of a non-international armed conflict occurring there. Where a soldier is convicted by the court-martial that court must take into account the purposes of sentencing, which are set out in the 2006 Act and include 'the maintenance of discipline'.643 The 2006 Act takes the opportunity to modernise the position of civilians who may be subject to United Kingdom service discipline abroad. It will cover embedded journalists and a wider range of civilian contractors working for the United Kingdom armed forces abroad.644The increased degree of flexibility contained in the 2006 Act was argued by the Ministry of Defence to be necessary where, for example, contractors are deployed to an operational theatre, and it is considered necessary for them to be subject to service discipline - for example where they will be operating in a failed state with no effective or satisfactory criminal justice system - the Defence Council, or authorised officer, will be able to designate the contractor and his employees [as subject to the Armed Forces Act 2 0 0 6 1 . ~ ~ ~ Subjecting civilians connected with the armed forces abroad to service discipline is 'one way of ensuring that they cannot commit crimes with impunity'.646
*
The European Court of Human Rights in Martin v. United Kingdom (Application No. 40426/98), Judgement, 24 October 2006
640. A serious charge is one listed in Schedule 2 to the 2006 Act. 641. Although he is subject to the superintendence in his functions by the Attorney-General, who in turn, is answerable to Parliament. 642. Section 70(4) of the 1955 Acts denied courts-martial jurisdiction in these circumstances. 643. Section 237. Given that the court-martial (as with its predecessors) has jurisdiction over criminal offences it can sentence a soldier to imprisonment for up to the maximum period permitted to a civilian court. 644. Select Committee on the Armed Forces Bill 2005-06, HC 828-11, Ev 201. 645. Ibid., Apart from the liability to the criminal law of England they can be liable for only a limited number of service discipline offences. 646. Ibid., at Ev 199. They can, in addition, be required to leave the territory, or be subjected to their employer's disciplinary system.
Correspondents' Reports
609
This case concerned the son of an army non-commissioned officer stationed in Germany who had been convicted of murder before a United Kingdom court-martial sitting in Germany. The issue of whether it was appropriate to try a civilian before a military court arose. The European Court of Human Rights reaffirmed the principle that: it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, [However,] the existence of such jurisdiction should be subjected to particularly careful scrutiny . . . The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis.' h47 It was not necessary for the Court to decide the issue since the applicant's claim was upheld on other grounds but it does place the burden upon a state (in this case the United Kingdom) to show compelling reasons why the exercise of jurisdiction over a civilian must be by way of the court-martial under the 2006 Act rather than before a civilian court. Finally, there has been a long-running campaign in the United Kingdom to grant pardons to British soldiers executed for serious military offences during World War I . The ~ Act ~ ~ does this by recognising them as 'victims of [the] First World The Rules of Engagement
*
Statement by Attorney-General to Parliament, 27 April 2006 <www.parliament.uWpub lications/index.cfm>.
The rules of engagement (ROE) for British soldiers operating in Iraq specify when fire may be opened. They are subject to change from time to time and are designed to keep the soldier within his criminal law obligations under English law (see the discussion above of the Armed Forces Act 2006). As a practical matter, no prosecution is likely to be brought where the soldier has complied with his ROE.^^' In 2006 the Attorney-General informed Parliament that: More than 80,000 members of the British armed forces have served in Iraq. There have been 184 investigations since the start of operations in Iraq - these cover all types of incidents - 100 of these relate to incidents where British forces were fired on by insurgents and returned fire; 164 investigations were closed with no further action; two in-
647. Application No. 40426198 para., 44. 648. See, for example, the Pardons for Soldiers of the Great War Bill 2005. 649. Section 359. There were c.304 British soldiers executed by firing squad following conviction by court-martial for a range of military offences during World War I. See generally, A. Babington, For the Sake of'Example: Capital Courts-Martial 1914-18, The Truth (London, Paladin 1985). Perhaps illogically there is no pardon granted to those who suffered some other punishment other than execution. 650. See The Queen (al Skeini et al) v. Secretary ofstate for Defence [2005] EWCA Civ 1609 (discussed in report on United Kingdom in 8 YIHL (2005) pp. 522-524. Further appeal is likely to be heard in this case during 2007; House of Lords, Hansard, Vo1.685, cols.288-302 (1 1 October 2006) 'in the vast majority of cases the investigation has determined that the action [shooting] fell within the rules of engagement'.
61 0
Correspondents' Reports
vestigations are still with the service police; five are awaiting trial, one is being considered by the chain of command, five are with the prosecuting authorities, three cases were dealt with summarily by commanding officers and five cases have been dealt with by the ~ o u r t s . ~ ' '
*
Court-martial acquittal
In June 2006 four British soldiers were acquitted by a court-martial of manslaughter involving the death of an Iraqi youth, who was reported to have drowned in a canal near ~ a s r a . ~ ~ ~ It led to a debate on the efficacy of the prosecution of soldiers for acts in ~ r a ~ . ~ ' ~
*
Proposed amendment to the Armed Forces Act 2006
During the passage of the Armed Forces Act 2006 attempts were made to place the ROE on a statutory basis and to provide that it would amount to an 'absolute defence to any charge alleging misconduct to show that the conduct fell within the ~ u l e s ' . ~The ' ~ Government did not accept this proposed amendment and its spokesman stated: If the rules of engagement were to have the force of law and provide an absolute defence, as is being suggested, they would have to take away what I have described as vital operational discretion. They would have to attempt to set out exactly how each commander and each soldier should respond to every situation . . . losing that confidentiality would be prejudicial.655 Statement by Government spokesman on ROE of Allied States, 19 July 2006 <www.
parliament.uk/publications/index.cfm>.
65 1. House of Lords, Hansard, Vol68 1, co1.274 (27 April 2006). 652. See M. Horsnell and M. Evans, 'Military justice in the dock after acquittals' in The Times, 7 June 2006, p. 1. Two of the soldiers were reported as wishing to leave the Army 'in protest at being prosecuted,' M. Evans, 'Court-martial guardsmen to quit' in The Zhes, 9 June 2006, p. 16. 653. The debate had begun in 2005. See the letter by Lord Astor and Mr A. Robathan, Shadow Defence Ministers, 'Amy Order' in The Times, 15 November 2005, p. 16, who argued that 'courts of law cannot re-create the conditions of the battlefield. While pursuing justice, we must not compromise the ability of our Armed Forces to fight. These young men are dying in Iraq in the service of this country. They need our support, not this Government's politically correct culture'. The Attomey-Genera1 responded by 'strongly rejecting the allegation . .. that decisions on military prosecutions are distorted by "political correctness",' Lord Goldsmith QC, 'Military prosecutions 'not being distorted" in The Times, 16 November 2005, p. 18, letter; House of Lords, Hansard, Vo1.678, ~01.1293.The issue surfaced again during the passage of the Amed Forces Bill through Parliament in 2006, see Select Committee on the Armed Forces Bill, Session 2005-06, HC 828-11, Q.438. A further complaint made was that of 'ambulance chasing lawyers' or 'private lawyers seeking to make money out of the difficulties faced by British troops,' ibid, 4.320. Compare the view of the Court of Appeal in The Queen (a1 Skeini et al) v. Secretary of State for Defence, supra 650; 'in my view the claimant's lawyers ... have rendered a valuable public service in bringing forward their clients' claims and prosecuting them with such conspicuous skill and vigour, Brooke LJ at para., 142. This view was supported also by Sedley LJ at para., 209. 654. See House of Lords, Hansard, Vol. 685, co1.288 (1 1 October 2006). 655. Ibid., Lord Drayson, at co1.296.
Correspondents ' Reports
6 11
A hrther issue relating to the ROE was raised during 2006. It was whether British armed forces personnel can be subject to the ROE of an allied state when conducting military operations alongside them, in this case UK service personnel posted to a US military unit. The Government spokesman stated that: UK personnel embedded with US forces remain subject to UK law and service law. They are authorised only to be involved in the planning or execution of operations that comply with British domestic and international legal obligations. . . . This means that they are bound by the UK's determination of the ambit of the armed conflict, including the determination of which armed groups constitute legitimate targets. Within those constraints, UK embedded personnel act within US rules of engagement, may use US collateral damage n~ethodologyand work to US delegated a~thorities.'~' Cases
1. The Legality of the War in Iraq in the English Courts
There have been a number of cases brought before the English courts attempting to challenge, in one way or another, the legality of the intervention by UK armed forces in Iraq from 2003.
*
R v. Jones
and others
(2006).'~'
In R v. Jones and others some 20 defendants had been charged with offences ranging from criminal damage relating to military aircraft or property at a US base in England to aggravated trespass at a military base. Essentially, their defences related to whether the activities at the military bases comprised an unlawful acth5' or amounted to reasonable force to prevent a crime, in this case, of aggression.h5' In order to establish these two separate defences it was necessary to show that the crime of aggression under customary intemational law was, by that fact, automatically a part of English law. The House of Lords decided that, although recognised under customary international law it was not a part of English law, the effect of which was that the defendants were denied their claimed defences.660 Had they decided otherwise and the international customary law of the crime of aggression had been a part of English law further challenges to the continued involvement of British forces in Iraq could have been expected.
656. House of Lords, Hansard, 19 July 2006, WA 54. 657. [2006] UKHL 16. 658. The relevant statutory provision is the Criminal Justice and Public Order Act 1994, s. 68(2). 659. By the Criminal Law Act 1967, s.3 it is a defence for a person to show that he used reasonable force in order to prevent the commission of a crime under English law. 660. The House of Lords recognised that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to pennit the lawful tnal. ..of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become . . . obscure, [2006] UKHL 16 Lord Bingharn, para., 19; Lord Mance, para., 99.
6 12
*
Correspondents' Reports
Gentle and another v. Prime Minister and others [2006] EWCA Civ 1690.
The applicants were two mothers of sons killed during military operations in Iraq. They sought judicial review of a refusal by the British Government to hold an inquiry into the circumstances of the involvement of British forces in Iraq in March 2003. Essentially they s ~ ~ ' into argued that Article 2 of the European Convention on Human ~ i ~ h t(incorporated English law by the Human Rights Act 1998) required an independent investigation into whether the UK had taken 'reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law'.662The applicants argued that the state has an 'obligation [to take] reasonable steps to ensure that it does not send ... men and women to take part in unlawful military activities'.663They did not seek an investigation into the circumstances of the deaths of their respective sons. The Court decided that judicial review would not lie and that there was no obligation under Article 2 of the Convention to conduct an investigation into what it called the 'invasion question'. Moreover, 'such an inquiry would inevitably involve not only questions of international law, but also questions of policy, which are essentially matters for the executive and not the
*
R (on the Application of A1 Rawi and others) v. Secretary of State for Foreign and Commonwealth Affairs and Another [2006] EWCA Civ 1279
The appellants were detained by the US at Guantanamo Bay. Prior to their detention they had been residents of the UK although they were not UK nationals. They sought an order from the Court to require the Foreign Secretary to make a formal request to the US authorities at Guantanamo Bay for their release. The Foreign Secretary had taken the view that The issue was whether the such a request would be 'ineffective and co~nterproductive'.~~~ Court could compel the Foreign Secretary to make such a request. It decided in the negative. In R (on the Application of Abbasi) v. Secretary of State for Foreign Affairs [2002] EWCA Civ 1598 the Court of Appeal had refused to make such an order in respect of UK nationals and the appellants, who were non-nationals could hardly be in any stronger position. The case for the appellants was based on whether the Foreign Secretary's decision not to intervene on their behalf was perverse. The Court held that 'on the material before [it] such an enterprise [was] manifestly u n a ~ h i e v a b l e ' . ~ ~ ~
*
R (on the Application ofA1-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327
The appellant was of joint British and Iraqi nationality. While on a visit to Iraq he was detained there by British forces. He challenged his continued detention. The Court of
661. 662. 663. 664. 665. 666.
1950,213 UNTS222. [2006]EWCA Civ 1690 Clarke LJ, para., 3 Ibid., para., 10. Ibid., para., 84. [2006]EWCA Civ 1279, para., 36. Ibid., para., 141.
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Appeal, in a wide-ranging judgement decided that he was not a protected person under Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1 9 4 9 since ~ ~ ~he was a British national. 'Nor', in the judgement of Brooke Lord Justice, 'would he [have been] if he had been detained by US forces at the time of the occupation of Iraq, since he would have been the national of a co-belligerent state with whom the UK had normal diplomatic relations'.6h8 Brooke Lord Justice also concluded that: of the Hague Regulations empowers an occupying power to intern anyone it considers to be an immediate threat to security within the occupied territory, whatever their nationality. ... What Geneva IV does is to prescribe the circumstances in which this power is to be . . . exercised in relation to the people protected by that convention. It does not itself create the power'.hhy art.43
UN Security Council Resolution 1546 (2004) referred to the need for 'internment where this is necessary for imperative reasons of security'.670 In his judgement Brooke Lord Justice stated that 'this power embraced people of every nationality whose internment was deemed necessary for imperative reasons of security'.671 He concluded that the effect of this Resolution and Article 103 of the UN Charter was to 'qualifly] any obligations contained in human rights conventions in so far as it was in conflict with them'.672
*
The Court-Martial of Flt. Lieutenant Kendall-Smith
Flight Lieutenant Kendall-Smith was a medical officer in the Royal Air Force who was charged before a court-martial with various offences against the Air Force Act 1955, the gist of which were that he refused to be deployed to Iraq in July 2005. It was reported that he had argued before the Court 'that the ongoing presence of US-led forces in Iraq was illegal . . . [and] that he did not want to be complicit with an "act of aggression" contrary to international law.'673 It was also reported that the judge advocate, in conveying to him a sentence of imprisonment of eight months imposed by the court-martial, commented that 'those who wear the Queen's uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences'.674 The issue of obedience to lawful orders was discussed in Parliament during the passage of the Armed Forces Bill 2006 (see above).
667. 1949,75 UNTS 287. 668. [2006] EWCA Civ 327 para., 40. 669. At paras. 46-47. 670. See the letter from Colin Powell attached to the Security Council Resolution. Based on SC Res 154612004, UN Doc. SiRESi1546, 8 June 2004 'the UK contingent of the Multinational Force in Iraq was holding 76 security detainees [as on 14 July 20061.. .they are reviewed on a monthly basis,' see Fourth Report from the Foreign Affairs Committee, Session 2005-06, 'Foreign Policy Aspects of the War Against Terrorism: Response of the Secretary of State for Foreign and Commonwealth Affairs,' Cm 6905 (2006), paras. 58, 6 1. 671. [2006] EWCA Civ 327 para., 86. 672. Ibid., para., 30. 673. 'RAF doctor jailed over Iraq refusal', in The Guardian,13 April 2006. 674. Ibid.
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Inquests into the Deaths of British Soldiers Abroad British soldiers killed in Iraq or Afghanistan, whose bodies are returned to the United Kingdom, will be the subject of a coroner's inquest.675 The coroner has found a number of soldiers to have been the subject of an 'unlawfid killing'.676
The Detention o f Civilians by UK Armed Forces in Afghanistan and Iraq The UK Deployment to Afghanistan, House of Commons Select Committee on Defence, Sixth Special Report, Session 2005-06, Government Response, HC 1211 (I5 June 2006). In Afghanistan the UK Government stated that: The responsibilities of UK forces to detainees have always been clear. United Kingdom procedures governing the handling of detainees are consistent with the principles of the Geneva Conventions. ... In addition the UK has now concluded a Memorandum of Understanding (MOU) on detention with the Afghan Government, which sets out, inter aha, the responsibilities of UK Armed Forces towards detainees in the period prior to their handover to Afghan security forces or release.h77 The Government also stated that: Under the terms of the MOU agreed between the UK and the Afghan Government, representatives of the Afghan Independent Human Rights Commission and the Intemational Committee of the Red Cross will have full access to any persons transferred by the UK Armed Forces to Afghan authorities whilst such persons are in custody, as will the UK. Records of these detainees will be kept by Afghan authorities and will be available to the UK for inspection if required.67x The position of those detained by UK British forces in Iraq is referred to in the discussion of R (on the Application ofAl-Jedda) v. Secretary o f State for Defence (2006), above.
War Crimes United Kingdom Government Ministers made a number of statements about war crimes during the course of Parliamentary proceedings in 2 0 0 6 . ~ ~ ~
*
675. For an account of this process see House of Lords, Hansard, Vo1.685, WS 56, at 57. 676. Ibid., at WS 60-61. An inference from this verdict is that the soldier was killed by an unlawful combatant, i.e., a civilian taking an active part in hostilities. 677. House of Commons Select Committee on Defence, Sixth Special Report, paras. 33, 34. See also House of Commons, Hansard, Vo1.44 1, col. 1648W (20 January 2006). 678. Ibid., para., 36. 679. See also The United Kingdom in the United Nations, Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty, Cm 6892 (2006) para., 248 et seq.
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(i) Costs of investigation To the question 'whether there is a maximum level of estimated costs for the investigation of alleged war crimes under the Geneva Convention beyond [what] . . . is deemed disproportionate to pursue,' the Minister responded that there was 'no maximum level of [such] estimated costs'.680 (ii) War Crimes Act 199 1
The Minister stated: [Tlhe War Crimes Act 1991 was passed by Parliament to allow the prosecution of war crimes committed during the Second World War in Germany or German occupied territory by people who are now British citizens or resident in the UK. The Metropolitan Police War Crimes Unit, which disbanded in 1999, conducted enquiries into a large number of cases . . . There has been one conviction under the Act. Anthony ~awoniuk'~' was sentenced to life imprisonment in 1999 and died in custody in 2005. In one other prosecution, against Syzmon Serafinowicz in 1997, the court found the defendant unfit to plead and the then Attorney-General entered a Nolle Prosequi (permanent stay of prosecution).682 (iii)
Cooperation with other states
The Minister stated that: the European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes has met twice, on 23-24 November 2004 and 28-29 June 2005. A further meeting is planned during the Austrian presidency of the European Union. UK representatives who have attended meetings of the network have found it helpful in establishing contacts with foreign authorities responsible for investigating these offences.'683 To a question relating to the 'lack of progress towards full co-operation [by the leaders of the Republika Srpska] with the International Criminal Tribunal for the former Yugoslavia,' the Minister responded, 'we have consistently emphasised the importance of . . . full cooperation with the [ICTY] . . . and will continue to do so.684
680. House of Commons, Hansard, 12 January 2006, co1.844W. 68 1. For discussion of this case see I. Bryan and P. Rowe, 'The Role of Evidence in War Crimes Trials: The Common Law and the Yugoslav Tribunal' 2 YtHL (1999) p. 307. 682. House of Commons, Hansard, 17 March 2006, co1.2605-6W. 683. House of Commons, Hansard, 13 February 2006, co1.1748W. 684. House of Lords, Hansavd, 9 October 2006 Col.WA56.
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The Minister stated that: We have consistently made clear that those responsible for war crimes in D a f i r must be brought to justice. We have called on the Sudanese Government to investigate those believed to be responsible for war crimes. We are encouraging anyone with information on the perpetrators of war crimes to pass it to the Sanctions Committee and the International Criminal Court for consideration in their work under United Nations Security Council Resolutions 1591 and 1 5 9 3 . ~ ' ~ (v) Sierra Leone
The Secretary of State for Foreign and Commonwealth Affairs referred to the detention of Charles Taylor at the Special Court for Sierra Leone and that the Government of the Netherlands had agreed that his trial could take place in The Hague. She confirmed that: At the request of the UN Secretary-General, I have therefore agreed that, subject to parliamentary legislative approval, the United Kingdom would allow former President Taylor, if convicted and should circumstances require, to enter the UK to serve any sentence imposed by the Court. This is entirely without prejudice to the eventual location or outcome of the trial. Former President Taylor's right to a fair trial must be respected ... By offering these assurances, we are removing one potential obstacle to allowing the trial to proceed. We are also demonstrating the UK's absolute determination to see the alleged perpetrators of genocide, crimes against humanity and war crimes held to account.686 (vi)
Rwanda
On the issue of extraditing suspected war criminals present in the United Kingdom to Rwanda the Minister commented that there was no general extradition arrangement between the UK and Rwanda. There is, however, provision within the Extradition Act 2003 for Ministers to consider whether the UK might enter into special arrangements where no other extradition arrangement exists. In addition, there is an appropriate legislative basis to ensure that the UK could surrender any individual indicted by the International Criminal Tribunal for Rwanda if they were found to be within the UK. It is UK policy to give due consideration to any such request of an individual for extradition or surrender in light of these arrangement^.^'^
685. House of Commons, Hansard, 12 January 2006, co1.798W. 686. House of Commons, Hansard, 15 June 2006, co1.69W. 687. House of Commons, Hansard, 12 June 2006, co1.1004W. The surrender provisions are contained United Nations (International Tribunal) (Rwanda) Order, 1996 SI No 1296. In House of Commons, Hansard, 24 May 2006, co1.1858W the Minister stated that: 'Officials from the Home Office
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(vii) Lebanon In response to a question whether the [British Government] 'will gather any available evidence of war crimes [and crimes] against humanity from the Middle East conflict since l July [2006] with a view to presenting cases to the International Criminal Court' the Government Minister responded that '[wle have no plans to gather evidence to present to the International Criminal Court'. He also commented that '[wle remain deeply concerned by the situation in the Middle East and have called for all sides to act with restraint. We share the serious concem of the UN and others about the number of deaths, casualties and displaced persons that have been caused as a result of this conflict'.hXx
Cluster Bombs * UK position on cluster bombs, December 2006 <www.parliament.uklpublications/ index.cfm>. The United Kingdom has 'initiated a questionnaire for States Parties to the Convention on Certain Conventional Weapons on how they apply international humanitarian law in armed conflict in using cluster and other munitions'.6xyh here was considerable interest in Parliament on this issue during 2 0 0 6 . ~ ~The ' relevant Foreign Office Minister issued a written statement on the UK's position on cluster bomb^.^" In it he stated that: compelling and legitimate conditions may occur when our armed forces need to use these weapons. If so, we [will] do so in strict accordance with international humanitarian law. . . . At the review conference [Convention on Certain Conventional Weapons] the UK led an initiative to address the humanitarian impact of these weapons . . . Prior to the conference we announced our plan to withdraw from service by the middle of the next decade our so-called "dumb" cluster munitions and called on other countries to do the same (Our understanding of a "dumb" cluster munition is one that has numerous submunitions, each of which has an explosive content. Additionally, the submunitions either do not have a target discrimination capability or they do not have a self-destruct, self-neutralisation or self-deactivation capabilities). I am pleased to report that the UK's efforts at the review conference were rewarded. It was agreed by consensus to hold urgent expert level discussion on the humanitarian impact of cluster munitions. This is
Immigration and Nationality Directorate War Crimes Unit are investigating the allegations against [a] Mr. [Charles] Munyaneza. Once the facts are fully established, consideration will be given to the appropriate course of action. We would not wish anyone suspected of genocide in Rwanda to enjoy impunity in the UK.' 688. House of Lords, Hansard, 9 October 2006, col.WA62. 689. House of Commons, Hansard, 27 February 2006, co1.292W. 690. See, for example, House of Lords, Hansard, 12 October 2006, co1.355-6, where the Govemment Minister stated 'with the greatest respect to all those who have expressed the ethical concem [about using cluster munitions]: are the issues of the protection of our troops.. .to be real considerations or are we to abandon those considerations when it appears to be convenient?'; House of Lords, Hansard, 23 November 2006, co1.421 (short statement on the Conventional Weapons Convention review conference). 691. House of Commons, Hansard, 4 December 2006, col. l WS.
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an essential preliminary step before launching any negotiation on legally binding instruments to address the use of cluster munitions. Not least because there has yet to be an internationally agreed definition of what constitutes a cluster munition. .. . We will consider carefully the results of these expert discussions before deciding whether and if so how to develop our policy on cluster munitions. Subsequently, a member of the House of Lords introduced a Bill, the Cluster Munitions (Prohibition) Bill in that House. During the course of the debate on its second reading the Government Minister (Baroness Crawley) explained why the Government had planned the withdrawal of cluster munitions by 2015 and not earlier than then. She explained that: to attain the necessary operational effectiveness of our Armed Forces and to ensure that they have the systems that they need to conduct the operations that we ask of them, we cannot withdraw extant systems until the replacement ones are declared operational and fit for purpose. However .. . MOD officials are examining the possibility of withdrawing then earlier [than 20 1.51.~~' Small Arms * Statement by a Minister in the Foreign and Commonwealth Offices, 11 January 2006 <www.parliament.uklpublications/index.cfm>.
A Minister in the Foreign and Commonwealth Offices stated, in response to a question, that: The UK is one of the most active participants in international efforts to combat the global proliferation of Small Arms and Light Weapons (SALW). We have allocated £1 3.25 million to a UK SALW strategy over the period 2004-07. We are also one of the largest donors supporting the UN effort to combat the proliferation of SALW . . . Since 2004 we have supported work on strengthening controls on trade in SALW, collecting, managing and destroying weapons and ammunition; reducing demand; implementing existing regional arrangements; devising national action plans and helping build the capacity of local civil society.693
692. House of Lords, Hansard, 15 December 2006, co1.1767. Baroness Crawley also indicated that the experts (referred to in the Ministerial Statement on 4 December (see above) would 'report back to the conference by November 2007,' at co1.1766. The Bill was committed to the committee stage but Baroness Crawley stated that 'we believe the Bill ... is inconsistent with our current military requirements, and that is why the Government have reservations about it,' col. 1768. A further Bill was introduced in the House of Commons, the Cluster Bombs (Prevention and Development) Bill, Hansard, 19 December 2006, co1.1282. It was read for the first time. 693. House of Commons, Hansard, 11 January 2006, co1.675W. See also the UK Foreign and Commonwealth Office, Human Rights Annual Report 2006, p. 217 and The United Kingdom in the United Nations, supra 679; para., 226.
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Proposed Arms Trade Treaty
*
Foreign Secretary's speech, 27 October 2006 ~www.fco.gov.uk/se~~et/Front?pagen ame=OpenMarket/XcelerateiShowPage&c=Page&cid=100702939 1638&a=KArti cle&aid=l161590330550>.
At a press conference the United Kingdom Foreign Secretary welcomed the UN vote in the first committee on a potential international Arms Trade Treaty. Mrs Beckett stated that: The UK has been leading calls for an international Arms Trade Treaty to end the irresponsible trade in arms worldwide. We believe that such a treaty should be legally binding, cover the trade in all conventional arms, set clear standards for when arms transfer should not take place, including respect for human rights, and have an effective monitoring and enforcement r n e c h a n i ~ m . ' ~ ~
International Criminal Court Activities in UK
*
The International Criminal Court (Immunities and Privileges) Orders
The International Criminal Court (Immunities and Privileges) (No. 1) Order 2006'" implements the Agreement on the Privileges and Immunities of the International Criminal Court 2002. The International Criminal Court (Immunities and Privileges)(No.2) Order 2006 grants similar immunities and privileges to representatives of States Parties participating in the Assembly of the Court, its subsidiary organs and intergovernmental ~ r ~ a n i s a t i o n s . ~ ~ ~
Cultural Property
*
Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 19.54~~' and its Protocols of 1 9 ~ 4 and ' ~ ~1999.699
The British Government announced that it would ratify these instrument^.'^^ To enable it to do so domestic legislation is required. The Hague Convention (Artefacts in War) Bill is due to be published in 2007.
694. For statements in Parliament see House of Commons, Hansard, 4 May 2006, co1.1806W and 25 July 2006, ~01.722. 695. Statutory Instrument 2006 No. 1907. 696. Statutory Instrument 2006 No.1908. 697. 1954,249 UNTS 240. 698. Protocol to the Convention for the Protection of Cultural Property in the Even of Armed Conflict 1954,249 UNTS 358. 699. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Even of Armed Conflict 1999,38 ILM 769. 700. See House of Lords, Hansard, 15 November 2006, WS2 and House of Lords, Hansard, 20 November 2006, col. 181. The United Kingdom report in 8 YIHL (2005) p. 5 19, drew attention to the consultation exercise carried out by the Government.
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Conventional Weapons * Protocol V to the Conventional Weapons Convention 1980.~" The Foreign and Commonwealth Secretary explained in a written answer to Parliament that the Government intends to hlly ratify Protocol V as soon as possible. The UK already adopts the principles enshrined within Protocol V to ensure, to the greatest possible extent possible, that Explosive Remnants of War remaining after conflict are cleared.702
Guantanamo Bay * United Kingdom Government position, 11 July 2006 <www.parliament.uk/publica tions/index.cfm>. Following a question in Parliament the Government spokesman stated that we have made it clear that the circumstances in which detainees continue to be held at Guantanamo Bay are unacceptable and that it should be closed. I think that people know our view, and I do not accept that we are tainted [by the overall strategy of Guantanamo Bay], because we have expressed our view. The handling of detainees has to be consistent with our objectives, including preventing further terrorist attacks, undermining the work of those who recruit terrorists and upholding respect for human rights and the rule of The Government went on to suggest that 'carefd consideration needs to be given to how the detention facility at Guantinamo Bay should be closed so that international security is maintained and the human rights of detainees are respected if returned to their countries of citi~enship'.'~~
'20th -Century Rules, 2lst-Century Conflict'. Statement by the Secretary of State for Defence, 3 April 2006 <www.mod.uk/DefenceIn ternetlAboutDefencelPeopleiSpeeches1S0fS12006040320th~enturyR~1es2 1stcentury Conflict.htm>.
*
701. Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V) 2003, CCW/MSP/2003/2. 702. House of Commons, Hansard, 23 November 2006, co1.242W. 703. House of Lords, Hansard, 1l July 2006, co1.581. The Attorney-General, Lord Goldsmith QC is reported to have stated, 'the existence of Guantanamo Bay remains unacceptable. It is time, in my view, that it should close' F. Gibb, 'Attorney-General condemns Guantanamo' in The rimes, 11 May 2006, p. 8. 704. Fourth Report from the Foreign Affairs Committee, Session 2005-06. 'Foreign Policy Aspects of the War Against Terrorism: Response of the Secretary of State for Foreign and Commonwealth Affairs,' (2006) Cm 6905, para., 10.
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The (then) Secretary of State for Defence (Dr John Reid) spoke at a meeting of the Royal United Services Institute for Defence and Security Studies on this topic. He is reported as commenting that Article 3 of the [Geneva] Conventions sets fundamental standards of treatment in all non international conflicts, standards that are upheld by the laws of any civilised state. However, . . . I believe we must ask serious questions about whether or not further developments in international law in this respect are necessary . .. 1 believe we need now to consider whether we - the international community in its widest sense - need to reexamine these conventions. If we do not, we risk continuing to fight a 21st Century conflict with 20th Century rules. Dr Reid went on to say that 'we [the UK] have moved from a reactive to a proactive approach and from defensive garrison roles to an emphasis on multiple, sustained expeditionary operations against asymmetrical opponents. However, international legislation has not seen the same degree of change'.
Waging War: Parliament S Role and Responsibility
*
House of Lords Select Committee's Report, 27 July 2006 <www.parliament.uk/publica tions/index.cfm>.
considered whether the curThe House of Lords Select Committee on the rent position, that the deployment of the UK armed forces abroad is a matter of the Royal prerogative (exercised by the Government) and not therefore a matter for Parliament, should remain. It concluded that the current position was outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament's ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government's deployment powers, and the role Parliament can - and should play in their e~ercise."~ -
It went on to recommend that 'Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflictT707The Committee further recommended that in seeking approval, the Government should indicate the deployment's objectives, its legal basis, likely duration and, in general terms, an estimate of its size. If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days of its commencement or as soon as it is
705. 15th Report of Session 2005-06, 'Waging War: Parliament's Role and Responsibility', Volume 1 : Report, HL Paper 236-1 (27 July 2006). 706. Ibid., para., 103. 707. Ibid., para., 110.
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feasible . . . [and] keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.708 The Government rejected the Select Committee's recommendations for change at the present time.709It drew attention to the Prime Minister's comments that he 'could not conceive of a situation in which a Government ... is going to go to war - except in circumstances where militarily for the security of the country it needs to act immediately - without a full parliamentary debate'. It concluded that the Government is not presently persuaded of the case for . . . establishing a new [Parliamcntary] convention determining the role of Parliament in the deployment of armed forces. The existing legal and constitutional convention is that it must be the Govemment which takes the decision in accordance with its own assessment of the position. That is one of the key responsibilities for which it has been elected. A Bill is currently before Parliament entitled, Waging War (Parliament's Role and Responsibility) Bill 2006. Given the Government's response to the House of Lords Select Committee's Report this Bill is unlikely to gain the support of the Government and is therefore virtually certain not to be passed by Parliament. PETER ROWE
UNITED STATES OF
AMERICA^"
Cruel, Inhuman, or Degrading Treatment or Punishment
*
The Detainee Treatment Act of 2005 and the Common Article 3 Provisions of the Military Commissions Act of 2006. (Documents 1 and 2)
For several years prior to 2006, controversy has surrounded United States treatment, particularly during interrogation, of persons interned as unprivileged belligerents (or unlawful combatants) in connection with the armed conflicts in Afghanistan and Iraq. In particular, this controversy has focused on those held at the US Navy base at Guantanamo, Cuba. While the US government repeatedly stressed that the detainees were to be treated humanely, it had been reluctant to expressly state that detainees would not be subjected to 'cruel, inhuman or degrading' treatment, a phrase that appears in numerous documents on intemational human rights, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights7" and Article 16 of the Convention against Torture
708. Ibid. 709. Government Response to the House of Lords Constitution Committee's Report Fifteenth Report of Session 2005-06, Cm 6923 (November 2006). 710. Information and commentaries by Bums M. Carnahan, Professorial Lecturer in Law, the George Washington University, Washington D.C 711. 1966,999 UNTS 171.
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and Other Cruel, Inhuman or Degrading Treatment or Punishment ('Convention against ~ o r t u r e ' ) . " ~According to media reports, the government's reluctance appears to have stemmed from the reference to 'degrading' treatment which, it was believed, might have prohibited some intelligence interrogation techniques. In reaction, at the end of 2005 US Senator John McCain, who had himself been tortured as a prisoner of war, proposed legislation (the 'Detainee Treatment Act of 2005') to set standards for detainee treatment. The Act was attached to legislation appropriating funds for the Defense Department and became law in early 2006 (Document 1). Detainee Treatment Act sets limits on interrogation and the use of coerced statements against detainees in administrative proceedings, but the core of the Act was section 1403, which prohibited 'cruel, inhuman, or degrading treatment or punishment' of anyone 'in the custody or under the physical control of the United States Government, regardless of nationality or physical location'. No sanction or penalty was stated for violation of the Act. On 10 May 2006, the Department of Defense nevertheless ordered its personnel to adhere to the Act by issuing Change 1 to DOD Directive 31 15.09 on Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning. The Act also, however, adopted a restrictive definition of cruel, inhuman or degrading treatment, limiting it to acts prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. The Fifth Amendment to the US Constitution prohibits the federal government from taking life, liberty or property without due process of law, and establishes the right against selfincrimination in criminal cases. The Eighth Amendment prohibits the infliction of cruel and unusual punishments by the federal government, while the Fourteenth Amendment applies these restrictions to the states of the federal union. Protection of domestic law enforcement officers in the United States was the primary purpose of the Convention against Torture reservation referred to in the Detainee Treatment Act. When the United States was considering ratification of the Convention against Torture, a major topic of debate was how to prevent international interference with civil law enforcement, which under the US federal system is primarily a matter for state and local governments. In particular, it was feared that the prohibition on degrading treatment might impose restrictions on law enforcement beyond those in the US ~onstitution."~ Whatever the merits of this reservation as a protection for peacetime law enforcement, it does not set an appropriate standard for treatment of alien enemy combatants detained during an armed conflict. Enemy aliens are generally not protected by the provisions of the US Constitution, nor do those provisions limit the action of US armed forces in their treatment of such aliens. Moreover, the United States has international legal obligations to pre-
712. 1984, 1465 UNTS 85. 7 13. See M. Nash (Leach), Cumulative Digest o f United States Practice in International Law 1981 1988 (Washington, Department of State Publication 10120, 1993) pp. 841 -842.
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vent cruel, inhuman and degrading treatment during armed conflict aside from the provisions of the Convention against Torture. The prohibition on cruel, inhuman and degrading treatment is found in many treaties besides the Convention against Torture, and is probably also part of the customary law of war. In its recent study of customary international humanitarian law, the International Committee of the Red Cross concluded that 'cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment' were prohibited by customary law in both international and non-international armed
conflict^."^ This issue actually arose on 29 June 2006, when the US Supreme Court issued its opinion in Hamdan v. ~ u m s f e l d . " In ~ that opinion Justice Stevens (for at least four of the nine justices) stated that the armed conflict between the United States and a1 Qaeda was 'not of an international character' and that therefore Common Article 3 to the Geneva Conventions71h applied. In reaching this conclusion, Justice Stevens ignored the phrase in Common Article 3 stating that it applies to conflicts 'occurring in the territory of one of the High Contracting Parties,' language that should have excluded an armed conflict between United States forces and a1 Qaeda forces in Afghanistan from direct application of Common Article 3. Nevertheless, on 1I July 2006, Deputy Defense Secretary Gordon England sent a memorandum to all Defense Department offices and agencies, notifying them that, as a result of the Hamdan decision, Common Article 3 now 'applies as a matter of law to the conflict with a1 Qaeda,' and directing them to promptly review all relevant directives, regulations, policies, practices and procedures to ensure compliance with the standards of Common Article 3. Later a formal Department of Defense Directive (DOD Directive 23 10.01E, 5 September 2006, Subject: The Department of Defense Detainee Program) was issued requiring that, at a minimum, all detainees be treated in accordance with Common Article 3, 'as construed and applied by US law'. While Common Article 3 does not use the phrase 'cruel, inhuman and degrading treatment,' it does prohibit 'cruel treatment' and 'humiliating and degrading treatment'. At the time of the Hamdan decision, the US War Crimes Act defined war crimes to include any conduct 'which constitutes a violation of Common Article 3'.7'7 One possible result of the Court's finding that Common Article 3 applied to the war with a1 Qaeda was that US interrogators who used methods that might be considered humiliating and degrading could become subject to prosecution in federal court. It should be noted, in this regard, that for international armed conflicts the War Crimes Act only declares grave breaches of the
714. Rule 90, in J. Henckaerts, 'Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict', 857 IRRC, (2005) pp. 175 at 206. 715. Salim Ahmed Hamdan, Petitioner v. Donald H Rumsfeld, Secretary of Defense 548 US 507(2006) ('Hamdan'). 7 16. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 31 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949, 75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'). 7 17. 18 USC 244 1 (c) (2004).
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Geneva Conventions to be war crimes under US criminal law. However, degrading treatment of a prisoner of war is not classified as a grave breach in the Geneva Convention 111, nor is degrading treatment of a protected person a grave breach of the Geneva Convention IV. This could lead to the anomalous result that humiliating and degrading treatment during an international armed conflict would not be regarded as a war crime under US law, while the same misconduct during a non-international armed conflict would be considered a war crime. In the latter part of 2006, the U S Congress amended the War Crimes Act to correct this anomaly (Document 2. See The amendment struck out the old language that made any violation of Common Article 3 a war crime and created a new category of offences termed 'grave breaches' of Common Article 3. Only these grave breaches were declared to be war crimes. As might have been expected, the amendment defined cruel and inhuman treatment as a grave breach of Common Article 3, but not humiliating and degrading treatment. The 2006 amendment to the War Crimes Act also reiterated the prohibition on cruel, inhuman or degrading treatment from the Detainee Treatment Act and declared such acts to be 'violations of common Article 3 of the Geneva Conventions'. The amendment called for these violations to be enforced through administrative rules and procedures rather than by criminal prosecution. Unfortunately, the amendment also included the Detainee Treatment Act provision defining cruel, inhuman or degrading treatment in accordance with the US reservation to the Convention against Torture, i.e., only acts that would violate the Fifth, Eighth and Fourteenth Amendments to the US Constitution constitute cruel, inhuman or degrading treatment. Thus a reservation initially intended to protect law enforcement officers in peacetime has now become embedded in US implementation of Common Article 3 of the Geneva Conventions. On the positive side, the 2006 amendment to the War Crimes Act does help to flesh out the concise treaty text of Common Article 3. The amendment clarifies that maiming, intentionally causing serious bodily injury, rape and sexual assault or abuse are all violations of Common Article 3. The amendment also states that the prohibition on hostage taking does not apply to prisoner exchanges, a desirable development to the extent that it encourages both sides in internal conflicts to grant quarter and take prisoners. Other provisions of the amendment, however, seem poorly adapted to non-international armed conflict. The amendment thus states that no offence is committed if death, damage, or injury are 'incident to a lawful attack'. Since established governments regard all violent acts by rebels to be unlawful, it would appear that only members of government forces could avail themselves of this defence. The offence of inflicting serious bodily injury is defined to cover injuries to 'lawful combatants' in addition to persons hors de combat. Again, since all governments regard rebels as unlawful combatants, it would appear that the United States is prepared to punish, as a war crime, the wounding of government soldiers by rebel forces in open battle. Perhaps these issues can be resolved by interpretations issued by the President, as contemplated by section 6(a)(3) of the amendment.
7 18. Section 6, Public Law No: 109-366; 120 STAT. 2600 at 2632-2635 (2006).
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Documents I and 2
The Detainee Treatment Act of 2005, Public Law 109-163, Title XIV (document I) SEC. 1401. SHORT TITLE. This title may be cited as the 'Detainee Treatment Act of 2005'.
SEC. 1403. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT. (a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. (b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. (c) Limitation on Supersedure- The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section. (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term 'cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
* Military Commission Act Implementation and Interpretation of Common Article 3 (document 2)
[Public Law No: 109-366; 120 STAT. 2600,2632-26351 SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS. (a) Implementation of Treaty Obligations(I) IN GENERAL- The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, [The War Crimes Act of 1996, as amended] as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law. (2) PROHIBITION ON GRAVE BREACHES- The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article
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129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 244 1.
(3) Interpretation by the president.(A) As provided by the Constitution and by this section, the President has the authority for
the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. (B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register. (C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations. (D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.
(b) Revision to War Crimes Offense Under Federal Criminal Code(1) IN GENERAL- Section 2441 of title 18, United States Code, is amended(A) . . . by striking paragraph (3) and inserting the following new paragraph (3): '(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or'; and (B) by adding at the end the following new subsection: '(d) Common Article 3 Violations'(1) PROHIBITED CONDUCT- In subsection (c)(3), the term 'grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows: '(A) TORTURE- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. '(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control. '(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons. '(D) MURDER- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other of-
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fense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause. '(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose. '(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war. '(G) RAPE- The act of a person who forcibly or with coercion or threat of force wronghlly invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object. '(H) SEXUAL ASSAULT OR ABUSE- The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact. '(I) TAKING HOSTAGES- The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain From acting as an explicit or implicit condition for the safety or release of such person or persons. (2) DEFINITIONS [Omitted]
(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK- The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to(A) collateral damage; or (B) death, damage, or injury incident to a lawful attack.
(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE- Paragraph (l)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime
(5) DEFINITION OF GRAVE BREACHES- The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.
(c) Additional Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment-
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(1) IN GENERAL- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. (2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DE-
FINED- In this subsection, the term 'cruel, inhuman, or degrading treatment or punishment'
means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. (3) COMPLIANCE - The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.
General Commentary on the Military Commissions Act of 2006
* Military
Commissions Act 2006, Sub-chapter I - General Provisions and SubChapter VII - Punitive Matters
In Hamdan the US Supreme Court decided that the Department of Defense documents establishing military commissions for the trial of unlawful combatants did not conform to existing federal statutes. In reaction, the US Congress passed the Military Commissions Act of 2006 (Document 3). The Act establishes a clear statutory basis for the establishment of military commissions and also includes a penal code and a code of criminal procedure for military trials of enemy alien combatants in the custody of the US armed forces. This commentary focuses on the substantive offences defined in the Act because they are of greater interest from an international humanitarian law standpoint. The Act gives military commissions jurisdiction over 'unlawful enemy combatants'. To be an unlawful combatant, a person must meet two tests.'I9 First, he or she must not be entitled to prisoner of war status under Article 4A, paragraphs (I), (2) and (3) of Geneva Convention 111. That is, the person must not be a member of the regular armed forces of an enemy state or of an authority not recognised by the United States, nor should the person be a member of a militia or volunteer corps that meets the four tests initially laid down in the 1899 Hague Regulations annexed to Hague Convention (11) with Respect to the Laws and Customs of War on and"' and 1907 Hague Regulations annexed to Hague Convention (IV) Respecting the Laws and Customs of War on and^*' ('Hague Regulations') (being under a responsible command, wearing a fixed distinctive sign recognisable at a distance, carrying arms openly, and abiding by the law of war). Other persons qualifying for prisoner of war status under Article 4A, such as civilians accompanying the armed forces (paragraph (4)) or the crews of merchant vessels and civil aircraft (paragraph (5)) would not qualify as lawfil combatants, and would not enjoy the privilege of participating directly in hostilities.
7 19. See new section 948a of 10 USC, 120 STAT. at 2601. 720. 1899, 32 Stat. 1803. 721. 1907, 36 Stat. 2277.
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Article 50 of Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts ('Additional Protocol I ' ) makes ~ ~ ~ a similar distinction, preserving the immunity from direct attack of civilians accompanying the armed forces and crews of merchant vessels and civil aircraft. Presumably the Military Commissions Act also recognises these persons as civilians immune from direct attack. Paragraph (6) of Article 4A of Geneva Convention I11 also accords prisoner of war status to participants in a levee en masse - civilians in non-occupied territory 'who on the approach of the enemy spontaneously take up arms to resist the invading forces'. It is not clear why the Military Commissions Act does not recognise members of levee en masse as lawful combatants. Under the Act, a person not entitled to prisoner of war status under the above-cited provisions of Geneva Convention 111will be classified as an unlawful combatant if he or she has 'engaged in hostilities or . . . purposefully and materially supported hostilities against the United States or its co-belligerents'. The Military Commissions Act uses a similar phrase taking an 'active part in hostilities' - to describe the circumstances under which civilians lose their immunity from a t t a ~ k . " ~It is not clear whether engaging in hostilities has the same meaning as taking an active part in hostilities, but reading the texts together suggests that taking an active part in hostilities does not include providing material support to hostilities. If that is the proper interpretation, then persons providing material support to hostilities might be classified as unlawful combatants, within the jurisdiction of a military commission, while still retaining immunity from direct attack during combat operations. A somewhat different interpretation may be suggested by the negotiating history of Additional Protocol I. Article 5 1 of the Protocol states that civilians lose their immunity when they 'take a direct part in hostilities'. During the negotiation of Additional Protocol I, some delegations expressed the view that the term 'hostilities' included preparations for combat and return from combat.724This interpretation of the term 'hostilities' suggests that, in addition to civilians who actually engage in combat, civilians who provide material support to enemy forces preparing or withdrawing from combat may also lose their immunity from attack. While discussing definitions, it should be noted that the Act takes its definition of 'military objective' from Article 52, paragraph 2, of Additional Protocol I, with minor changes in language. The Act thus constitutes additional state practice supporting the Article 52 definition as a rule of customary law. On the other hand, the Act does not follow the restrictive definition of 'protected persons' in Article 4 of Geneva Convention IV. Under the Act, persons protected by any of the Geneva Conventions and all 'civilians not taking an active part in hostilities', are considered protected persons. Being an unlawful combatant or belligerent is not itself a violation of international criminal law. International law does, however, permit a party to an armed conflict to punish an unlawful combatant for actions that would be lawful acts of war if carried out by members of the enemy's regular armed forces, such as killing soldiers in combat. The offences defined by the Military commission Act that most closely correspond to the traditional
722. 1977, 1125 UNTS 3 . 723. See new section 950v(a)(2)(A)to 10 USC, 120 STAT. 2625. 724. See M. Bothe et al., New Rules for Victims oj'Armed Conflict (The Hague, Martinus Nijhoff Publishers 1982)pp. 302-303.
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charges levied against unlawful combatants are numbers 13 (intentionally causing serious bodily injury), 15 (murder in violation of the law of war) and 16 (destruction of property in violation of the law of war).'*' Note that the Act refers to these offences as violations of the law of war even though unlawful belligerency is not by itself a war crime under intemational law. However, it has long been a United States practice (going back at least to the Civil War of 1861 1865) to charge acts of unlawful belligerency as 'violations of the law of war'. Based on this tradition, the Military Commission Act continues to use this phrase to describe acts of unlawi%l belligerency. Most of the other offences defined in the act are traditional war crimes that would be punishable even if committed by a lawful combatant (attacking civilians, perfidy, pillaging, hostage taking, denial of quarter, use of poison, etc.), and the Act specifically authorises the trial of lawful combatants for these offences by courts-martial, the same military tribunals that have jurisdiction over members of the US armed forces.726Lawful enemy combatants are defined as persons entitled to prisoner of war status under Article 4A, paragraphs (I), (2) and (3) of Geneva Convention 111, and would usually be regarded as prisoners of war upon capture. The Military Commissions Act thus conforms to Article 102 of Geneva Convention 111, which requires that prisoners of war be tried 'by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power', in this case the United States. Since the US Uniform Code of Military Justice already gave general courts-martial jurisdiction over prisoners of war, the necessity of this amendment might be questioned. Presumably it was adopted out of an excess of caution because there are cases where lawful combatants would not be entitled to prisoner of war status, i.e., when caught operating out of uniform as spies and saboteurs. In those situations, lawful combatants would have the procedural advantages of being tried by courts-martial rather military commissions, even though they were not prisoners of war. The Military Commissions Act declares that the offences defined in it are not new crimes. Rather, the Act claims merely to codify existing offences that have traditionally been tried by US military commissions, that is, war crimes and acts of unprivileged belligerency. The Act therefore constitutes important state practice by the United States on the scope and definition of offences under the customary law of armed conflict. In what will undoubtedly be one of its most controversial provisions, the Military Commissions Act declares conspiracy to commit any other offence defined in it to be a separate offence. While conspiracy charges were filed against the defendants in the Nuremberg and Tokyo trials following World War 11, conspiracy has generally been regarded as an offence unique to legal systems descended from the English common law, and in the Hamdan decision Justice Stevens expressed doubt that conspiracy was a legitimate charge under the law of war. By passing the Military Commissions Act, Congress has emphatically rejected those doubts. The Act even amends the Uniform Code of Military Justice to make conspi-
725. See new section 950v (b) to 10 USC, subparagraphs (l3), (15) and (16), 120 STAT. at 262829. 726. See new section 948d to 10 USC, 120 STAT. at 2603, and the amendments to the Uniform Code of Military Justice in section 4 of the Military Commission Act, 120 STAT. at 263 I .
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racy to commit an offence under the law of war a separate offence for which American military personnel and lawful enemy combatants may be tried by court-martial.727 Punishing unlawful combatants for conspiracy may be a legitimate exercise of a detaining power's jurisdiction to punish unlawful belligerency. Unlawful combatants lack the privilege accorded to lawful combatants to commit acts of war, and by engaging in hostilities they subject themselves to punishment under the laws of the detaining power. If the detaining power recognises conspiracy as a separate offence under its own law, then in principle it should be able to apply that law to unlawful combatants. Where the Military Commissions Act applies the detaining power will be the United States, and conspiracy has long been an offence under US law as applied by military commissions. The same reasoning may explain why the Act incorporates by reference significant portions of domestic US criminal law. The offence of torture (number 1I), for example, incorporates the definition of 'severe mental pain or suffering' from the federal statute imple. ~this ~ ~ instance the incorporation of domestic menting the Convention against ~ o r t u r e In US law will benefit defendants, since this definition is based on the restrictive understanding of mental pain or suffering filed by the United States when it ratified the Convention against ~ o r t u r e . ~ ~ ~ More problematic from a defendant's standpoint is the incorporation of US domestic law in offence number 25, providing material support or resources for terrorism. This offence incorporates the following broad definition from domestic anti-terrorism legislation: the term "material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, trainirtg, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel .. ., and transportation, except medicine or religious materials.730 The exclusion for medicine and religious materials may be construed quite narrowly. As an indication of the reach of this definition, a doctor has been indicted for providing expert advice and assistance to a1 Qaeda by volunteering his medical services to the organisati~n.~~ On the other hand, where war crimes are concerned the Military Commissions Act gives unlawful combatants some of the privileges of lawful combatants. For example, if charged with offence number 2, attacking civilians, it appears that even an unlawful combatant could raise the defence that the civilians were taking an active part in hostilities at the time of the attack. Similarly, it appears from the text that an unlawful combatant charged with attacking civilian objects (offence 3) or hazarding or hijacking a vessel or aircraft (offence 23) would have a valid defence if the object, vessel or aircraft could be shown to be a
'
727. See the amendments to the Uniform Code of Military Justice in section 4 of the Military Commission Act, 120 STAT. at 263 1. 728. 18 USC 2340 (2004). 729. See M. Nash (Leach), supra 713; pp. 850-5 1. 730. 18 USC 2339A(b) (2004). 73 1. See L. Neumeister, 'Doctor Can't Treat Terrorists' in Las Vegas Sun, 30 January 2007, online edition, ~www.lasvegassun.comisunbinistories/nat-ged2007/ja30/013009452.htm. A final decision in the case had not been reached at the time of writing.
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military objective as defined in the ~ c tIn .these ~ situations ~ ~ the defendant, as an unlawful combatant, could still be convicted of murder, intentionally causing serious bodily injury and destruction of property, all 'in violation of the law of war', but might be subjected to less serious punishment than he or she would suffer for a war crime. Document 3
MILITARY COMMISSIONS ACT 2006 (Excerpts) (Document 3) Public Law 109-366, 120 STAT. 2600 et seq. SUBCHAPTER I-GENERAL PROVISIONS [I20 STAT. at 26011 Sec. 948a. Definitions 'In this chapter: '(1) UNLAWFUL ENEMY COMBATANT- (A) The term 'unlawful enemy combatant' means'(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawfd enemy combatant (including a person who is part of the Taliban, a1 Qaeda, or associated forces) ....
'(2) LAWFUL ENEMY COMBATANT- The term 'lawful enemy combatant' means a person who is'(A) a member of the regular forces of a State party engaged in hostilities against the United States; '(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or '(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
'Sec. 948c. Persons subject to military commissions Any alien unlawful enemy combatant is subject to trial by military commission under this chapter. .... [120 STAT. at 26031 'Sec. 948d. Jurisdiction of military commissions
732. Note, however, that while offence 3 excludes a civilian object from protection if it is a 'military objective', offence 23 only excludes a vessel or aircraft from protection if it is a 'legitimate military objective' (emphasis added). It could be argued that since hostile acts by an unlawful combatant are not 'legitimate', no target attacked by an unlawful combatant can be considered a legitimate military objective.
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Correspondents' Reports
'(a) JURISDICTION.-A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001. '(b) LAWFUL ENEMY COMBATANTS.-Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title [the Uniform Code of Military Justice]. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
.... [I20 STAT. at 26241 SUBCHAPTER VII-PUNITIVE MATTERS 'Sec. 950p. Statement of substantive offenses '(a) Purpose- The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission. '(b) Effect- Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.
[I20 STAT. at 262526301 Sec. 950v. Crimes triable by military commissions '(a) Definitions and Construction- In this section: '(1) MILITARY OBJECTIVE- The term 'military objective' means'(A) combatants; and '(B) those objects during an armed conflict'(i) which, by their nature, location, purpose, or use, effectively contribute to the opposing force's war-fighting or war-sustaining capability; and '(ii) the total or partial destruction, capture, or neutralization of which would constitute a definite military advantage to the attacker under the circumstances at the time of the attack. '(2) PROTECTED PERSON- The term 'protected person' means any person entitled to protection under one or more of the Geneva Conventions, including'(A) civilians not taking an active part in hostilities; '(B) military personnel placed hors de combat by sickness, wounds, or detention; and '(C) military medical or religious personnel. '(3) PROTECTED PROPERTY- The term 'protected property' means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
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'(4) CONSTRUCTION- The intent specified for an offense under paragraph (I), (2), (3), (4), or (12) of subsection (b) precludes the applicability of such offense with regard to'(A) collateral damage; or '(B) death, damage, or injury incident to a lawful attack. '(b) Offenses- The following offenses shall be triable by military commission under this chapter at any time without limitation: '(1) MURDER OF PROTECTED PERSONS- Any person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct. '(2) ATTACKING CIVILIANS- Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(3) ATTACKING CIVILIAN OBJECTS- Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct. '(4) ATTACKING PROTECTED PROPERTY- Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct. '(5) PILLAGING- Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct. '(6) DENYING QUARTER- Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct. '(7) TAKING HOSTAGES- Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(8) EMPLOYING POISON OR SIMILAR WEAPONS- Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
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Correspondents' Reports
'(9) USING PROTECTED PERSONS AS A SHIELD- Any person subject to this chapter who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(10) USING PROTECTED PROPERTY AS A SHIELD- Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct. '(1 1) TORTURE'(A) OFFENSE- Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED- In this section, the term 'severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18. '(1 2) CRUEL OR INHUMAN TREATMENT'(A) OFFENSE- Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct. '(B) DEFINITIONS- In this paragraph: '(i) The term 'serious physical pain or suffering' means bodily injury that involves'(I) a substantial risk of death; '(11) extreme physical pain;
[I20 STAT. at 26281 '(111) a bum or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or '(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty. '(ii) The term 'severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18. '(iii) The term 'serious mental pain or suffering' has the meaning given the term 'severe mental pain or suffering' in section 2340(2) of title 18, except that'(I) the term 'serious' shall replace the term 'severe' where it appears; and
Correspondents' Reports
637
'(11) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term 'serious and non-transitory mental harm (which need not be prolonged)' shall replace the term 'prolonged mental harm' where it appears. '(1 3) INTENTIONALLY CAUSING SERIOUS BODILY INJURY'(A) OFFENSE- Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(B) SERIOUS BODILY INJURY DEFINED- In this paragraph, the term 'serious bodily injury' means bodily injury which involves'(i) a substantial risk of death; '(ii) extreme physical pain; '(iii) protracted and obvious disfigurement; or '(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. '(14) MUTILATING OR MAIMING- Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(15) MURDER IN VIOLATION OF THE LAW OF WAR- Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct. '(16) DESTRUCTION OF PROPERTY IN VIOLATION OF THE LAW OF WAR- Any person subject to this chapter who intentionally destroys property belonging to another person in violation of the law of war shall punished as a military commission under this chapter may direct. '(17) USING TREACHERY OR PERFIDY- Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(18) IMPROPERLY USING A FLAG OF TRUCE- Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct. '(19) IMPROPERLY USING A DISTINCTIVE EMBLEM- Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for com-
638
Correspondents' Reports
batant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct. '(20) INTENTIONALLY MISTREATING A DEAD BODY- Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessity, shall be punished as a military commission under this chapter may direct. '(21) RAPE- Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct. '(22) SEXUAL ASSAULT OR ABUSE- Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct. '(23) HIJACKING OR HAZARDING A VESSEL OR AIRCRAFT- Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(24) TERRORISM- Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of govemment or civilian population by intimidation or coercion, or to retaliate against govemment conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. '(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM'(A) OFFENSE- Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct. '(B) MATERIAL SUPPORT OR RESOURCES DEFINED- In this paragraph, the term 'material support or resources' has the meaning given that term in section 2339A(b) of title 18. '(26) WRONGFULLY AIDING THE ENEMY- Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct. '(27) SPYING- Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States,
Correspondents' Reports
639
or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct. '(28) CONSPIRACY- Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter
may direct.
[I20 STAT. at 263 11 SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE. (a) Conforming Amendments- Chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended as follows: (1) APPLICABILITY TO LAWFUL ENEMY COMBATANTS- Section 802(a) (article 2 (a)) is amended by adding at the end the following new paragraph:
'(13) Lawful enemy combatants (as that term is defined in section 948a(2) of this title) who violate the law of war.'.
(b) Punitive Article of Conspiracy- Section 88 1 of title 10, United States Code (article 8 1 of the Uniform Code of Military Justice), is amended(1) by inserting '(a)' before 'Any person'; and (2) by adding at the end the following new subsection: '(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a courtmartial or military commission may direct.'.
(b) Definitions.-As used in this section(I) the term "material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;
640
Correspondents' Reports
(2) the term "training" means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and (3) the term "expert advice or assistance" means advice or assistance derived from scientific, technical or other specialized knowledge.
BURRUS CARNAHAN
YEMEN See Arab League Model Law in the Algerian section.
DOCUMENTATION
CLASSIFICATION SCHEME Part Zero
International humanitarian law in general
Part One
Sources and general principles
Part Two
Conflicts, armed forces and combatants
Part Three
Protected persons
Part Four
Methods, means and types of warfare
Part Five
Termination of armed conflicts
Part Six
International criminal law
Part Seven
Implementation of IHL
Part Eight
The law of neutrality
Part Nine
International organisations and international actions
Part Ten
Regional organisations and actions
Part Eleven
Arms control and disarmament
Part Twelve
Conflict prevention and resolution
Part Thirteen
Related fields
Yeurhook of'lnternationul Humanitarian Law' Volume 9 - 2006 - pp. 643-647
Zero:
INTERNATIONAL HUMANITARIAN LAW IN GENERAL
One: I
SOURCES AND GENERAL PRINCIPLES SOURCES A. Pre-Hague B. Hague Law C. Geneva Law D. Post-1977 Developments E. Customary Law GENERAL PRINCIPLES A. Martens Clause B. Superfluous Injury and Unnecessary Suffering C. Principle of Distinction D. Prohibition of Indiscriminate Attacks E. Principle of Proportionality F. Principle of Precaution G. Military Necessity
Two: I
CONFLICTS, ARMED FORCES AND COMBATANTS TYPES OF CONFLICTS A. International B. Non-international C. Other TYPES OF ACTOR(S) A. Armed Forces and Combatant Status B. Non-State Actors C. Specific Groups 1. Mercenaries 2. Spies 3. ContractorsPrivate Military Companies 4. Other
Three: I
PROTECTED PERSONS TYPES OF PROTECTED PERSONS A. Wounded, Sick and Shipwrecked B. Prisoners of War C. Civilian Population 1. Civilians Generally 2. Women and Children 3. Medical and Religious Personnel 4. Journalists 5. Other SPECIFIC SITUATIONS AND PROHIBITIONS A. Internment B. Occupation C. Prohibition of Collective Punishment D. Prohibition of Deportation and Transfer
E. Reprisals Four: 1
METHODS, MEANS AND TYPES OF WARFARE METHODS AND MEANS OF WARFARE A. Basic Rules 1. Existing Weapons a. Conventional Weapons i.
Mines
ii. Small weapons and others b. Weapons of Mass Destruction i. Nuclear weapons ii. Chemical and biological weapons 2. New Weapons 3. Prohibition of Perfidy 4. Emblems and Safeguards of Persons hors de combat B. Direct and Indiscriminate Attacks C. Precautionary Measures D. Protection of Civilian and Other Specified Objects 1. Specifically Protected Objects 2. Cultural Property and Places of Worship 3. Works and Installations Containing Dangerous Forces 4. The Natural Environment 5. Localities and Zones 6. Civil Defence E. Medical Assistance F. Humanitarian Assistance Operations SPECIFIC TYPES OF WARFARE A. Land Warfare B. Air and Missile Warfare C. Naval Warfare
Five: I I1 I11
TERMINATION OF ARMED CONFLICTS CEASEFIRE, ARMISTICES AND PEACE AGREEMENTS WAR CRIMES COMMISSIONS AMNESTIES, TRUTH AND RECONCILIATION COMMISSIONS REPARATIONSICOMPENSATION MILITARY COMMISSIONS AND TRIBUNALS
Six:
INTERNATIONAL CRIMINAL LAW THE CRIMES A. War Crimes B. Genocide C. Crimes Against Humanity D. Aggression E. Terrorism F. Other
I
GENERAL PRINCIPLES, INCLUDING DEFENCES
A. Nullum Crimen Sine Lege and Nulla Poena Sine Lege B. Individual Criminal Responsibility C. Superior/Command Responsibility D. Irrelevance of Official Capacity E. Non-Retroactivity of Criminal Law F. Non-Applicability of Statutory Limitations G. Grounds for Excluding Criminal Responsibility REPRESSION OF BREACHES A. International and Internationalised Courts 1. Nuremberg and Tokyo 2. International Criminal Tribunal for the former Yugoslavia 3. International Criminal Tribunal for Rwanda 4. International Criminal Court 5. East Timor's Special Panels for Serious Crimes 6. Kosovo's Internationalised Courts 7. Special Court for Sierra Leone 8. Extraordinary Chambers for Cambodia 9. Iraqi Special Tribunal B. National Courts VICTIMS OF CRIMES
Seven: I I1
VI VII
Eight: I I1 111 IV
Nine:
IMPLEMENTATION OF IHL NATIONAL POLICY STATEMENTS NATIONAL LAW A. Legislation to Implement IHL Treaties B. Legislation to Implement Obligations vis-a-vis the International Criminal Court and International Criminal Tribunals C. Military Manuals/National Instructions/Codes of Conduct D. Role of Defence Force Legal Advisers PROTECTING POWERS ICRC FACT-FINDING, INCLUDING THE INTERNATIONAL FACT-FINDING COMMISSION DISSEMINATION TRAINING AND EDUCATION THE LAW OF NEUTRALITY THE RIGHTS AND DUTIES OF NATIONALS WAR ON LAND NAVAL WARFARE AERIAL WARFARE INTERNATIONAL ORGANISATIONS AND INTERNATIONAL ACTIONS INTERNATIONAL ORGANISATIONS
A. United Nations Organisation I1
B. Other INTERNATIONAL ACTIONS A. Peacekeeping B. Peace Enforcement and Peace Building C. Fact-Finding and Monitoring D. Humanitarian and Other Interventions E. Sanctions
Ten: I I1 I11 IV
REGIONAL ORGANISATIONS AND ACTIONS EUROPEAN AMERICAN ASIAN AFRICAN
Eleven: I
ARMS CONTROL AND DISARMAMENT CONVENTIONAL WEAPONS A. Mines B. Small Weapons and Others C. Production and Transfer WEAPONS OF MASS DESTRUCTION A. Nuclear Weapons B. Chemical and Biological Weapons C. New Types
I1
Twelve: I I1 111
CONFLICT PREVENTION AND RESOLUTION CONFLICT PREVENTION CONFLICT RESOLUTION THE PEACE MOVEMENT
Thirteen: RELATED FIELDS I JUS AD BELLUM THE LAW RELATING TO TERRORISM AND COUNTERI1 TERRORISM I11 MILITARY LAW IV HUMAN RIGHTS LAW V REFUGEE LAW
Bibliography
649
BIBLIOGRAPHY 2005-2006' INTERNATIONAL HUMANITARIAN LAW IN GENERAL
0. Books
Biad, Abdelwahab, Droit international hurnanitaire (Paris, Ellipses 2006) 139 pp. Bouchet-Saulnier, Franqoise, Dietiormaire pratigue du droit hurnanitaire (Paris, Decouverte 2006) 587 pp. Breau, Susan C., Agnieszka Jachec-Neale, eds., Testing the Boundaries of International Humanitarian Law (London, British Institute of Intemational and Comparative Law 2006) 343 pp. Burchill, Richard, Nigel D. White and Justin Morris, International Conflict and Securip Law: Essays in Memory of Hilaire McCoubrey (Cambridge, Cambridge University Press 2005) 348 pp. Carey, John, ed., International humanitarian law (Ardsley NY, Transnational 2006) 387 PP. Dolgopol, Ustinia and Judith Gardam, eds., The challenge ofconflict: international law responds (Leiden, Martinus Nijhoff 2006) 628 pp. Fernandez-Sanchez, Pablo Antonio, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) 370 pp. Greenwood, Christpoher, Essays on war in international law (London, Cameron May 2006) 700 pp. Harouel-Bureloup, Veronique, Traitk de droit humanitaire (Paris, Presses Universitaires de France 2005) 556 pp. Kennedy, David, Of war and law (Princeton NJ, Princeton University Press 2006) 191 PP. RavasiI, Guido, ed., International humanitarian law and other legal regimes: interplay in situations ofviolence: proceedings (Milano, Nagard 2005) 165 pp. Rodriguez-Villasante y Prieto, Jose Luis, ed., El Derecho lnternacional Humanitario ante 10s retos de 10s conj7ictos armados actuales (Madrid, Fundacion Rafael del Pino 2006) 3 18 pp. Sassoli, Marco and Antoine A. Bouvier, How does law protect in war? Cases, documenb and teaching materials on contemporary practice in international humanitarian law, 2nd edn. (Geneva, International Committee of the Red Cross 2006) 2473 pp. 6 Yearbook of International Humanitarian Law (2003) (The Hague, TMC Asser Press 2006) 875 pp. 7 Yearbook of Zntertzational Humanitarian Law (2004) (The Hague, TMC Asser Press 2006) 787 pp.
1. The bibliography was compiled by Julia Barke, Celine Pouppez and Aoife Healy, all LL.M. students in Intemational and European Law at the University of Amsterdam Law School. The assistance of Swen Meereboer is gratefully acknowledged. Yearbook of'lnternational Humanitarian Law Volume 9 - 2006 - pp. 649-713
650
Bibliography
Articles Cumaraswamy, Dato' Param, 'Contemporary Issues in International Humanitarian Law', in Constitutionalism, Human Rights and the Rule of Law: Essays in Honour of Soli J. Sorabjee (Delhi, Universal Law Publishing 2005) pp. 151- 164 - Higgins, Rosalyn, 'The New Challenges and the Role of the International Court of Justice', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conflcts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 243-263 - Jar Couselo, Gonzalo, 'Vigencia del derecho internacional humanitario', in Derechos y libertades ante las nuevas amenazas a la seguridad global (Valencia, Tirant lo Blanch 2005) pp. 131-152 - Kaye, David, 'The Legal Bureaucracy and the Law of war', 38 GWILR (2006) pp. 589598 - Kennedy, David, 'Reassessing International Humanitarianism: the Dark Sides', in Anne Orford, ed., International Law and its Others (Cambridge, Cambridge University Press 2006)pp. 131-155 - Leite Piccolo, Graziella, 'Los retos contemporaneos del derecho internacional humanitario', in Renato Zerbini Ribeiro LeBo, ed., 0 s rumos do direito internacional dos direitos humanos: ensaios em homanegem ao professor Antonio Augusto Can~adoTrindade (Porto Alegre, Fabris 2005) pp. 53-66 - McDonald, Avril, 'The year in review', 7 YlHL (2004) pp. 281-323 - Papanicolopulu, Irini, 'Trattati di diritto umanitario: rassegna e rapporti intertemporali', in Quale diritto nei conjlitti armati?: relazione e documenti del Ciclo di Conferenze tenute nell'Universita di Milano-Bicocca (2005) (Milano, Giuffrk 2006) pp. 175-191 - Rogers, Anthony P.V., 'Unequal Combat and the law of war', 7 YIHL (2004) pp. 3-34 - Sandoz, Yves, 'International Humanitarian Law in the Twenty-first Century', 6 YIHL (2003) pp. 3-40 -
1.15
Customary Law
Books - Henckaerts, Jean-Marie and Doswald-Beck, Louise, eds., Droit international humani-
taire coutumier (Bruxelles, Bruylant 2006) 878 pp. Maybee, Larry and Benari Chakka, eds., Custom as a Source of International Humanitarian Law: Proceedings of the Conference to mark the Publication of the ICRC Study 'Customary International Humanitarian Law ', held in New Delhi, 8-9 December 2005 (Geneva, ICRC 2006) 301 pp.
Articles - Aldrich, George H., 'Customary International Humanitarian Law: an Interpretation on
Behalf of the International Committee of the Red Cross', 76 BYIL (2005) pp. 503-524 Cryer, Robert, 'Of Custom, Treaties, Scholars and the Gavel: the Influence of the International Criminal Tribunals on the IRC Customary Law Study', 11 JCSL (2006) pp. 239-263 - Dinstein, Yoram, 'The ICRC Customary International Humanitarian Law Study', 36 Israel YB HR (2006) pp. 1- 15 -
- Emanuelli, -
-
Claude, 'L'etude du CICR sur le droit humanitaire coutumier: la coutume en
question', 1 10 RGDIP (2006) pp. 435-444 Fleck, Dieter, 'International Accountability for Violations of the Ius in Bello: the Impact of the ICRC Study on Customary International Humanitarian Law', 11 JCSL (2006) pp. 179-199 Henckaerts, Jean-Marie, 'Customary International Humanitarian Law: a Rejoinder to Judge Aldrich I Jean-Marie Henckaerts', 76 BYIL (2005) pp. 525-532 Rowe, Peter, 'The Effect on National Law of the Customary International Humanitarian Law Study', 11 JCSL (2006) pp. 165-177 Fleck, Dieter, 'International Accountability for Violations of the Ius in Bello: the Impact of the ICRC Study on Customary International Humanitarian Law', I1 JCSL (2006) pp. 179- 199
1.22
Superfluous Injury and Unnecessary Suffering
Books Zockler, Markus C., Lasenvajfen im Volkerrecht und das Verbot unnotiger Leiden: allgemeines Volkerrecht und vertragliche Konkretisierung - dargestellt am Beispiel der Blendlasenvaffen (Miinchen, Beck 2006) 2 18 pp.
-
1.25
Principle o f Proportionality
Articles Cannizzaro, Enzo, 'Contextualizing Proportionality: jus ad bellum and jus in bello in the Lebanese War', 88 IRRC (2006) pp. 779-792 - Holland, Joseph, 'Military Objective and Collateral Damage: Their Relationship and Dynamics', 7 YIHL (2004) pp. 35-78 - Macpherson, Lionel K., 'Excessive Force in War: a Golden Rule Test', 7 Theoretical Inquiries in Law (2006) pp. 8 1-95 - Neuman, Noam, 'Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality', 7 YIHL (2004) pp. 79-1 12
-
2.
CONFLICTS, A R M E D FORCES A N D COMBATANTS
Books Pacreau, Xavier, De l'intervention au Kosovo en 1999 a l'intervention en Irak de 2003: analyse comparative des ,fondements politiques et juridiques (Paris, LGDJ 2006) 228
-
PP.
Articles Dahl, Arne Willy and Magnus Sandbu, 'The Threshold of Armed Conflict', 45 Revue de droit militaire et de droit de la guerre (2006) pp. 369-388 - GeiR, Robin, 'Asymmetric Conflict Structures', 88 IRRC (2006) pp. 757-777 -
652
Bibliography
Kombos, Costas and Hadjisolomou Maria, 'The Traditional Distinction between International and Internal Armed Conflict: Legal Artefact or Legal Fact?', 10 Mediterranean Journal of Human Rights (2006) pp. 139-156 - Reydams, Luc, 'A la guerre comme a la guerre: Patterns of Armed Conflict, Humanitarian Law Responses and New Challenges', 88 IRRC (2006) pp. 729-756 - Zegveld, Liesbeth, 'Dutch Cases on Torture Committed in Afghanistan: The Relevance of the Distinction between Internal and International Armed Conflict', 4 J Int. Criminal Justice (2006) pp. 878-880 -
2.12
Non-international Armed Conflicts
Books Perna, Laura, The formation of the treav law of non-international armed conflicts (Leiden, Martinus Nijhoff 2006) 168 pp.
-
Articles Aljure Salame, Antonio, 'El conflict0 armado interno y el derecho intemacional', in Derecho internacional contemporbneo: lo publico, lo privado, 10s derechos humanos: libre amicorum en homenaje a German Cavelier (Bogota, Universidad del Rosario 2006) pp. 308-332 - Cowling, Michael, 'International Lawmaking in Action: the 2005 Customary International Humanitarian Law Study and Non-International Armed Conflicts', African YIHL (2006) pp. 65-87 - Fleck, Dieter, 'Non-international Armed Conflict: Legal Qualifications and Parties to the Conflict', in International Humanitarian Law and Other Legal Regimes: Interplay in situations of Violence: Proceedings (Milano, Nagard 2005) pp. 33-36 - Githiora, Titus K., 'Non-international Armed Conflict: Legal Qualification and Parties to the Conflict', in International Humanitarian Law and Other Legal Regimes: Interplay in situations of Kolence: Proceedings (Milano, Nagard 2005) pp. 88-90 - Solomon, Steven, 'Internal Conflicts: Dilemmas and Developments', 38 GWILR (2006) pp. 579-585 - Wenqi, Zhu, 'Implications for Non-international Armed Conflicts', in Larry Maybee and Benari Chakka, eds., Custom as a Source of International Humanitarian Law: Proceedings of the Conference to mark the Publication of the ICRC Study "Customary International Humanitarian Law", held in New Delhi, 8-9 December 2005 (Geneva, ICRC 2006) pp. 129-136 -
2.2 1 . 1
Armed Forces and Combatant Status
Articles - Abril-Stoffels, Ruth, 'From Guantanamo to Bagdad: Legal Statute and Treatment given
to the Detainees in the "War against Terrorism"', in Pablo Antonio Femkndez-Sanchez, ed., The New Challenges ofHumanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 175-206 - Blocher, Joseph, 'Combatant Status Review Tribunals: Flawed Answers to the Wrong Question', 116 Yale LJ(2006) pp. 667-674
Bibliography
653
Finaud, Marc, 'L'abus de la notion de "combattant illegal": une atteinte au droit international humanitaire', 110 RGDIP (2006) pp. 86 1-890 - Kantwill, Paul E. and Sean Watts, 'Hostile protected Persons or "Extra-Conventional Persons" - How Unlawful Combatants in the War on Terrorism posed Extraordinary Challenges for Military Attorneys and Commanders', 28 Fordham I W (2005) pp. 68 174 1 - Talbot Jensen, Eric, 'Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance', 46 Krginia JIL (2005) pp. 209-249 - Yin, Tung, 'Procedural Due Process to Determine "Enemy Combatant" Status in the War on Terrorism', 73 Tennessee LR (2006) pp. 35 1-414
-
2.22
Non-State Actors
Articles Clapham, Andrew, 'Human rights obligations of non-state actors in conflict situations', 863 IRRC (2006) pp. 491-523 - Ewumbue-Monono, Chuchill, 'Respect for International Humantarian Law by Armed Non-State Actors in Africa', 88 IRRC (2006) pp. 905-924 - Hofinann, Claudia, 'Engaging Non-State Armed Groups in Humanitarian Action', 13 International Peacekeeping (2006) pp. 369-409
-
2.23 1
Mercenaries
Articles Callige, Laurent, 'Mercenaire en Irak', in Guerre en Irak, crise internationale: les dimensions, historiques, politiques et juridiques d'un conjlit (Geneve, Fondation GIPRI 2005) pp. 135-137 - Fallah, Katherine, 'Corporate actors: the Legal Status of Mercenaries in Armed Conflict', 88 IRRC (2006) pp. 599-61 1 - Freitas, S.A., and Ellis W.F., 'Mercenarism and Customary International Law?', African YIHL (2006) pp. 17-41 - Scoville, Ryan M., 'Toward an Accountability-based Definition of "Mercenary"', 37 Georgetown JIL (2006) pp. 54 1-58 1 - Spearin, Christopher, 'Humanitarians and Mercenaries: Partners in Security Governance?', in Krahmann Elke, ed., New Threats and New Actors in International Security (New York, Palgrave Macmillan 2005) pp. 45-65 -
2.233
Contractors 1 Private Military Companies
Books Rosen, Fred, Contract warriors: how mercenaries changed history and the war on terrorism (New York, Alpha 2005) 242 pp. - Schumacher, Gerald, A bloody business: America's war zone contractors and the occupation ofIraq (St. Paul MN, Zenith Press 2006) 304 pp. -
654
Bibliography
Articles Burger, James A., 'Contractor Personnel in Peace Operations', 45 Revue de droit militaire et de droit de la guerre (2006) pp. 175- 184 - Cameron, Lindsey, 'Private military companies: their status under international humanitarian law and its impact on their regulation', 863 IRRC (2006) pp. 573-598 - Cockayne, James, 'The global reorganization of legitimate violence: military entrepreneurs and the private face of international humanitarian law', 863 IRRC (2006) pp. 459490 - Cottier, Michael, 'Elements for contracting and regulating private security and military companies', 863 IRRC (2006) pp. 637-663 - Gasser, Hans-Peter, 'Outsourcing of War Efforts: einige Fragen aus der Sicht des humanitken Volkerrechts', 19 Humanitares Volkerrecht (2006) pp. 132-135 - Gillard, Emanuela-Chiara, 'Business goes to war: private militarylsecurity companies and international humanitarian law', 863 IRRC (2006) p. 525-572 - Hemingway, Tom, 'Outsourcing of War: the Role of Contractors on the Battlefield', 19 Humanitares Volkerrecht (2006) pp. 129-132 - Nieminen, Katja, 'The Rules of Attribution and the Private Military Contractors at Abu Ghraib: Private Acts or Public Wrongs?', 15 Finnish YIL (2006) pp. 289-3 19 - Peters, William C., 'On Law, Wars, and Mercenaries: the Case for Courts-martial Jurisdiction over Civilian Contractor Misconduct in Iraq', 2 Brigham Young University Law Review (2006) pp. 367-414 - Perrin, Benjamin, 'Promoting compliance of private security and military companies with international humanitarian law', 863 IRRC (2006) pp. 613-636 - Po Kempner, Dinah, 'The "New" Non-State Actors in International Humanitarian Law', 38 GWILR (2006) pp. 55 1-560 - Schaller, Christian, 'Operieren private Sicherheits- und Militarfirmen in einer humanitar-volkerrechtlichen Grauzone?', 19 Humanitares Volkerrecht (2006) pp. 5 1-58 - Schmitt, Michael N., 'Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees', 5 Chicago JIL (2004-2005) pp. 5 11-546 - Taylor, Adelicia Cliffe, 'Government Contractors: Above the Laws of War?', 35 Public Contract Law Journal (2006) pp. 28 1-295 - Wolf, Antenor Hallo, 'Modem Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law', 13 Indiana Journal of Global Legal Studies (2006) pp. 3 19-356 -
3.
PROTECTED PERSONS
Articles Graham, David E., 'Treatment and Interrogation of Detained Persons', in International Law Challenges: Homeland Security and Combating Terrorism (Newport RI, Naval War College 2006) pp. 2 15-220 - Matheson, Michael J., 'Continuity and Change in the Law of War: 1975 to 2005: Detainees and POW'S', 38 GWILR (2006) pp. 543-550 -
Bibliography
3.12
655
Prisoners of War
Articles Recham, Belkacem, 'Les indigenes nord-africains prisonniers de guerre (1940-1945)', 54 Guerres mondiales et conjlits contemporains (2006) pp. 109-I26 - Weckel, Philippe, 'Un exemple remarquable &application du jus cogens: le statut de prisonnier de guerre', in The Fundamental Rules of the International Legal Order: Jus cogens and Obligations Erga omnes (Leiden, Martinus Nijhoff 2006) pp. 69-82
-
3.13
Civilians Generally
Articles Jones, Samuel Vincent, 'Has Conduct in Iraq Confirmed the Moral Inadequacy of International Humanitarian Law?: Examining the Confluence between Contract Theory and the Scope of Civilian Immunity during Armed Conflict', 16 Duke JCIL (2006) pp. 249298
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3.13 1
Women and Children
Books Arts, Karin and Popovsky, Vesselin, eds., International criminal accountability and the rights of children (The Hague, Hague Academic Press 2006) 19 1 pp. - Biruka, Innocent, La protection de la femme et de l'enfant dans les conflits arm& en Afrique (Paris, Harmattan 2006) 500 pp. - Durham, Donald Blythe and Tracey Gurd, eds., Listening to the silences: women and war (Leiden, Martinus Nijhoff 2005) 276 pp. - Greenbaum Charles W., Veerman Philip, Bacon-Shnoo Naomi, eds., Protection of Children During Armed Political Conflicts (Antwerpen, Intersentia 2006) 486 pp. - Honwana, Alcinda, Child soldiers in Africa (Philadelphia, University of Pennsylvania Press 2006) 202 pp. - Wessells, Michael, Child soldiers: from violence to protection (Cambridge, Harvard University Press 2006) 284 pp.
-
Articles Dyani, Ntombizozuko, 'Protocol on the Rights of Women in Africa: Protection of Women from Sexual Violence during Armed Conflict', 6 African H R W (2006) pp. 166187 - Flinterrnan, Cees, 'The Protection of Children in Times of Armed Conflict: Some Observations', in Protection of Children during Armed Political Conflict: a Multidisciplinary Perspective (Antwerpen, Intersentia 2006) pp. 303-3 10 - Haggstrou, Henrik, 'Children's Rights in Situations of Armed Conflict: a Path to Change?', in Protection of Children during Armed Political Conflict: a Multidisciplinary Perspective (Antwerpen, Intersentia 2006) pp. 357-367 - Happold, Matthew, 'The Age of CriminaI Responsibility for International Crimes under International Law', in International Criminal Accountability and the Rights ofchildren, (The Hague, Hague Academic Press 2006) pp. 69-84 -
656 -
-
-
-
-
-
-
-
Bibliography
Kuper, Jenny, 'Bridging the Gap: Military Training and International Accountability regarding Children', in International Criminal Accountability and the Rights of Children (The Hague, Hague Academic Press 2006) pp. 155-165 Leibig, Abigail, 'Girl Child Soldiers in Northern Uganda: Do Current Legal Frameworks Offer Sufficient Protection', 3 Northwestern Univ. JIHR (2005) pp. 1 - 16 Madubuike-Ekwe, Joseph N., 'The International Legal Standards Adopted to Stop the Participation of Children in Armed Conflicts', 11 Annual survey of international and comparative law (2005) pp. 29-48 Manca, Luigino, 'La tutela delle donne nei conflitti armati: prevenzione e repressione', 44 A WR Bulletin (2006) pp. 87-96 Popovski, Vesselin, 'Children in Armed Conflict: Law and Practice of the United Nations', in International Criminal Accountability and the Rights of Children (The Hague, Hague Academic Press 2006) pp. 37-52 Schabas, William A., 'The Rights of the Child, Law of Armed Conflict and Customary International Law: a Tale of two Cases', in International Criminal Accountability and the Rights ofchildren (The Hague, Hague Academic Press 2006) pp. 19-35 Udombana, Nsongurua J., 'War is not Child's Play!: International Law and the Prohibition of Children's Involvement in Armed Conflict', 20 Temple International and Comparative Law Journal (2006) pp. 57-109 Vandewiele, Tiny, 'Participation Rights of Children and International Criminal Law', in Participation Rights of Children: IAP Children's Rights Network (Antwerpen, Intersentia 2006) pp. 53-69 Webster, Timothy, 'Babes with Arms: International Law and Child Soldiers', 39 GW ILR (2006) pp. 227-254
3.134
Journalists
Articles - Berman, Emily Ann, 'In Pursuit of Accountability: the Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals', 80 NY Univ. LR (2005) pp. 241 - Gasser, Hans-Peter, 'The Journalist's Right to Information in Time of War and on Dangerous Missions', 6 YIHL (2003) pp. 366-388 - Zanghi, Claudio, 'The Protection of Journalists in Armed Conflicts', in The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 145-162
3.135
Other
Articles Fernandez-Sanchez, Pablo Antonio, 'The Legal Situation of Foreigners in Armed Conflicts', in Pablo Antonio Fernandez-SBnchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 123-143
-
Bibliography
3.22
657
Occupation
Articles -
Ben-Naftali, Orna, "'A la recherche du temps perdu" rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion', 38 Israel LR (2005) pp.
211-229
Breau, Susan C., 'The Humanitarian Law Implications of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory', in Susan C. Breau, Agnieszka Jachec-Neale, eds., Testing the Boundaries of International Humanitarian Law (London, British Institute of International and Comparative Law 2006) pp. 191-220 - Gasser, Hans-Peter, 'Notes on the Law on Belligerent Occupation', 45 Revue de droit militaire et de droit de la guerre (2006) pp. 229-237 - Glazier, David, 'Ignorance is Not Bliss: the Law of Belligerent Occupation and the U. S. Invasion of Iraq', 58 Rutgers Law Review (2005) pp. 121-1 94 - Green, Leslie C., 'Is there a "New" Law of Intervention and Occupation?', in International Law Challenges: Homeland Security and Combating Terrorism (Newport RI, Naval War College 2006) pp. 167-200 - Hanieh, Adam, 'The Politics of Curfew in the Occupied Territories', in The Struggle for Sovereignty: Palestine and Israel, 1993-2005 (Stanford CA, Stanford University Press 2006) pp. 324-337 - Harris, Grant T., 'The Era of Multilateral Occupation', 24 Berkeley JIL (2006) pp. 1-78 - Jachec-Neale, Agnieszka, 'International Humanitarian Law and Polish Involvement in Stabilizing Iraq', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 22 1-243 - Lancaster, Nicholas F., 'Occupation Law, Sovereignty, and Political Transformation: Should the Hague Regulations and the Fourth Geneva Convention Still Be Considered Customary International Law?', 189 Military Law Review (2006) pp. 5 1-91 - Mari, Mustafa, 'The ICJ's advisory opinion on the consequences of Israel's construction of a separation barrier in the occupied Palestinian territories: A move in the rght direction or an impediment to peace?', 7 YIHL (2004) pp. 373-387 - Mini, Fabio, 'Liberation and Occupation: a Commander's Perspective', in International Law Challenges: Homeland Security and Combating Terrorism (Newport RI, Naval War College 2006) pp. 22 1-25 1 - Roberts, Adam, 'Transformative Military Occupation: Applying the Laws of War and Human Rights', 100 AJIL (2006) pp. 580-622 - Rueger, Christina, 'The Law of Military Occupation', 45 Revue de droit militaire et de droit de la guerre (2006) pp. 21 5-228 - Shany, Yuval, 'Head against the Wall? Israel's rejection of the advisory opinion on the legal consequence of the construction of a wall in the Occupied Palestinian Territories', 7 YZHL (2004) pp. 352-372 - Watson, Geoffrey R., 'Humanitarian Law: Law of Belligerent Occupation: Proportionality of Security Measures Taken in Occupied Territory: Self-Defense Against Terrorism: Effect of ICJ Decisions in Domestic Courts', 100 AJIL (2006) pp. 895-901
-
658 -
-
Bibliography
Zemach, Ariel, 'Taking War Seriously: Applying the Law of War to Hostilities Within an Occupied Territory', 38 G W ILR (2006) pp. 645-695 Zwanenburg, Marten, 'Pieces of the Puzzle: Peace Operations, Occupation and the Use of Force', 45 Revue de droit militaire et de dvoit de la guerre (2006) pp. 239-248
3.25
Reprisals
Books Cifende Kaciko, Moi'se, 'Essai sur 1'Cmergence d'une regle coutumiere &interdiction gCnCrale des reprksailles en droit international humanitaire contemporain: analyse de la jurisprudence du Tribunal PCnal International pour 1'Ex-Yougoslavie', in Pour l'kpanouissement de la pens& juridique congolaise: liber amicorum Marcel Avtoine Lihau (Bruxelles, Bruylant 2006) pp. 377-434
-
4.1
METHODS, MEANS OF WARFARE
Articles - Fenrick, William J., 'International Humanitarian Law and Combat Casualties', 12 European Journal of Population (2005) pp. 167-186 - Fry, James D., 'Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law', 44 Columbia JTL (2006) pp. 4535 19 - Greenwood, Christopher, 'The Law of Weapons at the Start of the New Millennium', in Essays on War in International Law (London, Cameron May 2006) pp. 223-273 - Jividen, David D., 'Jus in Bello in the Twenty First Century: Reaping the Benefits and Facing the Challenges of Modem Weaponry and Military Strategy', 7 YIHL (2004) pp. 113-152 - Parks, W. Hays, 'Means and Methods of Warfare', 38 GW ILR (2006) pp. 5 11-539 - Rodriguez-Villasante y Prieto, Jose Luis, 'Terrorist Acts, Armed Conflicts and International Humanitarian Law', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 13-45 - Schmitt, Michael N., 'Fault Lines in the Law of Attack', in Susan C. Breau, Agnieszka Jachec-Neale, eds., Testing the Boundaries of International Humanitarian Law (London, British Institute of International and Comparative Law 2006) pp. 277-307 - Turns, David, 'Weapons in the ICRC Study on Customary International Humanitarian Law', in 11 JCSL (2006) pp. 201-237
4.1 1 1 1
Conventional Weapons
Books Cave, Rosy and Lawson, Anthea, Cluster munitions in Albania and Lao PDR: the humanitarian and socio-economic impact (Geneva, United Nations Institute for Disarmament Research, UNIDIR 2006) 45 pp.
-
Bibliography
659
Articles -
Gibbons, Owen Thomas, 'Uses and Effects of Depleted Uranium Munitions: Towards a Moratorium on Use', 7 YIHL (2004), pp. 191-232
4.11111 Mines
Books -
Sigal, Leon V., Negotiating minefields: the landmines bun in American politics (New York NY, Routledge 2006) 294 pp.
Articles - Anderson, Kenneth, 'The Ottawa Convention banning Landmines, the Role of Interna-
-
-
-
tional Non-governmental Organizations and the Idea of International Civil Society', in The Globalization of International Law (Aldershot, Ashgate 2005) pp. 5 19-548 Nelson, Jim L., 'Global Movement to ban Landmines: a Case Study in Transformative Politics', in Charting Transnational Democracy: beyond Global Arrogance (New York NY, Palgrave Macmillan 2005) pp. 22 1-243 O'Dwyer, Diana, 'First Landmines, Now Small Arms?: the International Campaign to Ban Landmines as a Model for Small-Arms Advocacy', 17 Irish Studies in International Ajrairs (2006) pp. 77-9 1 Wicart, Jean-Paul, 'Mines: menace a la paix: le cas de la Bosnie-Herzegovine', in Faire la paix: concepts et pratiques de la consolidation de la paix (Quebec, Les Presses de 1'UniversitC Lava1 2005) pp. 224-254
4.1 1112 Small Weapons and Others Articles Domenech Omedas, Jose Luis, 'La proteccion de la poblacion civil ante el uso de determinadas armas pequeiias: minas, residuos explosivos y armas portatiles y ligeras', in El Derecho internacional humanitario ante 10s retos de 10s conjlictos armados actuales (Madrid, Fundacion Rafael del Pino 2006) pp. 49-88 - Fidler, David P., 'The meaning of Moscow: "Non-lethal" weapons and international law in the early 21st century', 859 IRRC (2005) pp. 525-552
-
4.1 112 1 Nuclear Weapons Articles - Pigrau Sole, Antoni, 'El empleo de armas nucleares ante el Derecho internacional humanitario', in El Derecho internacional humanitario ante 10s retos de 10s conjlictos armados actuales (Madrid, Fundacion Rafael del Pino 2006) pp. 133-155
660
Bibliography
4.1 1122 Chemical and Biological Weapons Articles Otero Solana, Vicente, 'Los agentes biologicos, la amenaza biologica y el Derecho international humanitario', in El Derecho international humanitario ante 10s retos de 10s conflictos armados actuales (Madrid, Fundacibn Rafael del Pino 2006) pp. 89-132
-
4.1 12
New Weapons
Articles - Dominguez-MatCs, Rosario, 'New Weaponry Technologies and International Humani-
-
-
tarian Law: their Consequences on the Human Being and the Environment', in Pablo Antonio Fernbdez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 91-1 19 ICRC Geneva, 'A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977', 864 IRRC (2006) pp. 93 1-956 Lawand, Kathleen, 'Reviewing the legality of new weapons, means and methods of warfare', 864 IRRC (2006) pp. 925-930
4.13
Precautionary Measures
Articles - Queguiner, Jean Fran~ois,'Precautions under the law governing the conduct of hostil-
ities', 864 I R K (2006) pp. 793-822
4.142
Cultural Property and Places o f Workship
Books - O'Keefe, Roger, Theprotection ofcultural property in armed conJlict (Cambridge, Cam-
bridge University Press 2006) 404 pp. Articles - Frulli, Micaela, 'Advancing the Protection of Cultural Property Through the Implementation of Individual Criminal Responsibility: the Case-Law of the International Criminal Tribunal for the Former Yugoslavia', 15 Italian Yearbook of International Law (2006) pp. 195-216 - Meron, Theodor, 'The Protection of Cultural Property in the Event of Armed Conflict within the Case-law of the International Criminal Tribunal for the Former Yugoslavia', 57 Museum International (2005) pp. 41-60
Bibliography
4.145
66 1
Localities and Zones
Books -
Simon, Annette, UN-Schutzzonen - Ein Schutzinstrument,fir verfolgte Personen?: eine Analyse anhand der internationalen Schutzzonen im Irak, in Ruanda und Bosnien-Herzegowina mit besonderem Blick auf die schweren Menschenrechtsverletzungen in der safe area Srebenica (Berlin, Springer 2005) 322 pp.
4.22
Air and Missile Warfare
Books -
Ronzitti, Natalino and Gabriella Venturini, eds., The Law ofAir Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) 340 pp.
Articles Bartolini, Giulio, 'Air Operations against Iraq: (1991 and 2003)', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law o f A i r Wa'arfare: Contemporary Issues (Utrecht, Eleven Intemational Publishing 2006) pp. 227-272 - Colombo, Alessandro, 'Air Power, Asymmetrical Warfare and the Changing Nature of War', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 75-83 - El-Din Amer, Salah, 'The Protection of Civilian Population', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 17-33 - Gestri, Marco, 'The Chicago Convention and Civilian Aircraft in Time of War', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 129-155 - Gioia, Andrea, 'Neutrality in Air Warfare', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 18 1-223 - Mancini, Marina, 'Air Operations against the Federal Republic of Yugoslavia (1999)', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven Intemational Publishing 2006) pp. 273-297 - Marauhn, Thilo and Kirchner, Steafan, 'Target Area Bombing', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven Intemational Publishing 2006) pp. 87-105 - Ponti, Christian, 'Air Operations against Afghanistan (2001-2002)', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 299-324 - Ronzitti, Natalino, 'The Codification of Law of Air Warfare', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 3-15 - Sassoli, Maro and Lindsey Cameron, 'The Protection of Civilian Objects: Current State of the Law and Issues de lege ferenda', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven Intemational Publishing 2006) pp. 35-74
-
662
Bibliography
- Venturini, Gabriella, 'Air Exclusion Zones', in Ronzitti, Natalino and Gabriella Ventur-
ini, eds., The Law ofAir Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 107-128 4.23
Naval Warfare
Articles - Faraone, Arturo, 'Diritto umanitario e guerra navale', in Quale diritto nei conflitti
armati?: relazione e documenti del Ciclo di Conferenze tenute nell'Universitaa di Milano-Bicocca marzo-maggio 2005, (Milano, GiufM 2006) pp. 55-92
5.1
CEASEFIRE, ARMISTICES AND PEACE AGREEMENTS
Books - Armstrong, Andrea, 'The Devil is in the Details: the Challenges of Transitional Justice
in Recent African Peace Agreements', 6 Afn'can HRLJ (2006) pp. 1-25 5.3
AMNESTIES, TRUTH AND RECONCILIATION COMMISSIONS
Books - Borer, Tristan Anne, Telling the truths: truth telling andpeace building in post-conflict
societies (Notre Dame IN, University of Notre Dame Press 2006) 3 16 pp.
Articles Buergenthal, Thomas, 'Truth Commissions: Functions and Due Process', in Dupuy, Pierre-Marie et al., eds., Volkerrecht als Wertordnung: Festschrift fir Christian Tomuschat - Common Values in International Law: Essays in Honour of Christian Tomuschat (Kehl, Engel 2006) pp. 103-113 - Momtaz, Djamchid, 'Impunite et amnistie: analyse des concepts', in The Need for Justice and Requirements for Peace and Security: Proceedings of the Bruges Colloquium, 9th-10th September 2004 - Imptratijis de justice et exigences de paix et de stcuritt, Bruges: College of Europe, 2005, pp. 33-41 - Olson, Laura M., 'Rkveiller le dragon qui dort?: questions de justice transitionnelle: repression penale ou amnistie?', 88 RICR (2006) pp. 125-146 - Salmon G. Elizabeth, 'Reflections on international humanitarian law and transitional justice: lessons to be learnt from the Latin American experience', 88 IRRC (2006) pp. 327-353 - Sterio, Milena, 'Rethinking Amnesty', 34 Denver JIL & Pol. (2006) pp. 373-400 -
5.4
REPARATION AND COMPENSATION
Articles - Furuya, Shuichi, 'State Immunity: an Impediment to Compensation Litigation Assessment of Current International Law', 72 Report of the Conference of the International Law Association (2006) pp. 783-794
Bibliography -
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663
Fumya, Shuichi, 'A Model Statute of an "Ad Hoc" Compensation Commission: Preliminary Analysis of Some Issues to be Adressed', 72 Report of the Conference of the International Law Association (2006) pp. 794-803 Garfield, Aaron E., 'Bridging a Gap in Human Rights Law: Prisoner of War Abuse as "War Tort"', 37 Georgetown JIL (2006) pp. 725-738 Hofmann, Rainer, 'Do Victims of Armed Conflicts Have an Individual Right to Reparation?', 72 Report of the Conference of the International Law Association (2006) pp. 766-783 Mongelard, Eric, 'Corporate civil liability for violations of international humanitarian law', 863 IRRC (2006) pp. 665-691 Naqvi, Yasmin, 'The right to the truth in international law: fact or fiction ?', 88 IRRC (2006) pp. 245-273 Ore Aguilar, Gaby, 'Derecho a la reparacilon y genero en 10s conflictos armados', in El derecho a la memoria (Bilbao, Universidad de Deusto 2006) pp. 77-100 Salado-Osuna, Ana, 'The Victims of Human Rights Violations in Armed Conflicts: the Right to Justice, Truth and Compensation', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 3 15-341
5.5
MILITARY COMMISSIONS AND TRIBUNALS
Books Hasian, Marouf, In the name oj'necessity: military tribunals and the loss o f American civil liberties (Tuscaloosa AL, University of Alabama Press 2005) 328 pp.
-
Articles Corn, Geoffrey, 'Taking the Bitter with the Sweet: a Law of War Based Analysis of the Military Commission', 35 Stetson Law Review (2006) pp. 81 1-888 - Haagensen, Brian, 'Federal Courts versus Military Commissions: the Comedy of No Comity', 32 Ohio Northern University Law Review (2006) pp. 395-427 - Knoops, G.G.J., 'De toekomst van terrorismeprocessen na de Guantanamo Bay IIbeslissing: (Hamdan v. Rumsfeld)', 8 1 Nederlands Juristenblad (2006) pp. 148-187 - Lietzau, William K., 'Miltary Commissions: Old Laws for New Wars', in International Law Challenges: Homeland Security and Combating Terrorism (Newport R1, Naval War College 2006) pp. 255-288 - Spiro, Peter, 'Hamdan v. Rumsfeld: U. S. Supreme Court Decision on Legality of Military Commissions Established by President Bush', 100 AJIL (2006) pp. 888-895
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6.
INTERNATIONAL CRIMINAL LAW
Books - Findlay, Mark and Ralph J. Henham, Transforming International Criminal Justice: Retributive and restorative justice in the trial process (Cullompton, Willan 2005) 4 13 pp. - Grant, John P. and J. Craig Baker, International Criminal Law Deskbook (London, Cavendish 2006) 555 pp.
664
Bibliography
- Lattimer, Mark and Philippe Sands, Justice for crimes against humanity (Oxford, Hart
2006) 5 12 pp. - Moreillon, Laurent, Droit pknal humanitaire (Geneva, Helbing & Lichtenhahn 2006) -
-
-
378 pp. Robertson, Geoffrey, Crimes against humanity: the struggle for global justice (London, Penguin 2006) 758 pp. Werle, Gerhard, Principles of International Criminal Law (The Hague, TMC Asses Press 2005) 508 pp. May, Larry, Crimes Against Humanity: A Normative Account (Cambridge, Cambridge University Press 2005) 3 10 pp.
Articles - Clarke, Kamari Maxine, 'Internationalizing the Statecraft: Genocide, Religious Revivalism, and the Cultural Politics of International Criminal Law', 28 Loyola of Los Angeles International & Comparative Law Review (2006) pp. 279-333 - Corell, Hans, 'Intemational criminal law: how long will some miss the missing link?', 37 Case Western Reserve JIL (2005) pp. 1 1 -20 - Degan, Vladimir-Djuro, 'On the sources of international criminal law', 4 Chinese JIL (2005) pp. 45-83 - Fletcher, George P., 'Parochial versus universal criminal law', 3 Jlnt. Criminal Justice (2005) pp. 20-34 - Fletcher, Laurel E., 'From independence to engagement: bystanders and international criminal justice', 26 Mich. JIL (2005) pp. 1013-1096 - Goldstone, Richard J., 'The future of international criminal justice', 57 Maine Law Review (2005) pp. 553-568 - Kress, Claus, 'Versailles-Nuremberg-The Hague: Germany and International Criminal Law', 40 The International Lawyer (2006) pp. 15-39 - O'Shea, Andreas, 'Doctrines of international criminal law', in Ben Brandon and Max du Plessis, ed., The prosecution of international crimes: a practical guide to prosecuting ICC crimes in Commonwealth states (London, Commonwealth Secretariat 2005) pp. 95- 124 - Rabkin, Jeremy, 'Global criminal justice: an idea whose time has passed', 38 Cornell IU(2005) pp. 753-777 - Robertson, Geoffrey, 'Ending impunity: how international criminal law can put tyrants on trial', 38 Cornell ILJ(2005) pp. 649-671 - Sharma, Vishnu Dutt, 'Intemational criminal law: crime prevention and punishment', in Bimal N. Patel, ed., India and international law (Leiden, Martinus Nijhoff 2005) pp. 189-222 - Sunga, Lyal S., 'International criminal law: protection of minority rights', in Zelim A. Skurbaty, ed., Beyond a one-dimensional state: an emerging right to autonomy? (Leiden, Martinus Nijhoff 2005) pp. 255-275 - Swaak-Goldman, Olivia, 'Recent developments in international criminal law: trying to stay afloat between Scylla and Charybdis', 54 ICLQ (2005) pp. 691-704 - Teitel, Ruti, 'Perspectives on Transitional Justice: Collective Memory, Command Responsibility, and the Political Psychology of Leadership - The Law and Politics of Contemporary Transitional Justice', 38 Cornell ILJ (2005) pp. 837-862
Bibliography - Wojcik, Mark
665
E., 'International criminal law', 39 The Intevnational Lawyer (2005)
pp. 279-296
6.1
THE CRIMES
Books - Foumet, Caroline, International meron May 2006) 285 pp. -
-
crimes: theories, practice and evolution (London, Ca-
Homitz, Leslie Alan, Encyclopedia of war crimes and genocide, (New York NY, Facts on File, 2006) 582 pp. Paust, Jordan J., et al., Human rights module: on crimes against humanity, genocide, other crimes against human rights, and war crimes, 2nd edn.: revised extracts from International Criminal Law (Durham NC, Carolina Academic Press 2006) 43 1 pp.
Articles Rao, Pemmaraju Sreenivasa, 'International Crimes and State Responsibility', International responsibility today: essays in memory of Oscar Schachter (2005) pp. 63-80
-
6.1 1
War Crimes
Books Brenner, Samuel, fietnam war crimes (Detroit MI, Greenhaven Press 2006) 141 pp.
-
Articles Benoit, James Paul, 'The Evolution of Universal Jurisdiction Over War Crimes', 53 Naval LR (2006) pp. 259-320 - Linn, Alexander C., 'The Just War Doctrine and state liability for paramilitary war crimes', 34 Georgia JI & Comp. L (2006) pp. 619-656 - Metin Hakki, Murat, 'War Crimes and the War in Iraq: can George W. Bush and Tony Blair be held Legally Responsible?', 10 International Journal of Human Rights (2006) pp. 3-17 - Odio-Benito, Elizabeth, 'Sexual Violence as a War Crime', in Pablo Antonio FernandezSanchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour oj'Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 163173 - Post, Harry, 'War Crimes in Air Warfare', in Ronzitti, Natalino and Gabriella Venturini, eds., The Law of Air Warfare: Contemporary Issues (Utrecht, Eleven International Publishing 2006) pp. 157-177 - Rainio, Juha and M i j a Turunen,' The examination and reporting of war crimes an example from Finnish history', 120 IJLM (2006) pp. 89-94 - Wagner, Justin, 'The Systematic Use of Rape as a Tool of War in Darfur: a Blueprint for International War Crimes Prosecutions', 37 Georgetown JIL (2005) pp. 193-243
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666
Bibliography
6.12
Genocide
Books - Harhangi, Ritu, The intent in genocide: 'Genocide and its double mental element under
-
the Rome statute of the international criminal court (Rotterdam, Erasmus Universiteit 2006) 49 pp. Kieser, Hans-Lukas, Der Volkermord an den Armeniern, die Tiirkei und Europa (Ziirich, Chronos 2006) 235 pp. Quigley, John, The Genocide Convention: an international law analysis (Aldershot, Ashgate 2006) 301 pp. Pendas, Devin O., The Frankj'iurt Auschwitz Trial, 1963-1965: genocide, history, and the limits of the law (Cambridge, Cambridge University Press 2006) 340 pp. Smith, Roger W., The Armenian genocide (Toronto, University of Toronto Press 2006) pp. 93-226
Articles - Anderson, Rachel, 'Redressing Colonial Genocide under International Law: the Hereros' Cause of Action against Germany', 93 California LR (2005) pp. 1135-1189 - Barnes, Catherine, 'The functional utility of genocide: towards a framework for understanding the connection between genocide and regime consolidation, expansion and maintenance', 7 Journal of Genocide Research (2005) pp. 309-330 - Bloxham, Donald, 'Genocide on Trial: Law and Collective Memory', in Die Niirnberger Prozesse: Volkerstrafrecht seit 1945: internationale Konferenz zum 60. Jahrestag (Miinchen, Saur 2006) pp. 73-85 - Crook, John R., 'Contemporary Practice of the United States Relating to International Law - President and Secretary of State Characterize Events in Darfur as Genocide', 99 AJIL (2005) pp. 266-267 - Kim, Paul, 'The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004', 5 ICLR (2005) pp. 43 1-446 - Kress, Claus, 'The Crime of Genocide under International Law', 6 ICLR (2006) pp. 461502 - Lacina, Bethany, 'War and Genocide', 42 Journal of Peace Research (2005) p. 5 17 - Malksoo, Lauri, 'The Definition of Genocide and the Role of Soviet International Lawyers: Reflections on the Socialist Legacy in International Law', 6 Baltic Yearbook oj. International Law (2006) pp. 1 11- 123 - Mullen, Gary A, 'Political Discordances: Genocide, Punishment, and Forgiveness Genocide and the Politics of Identity: Rwanda through the Lens of Adorno', 50 Philosophy today (2006) pp. 170- 175 - Otunnu, Olara A,, 'The secret genocide', 155 Foreign policy (2006) p. 44 - Quayle, Peter, 'Unimaginable evil: the legislative limitations of the genocide convention', 5 ICLR (2005) pp. 362-373 - Satkauskas, Rytis, 'Soviet Genocide Trials in the Baltic States: the Relevance of International Law', 7 YIHL (2004) pp. 388-409 - Schabas, William A,, 'Developments in the Law of Genocide', 5 YIHL (2002) pp. 13 1165
Bibliography
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Zahar, Alexander, 'The ICTR's "Media" Judgment and the Reinvention of Direct Public Incitement to Commit Genocide', 16 Criminal LF (2005) pp. 33-48
6.13
667
and
Crimes Against Humanity
Books -
Hiio, Toomas, Estonia 1940-1945: reports of' the Estonian lnternational Commission jbr the Investigation ofCrimts against Humanity (Tallinn, Estonian International Commission for the Investigation of Crimes Against Humanity 2006) 1337 pp.
Articles Arnold, Roberta, 'Terrorism as a Crime against Humanity under the ICC Statute', International Cooperation in Counter-Terrorism: the United Nations and Regional Organizations in the Fight against Terrorism (2006) pp. 12 1- 137 - Moir, Lindsay, 'Crimes Against Humanity in Historical Perspective', 3 New Zealand Yearbook of International Law (2006) pp. 101 - 130 -
6.14
Aggression
Articles - Lichtenberg, Judith, 'The Crime of Aggression and the International Criminal Court', 13 Tilburg Foreign Law Review (2006) pp. 160- 189 - Strapatsas, Nicolaos, 'The Crime of Aggression', 16 Criminal LF (2005) pp. 89-101
6.1 5
Torture
Books -
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Advisory Council on International Ajfairs, Advisory letter: counterterrorism in a European and international perspective, interim report on the prohibition of torture, (The Hague, Advisory Council on International Affairs 2005) 12 pp. Harbury, Jennifer K., Truth, torture, and the American way: the history and consequences o f U.S. involvement in torture (Boston MA, Beacon Press 2005) 227 pp. Miles, Steven H., Oath betrayed: torture medical complicity, and the war on terror (New York NY, Random House 2006) 220 pp. McCoy, Alfred W., A question of torture: CIA interrogation. , f b m the Cold War to the War on Terror (New York NY, Owl Books 2006) 3 10 pp.
Articles - Bagaric, Mirko and Julie Clarke, 'Not Enough Official Torture in the World: the Circumstances in Which Torture Is Morally Justifiable', 39 University o f S a n Francisco Law Review (2005) pp. 581 -616 - Bassiouni, M.Cherif, 'Symposium: "Torture and the War on Terrorm- The institutionalization of torture under the Bush Administration', 37 Case Western Reserve JIL (2006) pp. 389-426 - Bellamy, Alex J. 'No pain, no gain? Torture and ethics in the war on terror', 82 International afair.s (2006) p. 12 1
668 -
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Bibliography
Dickinson, Laura A., 'Symposium: "Torture and the War on Terror" Torture and Contract', 37 Case Western Reserve JI (2006) pp. 267-276 Duberstein, John, 'Excluding Torture: a Comparison of the British and American Approaches to Evidence Obtained by Third Party Torture', 32 North Carolina Journal of International Law and Commercial Regulation (2006) pp. 159- 193 Freshwater, Patricia J., 'The Obligation of Non-Refoulement under the Convention Against Torture: when has a Foreign Government acquiesced in the Torture of its Citizens?', 19 Georgetown Immigration Law Journal (2005) pp. 585-608 Goldstone, Richard, 'Symposium: "Torture and the War on Terror"- Combating terrorism: zero tolerance for torture', 37 Case Western Reserve JIL (2006) pp. 343-348 Guiora, Amos N. and Erim M. Page, 'Symposium: "Torture and the War on TerrormThe unholy Trinity: Intellegence, Interrogation and Torture', 37 Case Western Reserve JIL (2006) pp. 427-448 Hutson, John, 'Symposium: "Torture and the War on Terror"- Why not the Courts?', 37 Case Western Reserve JIL (2006) pp. 365-370 Jackson, Trevor, 'Torture: The Guantanamo Guidebook; Is Torture a Good Idea?', 330 British Medical Journal (2005) p. 543 Ledwidge, Frank, 'The Optional Protocol to the Convention Against Torture (OPCAT): A major step forward in the global prevention of torture', 17 Helsinki Monitor (2006) pp. 69-82 Lee, Patrick, 'Interrogational Torture', 5 1 The American Journal of Jurisprudence (2006) pp. 131-148 McMahan, Jeff, 'Symposium: "Torture and the War on Terror" Torture, Morality and Law', 37 Case Western Reserve JIL (2006) pp. 241-248 Murdoch, Jim, 'Tackling Ill-Treatment in Places of Detention: The Work of the Council of Europe's "Torture Committee"', 12 European journal on criminal policy and research (2006) pp. 121-142 Schabas, William A., 'Symposium: "Torture and the War on Terror" The Crime of Torture and the International Criminal Tribunals', 37 Case Western Reserve JIL (2006) pp. 349-364 Scharf, Michael P. and Roroy T. Hood, 'Symposium: "Torture and the War on Terror" The elephant in the room: Forward: Torture and the war on terror', 37 Case Western Resewe JIL (2006) pp. 145-174 Seidman, Louis Michael, 'Torture's Truth', 72 University of Chicago Law Review (2005) pp. 881-918 Shue, Henry, 'Symposium: "Torture and the War on Terror" Torture in dreamland: Disposing of the ticking bomb', 37 Case Western Reserve JIL (2006) pp. 23 1-240 Sussman, David, 'Symposium: "Torture and the War on Terror" defining torture', 37 Case Western Reserve JIL (2006) pp. 225-230
6.2
GENERAL PRmCIPLES, INCLUDING DEFENCES
Articles - Danner, Allison Marston and Jenny S. Martinez, 'Guilty associations: joint criminal en-
terprise, command responsibility, and the development of international criminal law', 93 California LR (2005) pp. 75-169
Bibliography
6.21
669
Nullum Crimen Sine Lege and Nulla Poena Sine Lege
Articles - Zammit, Maria, 'An Appraisal of the Legality Principles in Relation to Genocide and Crimes against Humanity in Contemporary International Law', 10 Mediterranean Journal qfHuman Rights (2006) pp. 157-183 6.22
Individual Criminal Responsibility
Articles Badar, Mohamed Elewa, 'Drawing the Boundaries of "Mens Rea" in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia', 6 ICLR (2006) pp. 3 13-348 - Bogdan, Attila, 'Individual Criminal Responsibility in the Execution of a "Joint Criminal Enterprise" in the Jurisprudence of the Ad Hoc International Tribunal for the Former Yugoslavia', 6 ICLR (2006) pp. 63-120 - Gros Espiell, HCctor, 'International Responsibility of the State and Individual Criminal Responsibility in the International Protection of Human Rights', in Arthur Watts, ed., International Responsibility today: Essays in Memory of Oscar Schachter (Leiden, Brill 2005) pp. 151-160 - Happold, Matthew, 'The Age of Criminal Responsibility for International Crimes under International Law', International Criminal Accountability and the Rights of Children (The Hague, Hague Academic Press 2006) pp. 69-84 - Osiel, Mark J., 'Perspectives on Transitional Justice: Collective Memory, Command Responsibility, and the Political Psychology of Leadership - Modes of Participation in Mass Atrocity', 38 Cornell IW (2005) pp. 793-822 - Reggio, Andrea, 'Aiding and abetting in international criminal law: the responsibility of corporate agents and businessman for "trading with the enemy" of mankind', 5 ICLR (2005) pp. 623-696 - Timmermann, Wibke Kristin, 'Incitement in international criminal law', 88 IRRC (2006) pp. 823-852 Trindade, AntBnio Augusto Canqado, 'Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: the Crime of State revisited', in Arthur Watts, ed., International Responsibility today: Essays in Memory of Oscar Schachter (Leiden, Brill 2005) pp. 253-269 -
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6.23
SuperiorICommand Responsibility
Articles Baarda, Th.A. van, 'Ethics, Command Responsibility and Dilemmas in Military Operations',in Th.A. van Baarda et al., eds, Military Ethics: the Dutch Approach: a Practical Guide (Leiden, Martinus Nijhoff 2006) pp. 45-89 - Baron, Wiebe, 'Command Responsibility in a Multinational Setting: how to deal with Different Interpretations of lnternational (Humanitarian) Law: some Experiences from Practice', 44 Revue de droit militaire et de droit de la guerre (2005) pp. 138-142 -
670
Bibliography
- Hhbler, Ulf, 'Command Responsibility in Combined Environments: putting Combined
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Operations Legal Lessons learned into Perspective', 44 Revue de droit militaire et de droit de la guerre (2005) pp. 143-167 IviCeviC, Elizabetha, 'Criminal Command Responsibility', in Responsibility for War Crimes: Croatian Perspective: Selected Issues (2005) pp. 121 - 140 May, Larry, 'Prosecuting Military Leaders for war crimes', 37 Metaphilosophy (2006) pp. 469-488 Meiertons, Heiko, 'Superior Responsibility and Mens Rae: the Appeals Decision in the Blaskic-Case', 18 Humanitares Volkerrecht (2005) pp. 53-58 Oeter, Stefan, 'Command-Responsibility in a Multinational Setting: how to deal with Different Interpretations of International (Humanitarian) Law', 44 Revue de droit nzilitaire et de droit de la guerre (2005) pp. 130-132 O'Reilly, Arthur T., 'Command Responsibility: a Call to Realign the Doctrine with Principles of Individual Acountability and Retributive Justice', 40 Gonzaga Law Review (2005) pp. 127-155 Patel, Hiren P., 'No more My Lais: Reshaping the Law of Command Responsibility', in To oppose any foe: the legacy of U. S. intervention in Ketnam (2006) pp. 415-469 Reid, Natalie L, 'Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law', 18 Leiden JIL (2005) pp. 795-828 Singh, Sandhiya, 'Command Responsibility of Military and Civilian Superiors: an Examination of International Judicials Decisions', African YIHL (2006) pp. 42-64
6.24
Irrelevance of Official Capacity
Books - Alebeek, Rosanne van, The immunity of states and their officials in the light of interna-
tional criminal law and international human rights law (Leiden, E.M. Meijers Instituut 2006) pp. 564 Articles Bantekas, Ilias, 'Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self-contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction Against the Background of the 2003 Iraq War', 10 JCSL (2005) pp. 2 1-42 - Focarelli, Carlo, 'Denying Foreign State Immunity for Commission of International Crimes: the Ferrini Decision', 54 ICLQ (2005) pp. 951-958 - Summers, Mark A., 'Immunity or Impunity? The Potential Effect of Prosecutions of State Officials for Core International Crimes in States Like the United States that Are Not Parties to the Statute of the International Criminal Court', 3 1 Brooklyn JIL (2006) pp. 463-494 -
Bibliography
6.25
67 1
Non-Retroactivity of Criminal Law
Articles - Cassese, Antonio, 'Balancing the Prosecution of Crimes against Humanity and NonRetroactivity of Criminal Law: the Kolk and Kislyiy v. Estonia Case before the ECHR', 4 J Int. Criminal Justice (2006) pp. 4 10-418 - Twist, Susan, 'Rethinking Retrospective Criminality in the Context of War Crimes Trials', 27 Liverpool Law Review (2006)pp. 3 1-66
6.27
Grounds for Excluding Criminal Responsibility
Articles - Boister, Neil, 'Reflections on the Relationship between the Duty to educate in Humani-
tarian Law and the Absence of a Defence of Mistake of Law in the Rome Statute of the International Criminal Court', in Richard Burchill, Nigel D. White and Justin Morris, eds., Internutional conflict and securig law: essyys in memory o f Hilaire McCouhrey (Cambridge, Cambridge University Press 2005) pp. 32-48
6.3
REPRESSION OF B R E A C H E S
Books - Beigbeder, Yves, Judging war crimes and torture: French justice and international
criminal tribunals and commissions (1940-2005) (Leiden, Nijhoff 2006) 377 pp. - Moghalu, Kingsley Chiedu, Globaljustice: the politics of war crimes trials (Westport
CT, Praeger Security International 2006) 220 pp. - Watkins, John C., War crimes and war crime trials:,fi.om Leipzig to the K C and beyond:
cases, materials and comments (Durham NC, Carolina Academic Press 2006) 822 pp. Articles - Chopra, Jarat, 'International criminal law enforcement', in W. Andy Knight, ed., Adapt-
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ing the United Nations to a postmodern era: lessons learned, 2nd edn. (Basingstoke, Macmillan 2005) pp. 95-1 12 Fallah, Karherine, 'Perpetrators and Victims: Prosecuting Children for the Commission of International Crimes', 14 African Jourrzal qf International and Comparative Law (2006) pp. 83-103 Hopfel, Frank and Claudia Angermaier, 'Adjudicating International Crimes', Handbook of Transnational Crime & Justice (2005) pp. 3 10-345 Jalloh, Chemor and Alhagi Marong, 'Ending Impunity: The Case for War Crimes Trials in Liberia', 1 African Journal of Legal Studies (2005) pp. 53-79 Kang, Grace M., 'A Case for the Prosecution of Kim Song 11 for Crimes Against Humanity, Genocide, and War Crimes', 38 Columbia HRLR (2006) pp. 51-1 14 Kerr, Rachel, 'Prosecuting War Crimes: Trials and Tribulations', 10 International Journal ofHuman Rights (2006) pp. 79-87 Reginbogin, Herbert R., 'Confronting "Crimes against Humanity" from Leipzig to the Nuremberg Trials', in Die Niirnherger Prozesse: Volkerstrafrecht seit 1945: internationale Konferenz zum 60. Jahrestag (Munchen, Saur 2006) pp. 115- 122
672
Bibliography
Rudolph, Christopher, 'Constructing an Atrocities Regime: the Politics of War Crimes Tribunals', in International Law and International Relations (2006) pp. 594-62 1 - Sanderson, Ma, 'Review: Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory', 54 ICLQ (2005) pp. 265-267 - Scharf, Michael P., 'War Crimes and Tribunals', National Security Law (2005) pp. 405455 - Sterio, Milena, 'Seeking the Best Forum to Prosecute International War Crimes: Proposed Paradigms and Solutions', 18 Florida Journal of'Internationa1 Law (2006) pp. 887-906 - White, Martin N., 'Charging War Crimes: a Primer for the Practitioner', Army Lawyer (2006) pp. 1-11 - Wringe, Bill, 'Why Punish War Crimes? Victor's Justice and Expressive Justifications of Punishment', 25 Law and philosophy (2006) pp. 159-19 1 -
6.3 1
International and Intemationalised Courts
Books Ascensio, HervC, E. Lambert-Abdelgawad, J.M. Sorel, eds., Les jurisdictions pknales internationaliskes: (Cambodge, Kosovo, Sierra Leone, Timor Leste) (Paris, Societe de Legislation Comparee 2006) 383 pp. - Schabas, William A., The UN international criminal tribunals: the former Yugoslavia, Rwanda and Sierra Leone (Cambridge, Cambridge University Press 2006) 71 1 pp. - Swart, Mia, Judges and lawmaking at the international criminal tribunalsfor theformer Yugoslavia and Rwanda (Bakwena International, 2006) 328 pp. -
Articles Askin, Kelly D., 'The Jurisprudence of International War Crimes Tribunals: Securing Gender Justice for Some Survivors', Listening to the Silences: Women and War (2005) pp. 125-153 - Bingham, Laura, 'Strategy or Process?: Closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda', 24 Berkeley JIL (2006) pp. 687-717 - Buisman, Caroline, Ben Gumpert and Martine Hallers, 'Trial and error: how effective is legal representation in International Criminal Proceedings?', 5 ICLR (2005) pp. 1-82 - Cockayne, James, 'The fraying shoestring: rethinking hybrid war crimes tribunals', 28 Fordham I U (2005) pp. 6 16-680 - Cobban, Helena, 'Think again - International Courts', Foreign policy (2006) pp. 22-29 - CBte, Luc, 'Reflections on the exercise of prosecutorial discretion in international criminal law', 3 JInt. Criminal Justice (2005) pp. 162-186 - Fairlie, Megan A,, 'Adding Fuel to Milosevic's Fire: How the use of Substitute Judges Discredits the UN War Crimes Tribunals', 16 Criminal LF (2005) pp. 107-157 - Henham, Ralph, 'The ethics of plea bargaining in international criminal trials', 26 Liverpool Law Review (2005) pp. 209-224 - Hussain, Varda, 'Sustaining Judicial Rescues: the Role of Outreach and Capacity-building Efforts in War Crimes Tribunals', 45 Krginia JIL (2005) pp. 547-583 - MacDougall, Carrie, 'The Sexual Violence Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda: -
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673
the Silence has been broken but there's still a lot to shout about', in Ustinia Dolgopol and Judith Gardam, eds., The challenge ofconjlict: international law responds (Leiden, Martinus Nijhoff 2006) pp. 33 1-346 - Megret, Frederic, 'In defense of hybridity: towards a representational theory of international criminal justice', 38 Cornell IU(2005) pp. 725-75 1 - Meron, Theodor, 'The Role of International Criminal Tribunals in the Implementation of Humanitarian Law and the Maintenance of Peace', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges ofHumanitarian Law in Armed Corlflicts: in Honour of -
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Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 265-268 Meron, Theodor, 'Reflections on the Prosecution of War Crimes by International Tribunals', 100 AJIL (2006) pp. 551-579 Negri, Stefania, 'The principle of "equality of arms" and the evolving law of international criminal procedure', 5 ICLR (2005) pp. 5 13-571 Nice, Geoffrey and Philippe Vallieres-Roland, 'Procedural Innovations in War Crimes Trials', 3 JInt. Criminal Justice (2005) pp. 354-380 Maridakis, Georges S., 'An Ancient Precedent to Nuremberg', 4 J Int. Criminal Justice (2006) pp. 847-852 Phelps, Andrea R, 'Gender-Based War Crimes: Incidence and Effectiveness of International Criminal Prosecution', William & Mary Journal qf Women and the Law (2006) pp. 499-520 Pocar, Fausto, 'Criminal Proceedings before the International Criminal Tribunals for the Former Yugoslavia and Rwanda', 5 The Law and Practice of International Courts and Tribunals (2006) pp. 89- 102 Steinitz, Maya, 'The ad hoc international criminal tribunals and a jurisprudence of the deviant', 7 International Law Forum du droit international (2005) pp. 119-126 Swaak-Goldman, Olivia and Maria Nybondas, 'International criminal courts round-up', 7 YIHL (2004) pp. 324-35 1 Wilson, Richard J., 'A History of the Role of Defense Counsel in International Criminal and War Crimes Tribunals', Defense in International Criminal Proceedings (2006) pp. 3 1-66
6.3 1 1
Nuremberg and Tokyo
Books Goldensohn, Leon, Die Nurnberger Intewiews: Gesprache mit Angeklagten und Zeugen (Diisseldorf, Artemis und Winkler 2005) 450 pp. - Reginbogin, Herbert R, Die Nurnberger Prozesse: Volkerstrafvecht seit 1945: internationale Konferenz zum 60. Jahrestag (Miinchen, Saur 2006) 320 pp. - Nachama, Andreas, Der Nurnberger Hauptkriegsverbrecherprozess: 18. Oktober 1945I. Oktober 1946 (Berlin, Stiftung Topographie des Terrors 2005) 144 pp. -
Articles - Akin, Wanda M., 'Nuremberg, Justice and the Best of Impunity', in Die Nurnberger Prozesse: Volkerstrafrecht seit 1945: internationale Konferenz zum 60. Jahrestag (2006) pp. 257-265
674
Bibliography
Bayefsky, Anne, 'The Legacy of Nuremberg', in Die Niirnberger Prozesse: Volkerstra,frecht seit 1945: internationale Konferenz zum 60. Jahrestag (2006) pp. 25 1-256 - Borgwardt, Elizabeth, 'Re-examining Nuremberg as a New Deal Institution: Politics, Culture and the Limits of Law in Generating Human Rights Norms', 23 Berkeley JIL (2005) pp. 40 1-462 - Citron, Rodger D., 'The Nuremberg Trials and American Jurisprudence: the Decline of Legal Realism and the Revival of Natural Law', in Die Niirnberger Prozesse; Volkerstrafrecht seit 1945: internationale Konferenz zum 60. Jahrestag (2006) pp. 139- 150 - Citron, Rodger D., 'The Nuremberg Trials and American Jurisprudence: the Decline of Legal Realism, the Revival of Natural Law, and the Development of Legal Process Theory', 2 Michigan State Law Review (2006) pp. 385-410 - Clarfield, A. Mark, 'Nazi Medicine and the Nuremberg Trials: From Medical War Crimes to Informed Consent', 295 Journal ofthe American Medical Association (2006) pp. 2668 - Danner, Allison Marston, 'The Nuremberg Industrialist Prosecutions and Aggressive War', 46 Virginia JIL (2006) pp. 65 1-676 - Djantaev, H.M., 'Nuremberg: Experience of an International Justice', 27 Meidunarodnoe pravo: nauFnyjiurnal(2006) pp. 177-190 - Glotova, S.V, 'Significance of the Nuremberg Trial', 27 Meidunarodnoe pravo: nau6 nyjiurnal(2006)pp. 152-161 - Harmon, Louise, 'The Doctor's Trial at Nuremberg', in Die Niirnberger Prozesse: Volkerstrafrecht seit 1945: internationale Konferenz zum 60. Jahrestag (2006) pp. 164- 174 - Holmila, Antero, 'Portraying Genocide: the Nuremberg Trial, the Press in Finland and Sweden and the Holocaust, 1945-46', Acta Societatis Martensis (2005) pp. 206-220 - Kross, Peter, 'Preparing for Justice at Nuremberg', 2 1 World War I1 (2006) p. 67 - 'Le soixantieme anniversaire du Proces de Nuremberg', 77 Revue internationale de droitpPnal(2006) pp. 705 - Maleev, Yu. N., 'Who Was Judged in Nuremberg and How?', 27 Meidunarodnoepravo: nauEnyjiurnal(2006) pp. 22 1-249 - Prokofiev, N.V., 'International Legal Heritage of the Nuremberg Trial: Contemporary Challenges and Threats', 27 Meidunarodnoepravo: nauEnyjiurnal(2006) pp. 122-139 - Salter, Michael and Lorie Charlesworth, 'Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials', 27 Liverpool Law Review (2006) pp. 67-96 - Salter, Michael; and Lorie Charlesworth, 'Ribbentrop and the Ciano Diaries at the Nuremberg Trial', 4 Jlnt. Criminal Justice (2006) pp. 103-127 - Sukharev, Alexander, 'The Nuremberg Tribunal and the problems of International Rule of Law', 77 Revue internationale de droitpknal: bulletin de /'Association Internationale de Droit PPnal(2006) pp. 7 11-720 - Tomuschat, Christian, 'The Legacy of Nuremberg', 4 J Int. Criminal Justice (2006) pp. 830-844 -
Bibliography
6.3 12
675
International Criminal Tribunal for the Former Yugoslavia
Books -
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Stover, Eric, The witnesses: war crimes and thepromise ofjustice in The Hague (Philadelphia PA, University of Pennsylvania Press 2005) 230 pp. Wallance, Carina, The ICTYand the trial of Slobodan Milosevic: contributions and challenges to the prosecution o f genocide under international law (Amsterdam, 2006) 104 PP.
Articles Bachmann, Klaus, 'War Crimes Trial - How efficient can International Criminal Tribunals be? - The Case of ICTY', 57 Review of International Ajfairs (2006) pp. 16-22 - Blumenstock, Tilman and Wayde Pittman, 'Prosecutor v. Naser Oric: The International Criminal Tribunal for the Former Yugoslavia Judgment of Srebrenica's Muslim Wartime Commander', 19 Leiden JIL (2006) pp. 1077-1094 - Bohlander, Michael, "'A Fool for a Client": Remarks on the Freedom of Choice and -
Assignment of Counsel at the International Criminal Tribunal for the Fom~erYugoslavia', 16 Criminal LF (2005) pp. 159-173 - Bostedt, ~redericPierre, 'The International Criminal Tribunal for the Former Yugoslavia: Judgements in 2005', 5 Chinese JIL (2006) pp. 683-717 - DerenEinoviC, Davor, 'A Critical review of the Sentencing Regime of the International Criminal Tribunal for the Former Yugoslavia', in Responsihility,fbr War Crimes: Croatian Perspective: Selected Issues (Zagreb, 2005) pp. 265-282 - Fenrick, William J., 'The prosecution of unlawful attack cases before the ICTY', 7 YIHL (2004) pp. 153-189 - Hagan, John; Ron Levi and Gabrielle Females; 'Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia', 3 1 Law & Social Inquiry (2006) pp. 585-616 - Henman, Ralph, 'Plea bargaining and the legitimacy of international trial justice: some observations on the Dragan NikoliC sentencing judgement of the ICTY', 5 ICLR (2005) pp. 60 1-607 - Henham, Ralph and Mark Drumbl, 'Plea Bargaining at the International Criminal Tribunal for the Former Yugoslavia', 16 Criminal Law Forum (2005) pp. 49-87 - Hinek, Silva, 'The Judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Pavle Stmgar', 19 Leiden JIL (2006) pp. 477-490 - 'International Criminal Tribunal for the Former Yugoslavia: Legal Maxims: Summaries and Extracts from Selected Case Law', The Global Community (2005) pp. 645-932 'International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 199 1: Twelth Annual Report', 18 Hague YIL (2006) pp. 115-162 - Kandic, Natasa, 'Perspectives on Transitional Justice: Collective Memory, Command Responsibility, and the Political Psychology of Leadership - The lCTY Trials and Transitional Justice in Former Yugoslavia', 38 Cornell ILJ (2005) pp. 789-792 - King, Kimi and James Meernick, 'Bringing her out of the Shadows: an Empirical Analysis of Sentences in Rape Cases before the International Criminal Tribunal for the -
676
Bibliography
Former Yugoslavia', Courts crossing borders: blurring the lines of sovereignty (Durham NC, Carolina Academic Press 2005) pp. 183-212 - Massa, Anne-Sophie, 'NATO's Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: an Abusive Exercise of Prosecutorial Discretion?', 24 Berkeley JIL (2006) pp. 610-649 - Moranchek, Laura, 'Protecting National Security Evidence While Prosecuting War Crimes: Problems and Lessons for International Justice from the ICTY', 31 Yale JIL (2006) pp. 477-501 - Niarchos, Catherine N., 'Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia', Women!s Rights: a 'HRQ ' Reader (2006) pp. 270310 - Nieto-Navia, Rafael, 'The International Criminal Tribunal for the Former Yugoslavia in 2004: an Introductory Note', The global community: yearbook of international law and jurisprudence (2005) pp. 623-643 - Pola, Francisca Lagos and Enrique Carnero Rojo, 'The Strugar Case before the International Criminal Tribunal for the Former Yugoslavia', 18 Humanitares Volkerrecht: Informationsschrzften (2005) pp. 139- 145 - Safferling, Christoph J.M., 'International Criminal Procedure and it Participants: an Examination of the Interaction of Judges, Prosecutor and Defence at the Yugoslav Tribunal', 8 YIHL (2005) pp. 219-252 - Sridhar, Aparna, 'The International Criminal Tribunal for the Former Yugoslavia's Response to the Problem of Transnational Abduction', 42 Stanford JIL (2006) pp. 343-364 - Stuebner, William A., 'American Cooperation with the International Criminal Tribunal for the Former Yugoslavia, 1994-1999', in War and change in the Balkans: nationalism, conjict and cooperation (Cambridge, Cambridge University Press 2006) pp. 87-98 - Swaak-Goldman, Olivia, 'Helping to chart Uncharted Waters: the Netherlands before the International Criminal Tribunal for the Former Yugoslavia', in The Netherlands in Court: Essays in Honour of Johan G. Lammers (Leiden, Martinus Nijhoff 2006) pp. 89104 - Tolbert, David, 'Children and International Criminal Law: the Practice of the International Tribunal for the Former Yugoslavia', International criminal accountability and the rights of children (The Hague, Hague Academic Press 2006) pp. 147-154 - Tyner, Davis B., 'Internationalization of War Crimes Prosecutions: Correcting the International Criminal Tribunal for the Former Yugoslavia's Folly in "Tadic"', 18 Florida Journal of International Law (2006) pp. 843-885 - Wilson, Richard, 'Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia', 27 HRQ: a comparative and international journal of the social sciences, philosophy, and law (2005) pp. 908-942 - Zoglin, Katie, 'The Future of War Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?', 27 HRQ (2005) pp. 41-77
6.3 13
International Criminal Tribunal for Rwanda
Books - Cmveillier, Thierry, Le Tribunal des vaincus: un Nuremberg pour le Rwanda? (Paris, Calmann-LCvy 2006) 269 pp.
Bibliography
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677
Fofe Djofia Malewa, Jean- Pierre, La question de la pveuve devant le Tribunal Pbnd International pour le Rwanda: le cas Cyangugu (Paris, Harmattan 2006) 292 pp.
Articles - Bostian, Ida L., 'Cultural Relativism in International War Crimes Prosecutions: the International Criminal Tribunal for Rwanda', 12 ILSA Journal of International & Com-
parative Law (2005)pp. 1-39 -
Guichaoua, Andre , "'Verite judiciaire" et "vkrite du chercheur":
temoins et tC-
moignages devant le Tribunal penal international pour le Rwanda', Crises extrPmes: ,face aux massacres, aux guerres civiles et aux gknocides (Paris, La Decouverte 2006) pp. 119-135 - Herik, L.J.van den, 'The Contribution of the Rwanda Tribunal to the Development of International Law', 36 Delikt en delinkwent (2006) pp. 1007- 1019 - 'International Criminal Tribunal for Rwanda: Legal Maxims: Summaries and Extracts from Selected Case Law', The global community: yearbook of international law and jurisprudence (2005) pp. 945-1 0 13 - Meemik, James and Christopher Farris, 'The Influence of Attorney Background on Judicial Decision Making at the International Criminal Tribunal for Rwanda', 89 Judicature: the Journal o f the American Judicature Society (2006) pp. 326-333 - Moghalu, Kingsley Chiedu, 'The International Criminal Tribunal for Rwanda and Universal Jurisdiction', African perspectives on international criminal justice (Maastricht, Africa Legal Aid 2005) pp. 161-168 - Paradelle, Murielle, Helene Dumont and Anne-Marie Boisvert, 'Quelle justice pour quelle ri.conciliation?: le Tribunal Penal International pour le Rwanda et le jugement du genocide', 50 MacGill lawjournal (2005) pp. 359-413 - PometC, Jean-Pel6 and Roland Adjovi, 'Les relations entre le Tribunal penal international pour le Rwanda et les Etats: l'obligation de cooperation dans l'execution du mandat du Tribunal', 6 Annuaire.franqai.7 de relations internationales (2005) pp. 180196 - Schabas, William A,, 'The International Criminal Tribunal for Rwanda in 2004: Introductory Note', The global community: yearbook o f international law and jurisprudence, (2005) pp. 935-943 - Sow, Ahmed Iyarle, 'L'egalite des armes au Tribunal penal international pour le Rwanda', 83 Revue de droit international, de sciences diplomatiques et politiques (2005) pp. 23 1-248
6.3 14
International Criminal Court
Books Calvo-Goller, Karin N., The trial proceedings ofthe International Criminal Court: ICTY and ICTR precedents (Leiden, Martinus Nijhoff 2006) 561 pp. - Du Plessis, Max and Steve Pete, Who guards the guards?: the International Criminal Court and serious crimes committed hy peacekeepers in Afr-ica (Tshwane Pretoria, Institute for Security Studies 2006) 58 pp. - Glasius, Marlies, The International Criminal Court: a global civil society achievement (London, Routledge 2006) 158 pp.
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678
Bibliography
- Kleffner, Jann K. and Gerben Kor, eds., Complementary views on complementarity:
proceedings of the International Roundtable on the Complementary Nature of the International Criminal Court, Amsterdam, 25-26 June 2004 (The Hague, T.M.C. Asser Press 2006) 18 1 pp. - Maiyo, Joshua K., Justice in conflict: the suitability of international justice in conflict resolution: the International Criminal Court in Northern Uganda (Thesis Amsterdam UvA 2006) 102 pp. - Razesberger, Florian, The International Criminal Court: the principle of complementarity (Frankfurt am Main, Lang 2006) 20 1 pp. - Roach, Steven C, Politicizing the International Criminal Court: the convergence ofpolitics, ethics, and law (Lanham MD, Rowman & Littlefield 2006) 2 13 pp.
Articles - Abass, Ademola, 'The International Criminal Court and Universal Jurisdiction', 6 ICLR
(2006) pp. 349-385 - 'Activities of international law institutions at The Hague- International Criminal Court-
Report', 18 Hague YIL (2005) pp. 103-114 - 'Activities of international law institutions at The Hague- International Criminal Court-
Second Annual Report', 19 Hague YIL (2006) pp. 163- 176 - Aksar, Yusuf, 'The UN Security Council and the Enforcement of Individual Criminal
Responsibility: the Darfur Case', 14 African Journal of International and Comparative Law (2006) pp. 104-119 - Arsanjani, Mahnoush H., Reisman, W. Michael, 'The Law-in-action of the International Criminal Court', 99 AJIL (2005) pp. 385-403 - Beresford, Stuart, 'Child Witnesses and the International Criminal Justice System: does the International Criminal Court Protect the Most Vulnerable?', 3 Journal of international criminal justice (2005) pp. 72 1-748 - Bing Bing Jia, 'China and the International Criminal Court: the Current Situation', 10 Singapore Yearbook of International Law (2006) pp. 87-97 - Bohlander, Michael, 'Evidence before the International Criminal Court: Basic Principles', 4 ERA-Forum: scripta iuris europaei (2005) pp. 543-554 - Cakmak, Cenap, 'The International Criminal Court in World Politics', 23 International journal on worldpeace (2006) pp. 3-40 - Chibueze, Remigus Oraeki, 'The International Criminal Court: Bottlenecks to Individual Criminal Liability in the Rome Statute', 12 Annual survey of international and comparative law (2006) pp. 185-2 18 - Chiomenti, Cristina, 'Corporations and the International Criminal Court', in Transnational Corporations and Human Rights (Oxford, Hart 2006) pp. 287-3 12 - Ciampi, Annalisa, 'The International Criminal Court', 5 The Law and Practice oflnternational Courts and Tribunals (2006) pp. 325-353 - Combs, Nancy, 'The International Criminal Court: an Analysis', in The Hague: Legal Capital ofthe World (The Hague, TMC Asser Press 2005) pp. 347-436 - Delmas-Marty, Mireille, 'Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC', 4 JInt. Criminal Justice (2006) pp. 2-1 1 - Du Plessis, Max and Christopher Gevers, 'Da&r goes to the International Criminal Court (perhaps)', 14 Afican Security Review (2005) pp. 23-34
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679
Fontecilla Rodriguez, Francisco J., 'El proceso ante la Corte Penal International: dgunas consideraciones sobre la aportacion espaiiola [Trial Before the International Criminal Court: Some Comments on the Spanish Contribution]', 86 Revista espaiiola de derecho militar (2005) pp. 28 1-313 - Franceschet, Antonio, 'Global(izing) Justice?: the lnternational Criminal Court', in Joanna Harrington, Michael Milde and Richard Vernon, eds., Bringing Power to Justice?: the Prospects of'the lnternational Criminal Court (Montreal, McGill University Press 2006) pp. 244-265 - Gallant, Kenneth S. and Stefan Kirsch, 'The International Criminal Court', in Defense in International Criminal Proceedings (Ardsley N Y , Transnational 2006) pp. 437-482 - GeiR, Robin, 'The Work of the International Criminal Court in 2005', 48 GYIL (2005) p. 473 - Gilbert, Jeremie, 'Justice not Revenge: the International Criminal Court and the "Grounds to Exclude Criminal Responsibility": Defences or Negation of Criminality?', 10 International Journal qf'Human Rights (2006) pp. 143- 160 - Gioia, Federica, 'State Sovereignty, Jurisdiction, and 'Modem' International Law: The Principle of Complementarity in the International Criminal Court', 19 Leiden JIL (2006) pp. 1095-1124 - Han, Sang Wook Daniel, 'The International Criminal Court and National Amnesty', 12 Auckland University Law Review (2006) pp. 97-124 - Heyder, Corinna, 'The U.N. Security Council's Referral of the Crimes in Darfur to the International Criminal Court in Light of U. S. Opposition to the Court: Implications for the International Criminal Court's Functions and Status', 24 Berkeley JIL (2006) pp. 650-67 1 - Johansen, Robert C., 'The Impact of US Policy toward the International Criminal Court on the Prevention of Genocide, War Crimes, and Crimes Against Humanity', 28 HRQ (2006) pp. 301 -33 1 - Kaul, Hans-Peter, 'Developments at the International Criminal Court - Construction Site for More justice: The International Criminal Court After Two Years', 99 AJIL (2005) pp. 370-384 - Kaul, Hans-Peter, 'The International Criminal Court: Key Features and Current Challenges', in Die Niirnberger Prozesse: Volkerstrajrecht seit 1945: internationale Konferenz zum 60. Jahrestag (Munchen, Saur 2006) pp. 245-250 - Leeladhara, Bhandhary M., 'Current Development - International Criminal Court: Developments in Prosecution', 45 Indian JIL (2005) pp. 256-262 - Lipscomb, Rosanna, 'Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan', 106 Columbia LR (2006) pp. 182212 - MacKay, Leanne, 'Characterising the System of the International Criminal Court: an Exploration of the Role of the Court through the Elements of Crimes and the Crime of Genocide', 6 ICLR (2006) pp. 257-274 - Mansell, Wade, 'Two Cheers for the International Criminal Court', 3 IHL (2006) pp. 157-173 - Megret, FrCdCric, 'The Creation of the International Criminal Court and State Sovereignty: the "Problem of an lnternational Criminal Law" re-examined', in John Carey,
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680
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John Pritchard and Bill Dunlap, eds., International Humanitarian Law: Challenges Ahead (New York, Transnational Publishers 2006) Vol. 111, pp. 47-1 56 - Meyer, Eric M, 'International Law: the Compatibility of the Rome Statute of the International Criminal Court with the U.S. Bilateral Immunity Agreements included in the American Servicemembers' Protection Act', 58 Oklahoma Law Review (2005) pp. 97133 - Mochochoko, Phakiso, 'Africa and the International Criminal Court', African Perspectives on International Criminal Justice (2005) pp. 24 1-258 - Moreno-Ocampo, Luis, 'The Rights of Children and the International Criminal Court', in International Criminal Accountability and the Rights of Children (The Hague, Hague Academic Press 2006) pp. 111-117 - Much, Christian, 'The International Criminal Court (ICC) and Terrorism as an International Crime', 14 Journal of international law andpractice (2006) pp. 12 1-138 - Murphy, Ray, 'Gravity Issues and the International Criminal Court', 17 Criminal L F (2006) pp. 28 1-315 - Noguchi, Motoo, 'Criminal Justice in Asia and Japan and the International Criminal Court', 6 International Criminal Law Review (2006) pp. 585-604 - Olasolo, Hector, 'Reflections on the International Criminal Court's Jurisdictional Reach', 16 Criminal Law Forum (2005) pp. 279-301 - O'Neill, Timothy, 'Dispute Settlement under the Rome Statute of the International Criminal Court: Article 119 and the Possible Role of the International Court of Justice', 5 Chinese Journal of International Law (2006) pp. 67-78 - Oosterveld, Valerie, 'The Definition of "Gender" in the Rome Statute of the International Criminal Court: a Step forward or back for International Criminal Justice?', 18 Haward HRJ (2005) pp. 55-84 - Pearson, Zoe, 'Non-Governmental Organizations and the International Criminal Court: Changing Landscapes of International Law', 39 Cornell ILJ (2006) pp. 243-284 - Pitty, Roderic, 'Political Constraints upon the International Criminal Court', in The Challenge of Conflict: International Law responds (Leiden, Martinus Nijhoff 2006) pp. 347-365 - Politi, Mauro, 'Complementary or Competition among International Jurisdictions: the International Criminal Court Perspective', in Les juridictions internationales: complkmentarid ou concurrence? (Brussel, Bruylant 2005) pp. 4 1-49 - Politi, Mauro and Federica Gioia, 'The Criminal Procedure before the International Criminal Court: Main Features', 5 The law and practice of international courts and tribunals: a practioners'journal(2006) pp. 1 03- 123 - Pureza, Jose Manuel, 'Defensive and Oppositional Counter-hegemonic Uses of International Law: from the International Criminal Court to the Common Heritage of Humankind', in Law and globalization from below: towards a cosmopolitan legality (Cambridge, Cambridge University Press 2005) pp. 267-280 - Quesada-Alcala, Carmen, 'The Obstacles to the International Criminal Court: Impediments to the Enforcement of International Humanitarian', in Pablo Antonio FernandezSanchez, ed., The New Challenges ofHumanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 295314
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68 1
Ralph, Jason, 'International society, the International Criminal Court and American foreign policy', 3 1 Review oflnternational Studies (2005) pp. 27-44 - Roche, Declan, 'Truth Cornmission Amnesties and the International Criminal Court', 45 British Journal of Criminology, delinquency and deviant social behaviour (2005) pp. 565-581 - Roscini, Marco, 'The Efforts to Limit the International Criminal Court's Jurisdiction over Nationals of Non-Party States: a Comparative Study', 5 The law and practice of international courts and tribunuls: u practioners',journul(2006) pp. 495-527 - Samuels, Alec, 'The International Criminal Court', 70 Journal of Criminal Law (2006) pp. 3 17-32 1 - Schabas, William A,, 'First Prosecutions at the International Criminal Court', 27 Human Rights Law Journal (2006) pp. 25-39 - Semmelmann, Constanze, Markus Kaempf, Moritz Am Ende, 'The International Criminal Court, a Toothless Tiger or Efficient Tool to Combat lnternational Terrorism?', in Auswirkungen des Terrorismus auf Recht, Mrtschaft und Gesellschaft (Bern, Stampfli 2006)pp. 81-112 - Stahn, Carsten, Mohamed M. El Zeidy and Hector Olasolo, 'The International Criminal Court's Ad Hoc Jurisdiction revisited', 99 AJIL (2005) pp. 421-43 1 - Stegmiller, Ignaz, 'The Triggering Procedure of the International Criminal Court', 17 Criminal L F (2006) pp. 103-107 - Stoelting, David, 'The International Criminal Court: an Overview', in International Litigation and Practice (Chicago IL, ABA 2005) pp. 255-27 1 - Sutter, Daniel, 'The Deterrent Effects of the International Criminal Court', in International Conflict Resolution (Tiibingen, Mohr 2006) pp. 9-24 Toscano, Roberto, 'The Case for the lnternational Criminal Court (ICC)', 2 Pace diritti umani (2005) pp. 43-54 - Turner, Jenia Iontcheva, 'Nationalizing international criminal law: The International Criminal Court as a Roving Mixed Court', 41 Stanford JIL (2005) pp. 1-5 1 - Washburn, John, 'The Formation and Nature of the International Criminal Court', 14 Journal of International Law and Practice (2006) pp. 11- 17 - Wessel, Jared, 'Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication', 44 Columbia JTL (2006) pp. 377-452 - Wouters, Jan and Sten Verhoeven, 'Africa and International Justice: Cases identified for Investigation and Prosecution by the International Criminal Court', in Afkican perspectives on international criminal justice (Maastricht, Africa Legal Aid 2005) pp. 133-160 - Zimmermann, Andreas, 'Israel and the International Criminal Court: an Outsider's Perspective', 36 Israel YB HR (2006) pp. 23 1-246
-
-
6.3 15
East Timor's Special Panels for Serious Crimes
Books Cohen, David, Indgference and accountability: the United Nations and the politics of internationaljustice in East Timor (Honolulu, East-West Center 2006) pp. 140
-
682
Bibliography
Articles Harper, Erica, 'Studying Post-Conflict Rule of Law: the Creation of an 'Ordinary Crimes Model' by the United Nations Transitional Administration in East Timor', 8 Australian Journal ofAsian Law (2006) pp. 155-207 - Klinken, Gerry van and David Bourchier, 'Crimes against Humanity in East Timor in 1999: the Key Suspects', in Masters of Terror: Indonesia's Military and Violence in East Timor (Lanham MD, Rowman & Littlefield 2006) pp. 83-155
-
6.3 17
Special Court for Sierra Leone
Books Klip, Andre and Goran Sluiter, Annotated Leading Cases of International Criminal Tribunals Vol. IX - The Special Court for Sierra Leone 2003-2004 (Antwerpen, Intersentia 2006) 855 pp.
-
Articles Custer, Micheal, 'Punishing Child Soldiers: the Special Court for Sierra Leone and the Lessons to be Learned from the United States' Juvenile Justice System', 19 Temple International and Comparative Law Journal (2005) pp. 449-476 - Deen-Racsmany, Zsuzsanna, 'Prosecutor v. Taylor: The Status of the Special Court for Sierra Leone and Its Implications for Immunity', 18 Leiden JIL (2005) pp. 299-322 - Galka, Agneiszka, 'Human Rights Officers in International Tribunals: Are They Compelled to Testify?: a Recent Decision by the Appeals Chamber of the Special Court for Sierra Leone in the AFRC Case', 19 Humanitares Volkerrecht: Informationsschrij?en (2006) pp. 300-303 - Kelsall, Tim, 'Politics, anti-politics, international justice: language and power in the Special Court for Sierra Leone', 32 Review of International Studies (2006) pp. 587-602 - Knowles, Phoebe, 'The Power to Prosecute: the Special Court for Sierra Leone from a Defence Perspective', 6 ICLR (2006) pp. 387-41 7 - Kuebart, Patrick, 'Engaging with the People - Outreach at the Special Court for Sierra Leone', 19 Humanitares Volkerrecht: Informationsschrijien (2006) pp. 234-240 - La Rosa, Anne-Marie, 'La contribution des Tribunaux internationalises au droit commun du proces penal international: le cas du Tribunal special pour la Sierra Leone', in Les jurisdictions pknales internationaliskes: (Cambodge, Kosovo, Sierra Leone, Timor Leste) (Paris, SocietC de Legislation Comparee 2006) pp. 159-187 - Michels, An, "'As if it was Happening again": Supporting especially Vulnerable Witnesses, in particular Women and Children, at the Special Court for Sierra Leone', in International criminal accountability and the rights of children (The Hague, Hague Academic Press 2006) pp. 133-145 - Nouwen, Sarah M.H. , 'The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued', 18 Leiden JIL (2005) pp. 645-670 - O'Rourke, Anthony, 'The Writ of Habeas Corpus and the Special Court for Sierra Leone: Addressing an Unforeseen Problem in the Establishment of a Hybrid Court', 44 Columbia JTL (2006) pp. 649-685 -
Bibliography
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at the Special Court for Sierra Leone', 4 The law and practice of international courts and tribunals: a practioners'journal (2005) pp. 171192 Peersman, Carl, 'Iudex non calculat: Experiences in Management of Intemational Criminal Tribunals: Sierra Leone on a Shoestring?', in The Netherlands in court: essays in honour ofJohan G. Lammers (Leiden, Martinus Nijhoff 2006) pp. 105-124 Williams, Sarah, 'Amnesties in Intemational Law: the Experience of the Special Court
- Pack, Melissa, 'Developments
-
-
for Sierra Leone', 5 Human Rights LR (2005) pp. 271-309
6.3 18
Extraordinary Chambers for Cambodia
Articles Etcheson, Craig, 'Designing Justice for Cambodia's Khmer Rouge', 3 International Humanitarian Law (2006) pp 191-209 - Hall, John A,, 'In the Shadow of the Khmer Rouge Tribunal: the Domestic Trials of Nuon Paet, Chhouk Rin and Sam Bith and the Search for Judicial Legitimacy in Cambodia', 5 The law and practice of international courts and tribunals: a practioners' journal (2006) pp. 409-477
-
6.3 19
Iraqi Special Tibunal
Books Scharf, Michael P. and Gregory S. McNeal, eds., Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) 422 pp.
-
Articles - Bantekas, Ilias, 'The Iraqi Special Tribunal for Crimes against Humanity', 54 ICLQ -
-
-
-
-
-
-
(2005) pp. 237-253 Bassiouni, Cherif M., 'Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal', 38 Cornell I U (2005) pp. 327-390 Bassiouni, M. Cherif, 'Post-conflict Justice in Iraq: is the Glass Half-full, Half-empty, or is it a Phyrric Achievement?', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 245-252 Bassiouni, M. Cherif, 'Events leading to the Creation of the IHT', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 9- 15 Bhuta, Nehal, 'Between Liberal Legal Didactics and Political Manichaeism: The Politics and Law of the Iraqi Special Tribunal', 6 Melbourne JIL (2005) pp. 245-271 Bohlander, Micheal, 'Can the Iraqi Special Tribunal sentence Saddam Hussein to Death?', 3 J Int. Criminal Justice (2005) pp 463-468 Drumbl, Mark A., 'The Iraqi High Tribunal and Rule of Law: Challenges', 100 Proceedings of the American Society of International Law. Annual Meeting (2006) pp. 7983 Garraway, Charles, 'The Statute of the Iraqi Special Tribunal: a Commentary', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international hu-
684
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Bibliography
manitarian law (London, British Institute of International and Comparative Law 2006) pp. 155-189 Heller, Kevin Jon, 'Comparing the Trial to International Standards of Due Process', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 155-I6 1 Kelly, Micheal J., 'The Tricky Nature of Proving Genocide against Saddam Hussein before the Iraqi Special Tribunal', 38 Cornell I U (2005) pp. 983- 1012 Miller, Russell A,, 'Before the Law: Military Investigations and Evidence at the Iraqi Special Tribunal', 13 Journal of International Law and Practice (2005) pp. 107-154 Newton, Micheal A., 'The Iraqi Special Tribunal: a Human Rights Perspective', 38 Cornell ILJ (2005) pp. 863-897 Newton, Micheal A., 'The Iraqi Special Tribunal: the Rule of Law and Human Rights Synergy', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 113-153 Newton, Michael A,, 'Legal Authority for the Creation of the Iraqi High Tribunal', in Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 15-23 Parker, Tom, 'Prosecuting Saddam: the Coalition Provisional Authority and the Evolution of the Iraqi Special Tribunal', 38 Cornell IU(2005) pp. 899-909 Post, Jerrold M., 'Saddam Hussein: a Political Psychology Profile', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 23-55 Scharf, Micheal P. and Ahran Kang, 'Errors and Missteps: Key Lessons the Iraqi Special Tribunal can Learn from the ICTY, ICTR, and SCSL', 38 Cornell IU (2005) pp. 91 1947 Scharf, Michael P. and Gregory S. MacNeal, 'Show Trial or Real Trial?: a Digest of the Evidence submitted during the Prosecution's Case-in-chief', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 188-196 'The Iraqi High Tribunal', in Saddam on trial: understanding and debating the Iraqi High Tribunal (Durham NC, Carolina Academic Press 2006) pp. 57-154
6.32
National Courts
Books Ferdinandusse, Ward Nicolaas, Direct Application of International Criminal Law in National Courts (The Hague, TMC Asser Press 2005) 338 pp. - Gut, Till, Albin Eser, Ulrich Sieber and Helmut Kreicker, National Prosecution of International Crimes, Volume 7 (Berlin, Duncker & Humblot 2005) 541 pp. - Inazumi, Mitsue, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdictionfor Prosecuting Serious Crimes under International Law (Antwerpen, Intersentia 2005) 272 pp. -
Bibliography
685
Articles Acosta-EstCvez, Jose B., 'The Principle of Universal Jurisdiction and the Punishable Crimes under Articles 609-614 of the 1995 Spanish Criminal Code', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conjlicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 269-294 - Bodansky, Daniel and Naomi Roht-Arriaza, 'International Decisions - Guatemala Genocide Case - Spanish Constitutional Tribunal decision on universal jurisdiction over genocide claims', 100 AJIL (2006) pp. 207-213 - Davis, Madeleine, 'Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law', 27 HRQ: a comparative and internationaljournal o f the social sciences, philosophy, and law (2005) p. 729 - Garms, Ulrich and Katherina Peschke, 'War Crimes Prosecution in Bosnia and Herzegovina (1992-2002): An Analysis through the Jurisprudence of the Human Rights Chamber', 4 JInt. Criminal Justice (2006) pp. 258-282 - Hilger, Andreas, 'Sowjetische Justiz und Kriegsverbrechen. Dokumente zu den Vemrteilungen deutscher Kriegsgefangener, 1941-1 949', 54 Kerteljahrshefte f i r Zeitgeschichte (2006) pp. 46 1-516 - JosipoviC, Ivo, 'Responsibility for War Crimes Before National Courts in Croatia', 88 IRRC (2006) pp. 145-168 - KreTJ, Claus, 'Universal Jurisdiction over International Crimes and the Institut de Droit international', 4 JInt. Criminal Justice (2006) pp. 56 1-585 - Lauth, Mechtild, 'Ten years after Dayton: War crimes prosecutions in Bosnia and Herzegovina', 16 Helsinki Monitor (2005) pp. 253-266 - Legarre, Santiago, 'Crimes Against Humanity, Reasonabless and the Law: the Simon Case in the Supreme Court of Argentina', 5 Chinese JIL (2006) pp. 723-732 - Mettraux, Guliael, 'Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes', 4 JInt. Criminal Justice (2006) pp. 362-371 - Meyer, Mato, 'War Crimes Prosecution - A Survey of Domestic War Crimes Prosecutions', 57 Review of International Affairs (2006) pp. 52-57 - Mibenge, Chiseche, 'Enforcing international humanitarian law at the national level: the gacaca jurisdictions of Rwanda', 7 YIHL (2004) pp. 4 10-424 - Mugwanya, George William, 'Criminal justice through international criminal tribunals: reflections on some lessons for national criminal justice systems', 6 African HRLJ (2006) pp. 26-63 - Navnai, Lisa, 'Military Justice: War Crimes Trials in the American Zone of Occupation in Germany, 1945- 1947', in Die Niirnberger Prozesse: Volkerstrafrechtseit 1945: internationale Konferenz zum 60. Jahrestag (Munchen, Saur 2006) pp. 191- 196 - Novoselec, Petar, 'Substantive International Criminal Law in the Amendments of the Croation Criminal Code of 15 July 2004', in Responsibility for war crimes: Croatian perspective: selected issues (Zagreb, Univ. of Zagreb 2005) pp. 255-263 - Oomen, Barbara, 'Rwanda's Gagaca: Objectives, Merits and their Relation to Suprannational Criminal Law', in Sentencing and sanctioning in supranational criminal law (2006) pp. 161-184
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Bibliography
Pillay, Navanethem, 'The Contribution of National Courts to International Criminal Justice: some Comments on the Emerging Notion of Universal Jurisdiction', African perspectives on international criminaljustice (Maastricht, Africa Legal Aid 2005) pp. 7- 15 Pinzauti, G., 'Notes and comments - Problems of Criminal Law and International Law before the Audiencia Nacional in the Scilingo Case', 88 Rivista di diritto internazionale (2005) pp. 738-761 Riedel, Durwood, 'The U. S. War Crimes Tribunals at the Former Dachau Concentration Camp: Lessons for Today?', 24 Berkeley JIL (2006) pp. 554-609 Rikhof, Joseph, 'Complicity in International Criminal Law and Canadian Refugee Law: a Comparison', 4 JInt. Criminal Justice (2006) pp. 702-722 Rivello, Pier Paolo, 'The Prosecution of War Crimes Committed by Nazi Forces in Italy', 3 J Int. Criminal Justice (2005) pp. 422-433 Sluiter, Goran, 'The Law of International Criminal Procedure and Domestic War Crimes Trials', 6 ICLR (2006) pp. 605-635 Tomuschat, Christian, 'La competence universelle en matiere penale a 1'Cgard du crimes de genocide , des crimes contre 1' humanite et des crimes de guerre', 71 Annuaire de llInstitut de droit international (2006) pp. 199-284 White, Martin, 'Charging War Crimes: A Primer for the Practitioner', 2 Army Lawyer (2006) pp. 1- 11 Wilt, Harmen G. van der, 'Genocide, Complicity in Genocide and Intemational v. Domestic Jurisdictions: Reflections on the van Anraat Case', 4 J Int. Criminal Justice (2006) pp. 239-257
6.4
VICTIMS OF CRIMES
Books Groenhuijsen, Marc and Rianne Letschert, Compilation of international victims'rights instruments (Nijmegen, Wolf Legal Publishers 2006) 261 pp. - Hirsch, Susan, In the moment of greatest calami@: terrorism, grief and a victim k quest for justice (Princeton NJ, Princeton University Press 2006) 296 pp. - Shapo, Marshall S., Compensation for victims of terrorism (Dobbs Ferry NY, Oceana Publications 2005) 297 pp.
-
Articles Alam, Aftab, 'Is there any Right to Remedy for Victims of Violations of International Humanitarian Law?', 19 Humanitares Volkerrecht: Informationsschriften (2006) pp. 178-187 - Bassiouni, Cherif M., 'International Recognition of Victims' Rights', 6 Human Rights Law Review (2006) pp. 203-279 - Bitti, Gilbert and Gabriela Gonzalez Rivaz, 'The reparations provisions for victims under the Rome Statute of the International Criminal Court', in Redressing injustices through mass claims processes: innovative responses to unique challanges (Oxford, Oxford University Press 2006) pp. 299-322 - Boyle, David, 'The Rights of Victims: Participation, Representation, Protection, Reparation', 4 JInt. Criminal Justice (2006) pp. 307-3 13 -
Bibliography -
-
-
-
-
-
-
-
-
-
-
-
-
7.
687
De Greiff, Pablo and Marieke Wierda, 'The Trust Fund for Victims of the International Criminal Court: between Possibilities and Constraints', in Out qf the ashes: reparation for victims of' gross and systematic human righls violations (Antwerpen, Intersentia 2005) pp. 225-243 De Hemptinne, Jer6me and Francesco Rindi, 'ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings', 4 J Int. Criminal Justice (2006) pp. 342-350 Echeverria, Gabriela, 'Codifing the rights of victims in international law: Remedies and
reparation', in Redressing injustices through mass claims processes: innovative responses to unique challenges (Oxford, Oxford University Press2006) pp. 279- 297 Henzelin, Marc, Veijo Heiskanen and GuCnael Mettraux, 'Reparations to Victims before the International Criminal Court: Lessons from International Mass Claims Processes', 17 Criminal LF (2006) pp. 3 17-344 Hofmann, Rainer, 'Victims of Violations of International Humanitarian Law: do they have an Individual Right to Reparation against States under International Law?', in Dupuy, Pierre-Marie, ed., Common Values in International Law: essay.^ in honour of' Christian Tomuschat (Kehl, Engel 2006) pp. 34 1-359 McDonald, Avril, 'The Development of a Victim-Centered Approach to lnternational Criminal Justice for Serious Violations of International Humanitarian Law', 3 International Humanitarian Law (2006) pp. 237-276 Mekjian, Gerard J. and Mathew C. Varughese, 'Hearing the Victim's Voice: Analysis of Victim's Advocate Participation in the Trial Proceeding of the International Criminal Court', 17 Pace International Law Review (2005) pp. 1-46 O'Connell, Jamie, 'Gambling with the Psyche: does Prosecuting Human Rights Violators console their Victims?', 46 Harvard IU(2005) pp. 295-345 Report of the International Law Association Conference on 'Compensation for Victims of War', 72 International Law Association: Toronto Confirence (2006) pp. 761-803 Roucounas, Emmanuel, 'Compensation for victims of terrorism: the Council of Europe's 2005 Guidelines on the Protection of Victims of Terrorist Acts', in Redressing injustices through mass claims processes: innovative responses to unique challanges (Oxford, Oxford University Press 2006) pp 267- 277 Schwager, Elke, 'The Right to Compensation for Victims of an Armed Conflict', 4 Chinese JIL (2005) pp. 41 7-439 Stahn, Carsten, Hector Olasolo and Kate Gibson, 'Participation of Victims in Pre-Trial Proceedings of the ICC', 4 J Int. Criminal Justice (2006) pp. 2 19-238 Waller, Irvin, 'lnternational Standards for Victims: What Norms? What Achievments? What Next?', International key issues in crime prevention and criminal justice: papers in celebration of 2.5 years qf HEUNI (Helsinki, International Bookstore 2006) pp.144157
IMPLEMENTATION
Articles Abramowitz, David, 'Taking the Bull by the Horns: Congress and International Humanitarian Law', 38 GWILR (2006) pp. 599-624
-
688 -
-
Bibliography
Berman, Franklin, 'What Do We Expect of Lawyers in Armed Conflict?', 38 GWILR (2006) pp. 627-633 Veuthey, Michel, 'Implementing International Humanitarian Law: Old and New Ways', in Bertrand G. Ramcharan, ed., Human Rights Protection in the Field (Leiden, Martinus Nijhoff 2006) pp. 87-1 17
7.2 1
Legislation to Implement IHL Treaties
Articles - Fitzgerald, Oonagh E., 'Implementation of International Humanitarian and Related In-
ternational Law in Canada', in Oonagh E. Fitzgerald, ed., The globalized rule of law: relationships between international and domestic law (Toronto, Irwin Law 2006) pp. 625-638 - Greenwood, Christopher, 'The United Kingdom War Crimes Act I 19917,in Greenwood, Christopher, Essays on War in International Law (London, Cameron May 2006) pp. 435-455 - Harland, Christopher, 'Relevance for the National Implementation of International Humanitarian Law', in Custom as a source of international humanitarian law: proceedings of the Conference to mark the Publication of the ICRC Study 'Customary international humanitarian law ', held in New Delhi, 8-9 December 2005 (Geneva, International Committee of the Red Cross 2006) pp. 97-102 - 'National implementation of international humanitarian law: Biannual update on national legislation and case law, January-June 2005', 87 IRRC (2005) pp. 587-596 - 'National implementation of international humanitarian law: Biannual update on national legislation and case law, July-December 2005', 88 IRRC (2006) pp. 191-206 - 'National implementation of international humanitarian law: Biannual update on national legislation and case law, January-June 2006', 88 IRRC (2006) pp. 693-702 - Verma, J.S., 'Relevance of the Ratification of International Humanitarian Law Treaties by States', in Custom as a source oj-international humanitarian law: proceedings of the Conference to mark the Publication of the ICRC Study 'Customary international humanitarian law ', held in New Delhi, 8-9 December 2005 (Geneva, International Committee of the Red Cross 2006) pp. 89-96
7.22
Legislation to Implement Obligations vis-a-vis the International Criminal Court and International Criminal Tribunals
Books - Lee, Roy S., ed., States' responses to issues arising from the ICC statute: constitutional,
sovereignty,judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) 3 13 pp. Articles Barrat, Olivier, 'Ratification and adaptation: the French perspective', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty,judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 57-64
-
Bibliography
-
689
Bellelli, Roberto, 'Italian implementation of the Rome Statute and related constitutional
issues', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 2 15-246 - El Zeidy, Mohamed M., 'Egypt and current efforts to criminalize international crimes', 5 ICLR (2005) pp. 247-265 - Fernandez de Gurmendi, Silvia A., 'Argentina's draft law to implement the Rome Statute', in Roy S. Lee, ed., States' responses to issues arisingjrorn the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 165-178 - Hage, Robert, 'Implementing the Rome Statute: Canada's experience', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 47-56 - Hatchell, Michael P., 'Closing the Gaps in United States Law and Implementing the Rome Statute: a Comparative Approach', 12 ILSA J Int 'I & Comp. L (2005) pp. 183-252 - Houston, Jonathan, 'Ratification and implementation of the Rome Statute in Liechtenstein', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 247-258 - Kaul, Hans-Peter, 'Germany: methods and techniques used to deal with constitutional, sovereignty and criminal law issues', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 65-82 - Steiner, Sylvia Helena, 'Implementation of the Rome Statute in Brazil', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 179-214 - Strydom, Hennie, 'South Africa's implementation of the Rome Statute', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 105-120 - Venveij, Harry and Martijn Groenleer, 'The Netherlands' legislative measures to implement the ICC statute', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 83-104 - Wilmshurst, Elizabeth, 'Implementation of the ICC statute in the United Kingdom', in Roy S. Lee, ed., States' responses to issues arising from the ICC statute: constitutional, sovereignty, judicial cooperation and criminal law (Ardsley NY, Transnational Publishers 2005) pp. 147-164
690
Bibliography
7.23
Military Manuals/National Instructions/Codes o f Conduct
Books Puls, Keith E., ed., Law of War Handbook (Charlottesville VA, International and Operational Law Department, Judge Advocate General's Legal Center and School 2005) 306
-
PP. Articles - Haines, Steven, 'The United Kingdom's Manual of the Law of Armed conflict and the San Remo Manual: Maritime Rules Compared', in Israel YB HR (Tel Aviv, Tel Aviv University 2006) pp. 89- 118 - Garraway, Charles, 'The use and abuse of military manuals', 7 YIHL (2004) pp. 425-440
7.24
Role o f Defence Force Legal Advisers
Articles - Anderson, Kenneth, 'The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War', 4 Chicago JIL (2005-2006) pp. 445-464
7.4
ICRC
Articles 'Action by the International Committee of the Red Cross in the event of violations of international humanitarian law or of other fundamental rules protecting persons in situations of violence', 87 IRRC (2005) pp. 393-400 - Daccord, Yves, 'ICRC communication: Generating support', 87 IRRC (2005) pp. 693701 - Dijkzeul, Dennis and Markus Moke, 'Public communication strategies of international humanitarian organizations', 87 IRRC (2005) pp. 673-691 - Harroff-Tavel, Marion, 'The Humanitarian Diplomacy of the International Committee of the Red Cross', 1 African YIHL (2006) pp. 1-16 - Nicholls, Leah M., 'The Humanitarian Monarchy Legislates: the International Committee of the Red Cross and Its 161 Rules of Customary International Humanitarian Law', 17 Duke JC & IL (2006) pp. 223-252 - Olson, Laura M. and Toni Pfanner, 'Cooperation between truth commissions and the International Committee of the Red Cross', 88 IRRC (2006) pp. 363-373 - Wigger, Andreas, 'Encountering perceptions in parts of the Muslim world and their impact on the ICRC's ability to be effective', 87 IRRC (2005) pp. 343-365 -
7.5
FACT-FINDING, INCLUDING T H E INTERNATIONAL FACTF N D I N G COMMISSION
Articles Latham, Andrew A., 'UN Fact-finding in a Postmodern World: Potential for Arms Limitation and Confidence-building', in W. Andy Knight, ed., Adapting the United Nations
-
Bibliography
to a Postmodern Era: Lessons Learned (Basingstoke, Palgrave Macmillan -
691
2005) pp.
115-128 Viljoen, Frans, 'Fact-Finding by UN Human Rights Complaints Bodies: Analysis and Suggested Reforms', 8 Max Planck Yearbook o f United Nations Law (2005) pp. 49-100
7.6
DISSEMINATION
Articles -
-
Block-Schlesier, Andreas von and Patrick Kuebart, 'The Obligation of the Government of Sierra Leone to Disseminate Knowledge of International Humanitarian Law', 19 Humanitares Volkerrecht: Informationsschri~en(2006) pp. 226-233 Starcevic, Miodrag, 'International Humanitarian Law -International Human Rights Law: some Proposals for Improving Dissemination', in Guido Ravasi and Gian Luca Beruto, eds., International humanitarian law and other legal regimes: interplay in situations qf violence: proceedings (Milano, Nagard 2005) pp. 29-32
7.7
TRAINING AND EDUCATION
Articles -
Baarda, Theodoor Arthur van, 'Manual for Instructors: Forming a Moral Judgment Using a Dynamic Model', in Military Ethics: the Dutch approach: a practical guide (Leiden, Martinus Nijhoff 2006) pp. 299-330
9.
INTERNATIONAL ORGANISATIONS AND INTERNATIONAL ACTIONS
Books -
Kolb, Robert, Porretto Gabriele, Vite Sylvain, L'application du droit international humanitaire et des droits de l'homme aux organisations internationales: .forces de paix et administrations civiles transitoires (Bruxelles, Bruylant 2005) 500 pp.
9.1 1
United Nations Organisation
Articles
Cryer, Robert, 'The Security Council and International Humanitarian Law', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 245-275 - Fry, James D., 'The UN Security Council and the Law of Armed Conflict: Amity or Enmity?', 38 GWILR (2006) pp. 327-347 - Maley, William, 'The United Nations and the Humanitarian Imperative: some Challenges', in Tony Coady and Michael O'Keefe, eds., Righteous violence: the ethics and politics ofmilitary intervention (Carlton Victoria, Melbourne University Press 2005) pp. 183- 193 -
692
Bibliography
- Natsios, Andrew S., 'NCOs and the UN System in Complex Humanitarian Emergen-
-
-
-
cies: Conflict or Cooperation?', in Paul F. Diehl, ed., Thepolitics ofglobal governance: international organizations in an interdependent world (Boulder CO, Lynne Rienner 2005) pp. 381-397 Nolte, Ceorg, 'Practice of the UN Security Council with Respect to Humanitarian Law', in Klaus Dicke, ed., Weltinnenrecht: liber amicorum Jost Delbriick (Berlin, Duncker & Humblot 2005) pp. 487-502 Somavia, Juan, 'The Humanitarian Responsibilities of the UN Security Council: ensuring the Security of People', James P. Muldoon, Jr. et al., eds., Multilateral diplomacy and the United Nations today (Cambridge MA, Westview Press 2005) pp. 8 1-95 Weissbrodt, David, 'UN Perspectives on "Business and Humanitarian and Human Rights Obligations"', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 135-139
9.2
INTERNATIONAL ACTIONS
Books - Azimi, Nassrine and Chang Li Lin, eds., United Nations as peacekeeper and nation-
builder: continuity and change: what lies ahead?: report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) 250 pp. - Doyle, Michael W. and Nicholas Sambanis, Making war and building peace: United Nations peace operations, (Princeton NJ, Princeton University Press 2006) 400 pp. - Kolb, Robert, Droit humanitaire et opkrations de paix internationales: les modalitks d'application du droit international humanitaire dans les opkrations de maintien ou de rktablissement de la paix auxquelles concourt une organisation internationale (en particulier les Nations Unies), 2nd edn. (Genkve, Helbing & Lichtenhahn 2006) 136 pp. - Matheson, Michael J., Council unbound: the growth of UN decision making on conflict and postconflict issues after the Cold War (Washington DC, United States Institute of Peace Press 2006) 422 pp. Articles - Abt, Jean, 'A Review of Past Practice: Lessons Learnt from Peacekeeping and Nation-
Building: the Humanitarian Perspective', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 65-71 - Bardalai, A.K., 'Report of Role of Peacekeeping and Humanitarian Intervention in Maintaining Global Peace and Ensuring Human Security', in Dipankar Banejee, ed., Rethinking Security: UN and the New Threats (New Delhi, India Research Press 2005) pp. 61-67 - Vendrell, Francesc, 'La ONU y la OEA: diplomacia preventiva, "peace-making", "peace-keeping" y "peace-building": breves apuntes', in Daniel Bardonnet and AntBnio Augusto Canqado Trindade, eds., Derecho international y derechos humanos: libro conmemorativo de la XYIV Sesion del Programa exterior de la Academia de Derecho Znternacional de La Haya (San JosC, Costa Rica, Instituto Interamericano de Derechos Humanos 2005) pp. 225-249
Bibliography
9.2 1
693
Peacekeeping
Books Arnold, Roberta and Geert-Jan Alexander Knoops, eds., Practice and policies of modern peace support operations under international law (Ardsley NY, Transnational 2006) 303 pp. - Banerjee, Dipankar and Ramesh Thakur, Emerging challenges in UNpeacekeeping operations: an Indo-Japanese dialogue (New Delhi, Samskriti 2006) 256 pp. - Jakobsen, Peter Viggo, Nordic approaches to peace operations: a new model in the making? (London, Routledge 2006) 259 pp. - Lijn, Jai'r van der, Walking the tightrope: do UNpeacekeeping operations actually contribute to durable peace? (Amsterdam, Rozenberg Publishers 2006) 41 1 pp. - MacQueen, Nonie, Peacekeeping and the international system (London, Routledge 2006) 286 pp. - Sitkowski, Andrzej, UNpeacekeeping: myth and reality (Westport CT, Praeger Security International 2006) 189 pp. - Stephens, Dale, The use of force in peacekeeping operations: the East Timor experience (Melbourne, Asia-Pacific Centre for Military Law 2005) - Utley, Rachel E., ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Aldershot, Ashgate 2006) 182 pp. -
Articles Ansari, Ali M., 'Peacekeeping in the Middle East', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Aldershot, Ashgate 2006) pp. 135-146 - Arnold, Roberta, 'NATO und Peacekeeping: Neue Direktive zur Bekampfung des Menschenhandels', 44 Revue de droit militaire et de droit de la guerre (2005) pp. 67-74 - Arnold, Roberta, 'The Applicability of the Law of Occupation to Peace Support Operations' in Practice and Policies of Modern Peace Support Operations under International Law (Ardsley N Y , Transnational 2006) pp. 9 l - l 15 - Bjorkdahl, Annika, 'Promoting Norms through Peacekeeping: UNPREDEP and Conflict Prevention', 13 International Peacekeeping (2006) pp. 2 14-228 Cousens, Richard P., 'Amritsar to Basra: the Influence of Counter-insurgency upon the British Perspective of Peacekeeping', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Aldershot, Ashgate 2006) pp. 49-62 - Dahl, Arne-Willy, 'Legal Issues concerning Detention of Individuals during Peace-keeping Operations', 44 Revue de droit militaire et de droit de la guerre (2005) pp. 133-134 - De Koning, Cedric, 'Peace and Peacekeeping Diplomacy', in Gustaaf Geeraerts, Natalie Pauwels and Eric Remacle, eds., Dimensions ofpeace and security: a reader (Brussels, P.1.E.-Peter Lang 2006) pp. 239-252 - De la Vega, Connie and Chelsea E. Haley-Nelson, 'The Role of Women in Peacekeeping and Peacemaking: Devising Solutions to the Demand Side of Trafficking', 13 International Peacekeeping (2006) pp. 437-465 - Dupont, Pascal M., 'Detention of Individuals during Peacekeeping Operations: Lessons learned from Kosovo', in Roberta Arnold and Geert-Jan Alexander Knoops, eds., Prac-
-
694
Bibliography
tice and Policies of Modern Peace Support Operations under International Law (Ardsley NY, Transnational 2006) pp. 249-252 - Facon, Isabelle, 'Integration or Retrenchment?: Russian Approaches to Peacekeeping', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges o f Military Intervention (Aldershot, Ashgate 2006) pp. 3 1-48 - Fleck, Dieter, 'Securing Status and Protection of Peacekeepers', in Roberta Arnold and Geert-Jan Alexander Knoops, eds., Practice and Policies of Modern Peace Support Operations under International Law (Ardsley NY, Transnational 2006) pp. 141- 156 - Gray, Christine, 'Peacekeeping and Enforcement Action in Africa: the Role of Europe and the Obligations of Multilateralism', 3 1 Review of International Studies (2005) pp. 207-223 - GuChenno, Jean-Marie, 'The Peacekeeper', in Sten Ask and Anna Mark-Jungkvist, eds., The Adventure of Peace: Dag Harnmarskjiild and the Future of the UN (New York, Palgrave Macmillan 2006) pp. 180-19 1 - Hannum, Hurst, 'Peace versus justice: creating rights as well as order out of chaos', 13 International Peacekeeping (2006) pp. 582-595 - Harland, David, 'Perspectives for a UN Modus Operandi in the 21st Century: United Nations Peacekeeping today: Current Challenges and Required Responses', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 169- I83 - Harrington, Alexandra R., 'A Tale of Three Nations?: the Role of United Nations Peacekeepers and Missions on the Concept of Nation-State, Nationalism, and Ownership of the State in Lebanon, the Democratic Republic of the Congo, and Kosovo', 21 Connecticut JIL (2006) pp. 2 13-238 - Hasegawa, Sukehiro, 'A Review of Past Practice: Lessons Learnt from Peacekeeping and Nation-Building: the Development Perspective: three Imperatives for Sustainable Peace and Nations-Building in a Post-Conflict Country', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 73-88 - Heaslip, Richard E.M., 'Ireland's First Engagement in United Nations Peacekeeping Operations: an Assessment', 17 Irish Studies in International Affairs (2006) pp. 3 1-42 - Ishizuka, Katsumi, 'Perspectives on UN Peacekeeping Collaboration between Japan and Australia', in Brad Williams and Andrew Newman, eds.. Japan, Australia and AsiaPacijc security (London, Routledge 2006) pp. 144-163 - Jakobsen, Peter V., 'The Nordic Peacekeeping Model: Rise, Fall, Resurgence?', 13 International Peacekeeping (2006) pp. 3 8 1-395 - Johnstone, Ian, Benjamin Cary Tortolani and Richard Gowan, 'The Evolution of UN Peacekeeping: Unfinished Business', 80 Die Friedenswarte: Blatter fur internationale Verstandigung und zwischenstaatliche Organisation (2005) pp. 245-261 - Ker-Lindsay, James, 'The UN Force in Cyprus After the 2004 Reunification Referendum', 13 International Peacekeeping (2006) pp. 4 10-421 - Lavoyer, Jean-Philippe, 'Perspectives for a UN Modus Operandi in the 2 1st Century: International Intervention: some Legal Challenges', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change:
Bibliography
695
what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 185- 196 Leininger, Julia, 'Democracy and UN-Peace-Keeping: Conflict Resolution through State-Building and Democracy Promotion in Haiti', 10 Max Planck Yearbook of United Nations Law (2006) pp. 465-530 - Letts, David, 'Peacekeepers in Post-Conflict Situations: Upholding the Rule of Law', in Ustinia Dolgopol and Judith Gardam, eds., The Challenge of Conflict: International Law Responds (Leiden, Martinus Nijhoff 2006) pp. 529-545 - Lijn, Jaii van der, 'VN-blauw past bij jou: peacekeeping-operations wat heb je er eigenlijk aan?', 2 VNforum (2006) pp. 23-30 - MacNamara, Dennis, 'Perspectives for a UN Modus Operandi in the 21st Century: Peace Operations and Civilian Protection', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 197-205 - Miinsson, Katarina, 'Integration of Human Rights in Peace Operations: Is There an Ideal Model?', 13 International Peacekeeping (2006) pp. 547-563 - Miller, Anthony J., 'Legal Aspects of Stopping Sexual Exploitation and Abuse in UN Peacekeeping Operations', 39 Cornell ILJ (2006) pp. 7 1-96 - Murphy, Ray, 'An Assessment of UN Efforts to Address Sexual Misconduct by Peacekeeping Personnel', 13 International Peacekeeping (2006) pp. 53 1-546 - O'Connor, Viviene, 'The International Law of Peace Operations meets Domestic Criminal Law: the Potential Use of Model Codes in Addressing Human Security Issues in Post-Conflict States', in Canadian Council of International Law, proceedings of the 34th Annual Conference of the Canadian Council of International Law (Ottawa, Canadian Council of International Law 2005) pp. 11-28 - OHCHR Staff, 'The Human Rights Components of UN Peacekeeping and Peacebuilding Operations and the Field Officers of UNDP and the Office of High Commissioner for Human Rights Office of the High Commissioner for Human Rights (OHCHR)', in Bertrand G. Ramcharan, ed., Human Rights Protection in the Field (Leiden, Martinus Nijhoff 2006) pp. 153-2 10 - Ozerdem, Alpaslan, 'Peacekeeping in Asia: Lessons Learned from Afghanistan, Cambodia and Timor-Leste', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Aldershot, Ashgate 2006) pp. 119-134 - Piiparinen, Touko, 'Beyond the Myrtery of the Rwanda "Black Box": Political Will and Early Warning', 13 International Peacekeeping (2006) pp. 334-349 - Pushkina, Darya, 'A Recipe for Success?: Ingredients of a Successful Peacekeeping Mission', 13 International Peacekeeping (2006) pp. 133- 149 - Rawnsley, Gary D., 'May you live in Interesting Times: China, Japan and Peacekeeping', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Milita y Intervention (Aldershot, Ashgate 2006) pp. 8 1-98 - Rogier, Emeric, 'Democratic Republic of Congo: Problems of the Peacekeeping Process', in Oliver Furley and Roy May, eds., Ending Africa's Wars: Progressing to Peace (Burlington VT, Ashgate 2006) pp. 99- 113 -
696
Bibliography
Schmitt, Jean-Claude, 'Legal Uncertainties at the Beginning of a Peace-keeping Operation', 44 Revue de droit militaire et de droit de la guerre (2005) pp. 128-130 - Shotton, Anna, 'A Strategy to Address Sexual Exploitation and Abuse by United Nations Peacekeeping Personnel', 39 Cornell ILJ (2006) pp. 97-107 - Shraga, Daphna, 'Implications for Peacekeeping Operations', in Custom as a source of international humanitarian law: proceedings of the Conference to mark the Publication ofthe ICRC Study "Customary international humarzitarian law", held in New Delhi, 8-9 December 2005 (Geneva, ICRC 2006) pp. 123-128 - Smith, Michael G., 'A Review of Past Practice: Lessons Learnt from Peacekeeping and Nation-Building: a Peacekeeper's Perspective', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 89-100 - Spiers, Edward M., 'US Peace Operations: the Transition continues', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges o f Military Intervention (Aldershot, Ashgate 2006) pp. 15-29 - Taylor, Philip M., 'The Media, Conflict and Peacekeeping', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges of Military Intervention (Aldershot, Ashgate 2006) pp. 15-29 - Thakur, Ramesh, 'Peacekeeping: History and Development', in Gustaaf Geeraerts, Natalie Pauwels and Eric Remacle, eds., Dimensions ofpeace and security: a reader (Brussels, P.1.E.-Peter Lang 2006) pp. 221-238 - Tsagourias, Nicholas, 'Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension', 11 J ConJlict & Security L (2006) pp. 465482 - Utley, Rachel E., 'A Means to Wider Ends?: France, Germany and Peacekeeping', in Rachel E. Utley, ed., Major Powers and Peacekeeping: Perspectives, Priorities and the Challenges o f Military Intervention (Aldershot, Ashgate 2006) pp. 63-80 - Zanotti, Laura, 'Taming Chaos: a Foucaldian View of UN Peacekeeping, Democracy and Normalization', 13 International Peacekeeping (2006) pp. 150-167
-
9.22
Peace Enforcement and Peace Building
Books Gunn, Geoffrey and Reyko Huang, New nation: United Nations peacebuilding in East Timor Wagasaki, Gunn, 2006) 209 pp. - Kaufman, Edy, Walid Salem, and Juliette Verhoeven, Bridging the divide: peacebuilding in the Israeli-Palestinian conflict (Boulder CO, Rienner 2006) 323 pp. - King, Iain and Whit Mason, Peace at any price: how the world,failed Kosovo (London, Hurst 2006) 303 pp. - Mac Ginty, Roger, No war; no peace: the rejuvenation of stalled peace processes and peace accords (Basingstoke, Palgrave Macmillan 2006) 230 pp. - MacLeod, Lisa A. Hall, Constructingpeace: lessonsfrom UNpeacebuilding operations in El Salvador and Cambodia (Lanham MD, Lexington Books 2006) 127 pp. - Martin, Harriet, Kings of peace, pawns of war: the untold story of peace-making (London, Continuum 2006) 184 pp. -
Bibliography
697
-
Mason, T. David and James D. Meernik, eds., Conflict prevention
-
post-war societies: sustaining the peace (London, Routledge 2006) 280 pp. Newman, Edward and Oliver Richmond, eds., Challenges to peacebuilding: managing spoilers during conflict resolution (Tokyo, United Nations University Press 2006) 329
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and peacebuilding in
PP. Schennink, Ben and Gemma van der Haar, Working on peace-building and conflict pre-
vention: experiences and dilemmas of Dutch NGOs (Amsterdam, Dutch University Press 2006) 2 17 pp. Shankleman, Jill, Oil, pro& and peace: does business have a role in peacemaking? (Washington DC, United States Institute of Peace 2006) 235 pp. - Stromseth, Jane, David Wippman and Rosa Brooks, Can might make rights.?: building the rule of law after military interventions (Cambridge, Cambridge University Press 2006) 414 pp. - Tielsch, Julia, UN-Verwaltung und Menschenrechte: die internationale Zivilverwaltung im Kosovo (Frankfurt aM, Lang 2006) 400 pp.
-
Articles Akhtar, Shaheen, 'Women and Peacebuilding in Azzad Jammu and Kashmir', in Waheguru Pal Singh Sidhu, Bushra Asif, Cyrus Samii, eds., Kashmir: new voices, new approaches (Boulder CO, Rienner 2006) pp. 97-1 15 - Aoi, Chiyuki and Yozo Yokota, 'Avoiding a Strategic Failure in the Aftermath of the Iraq War: Partnership in Peacebuilding', in Ramesh Thakur and Wahegum Pal Singh Sidhu, eds., The Iraq crisis and world order: structural, institutional and normative challenges (Tokyo, United Nations University Press 2006) pp. 282-297 - Benzing, Markus, 'Midwifing a New State: the United Nations in East Timor', 9 Max Planck Yearbook o f United Nations Law (2005) pp. 295-372 - Diehl, Paul F., 'Paths to Peacebuilding: the Transformation of Peace Operations', in T. David Mason and James D. Meemik, eds., Conflict Prevention and Peacebuilding in Post- War Societies: Sustaining the Peace (London, Routledge 2006) pp. 107- 129 - Doyle, Michael W. and Nicholas Sambanis, 'International Peacebuilding: a Theoretical and Quantitative Analysis', in Daniel Druckman, ed., Conflict Resolution (London, Sage 2006) pp. 396-440 - Goldsmith, Andrew, 'Policing after Conflict: Peace-Building and the Responsibility to protect', in Ustinia Dolgopol and Judith Gardam, eds., The challenge ofconflict: international law responds (Leiden, Martinus Nijhoff 2006) pp. 2 1-48 - Hannum, Hurst, 'Human Rights in Conflict Resolution: the Role of the Office of the High Commissioner for Human Rights in UN Peacemaking and Peacebuilding', 28 HRQ (2006) pp. 1-85 - Hasegawa, Sukehiro, 'A Review of Past Practice: Lessons Learnt from Peacekeeping and Nation-Building: the Development Perspective: three Imperatives for Sustainable Peace and Nations-Building in a Post-Conflict Country', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 73-88 - Howland, Todd, 'Peacemaking and Conformity with Human Rights Law: how MINUSTAH Falls Short in Haiti', 13 International Peacekeeping (2006) pp. 462-476 -
698 -
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-
-
-
-
-
-
Bibliography
Jansen, Care1 H., 'Peacebuilding onder hoede van de Veiligheidsraad', 1 VN forum (2006) pp. 38-41 Lamboume, Wendy, 'Justice in the Aftermath of Mass Crimes: International Law and Peacebuilding', in Ustinia Dolgopol and Judith Gardam, eds., The challenge of conflict: international law responds (Leiden, Martinus Nijhoff 2006) pp. 261-279 Lappia, Isaac, 'Community-based Disarmament and Post-conflict Peace-building', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: conflict, peace and people in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 131- 139 Lord, Janet E. and Nancy Flowers, 'Human Rights Education and Grassroots Peacebuilding', in Julie Mertus and JeMey W. Helsing, eds., Human rights and conflict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press) pp. 43 1-458 Maley, William, 'International Force and Political Reconstruction: Cambodia, East Timor and Afghanistan', in Security sector reform and post-conjlict peacebuilding (Tokyo, United Nations University Press 2005) pp. 297-3 12 Martain, Ian, 'The United Nations and East Timor: from Self-Determination to StateBuilding', in UN peace operations and Asian security (London, Routledge 2005) pp. 104-120 Mosegaard S~bjerg,Lene, 'The Kosovo Experiment: Peacebuilding through an International Trusteeship', in Tonny Brems Knudsen and Carsten Bagge Lausten, eds., Kosovo between war and peace: nationalism, peacebuilding and international trusteeship (London, Routledge 2006) pp. 57-75 Mullenbach, Mark J., 'Reconstructing Strife-Torn Societies: Third-Party Peacebuilding in Intrastate Disputes', in Mason, T. David and James D. Meemik, eds., Conflict Prevention and Peacebuilding in Post- War Societies: Sustaining the Peace (London, Routledge 2006) pp. 53-80 Nakamitsu Lennartsson, Izumi, 'New Trends in Peace Operations: Peace-Building: New Roles and Responsibilities for Donors: from a "Coalition of the Willing" to a "Coalition of the Capable"', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 157- 165 Nelles, Wayne, 'Bosnian Education for Security and Peacebuilding', 13 International Peacekeeping (2006) pp. 229-241 Nesi, Giuseppe, 'The UN Peacebuilding Commission', 15 Italian Yearbook of International Law (2005) pp. 43-52 Soli-Martin, Andreu, 'Lessons from MINURSO: a Contribution to New Thinking', 13 International Peacekeeping (2006) pp. 366-380 Sooka, Yasmin, 'Dealing with the Past and Transitional Justice: Building Peace through Accountability', 88 IRRC (2006) pp. 3 11-325 Squire, Chris, 'Bound to cooperate: Peacemaking and Power-sharing in Sierra Leone', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: Conflict, Peace and People in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 49-66 Stiefel, Matthias, 'A Review of Past Practice: Lessons Leamt from Peacekeeping and Nation-Building: an NGO Perspective: Building Peace after War: a View from the
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Ground', in Nassrine Azimi and Chang Li Lin, eds., United Nations as Peacekeeper and Nation-Builder: Continuity and Change: what lies ahead?: Report of the 2005 Hiroshima Conference (Leiden, Martinus Nijhoff 2006) pp. 101- 106 - Weinlich, Silke, 'Die Peacebuilding-Kommission der Vereinten Nationen: neues Werkzeug fiir eine bessere Friedenskonsolidierung?', Die Zukunft des Volkerrechts in einer globalisierten Welt (Baden-Baden, Nomos 2006) pp. 192-212
9.24
Humanitarian and other Interventions
Books - Aboagye, Festus and Alhaji M.S. Bah, eds., A tortuous road to peace: the dynamics of regional, UN and international humanitarian interventions in Liberia (Pretoria, Institute for Security Studies 2005) 323 pp. - de Castro-Sanchez, Claribel, 'From Kosovo to Iraq: a New Right of Pro-Human Rights Intervention?', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conflicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) 61-90 pp. - Coady, Tony, and Michael O'Keefe, eds., Righteous violence: the ethics and politics of militay intervention (Carlton Victoria, Melbourne University Press 2005) 238 pp. - Crawford, Timothy W. and Alan J. Kuperman, eds., Gambling on Humanitarian Intervention: Moral Hazard, Rebellion and Civil War (Abingdon, Routledge 2006) 100 pp. - Janzekovic, John, The use oJforce in humanitarian intervention: morality andpracticalities (Aldershot, Ashgate 2006) 2 12 pp. - Matlary, Janne Haaland, Values and weapons: @om humanitarian intervention to regime change? (Basingstoke, Palgrave Macmillan) 201 pp. - Nardin, Terry and Melissa S. Williams, eds., Humanitarian intervention (New York, New York University Press 2006) 308 pp. - Welsh, Jennifer M., Humanitarian intervention and international relations (Oxford, Oxford University Press 2006) 234 pp. Articles Abiew, Francis K., 'Kosovo, Iraq and the Evolution of the Theory and practice of Humanitarian Intervention', in Osvaldo Croci and Amy Verdun, eds., The transatlantic divide:foreign and security policies in the Atlantic Aliance from Kosovo to Iraq (Manchester, Manchester University Press 2006) pp. 64-76 - Crawford, Timothy W. and Alan J. Kuperman, 'Debating the Hazards of Intervention: Introduction', in Timothy W. Crawford and Alan J. Kuperman, eds., Gambling on Humanitarian Intervention: Moral Hazard, Rebellion and Civil War (Abingdon, Routledge 2006) pp. vii-xi - Evans, Gareth, 'From Humanitarian Intervention to the Responsibility to Protect', 24 Wisconsin I U (2006) pp. 703-722 - Evans, Gareth, 'The Responsibility to Protect: Rethinking Humanitarian Intervention', in Sten Ask and Anna Mark-Jungkvist, eds., The Adventure of Peace: Dag Hammarskjold and the Future of the UN (New York, Palgrave Macmillan 2006) pp. 298-3 11
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700
Bibliography
Falk, Richard, 'Humanitarian Intervention after Kosovo', in Julie Mertus and Jeffrey W. Helsing, eds., Human rights and conflict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press) pp. 185-208 - Goodman, Ryan, 'Humanitarian Intervention and Pretext for War', 100 AJIL (2006) pp. 107-141 - Greenwood, Christopher, 'The Applicability of International Humanitarian Law and the Law of Neutrality to the Kosovo Campaign', in Christpoher Greenwood, Essays on war in international law (London, Cameron May 2006) pp. 63 1-666 - Jachec-Neale, Agnieszka, 'International Humanitarian Law and Polish Involvement in Stabilizing Iraq', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 221-243 - Mayall, James, 'Humanitarian Intervention and International Society: Lessons from Africa', in Jennifer M. Welsh, Humanitarian intervention and international relations (Oxford, Oxford University Press 2006) pp. 120-141 - Molier, Gelijn, 'Humanitarian Intervention and the Responsibility to Protect after 911 1 ', 53 NILR (2006) pp. 37-62 - Muggleton, Paul, 'The Doctrine of Humanitarian Intervention and the NATO Air Strikes against the Federal Republic of Yugoslavia', in Tony Coady and Michael O'Keefe, eds., Righteous violence: the ethics and politics of military intervention (Carlton Victoria, Melbourne University Press 2005) pp. 99- 136 - Nardin, Terry, 'The Moral Basis of Humanitarian Intervention', in Stephen Chan and Cenvyn Moore, eds., Theories of International Relations (London, Sage 2006) pp. 380396 - Norman, Richard, 'War, Humanitarian Intervention and Human Rights', in Richard Sorabji and David Rodin, eds., The Ethics of War: Shared Problems in Different Traditions (Aldershot, Ashgate 2006) pp. 191-207 - Roberts, Adam, 'The United Nations and Humanitarian Intervention', in Jennifer M. Welsh, ed., Humanitarian Intervention and International Relations (Oxford, Oxford University Press 2006) pp. 71-97 - Rutkus, Paul, 'NATO's Attack on Yugoslavia: the Deputation of an Ad Hoc International Constabulary', in John Carey, William V. Dunlap and R. John Pritchard, eds., 3 International Humanitarian Law (2006) pp. 2 l 1-226 - Shinko, Rosemary E., 'Postmodernism: a Genealogy of Humanitarian Intervention', in Jennifer Sterling-Folker, ed., Making Sense of International Relations Theory (Boulder CO, Reinner 2006) pp. 168-18 1 - Smith, James W., 'Unilateral humanitarian intervention and the just cause requirement: should the denial of self-determination to indigenous people be a valid basis for humanitarian intervention? Yes', 3 1 American Indian Law Review (2006) pp. 699-716 - Sunga, Lyal S., 'The Role of Humanitarian Intervention in International Peace and Security: Guarantee or Threat?', in Hans Kochler, ed., The use of force in international relations: challenges to collective security (Vienna, International Progress Organization 2006) pp. 4 1-79 - Teson, Fernando R., 'The Liberal Case for Humanitarian Intervention', in Larry May, Eric Rovie, and Steve Viner, eds., The Morality of War: Classical and Contemporary Readings (Upper Saddle River NJ, Pearson Prentice Hall 2006) pp. 348-360 -
Bibliography
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701
Teson, Fernando R., 'The Vexing Problem of Authority in Humanitarian Intervention: a Proposal', 24 Wisconsin I U (2006) pp. 76 1-772 Valentino, Benjamin, 'The Perils of Limited Humanitarian Intervention: Lessons from the 1990s', 24 Wisconsin I U ( 2 0 0 6 ) pp. 723-740 Wheeler, Nicholas J. and Justin Moms, 'Justifying the Iraq War as a Humanitarian Intervention: the Cure is worse than the Disease', in Ramesh Thakur and Waheguru Pal Singh Sidhu, eds., The Iraq crisis and world order: structural, institutional and normative challenges (Tokyo, United Nations University Press 2006) pp. 444-463 Wilkins, Burleigh, 'Humanitarian Intervention: Some Doubts', in Burleigh Wilkins, The morality of war: classical and contemporary readings (Upper Saddle River NJ, Pearson Prentice Hall 2006) pp. 361-369 Zajadlo, Jerzy, 'Humanitarian Intervention: Threat to International Order, Moral Imperative, or Customary Norm "in statu nascendi"?', 27 Polish Yearbook of InternationalLaw (2006) pp. 33-48
9.25
Sanctions
Books Sponeck, Hans C. von, A dgferent kind oj'war: the UN sanctions regime in Iraq (New York NY, Berghahn 2006) 322 pp. - Wallensteen, Peter and Canna Staibano, eds., International sanctions: between words and wars in the global system (London, Frank Cass 2005) 25 1 pp.
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Articles Aust, Helmut P. and Nina Naske, 'Rechtsschutz gegen den UN-Sicherheitsrat durch europaische Gerichte?: die Rechtsprechung des EuG zur Umsetzung gezielter Sanktionen" aus dem Blickwinkel des Volkerrechts', 61 Zeitschrift fur iiffentliches Recht (2006) pp. 587-623 - Conlon, Paul, 'Adapting Traditonal Humanitarian Law to Sanctions', 3 International Humanitarian Law (2006) pp. 227-236 - Geiss, Robin, 'Humanitarian Safeguards in Economic Sanctions Regimes: a Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-up Assessment of Long-Term Effects', 18 Haward Humaa Rights Journal(2005) pp. 167-199 - Ohler, Christoph, 'Die Verhangung von "smart sanctions" durch den UN - Sicherheitsrat - eine Herausforderung f i r das Gemeinschaftsrecht', 41 Europarecht: in Verbindung mit der Wissenschaftlichen Gesellschaft,fu'r Europarecht (2006) pp. 848-865
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10
REGIONAL ORGANISATIONS AND ACTIONS
Articles - Dunvard, Rosemary, 'Security Council Authorization for Regional Peace Operations: a
Critical Analysis', 13 International Peacekeeping (2006) pp. 350-365
702
Bibliography
10.1
EUROPEAN
Books Merlingen, Michael and Rasa Ostrauskaite, European Union peacebuilding and policing: governunce and the European security and defence policy (London, Routledge 2006) 184 pp.
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Articles Cloos, Jim, 'UN-EU Cooperation on Crisis Management: Putting Effective Multilateralism into Practice', in Jan Wouters, Frank Hoffmeister and Tom Ruys, eds., The United Nations and the European Union: an ever stronger partnership (The Hague, T.M.C. Asser Press 2006) pp. 259-265 - George, Bruce and Anthony McGee, 'The OSCE's Approach to Conflict Prevention and Post-Conflict Rehabilitation', in Mason, T. David and James D. Meemik, eds., Conj7ict Prevention and Peacebuilding in Post- War Societies: Sustaining the Peace (London, Routledge 2006) pp. 8 1-104 - Graham, Kennedy, 'UN-EU Cooperation on Security: in Search of "Effective Multilateralism" and a Balanced Division of Tasks', in Jan Wouters, Frank Hoffmeister and Tom Ruys, eds., The United Nations and the European Union: an ever strongerpartnership (The Hague, T.M.C. Asser Press 2006) pp. 281-303 - Hazalzet, Hadewych, 'Human Rights Aspects of EU Crisis Management Operations: From Nuisance to Necessity', 13 International Peacekeeping (2006) pp. 564-58 1 - Verbeke, Johan, 'EU Coordination on UN Security Council Matters', in Jan Wouters, Frank Hoffmeister and Tom Ruys, eds., The United Nations and the European Union: an ever strongerpartnership (The Hague, T.M.C. Asser Press 2006) pp. 49-60 - Wouters, Jan and Tom Ruys, 'UN-EU Cooperation in Crisis Management', in Jan Wouters, Frank Hofheister and Tom Ruys, eds., The United Nations and the European Union: an ever stronger partnership (The Hague, T.M.C. Asser Press 2006) pp. 229258 -
10.2
AMERICAN
Articles Heine, Jorge, 'The Responsibility to protect: Humanitarian Intervention and the Principle of Non-intervention in the Americas', in Ramesh Thakur, Andrew F. Cooper, and John English, eds., International commissions and the power of' ideas (Tokyo, United Nations University Press 2005) pp. 221 -245
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10.4
AFRICAN
Books Deme, Mourtada, Law, morality and international armed intervention: the United Nations and ECOWAS in Liberia (New York, Routledge 2005) 166 pp.
-
Bibliography
703
Articles -
As, Franqois van, 'African Peacekeeping: Past Practices, Future Prospects and its Contribution to International Law', 45 Revue de droit militaire et de droit de la guerre (2006) pp. 329-354
11.
ARMS CONTROL AND DISARMAMENT
Books Borrie, John and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: ,from Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) 168 pp. - Borrie, John and Vanessa Martin Randin, eds., Thinking outside the hox in multilateral disarmament and arms control negotiations (Geneva, United Nations Institute for Disarmament Research 2006) 254 pp. - Rappert, Brian, Controlling the weapons of war: politics, persuasion and the prohibition of inhumanity (London, Routledge 2006) 223 pp. - Sidhu, Waheguru Pal Singh and Ramesh Thakur, Arms control after Iraq: normative and operational challenges (Tokyo, United Nations University Press 2006) 452 pp. -
Articles Ayissi, Anatole and Robin-Edward Poulton, 'Peace-building and Practical Disarmament: beyond States with Civil Society', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: conflict, peace and people in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 15-36 - Bayraytay, Abdulai, 'Arms Control Policy under Threat: Dealing with the Plague of Corruption', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: conflict, peace andpeople in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 85-99 - Borrie, John, 'Disarmament as Humanitarian Action: from Perspective to Practice', in John Borrie and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: from Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 7-22 - Boshoff, Henri, 'Disarmament, Demobilisation and Reintegration During the Transition in Burundi: a Success Story?', in Roger Southall, ed., South Africa's role in conflict resolution and peacemaking in Africa: conference proceedings (Cape Town HSRC Press 2006) pp. 135-150 - Boutherin, Gregory, 'L'evolution du modde classique de 1'Arms Control', 18 L 'observateur des Nations Unies: revue de 1'Associationfranqaisepour les Nations Unies, Section Aix-en-Provence (2005) pp. 25-45 - Hulsroj, Peter, 'Jus Cogens and Disarmament', 46 Indian JIL (2006) pp. 1-1 1 - Kai-Kai, Francis, 'Disarmament, Demobilization and Reintegration in Post-war Sierra Leone', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: conflict, peace and people in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 115-129
-
704
Bibliography
- Jensen, Lloyd, 'Negogiating Strategic Arms Control, 1969- 1979', in Daniel Druckman,
Conjict Resolution (London, Sage 2006) pp. 3 13-330 Mansaray, Binta, 'Women against Weapons: a Leading Role for Women in Disarmament', in Anatole Ayissi and Robin-Edward Poulton, eds., Bound to cooperate: conjict, peace and people in Sierra Leone (Geneva, United Nations Institute for Disarmament Research (UNIDIR) 2006) pp. 141- 164 - Neuneck, Gotz and AndrC Rothkirch, 'The Possible Weaponization of Space and Options for Preventive Arms Control', 55 Zeitschrij?fur Luji und Weltraurnrecht (2006) pp. 501-516 - Poucet, Andr6, 'Arms Control and Non-proliferation Treaties: an Ontology of Concepts and Characteristics', in Andr6 Poucet, Verrfiing treaty compliance: limiting weapons of mass destruction and monitoring Kyoto Protocol provisions (Berlin, Springer 2006) pp. 4 1-60 - Ruge, Christian H., 'Mitigating the Effects of Armed Violence through Disarmament: Counting the Human Costs', in John Borrie and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: from Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 23-49 - Spear, Joanna, 'Disarmament, Demobilization, Reinsertion and Reintegration in Africa', in Oliver Furley and Roy May, eds., Ending Africa's wars: progressing to peace (Burlington VT, Ashgate 2006) pp. 63-80 -
11.1
CONVENTIONAL WEAPONS
Articles Bryant, Kevin, 'Cluster Munitions and Their Submunitions: A Personal View', 4 Disarmament Forum (2006) pp. 45-49 - MacClelland, J., 'Conventional Weapons: a Cluster of Developments', 54 ICLQ (2005) pp. 755-767 - Maresca, Louis, 'Cluster Munitions: Moving Toward Specific Regulation', 4 Disarmament Forum (2006) pp. 27-34 - Nash, Thomas, 'Stopping Cluster Munitions', 4 Disarmament Forum (2006) pp. 35-44 -
11.11
Mines
Books - Sigal, Leon V., Negotiating minefelds: the landmines ban in American politics (New
York NY, Routledge 2006) 294 pp.
Articles - Cave, Rosy, 'Disarmament as Humanitarian Action?: Comparing Negotiations on Antipersonnel Mines and Explosive Remnants of War', in John Borrie and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: from Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 5 1-78 - Hayashi, Mika, 'The Ottawa Convention on Landmines in two Perspectives: International Humanitarian Law and Disarmament', in Sai Felicia Krishna-Hensel, ed., Global
Bibliography
705
cooperation: challenges and opportunities in the t w e n t y j k t century (Aldershot, Ashgate 2006) pp. 75-108 - Wareham, Mary, 'The Role of Landmine Monitor in Promoting and Monitoring Compliance with the 1997 Anti-personnel Mine Ban Convention', in John Bome and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: from Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 79-1 08 1 1.12
Small Weapons and Others
Books European action on small arms and light weapons and explosive remnants of war:jinal report (Geneva, United Nations Institute for Disarmament Research 2006) 78 pp. - Kytomaki, Elli, Five years of implementing the United Nations Programme of Action on Small Arms and Light Weapons: regional analysis of national reports (Geneva, UNIDIR, United Nations Institute for Disarmament Research 2006) 239 pp. - Maze, Keny and Sarah Parker, International assistance jor implementing the programme of action to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects: ,findings of a global survey (New York NY, Nations Institute for Disarmament Research 2006) 70 pp. - Turner, Mandy, Costs of disarmament: cost benefit analysis of SAL W destruction versus storage (Geneva, UNIDIR, United Nations Institute for Disarmament Research 2006) 27 PP. -
Articles Bondi, Loretta, 'US Policy on Small Arms and Light Weapons', 59 Naval War College Review (2006) pp. 119-140 - Bonie, John, 'Small Arms and the Geneva Forum: Disarmament as Humanitarian Action?', in John Borrie and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: ji-om Perspective to Practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 137-165 - Fan; Vanessa, 'Gender Analysis as a Tool for Multilateral Negotiators in the Small Arms Context', in John Borrie and Vanessa Martin Randin, eds., Disarmament as humanitarian action:,from perspective to practice (Geneva, United Nations Institute for Disarmament Research 2006) pp. 109- I36 - Marsh, Nicholas, 'The Nordic Countries and Conventional Arms Control: the Case of Small Arms and Light Weapons', in Alyson J.K. Bailes, Gunilla Herolf and Bengt Sundelius, eds., The Nordic countries and the European security and defence policy (Oxford, Oxford University Press 2006) pp. 234-25 1 - O'Dwyer, Diana, 'First Landmines, Now Small Arms?: the International Campaign to Ban Landmines as a Model for Small-Arms Advocacy', 17 Irish studies in international afairs (2006) pp. 77-9 1 -
706
Bibliography
11.2
WEAPONS OF MASS DESTRUCTION
Books Avenhaus, Rudolf, Verzfiing treaty compliance: limiting weapons of mass destruction and monitoring Kyoto Protocolprovisions (Berlin, Springer 2006) 629 pp. - Russell, James A,, Proliferation of weapons of mass destruction in the Middle East: directions and policy options in the new century (New York NY, Palgrave Macmillan 2006) 242 pp. - Schneider, Barry R. and Jim A. Davis, Avoiding the abyss: progress, shortfalls, and the way ahead in combating the WMD threat (Westport CT, Praeger Security International 2006) 430 pp. - Smith, Derek D., Deterring America: rogue states and the proliferation of weapons of mass destruction (Cambridge, Cambridge University Press 2006) 197 pp. - Weapons of terror: freeing the world of nucleal; biological and chemical arms (Stockholm, Weapons of Mass Destruction Commission 2006) 227 pp. -
Articles - Benoit, Lo'ick, 'La skcuriti: dans le Bassin mediterraneen: terrorisme et armes de destruc-
tion massive', 62 Dkfense nationale (2006) pp. 105- 118 Blix, Hans, 'Weapons of Mass Destruction', in Sten Ask and Anna Mark-Jungkvist, eds., The Adventure of Peace: Dag Hamrnarskjold and the Future of the UN (New York NY, Palgrave Macmillan 2006) 41 6 pp. - Findlay, Trevor, 'Weapons of Mass Destruction', in Edward Newman, Ramesh Thakur and John Tirman, eds., Multilateralism under challenge?: powel; international order, and structural change (Tokyo, United Nations University Press 2006) pp. 207-233 - Heintschel von Heinegg, Wolff, 'Countering the Proliferation of Weapons of Mass Destruction: the Case of Non-State Actors', in Pierre-Marie Dupuy et al., eds., Volkerrecht als Wertordnung: Festschrij? f i r Christian Tomuschat: essays in honour of Christian Tomuschat (Kehl, Engel 2006) pp. 797-8 14 - Olberg, Lars, 'Massenvernichtungswaffen kontrollieren: Bilanz nach zwei Jahren UNSicherheitsratsresolution 1540', 54 VereinteNationen (2006) pp. 189-193 - Sur, Serge, '~ditorial;des armes de destruction massive aux instruments de terreur massive', 18 L'obsewateur des Nations Unies: revue de I'Association ,franqaise pour les Nations Unies, Section Aix-en-Provence (2005) pp. 1-3 - Zedalis, Rex J., 'Weapons of Mass Destruction in Iraq: the "Final W o r d on Efforts to Eliminate Saddam Hussein's biological, chemical, and Nuclear Weapons Threat', 10 International Peacekeeping (2006) pp. 11 5- 161 -
11.21
Nuclear Weapons
Articles Arbatov, Alexei, 'Nuclear Deterrence and Proliferation: the Dialectics of "Doomsday Weapons"', 44 Russian Politics and Law (2006) pp. 35-60 - Lewis, Julian, 'Nuclear Disarmament Versus Peace in the Twenty-first Century', 82 International Affairs (2006) pp. 667-673 -
Bibliography
707
Persbo, Andreas and Lisa Leitenbauer, 'An Eye on the World: Verifying the Comprehensive Test Ban', 2 Disarmamentforum (2006) pp. 47-56 - Ramsey, Paul, 'Nuclear Weapons and Legitimate Defense', in Gregory M. Reichberg, Henrik Syse, and Endre Begby, eds., The ethics ofwar: classic and contemporary readings (Malden MA, Blackwell 2006) pp. 614-624 - Zhang Xinjun, 'The Riddle of "Inalienable Right" in Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons: Intentional Ambiguity', 5 Chinese JIL (2006) -
pp. 647-662
1 1.22
Chemical and Biological Weapons
Books Kelle, Alexander, Controlling biochemical weapons: adapting multilateral arms control for the 21st century (Basingstoke, Palgrave Macmillan 2006) 208 pp. - Thakur, Ramesh and Ere Haru, eds., The Chemical Weapons Convention: implernentation, challenges and opportunities (Tokyo, United Nations University Press 2006) 190 PP.
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Articles Dunworth, Treasa, Robert J. Mathews, Timothy L.H. McCormack, 'National Implementation of the Biological Weapons Convention', 11 Journal ofconjlict & security law (2006) pp. 93- 1 18 - Harland, Christopher B. and Angela Woodward, 'A Model Law: The Biological and Toxin Weapons Crimes Act: An Act to implement obligations under the 1972 Biological and Toxin Weapons Convention and the 1925 Geneva Protocol', 87 IRRC (2005) pp. 573-586 - Hunger, Iris and Nicolas Isla, 'Confidence-Building Needs Transparency: an Analysis of the BTWC's Confidence-Building Measures', 3 Disarmament,fbrurn (2006) pp. 26-36 - Lennane, Richard, 'Blood, Toil, Tears and Sweat: the Biological and Toxin Weapons Convention since 2001 ', 3 Disarmament.forum (2006) pp. 5-1 5 - Millett, Piers D., 'The Biological and Toxin Weapons Convention in Context: From Monolith to Keystone', 3 Disarmamentforum (2006) pp. 47-63 - Oiiate, Santiago, 'Lessons Learned: Chemicals Trader Convicted of War Crimes', 4 Chemical Disarmament (2006) pp. 19-3 1 - Sims, Nicholas A,, 'Strengthening Structures for the Biological and Toxin Weapons Convention: Options for Remedying the Institutional Deficit', 3 Disarmament forum (2006) pp. 17-26 - Wheelis, Mark and Malcolm Dando, 'Neurobiology: A case study of the imminent militarization of biology', 87 IRRC (2005) pp. 553-572
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12.1
CONFLICT PREVENTION
Books Stewart, Emma J., The European Union and conflict prevention: policy evolution and outcome (Miinster, Lit 2006) 274 pp.
-
708
Bibliography
Articles Brenninkrneijer, Olivier, 'Negotiations and Engagements for Conflict Prevention: State Sovereignty and the OSCE High Commissioner on National Minorities', 17 Helsinki Monitor (2006) pp. 327-336 - Feichtinger, Walter, 'Konfliktpravention und Krisenmanagement: ein sicherheitspolitisches Paradigma im 2 1. Jahrhundert', in Walter Feichtinger and Predag JurekoviC, eds., Internationales Konfliktmanagement im Fokus: Kosovo, Moldova und Afghanistan im kritischen Vergleich (Baden-Baden, Nomos 2006) pp. 13-48 - Hamber, Brandon, "'Nunca Mas" and the Politics of Person: can Truth Telling prevent the Recurrence of Violence?', in Tristan Anne Borer, ed., Telling the truths: truth telling andpeace building in post-conflict societies (Notre Dame I N , University of Notre Dame Press 2006) pp. 207-230 - Punyasena, Wasana, 'Conflict Prevention and the International Criminal Court: Deterrence in a Changing World', 14 Journal of International Law and Practice (2006) pp. 39-70 - Schnabel, Albrecht, 'Conflict Prevention: Concept and Application', in Gustaaf Geeraerts, Natalie Pauwels and Eric Remacle, eds., Dimensions of Peace and Security: a Reader (Brussels, P.1.E.-Peter Lang 2006) pp. 253-277 - Shringla, Harsh Vardhan, 'The United Nations and Conflict Prevention: Balance between Sovereignty and Action', 46 Indian JIL (2006) pp. 429-445 -
12.2
CONFLICT RESOLUTION
Books Albrecht, Hans-Jorg et al., eds., Conflicts and conjlict resolution in Middle Eastern societies - between tradition and modernity (Berlin, Duncker & Humblot 2006) 658 pp. - Druckman, Daniel and Paul F. Diehl, eds., Conflict resolution (London, Sage 2006) 396 PP. - Smith, Dan, The state of the Middle East: an atlas of conflict and resolution (Berkeley CA, University of California Press 2006) 144 pp. - Southall, Roger, South Africa's role in conflict resolution and peacemaking in Africa: conjerenceproceedings (Cape Town, HSRC Press 2006) 266 pp. - Voigt, Stefan, International conflict resolution (Tiibingen, Mohr Siebeck 2006) 374 pp.
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Articles - Bell, Christine, 'Human Rights, Peace Agreements, and Conflict Resolution: Negotiat-
ing Justice in Northern Ireland', in Julie Mertus and Jeffrey W. Helsing, eds., Human rights and conjlict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press) pp. 345-374 - Brzoska, Michael, 'Conflict Suppression Instead of Conflict Resolution?', 81 Die Friedenswarte (2006) pp. 25-3 1 - Hayward, Katy, 'Reiterating National Identities: the European Union Conception of Conflict Resolution in Northern Ireland', 41 Cooperation and Conflict (2006) pp. 261284 - Kausar, Zeenath, 'Communal Riots in India: Hindu-Muslim Conflict and Resolution', 26 Journal of Muslim Minority Affairs (2006) pp. 353-370
Bibliography
709
Oeter, Stefan, 'Federal Settlements of Ethnic Conflicts as Potential Models for a Resolution of the Cyprus Conflict: Comparative Survey (Belgium, Switzerland, Canada)', in Thomas Giegerich, ed., The EU Accession of Cyprus: Key to the Political and Legal Solution ofan "Insoluble" Ethnic Conflict?: Proceedings of the International and Interdisciplinary Conference held in Bremen on 14th and 15th May 2004 (Baden-Baden, Nomos 2006) pp. 13-35 - Pagoaga Ruiz de la Illa, Aranzazu, 'International Dispute Settlement in Africa: Dispute Settlement and Conflict Resolution under the organization of African Unity, the African Union, and African Traditional Practices: a Critical Assessment', 3 Anuario de accibn humanitaria y derechos humanos (2006) pp. 57-92 - Papagianni, Katia, 'National Conferences on Transitional Periods: the Case of Iraq', 13 International Peacekeeping (2006) pp. 3 1 6-333 - Protsyk, Oleh, 'Democratization as a Means of Conflict Resolution in Moldava', 4 European Yearbook ofMinority Issues (2006) pp. 723-737 - Stefanova, Boyka, 'Regional Integration as a System of Conflict Resolution', 169 World Afiirs (2006) pp. 8 1-93 - Tocci, Nathalie, 'EU Accession and Conflict Resolution in Theory and Practice: the Case of Cyprus', in John McGarry and Michael Keating, eds., European Integration and the Nationalities Question (London, Routledge 2006) pp. 329-345
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13.1
JUSADBELLUM
Books Goldstein, Lyle J., Preventive attack and weapons ofmass destruction: a comparative historical analysis (Stanford C A , Stanford University Press 2006) 268 pp.
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Articles Bouvier, Antoine, 'Assessing the Relationship Between "Jus in Bello" and "Jus ad Bellum": an "Orthodox" View', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 109-112 - Canor, Iris, 'When Jus ad Bellum Meets Jus in Bello: the Occupier's Right of Self-Defence Against Terrorism Stemming from Occupied Territories', 19 Leiden JIL (2006) pp. 129-149 - Greenwood, Christopher, 'Jus ad bellum and Jus in be110 in the Nuclear Weapons Advisory Opinion', in Christopher Greenwood, Essays on War in International Law (London, Cameron May 2006) pp. 275-294 - MacMahan, Jeff, 'Morality, Law, and the Relation Between Jus ad Bellum and Jus in Bello', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 112-114 - Megret, Frkdkric, '".lus in Bello" and "Jus ad Bellum"', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 121-123 - Mertus, Julie, 'The Danger of Conflating "Jus ad Bellum" and "Jus in Bello"', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 114-117 - Orakhelashvili, Alexander, 'Legal Stability and Claims of Change: the International Court's Treatment of Jus as Bellum and Jus in Bello', 75 Nordic JIL (2006) pp. 371-407
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7 10
Bibliography
Pastor-Ridruejo, Jose Antonio, 'On the Relationship between Ius in bello and Ius ad bellum: can a Notion of International Humanitarian Law influence the Determination of the Legality on the Use of Force?' in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed Conficts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 3-12 - Stahn, Carsten, "'Jus ad Bellum," "Jus in Bello," "Jus Post Bellum?" Rethinking the Conception of the Law of Armed Force', 17 EJIL (2006) pp. 92 1-943 - Stromseth, Jane E., 'New Paradigms for the Jus ad Bellum?', 38 GW ILR (2006) pp. 561-575
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13.2
THE LAW RELATING TO TERRORISM AND COUNTERTERRORISM
Books - Sparks, Thomas McK. and Glenn M. Sulmasy, eds., International law challenges:
homeland security and combating terrorism (Newport RI, Naval War College 2006) 434 pp. Articles - Arnold, Roberta, 'Human Rights in Times of Terrorism', 66 Zeitschrift f i r auslan-
disches ofentliches Recht und Volkerrecht (2006) pp. 297-3 19 - Arnold, Roberta, 'The New War on Terror: Legal Implications under International Hu-
manitarian Law', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 85-1 12 - Belz, Dan, 'Is International Humanitarian Law Lapsing Into Irrelevance in the War on International Terror', 7 Theoretical inquiries in law (2006) pp. 97-129 - Bowker, David W., 'Unwise Council: the War on Terrorism and the Criminal Mistreatment of Detainees in U. S. Custody', in Karen J. Greenberg, ed., The torture debate in America (New York NY, Cambridge University Press 2006) pp. 183-202 - Gal-Or, Noemi, 'Has the Third World War broken out?: Reflections on the Place of Terrorism in International Conflict and its Impact on the Transformation on the Law of War', in Sebastian Wojciechowski, ed., The Faces of Terrorism (Poznan, Institute of Political Science and Journalism, Adam Mickiewicz University 2006) pp. 35-56 - Green, L.C., 'The Relevance of Humanitarian Law to Terrorism and Terrorists', in John Carey, William V. Dunlap, R. John Pritchard, eds., International Humanitarian Law (Ardsley NY, Transnational 2006) pp. 1-38 - Greenwood, Christopher, 'Terrorism and Humanitarian Law: the Debate over Additional Protocol 1', in Christopher Greenwood, ed., Essays on war in international law (London, Cameron May 2006) pp. 385-407 - Hajjar, Lisa, 'International Humanitarian Law and "Wars on Terror": a Comparative Analysis of Israeli and American Doctrines and Policies', 36 Journal of Palestine Studies (2006) pp. 2 1-42 - Heazel, Michael, 'Covering (up) Islam Part 111: Terrorism and the US Intervention in Iraq', in Michael Heazle, Iyanatul Islam, eds., Beyond the Iraq War: the Promises, Pitfalls and Perils of External Interventionism (Cheltenham, Elgar 2006) pp. 120-137
Bibliography -
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7 11
Ip, John, 'The Rule of Law and the War on Terror', New Zealand Law Journal (2006) pp. 345-346 Marks, Stephen P., 'Branding the "War on Terrorism": 1s there a "New Paradigm" of International Law', 14 Journal of International Law and Practice (2006) pp. 7 1- 119 Nanda, Ved P., 'Terrorism as an "Internal Conflict" Under the 1977 Geneva Protocol: Defening "Enemy Combatant" and the International/Domestic Consequences', 14 Journal oflnternational Law and Practice (2006) pp. 27-38 O'Donnell, Daniel, 'International treatles against terrorism and the use of terrorism
during armed conflict and by armed forces', 88 IRRC (2006) pp. 853-880 Powell, C.H., 'Terrorism and International Humanitarian Law', African YIHL (2006) pp. 118-147 - Ratner, Steven R., 'The War on Terrorism and International Humanitarian Law', 14 Journal of lnternational Law and Practice (2006) pp. 19-26 - Rivkin, David B., 'The Use of Military Commisssions in the War on Terror', 24 Boston Univ. IW(2006) pp. 123-145 - Sassoli, Marco, 'Terrorism and War', 14 Jlnt. Criminal Justice (2006) pp. 959-981 - Watkin, Kenneth, 'Humanitarian Law and 2lst-Century Conflict: three Block Wars, Terrorism, and Complex Security Situations', in Susan C. Breau and Agnieszka JachecNeale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law (BIICL) 2006) pp. 1-47 -
13.4
HUMAN RIGHTS
Books Martin, Francisco Forrest, International human rights and humanitarian law: treaties, cases and analysis (Cambridge, Cambridge University Press 2006) 990 pp. - Mertus, Julie and Jeffrey W. Helsing, eds., Human rights and conflict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press 2006) 549 pp. - Rowe, Peter, The impact of human rights law on armed forces (Cambridge, Cambridge University Press 2006) 259 pp. - Ramcharan, Bertrand G., ed., Human rights protection in the field (Leiden, Martinus Nijhoff 2006) 424 pp. -
Articles Baldwin, Clive, 'Implementation through Cooperation?: Human Rights Officers and the Military in Kosovo', 13 International Peacekeeping (2006) pp. 489-501 - Ben-Naftali, Oma, 'The Extraterritorial Application of Human Rights to Occupied Territories', 100 American Society of International Law, Proceedings of the Annual Meeting (2006) pp. 90-95 - Binder, Christina and Romana Schweiger, 'Judicial Mechanisms for Addressing Massive Human Rights Violations: the Case of Srebrenica', 19 Humanitares Volkerrecht (2006) pp. 196-204 - Cerone, John, 'Human Dignity in the Line of Fire: the Application of International Human Rights Law during Armed Conflict, Occupation, and Peace Operations', 39 Vanderbilt JTL (2006) pp. 1447- 15 1
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7 12 -
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Bibliography
Clapham, Andrew, 'Human Rights Obligations of Non-State Actors in Conflict Situations', 88 IRRC (2006) pp. 491-523 Dennis, Michael, 'Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict and Military Occupation', 100 American Society ofInternationa1 Law, Proceedings ofthe Annual Meeting (2006) pp. 86-90 Doswald-Beck, Louise, 'The Right to Life in Armed Conflict: does International Humanitarian Law provide all the Answers?', 88 IRRC (2006) pp. 88 1-904 Green, Leslie C., 'The Relations between Human Rights Law and International Humanitarian Law: a Historical Overview', in Susan C. Breau and Agnieszka Jachec-Neale, eds., Testing the boundaries of international humanitarian law (London, British Institute of International and Comparative Law 2006) pp. 49-83 Horowitz, Jonathan Thompson, 'The Right to Education in Occupied Territories: Making More Room for Human Rights in Occupation Law', 7 YIHL (2004) pp. 233-277 Khalil, Nurhalida Mohamed, 'The Treatment of Persons in Armed Conflict and the Universal Declaration of Human Rights', in Custom as a source of international humanitarian law: proceedings of the Conference to mark the Publication of the ICRC Study "Customary international humanitarian law': held in New Delhi, 8-9 December 2005 (Geneva, International Committee of the Red Cross 2006) pp. 163-196 Kombos, Costas and Maria Hadjisolomou, 'Human Rights and Humanitarian Law: a Dichotomy Transcended?', 10 Mediterranean Journal of Human Rights (2006) pp. 1 13132 Krieger, Heike, 'A Conflict of Norms: the Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study', 11 JCSL (2006) pp. 265-291 Lages Miguel, Alexandra, 'Hacia una accion humanitaria mis humana: la proteccion de derechos humanos por organizaciones humanitarias en situaciones de conflicto', Universidad de Deusto, Anuario de acci6n humanitaria y derechos humanos (2006) pp. 15-36 Lund, Michael S., 'Human Rights: a Source of Conflict, State Making, and State Breaking', in Julie Mertus and Jeffrey W. Helsing, eds., Human rights and conflict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press 2006) pp. 39-61 Lutz, Ellen L., 'Understanding Human Rights Violations in Armed Conflict', in Julie Mertus and Jeffrey W. Helsing, eds., Human rights and conflict: exploring the links between rights, law, and peacebuilding (Washington DC, United States Institute of Peace Press) pp. 23-38 Murphy, Ray and Katharina MHnsson, 'Perspectives on Peace Operations and Human Rights', 13 International Peacekeeping (2006) pp. 457-46 1 Roberts, Adam, 'Human Rights Obligations of External Military Forces', in La rsgle de droit duns les opdrations de la paix: dix-septigme Congres international, Scheveningen (Pays-Bas), 16-21 mai 2006 (Bmxelles, Societe internationale de Droit militaire et Droit de la Guerre 2006) pp. 429-449 Shenvani, Azim Ahmad Khan, 'The International Human Rights Law on Torture after 1 1 September 2001 ', 46 Indian JIL (2006) pp. 74-83 Tondini, Matteo, 'Exporting the Rule of Law: Human Rights Abroad during Conflicts and Peace Operations', 3 Pace diritti umani (2006) pp. 83- 107 Wills, Siobhan, 'The "Responsibility to Protect" by Peace Support Forces under International Human Rights Law', 13 International Peacekeeping (2006) pp. 477-488
Bibliography
13.5
7 13
REFUGEE LAWlIDPs
Books -
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Merheb, Nana, The state ofthe world's refugees 2006: human displacement in the new millennium (Oxford, Oxford University Press 2006) 237 pp. Nyers, Peter, Rethinking refugees: beyond states of emergency (New York, Routledge
2006) 181 pp. -
Weiss, Thomas G. and David A. Kom, Internal displacement: conceptualization und its consequences (London, Routledge 2006) 190 pp.
Articles - Arenas-Hidalgo, Nuria, 'Combatants and Armed Elements as Refugees: the Interplay between International Humanitarian Law and lnternational Refugee Law', in Pablo Antonio Fernandez-Sanchez, ed., The New Challenges of Humanitarian Law in Armed ConJlicts: in Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden, Martinus Nijhoff 2005) pp. 207-225 - Bailliet, Cecilia M., 'Assessing Jus Ad Bellum and Jus in Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors Seeking Asylum', 20 Georgetown Immigration Law Journal (2006) pp. 337-384 - Fawcett, John and Victor Tanner, 'Again and Again: the UN's Betrayal of the Internally Displaced in South and Central Iraq, 1991-2003', in Anne F. Bayefsky, ed., Human rights and refugees, internally displaced persons and migrant worker Essays in memory of Joan Fitzpatrick and Arthur Helton (Leiden, Martinus Nijhoff 2006) pp. 155-177 - Gilbert, Geoff, 'The Protection of Refugees in lnternational Law Post September 11 2001', 6 YIHL (2006) pp. 389-408 - Islam, M. Rafiqul, 'The Sudanese Darfur Crisis and Internally Displaced Persons in lnternational Law: the Least Protection for the Most Vulnerable', 18 International Journal 9fRefugee Law (2006) pp. 354-385 - MacDowell, Christopher and Nicholas Van Hear, 'Linking Return and Reintegration to Complex Forced Migration Emergencies: Diversities of Conflict, Patterns of Displacement and Humanitarian Responses: a Comparative Analysis', in Michael Dumper, ed., Palestinian Refugee Repatriation: Global Perspectives (London, Routledge 2006) pp. 154-179 - Rimmer, Susan Harris, 'The Role of the United Nations High Commissioner for Refugees', in Ustinia Dolgopol and Judith Gardam, eds., The challenge of conflict: international law responds (Leiden, Martinus Nijhoff 2006) pp. 5 17-527 - Slye, Ronald C., 'Refugee Jurisprudence, Crimes against Humanity, and Customary International Law', in Anne F. Bayefsky, ed., Internally Displaced Persons and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (Leiden, Martinus Nijhoff 2006) pp. 249-264
INTERNATIONAL Ajrican Commission on Human and People's Rights Oukdraogo v. Burkina Faso (2001), 98 n. 56 European Court of Human Rights Akkoc v. Turkey, Application No. 229481 93 (2000), 13 n. 38, 15 n. 50 Andronicou and Constantinou v. Cyprus, Application No. 25052194 (1997), 98 n. 56 Association X v. United Kingdom, Application No. 7154175, 14 n. 47 Ayetkin v. Turkey, Application No. 22880193 (1997), 98 n. 55 Bankovic et al. v. Belgium [and other NATO States], Application No. 52207/99 (2001 & 2002), 12 n. 33, 139 n. 114 Bromily v. United Kingdom, Application No. 33747196, 14 n. 44 Chahal v. United Kingdom (1996), 12 n. 37 Cooper v. United Kingdom (2004), I4 n. 45 E. and others v. United Kingdom (2003), 13 n. 38, 14 n. 44 Engel v. The Netherlands (1976), 14 n. 45 Erikan Bulut v. Turkey, Application No. 5 1480199 (2006), 13 n. 38 Giil v. Turkey, Application No. 22676193 (2000), 98 n. 55, n. 56 Hugh Jordan v. United Kingdom, Application No. 24746194 (2001), 98 n. 56 Isayeva v. Russia (2005), I1 n. 32, 14 n. 46 en n. 47
*
Isayeva, Yusopova, Bazayeva v. Russia (2005), 12 n. 35, 14 n. 46 Issa v. Turkey, Application No. 3 1821196 (2000), 12 n. 33, 135 n. 97 Kelly and others v. United Kingdom, Application No. 30054/96 (2001), 98 n. 56 Kelly v. the United Kingdom, Application No. 17579/90 (1993), 98 n. 55 Khashiyev v. Russia (2006), 14 n. 46 Koku v. Turkey, Application No. 273051 95 (2005), 14 n. 44, 15 n. 49 Kolk and Kislyiy v. Estonia, Application No. 2401 8/04 (2006), 144 LCB v. United Kingdom (1998), 12 n. 36, 14 n. 44 McCann v. United Kingdom (1995), 8 n. 22, 15 n. 22, 93-94, 98 n. 55, n. 56, 112n. 118 McKerr v. United Kingdom (200112002), I5 n. 5l,Y8 n. 56 McShane v. United Kingdom (2002), 15 n. 51 Makaratzis v. Greece, Application No. 50385199 (200412005), 12 n. 35, n. 36, 13 n. 38, 98 n. 55 Martin v. United Kingdom, Application No. 40426198 (2006), 608-609 Maznetter v. Austria (1969), 70 n. 19 Mrs W v. United Kingdom, Application No. 9348181 (1983), 14 n. 48 Nachova v. Bulgaria, Application Nos. 43577198 and 43579198 (20051 2006), 8 n. 22,98 n. 55, n. 56 Nesibe Haran v. Turkey (2005), 13 n. 38
The Table of cases was compiled by Mrs C.C. Diepenveen, Middelburg, The Netherlands.
Yearbook of International Humanitarian Law Volume 9 - 2006 - pp. 715-726
7 16
Table of Cases
Nevmerzhehitsky v. Ukraine, Application No. 54825100 (2005), 127 n. 46 Ocalan v. Turkey, Application No. 462211199 (2005), 12 n. 33 Osman v. United Kingdom (1999), 5 n. 8, 13, 14, 15 n. 50, 16 Pretto & Ors. v. Italy (1984), 70 n. 17 Shanagan v. United Kingdom, Application No. 37715197 (2001), 98 n. 56 Streletz, Kessler and Krenz v. Germany, Application Nos. 34044196, 355321 97 and 44801198 (2001), 98 n. 55 Sutter v. Switzerland (1984), 70 n. 17 European Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (1996), 300 n. 227 The Queen v. Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others, 13 November 1990,92 n. 28 Inter-American Court of Human Rights Alejandre et al. v. Cuba (1999), 98 n. 55, n. 56 Chumbivilcas v. Peru (1996), 98 n. 56 Coard et al. v. United States (I999), 139140 n. 114 Firmenich v. Argentina (1989), 70 n. 19 Myrna Mack Chang v. Guatemala (2003), 98 n. 55 Neira Alegria et al. v. Peru (1995), 98 n. 55. n. 56 International Court of Justice Advisory Opinions on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004,368 n. 38,375,376,544 on Legality of the Threat or Use of Nuclear Weapons, 8 July 1996,44 n. 89,94,97 n. 52, 103 n. 74, 106 n. 93, 107 n. 94 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951,300 n. 228.301 n. 232
Judgments Arrest Warrant Case (Democratic Republic of Congo v. Belgium), 2000, 57 1 Bosnia and Herzegovina v. Serbia and Montenegro, 2007,379, 382 Democratic Republic of Congo v. Rwanda, 2006,299-301 Democratic Republic of Congo v. Uganda, 2005,370,376,383 n. 138, 386 n. 150, n. 153 East Timor (Portugal v. Australia), 1995,301 n. 230 lran v. United States of America (Oil Platforms), 2003, 370, 37 1,373, 374 n. 81,385 n. 145 Nicaragua v. United States of America, 1986, 61,253 n. 27, 370, 371, 373, 382 Yugoslavia v. Spain, 1999, 301 n. 235 Yugoslavia v. United States of America, 1999,301 n. 235 International Criminal Court Pre-Trial Chamber I Prosecutor v. Lubanga (KC-01104-041 01/06), 66 n. 4, 317-321,323 Situation in Congo Democratic Republic, 3 17, 32 1 Pre-Trial Chamber II Prosecutor v. Joseph Kony et al., 322323,603-604 Pre-Trial Chamber III Situation in Central African Republic, 324-325 Situation in Darfur, 323-324 International Criminal Tribunalfor the Former Yugoslavia Prosecutor v. Aleksovski, Case No. IT95-95-14/1-AR73, 16 February 1999,70 n. 20,207 Prosecutor v. BabiC, Case No. IT-03-72, 6 March 2006,343 Prosecutor v. Blagojevic et al., Case No. IT-02-60-PT Decision on Application for Provisional Release: 22 July 2002, 92 n. 28 Judgment (Trial Chamber): I7 January 2005, 164 n. 76
Prosecutor V.BlaSkiC, 326,336,356 Case No. IT%- 14-A, Appeals Judgment: 29 July 2004, 207,208,209 n. 86 Case No. IT-95- 14-R, Decision on Prosecutor's Request for Review or Reconsideration: 23 November 2006, 339-340 Case No. IT-95-14-T, Judgment: 3
March 2000,30 n. 19 Prosecutor v. Brdanin and TaliC, Case No. IT-99-36-PT Decision on Objections by Radoslav Braanin to the Form of the Amended Indictment: 3 1 July 1999, 206n 76 Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses: 3 July 2000, 7011. 17 Prosecutor v. DelaliC et al., Case No. IT96-2 1-T Decision on the Applications for Adjournment of the Trial Date: 3 February 1997,70 n. 18 Decision on the Prosecutor's Motion for an Order requiring Advance Disclosure of Witnesses by the Defence: 4 February 1998,70 n. 21 Judgment: 20 February 200 I, 129 n. 6 1 Prosecutor v. ErdemoviC, Case No. IT-9622-A, 8 n. 23 Prosecutor v. GaliC, Case No. IT-98-29A, 30 November 2006,341-343 Prosecutor v. HadiihasanoviC and Kubura, Case No. IT-01-47-T, 15 March 2006,330 Prosecutor v. JankoviC, Case No. IT-9623i2-ARI I bis.2, Decision on Rule 1 1 bis Referrals: 15 November 2005, 442 Prosecutor v. JelisiC, Case No. IT-95- IOT, 7 September 1999, 80-81 n. 59 Prosecutor v. JoviC, Case No. IT-95-14 & IT-95- 1412-R77, 30 August 2006, 336-337 Prosecutor v. KordiC and Cerkez Case No. IT-95-1412-A, Judgement: 17 December 2004,73 n. 34,226 Case No. IT-95-1412-AR73.5, 2 1 July 2000,70 n. 20 Prosecutor v. KovaEeviC, Case No. IT-OI42/24, 12 April, 27 September & 17 November 2006,345-346
Prosecutor v. Krasjiinik, Case No. IT-OO39-T Hearing: 23 April 2004,81 n. 59 Reasons for Oral Decision Denying Mr KrajiSnik's Request to Proceed Unrepresented by Counsel: 18 August 2005,83 n. 68 Judgment Trial Chamber: 27 September 2006, 337-339
Prosecutor v. Krnojelac Case No. IT-97-24-A, Appeals Judgement: 17 September 2003,207 n. 80 Case No, IT-97-25-T, Trial Judgement: 15 March 2002,206 n. 76 Prosecutor v. Kunarac, Kovac and VukoviC, IT-96-23 and IT-96-23iI-A: 12 June 2002,272 n. 105 Prosecutor v. KupreSkiC Case No. IT-95-16-A, Appeals Judgment: 23 October 2001, 72, 73 n. 34, 206 n. 76 Case No. IT-96-16-T-14, Judgment: January 2000, 107 n. 94 Prosecutor v. KvoEka et al., Case No. IT98-3011-A, Appeals Judgement: 28 February 2005,207 n. 79 Prosecutor v. LazareviC, Case No. IT-0587-PT, 73 n. 34 Prosecutor v. Ljubii-it Case No. IT-00-4 1-AR I 1bis. 1, Decision on Appeal against Decision on Referral under Rule 11 bis: 4 July & 22 September 2006,345,451 Case No. IT-00-4 1-PT, Decision to Refer the Case to Bosnia and Herzegovina: 12 April 2006, 344-345 Prosecutor v. MarijaEiC, Case No. IT-9514-R77.2, 10 March and 27 September 2006,329,337 Prosecutor v. Martit, Case No. IT-95-1 1T Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court: 13 April 2006, 80 n. 59 Trial Judgment: 12 June 2007, 119 n. 10 Prosecutor v. MartinoviC and Naletilid, Case No. IT-98-34-A, 3 May 2006, 332-333
Prosecutor v. MejakiC et al. Case No. IT-02-65-ARl l bis. 1, Decision on the Joint Defence Appeal against Decision on Referral under Rule I1 bis: 7 April 2006, 344, 442, 450-45 1 Case No. IT-02-65-PT, Decision on DuSko KnezeviC's Motion on the Form of the Indictment: 4 April 2003,209 n. 86 Prosecutor v. MiloSeviC Case No. IT-01-5 1-PT, 23 November 2001 : Order Inviting Designation of Amicus Curiae, 83 n. 72 Case No. IT-02-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements: 30 September 2003, 70 n. 2 1 Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel: 1 November 2004,83 n. 67 Case No. IT-02-54-T Decision to Amend Indictment and on Confirmation of Amended Indictment: 29 June 2001,72 n. 3 1 Hearings: 3 July 2001, 77 n. 45 Hearing: 9 January 2002,79 n. 5 1 Brief on the Provision of Adequate Facilities to Allow the Accused to Prepare his Defence: 5 March 2002, 82 n. 64 Registry Report on Practical Facilities Available to the Accused: 18 March 2002, 82 n. 64 Hearing: 10 April 2002, 80 n. 54, 8 1 n. 60 Hearing: 15 April 2002, 80 n. 54 First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses: 3 May 2002,70 n. 17 Reasons for Refusal of Leave to Appeal from Decision to impose Time Limit: 16 May 2002,80 n. 55 Hearing: 25 July 2002, 80 n. 53, 80 n. 56 Order Appointing Amicus Curiae: 22 November 2002,83 n. 72 Reasons for Decision on the Prosecution Motion Concerning Assign-
ment of Counsel: 4 April 2003, 82 n. 64 Order of Further Instruction to the Amici Curiae: 6 October 2003, 83 n. 72 Prosecution's Comprehensive Report Concerning its Compliance to Date with Rule 68: 20 February 2004,7 1 n. 24 Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form: 25 February 2004,80 n. 57 Order Re-Scheduling and Setting the Time Available to Present the Defence Case: 25 February 2004, 80 n. 58 Order on the Amended Bosnia Indictment: 2 1 April 2004,72 n. 3 1 Decision on Motion for Judgment of Acquittal: 16 June 2004,75 n. 38 Order Modifying Second Order Granting Leave to Amend the Croatia Indictment: 28 July 2004, 72 n. 31 Reasons for Decision on Assignment of Defence Counsel: 22 September 2004, 69 n. 16, 72 n. 29, 77 n. 46, 82 n. 65 Hearing: 15 December 2004, 76 n. 42 Decision on Admission of Documents in Connection with Testimony of Defence Witness Dragan Jasovic: 26 August 2005,70 n. 20 Prosecution Submission in Response to the Trial Chamber's 22 November 2005 "Scheduling Order for a Hearing" on Severing the Kosovo Indictment: 29 November 2005,73 n. 35 Decision in Relation to Severance, Extension of Time and Rest: 12 and 13 December 2005, 70 n. 18, n. 20, 71 n. 27,77 n. 46,79 n. 52,82 n. 64 Order Terminating the Proceedings: 14 March 2006,67 n. 8,343 Case Nos. IT-0 1-50-T & IT-0 1-51-I & IT-99-37-PT, Hearings: 1I December 200 1 & 12 February 2002, 73 n. 35 Case Nos. IT-99-37-AR73 & IT-OI50-AR73 & IT-01-5 1-AR73, Rea-
Table of Cases sons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder: 18 April 2002,72 n. 28,76 n. 43 Prosecutor v. MilutinoviC et al. Case No. IT-05-87-PT Decision on Defence Motions Alleging Defects in the Form of the Proposed Amended Joinder Indictment: 22 March 2006,208 n. 85 Decision on Application of Rule 73his: 11 July 2006, 72 n. 3 1, 81 n. 59,81 n. 61 Prosecutor v. NikoliC Case No. IT-02-6011-A, Appeals Judgment: 8 March 2006, 328-329 Case No. IT-02-60/1 -S, Sentencing Judgment: 2 December 2003, 141 n. 120 Prosecutor v. OriC Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case: 20 July 2005, 80 n. 59 Case No. IT-03-68-T, Judgment: 30 June 2006,334-335 Prosecutor v. PavkoviC et al., Case No. IT-03-70-PT, Decision on Vladimir Lazarevic's Preliminary Motion on Form of Indictment: 22 July 2005, 206 n. 76,209 n. 86 Prosecutor v. PrliC et al., Case No. IT-0474-PT, 30 November 2005,80 n. 59 Prosecutor v. RadiC, Case No. IT-98-301 1-R. 1, 3 1 October 2006, 339 Prosecutor v. RajiC, Case No. IT-95-12-T, 8 May 2006,333-334 Prosecutor v. RaSeviC and TodoviC, Case No. IT-97-25/1 -AR11 hi.?.1 & IT-972511-ARI lhis.2,4 September 2006, 348,45 1 Prosecutor v. RebiC, 337 Prosecutor v. Seielj Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber's Decision on Assignment of Counsel: 20 October 2006, 84 n. 73, 346-348 Case No. IT-03-67-AR73.4, Decision on Appreal Against the Trial Chamber's Decision (No. 2) on Assignment of Counsel: 8 December 2006, 84 n. 73,347-348
7 19
Case No. IT-03-67-PT Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence: 9 May 2003,83,84, 126 n. 45 Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj: 1 March 2005, 126 n. 44 Decision on Assignment of Counsel: 21 August 2006,83,84, 126 n. 44, 346-348 Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial: 25 October 2006, 126 n. 44,346-348 Reasons for Decision (No. 2) on Assignment of Counsel: 27 November 2006,346-348 Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused: 6 December 2006,347348 Prosecutor v. SimiC, Case No. IT-95-9-A, Appeals Judgement: 28 November 2006, 208, 340-341 Prosecutor v. StakiC, Case No. IT-97-24A, 22 March 2006, 119 n. 10,330332 Prosecutor v. Stankovic, 327 Case No. IT-96-2312-AR11 bis. 1, Decision on Rule 11 bis Referral: 1 September 1995,442 Prosecutor v. TadiC, Case No. IT-94-1-T Decision on the Defence Motion on Jurisdiction: 10 August 1995, 132 n. 77 Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses: 10 August 1995,70 n. 17 Appeals Chamber Decision on the Defence Motion on Jurisdiction: 2 October 1995,253 n. 27,254 Judgment: 7 May 1997,37 Appeals Chamber Judgment: 15 July 1999,4n.3, 17n.60,32,70n.21, 3 82 Prosecutor v. Vasiljevic, Case No. IT-9832,29 November 2002,587 Prosecutor v. zigiC, Case No. IT-98-3011A, 26 June & 25 August 2006,335336
720
Table of Cases
International Criminal Tribunalfor Rwanda Prosecutor v. Bagaragaza, Case No. ICTR-05-86-Rbis, 19 May & 30 August 2006,350 Prosecutor v. Bagilishema, Case No. ICTR-95-I A-T, 7 June 2001, 165 n. 82 Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, 13 April 2006,352354 Prosecutor v. Gacumbitsi, Case No. ICTR-01-64-A, 7 July 2006,354355 Prosecutor v. Karemera et al., Case No. ICTR-98-44-AR73, 16 June 2006, 350-351 Prosecutor v. Kayishema and Ruvgndana, Case. No. ICTR-95-1-T, 2 1 May 1999, 165 n. 84 Prosecutor v. Mpambara, Case No. ICTR01-65-T, 11 September 2006,356 Prosecutor v. Muvunyi, Case No. ICTR00-55A-T, 12 September 2006,357 Prosecutor v. Ntagerura et a1 Case No. ICTR-99-46-A, 7 July 2006, 351-352, 356 Case No. ICTR-99-46-T, 25 February 2004,352 Prosecutor v. Ntakirutimana, Case No. ICTR-96- 10 & ICTR-96- 17-TA, 2 1 February 2003,72, 73 n. 34, 35 1
Prosecutor v. Rutaganda, 206 n. 77 Prosecutor v. Rutaganira, Case No. ICTR-96-IC-T, 14 March 2005,356 Prosecutor v. Rwamakuba, Case No. ICTR-98-44C-T, 20 September 2006,358-359 Prosecutor v. Semanza, Case No. ICTR97-20, 15 May 2003, 165 n. 82, n. 83,206 n. 76 Prosecutor v. Seromba, Case No. ICTR01-66-T, 13 December 2006,359 Prosecutor v. Serugendo, Case No. ICTR05-84-T, 12 June 2006,354 Special Courtfor Sierra Leone Prosecutor v. Norman, Case Nos. SCSL2004- 14-AR72(E)/SCSL-04-14-T, 18 n. 64,83 Prosecutor v. Taylor, Case No. SCSL2003-01-1, 16 March 2006, 361 United Nations Human Rights Committee Suarez de Guerrero v. Colombia, 3 1 March 1982,98 n. 55, n. 56 United Nations War Crimes Commission USA v. Wilhelm List and others (The Hostages case) (1947/1948), 103 n. 74, 112n. 117 USA v. Wilhelm von Leeb and thirteen others (The German High Command Case) (1947/1948), 112 n. 116
NATIONAL Australia High Court Dragan Vasiljkovic v. The Commonwealth of Australia (2006), 43 1-433 Federal Court Dragan Vasiljkovic v. Minister for Justice and Customs (2006), 43 1-433 SRYYY v. Minister for Immigration and Multicultural and Indigenous Affairs (2005), 427-428 SZCWP v. Minister for Immigration and Multicultural and Indigenous Affairs (2006), 430 VWYJ v. Minister for Immigration and Multicultural and Indigenous Affairs (2006), 430-43 1
Zentai v. Republic of Hungary & Ors (2006), 433 Administrative Appeals Tribunal SRHHH v. Minister for Immigration and Multicultural and Indigenous Affairs (2005), 428-429 SROOOO v. Minister for Immigration and Multicultural and Indigenous Affairs (2006), 429 Court of Criminal Appeal South Australia Zecevic v. Director of Public Prosecutions (Victoria) [1987], 49 n. 108 Bosnia and Herzegovina Court of Bosnia and Herzegovina, Sarajevo Andrun case (2006), 455
Table of Cases Bencun and BoziC. case (ongoing), 458 BoiiC et al. case (ongoing), 459 DamjanoviC case (ongoing), 457 JankoviC case (ongoing), 448,458, 46 1-462 Lelek case (ongoing), 462 LjubiEic case (ongoing), 458
Ljubinac case (ongoing), 456-457 LuEiC case (ongoing), 46 1
Maktouf case (2006), 448,452 MandiC case (ongoing), 461 MariC case (ongoing), 461 Nikola case (2006), 453-454 PaunoviC case (2006), 448,452 RadiC et al. case (ongoing), 462-463 RamiC case (ongoing), 460 RaSeviC and TodoviC case (ongoing), 459-460 SamaradiiC case (2006), 454 Samaradiija case (ongoing), 463 Samardija case (2006), 453 Sim~iccase (2006), 448,453 StankoviC case (2006), 454 TanaskoviC case (ongoing), 460 VukoviC case (ongoing), 460-46 1 ZelenoviC case (ongoing), 457 ~ e l j k oet al. case (ongoing), 459 Cantonal Court Mostar Ljevo et al. (2006), 455-456 MitroviC case (ongoing), 448 OmanoviC case (2005), 446-447 Palameta case (2005), 447 PiniC case (2005), 446 PreviSiC case (ongoing), 449 Cantonal Court Sarajevo BejtiC case (2006), 447, 455 KrsmanoviC case (2005), 446 MitroviC et al. case (ongoing), 456 Rajak case (2006), 455 SeSelj case (ongoing), 447 VasiC case (2005), 446 Veselin case (ongoing), 447 Cantonal Court Zenica MihajloviC case (2005), 446 District Court Banja Luka Dereta case (2005), 446 JakovljeviC et al. case (2005), 445 Radakovic et al. case (2005), 445-446 Vujanovic case (2006), 455 District Court Brfko SimonoviC case (2005), 447 District Court Trebinje Boskailo case (2006), 456
72 1
RadanoviC case (20051,446 Skakavac case (2006), 456 Human Rights Chamber Avdo and Esma PaliC v. Republika Srpsk (2000), 443-444 Canada Supreme Court Mugesera case, 28 June 2005, 467,47 1
R. v. Oakes Oakes, Case No. 17550, 12 March 1985,92 n. 28 Federal Court of Appeal Bazargan, 18 September 1996,468 Harb, 27 January 2003,468 Moreno, 25 February 1994,468 Ramirez, 12 December 1998,468 Sivakumar, 24 January 1997,468 Federal Court Acevedo (Guatemala), 12 April 2006, 466 n. 222 Akramov (Uzbekistan), 10 February 2006,467 n. 228, n. 240,468 n. 253 Bonilla Vasquez (Colombia), 27 October 2006,466 n. 218,467 n. 234, n. 235, n. 236, n. 238,468 n. 255 Chougui (Algeria), 17 August 2006, 467 n. 229,468 n. 258 Chowdhury (Bangladesh), 7 February 2006,466 n. 224 Corrales Murcia (Colombia), 6 March 2006,466 n. 218,467 n. 234, n. 238 Ghotara (India), 20 March 2006,466 n. 226 Hamidi (Afghanistan), 14 March 2006, 466 n. 223,467 n. 234, n. 244 Han (China), 4 April 2006,466 n. 225, 468 n. 247 Hemandez Hemandez (El Salvador), 25 January 2006,466 n. 221 Justino (Angola), 29 September 2006, 467 n. 230,468 n. 248, n. 257 Kaburundi (Burundi), 20 March 2006, 467 n. 23 1,468 n. 246 Kasturiarachchi (Sri Lanka), 7 March 2006,466 n. 219,467 n. 236, n. 241, 468 n. 254,469 Kunlun Zhang v. Attorney General of Canada, 2 March 2006,469-470 Loayza (Peru), 9 March 2006,466 n. 220,467 n. 243 Marinas Rueda (Peru), 14 June 2006, 466 n. 220,467 n. 234
722
Table of Cases
Obita (Uganda), 10 February 2006, 467 n. 233, n. 236,468 Rathinasigngam (Sri Lanka), 17 August 2006,466 n. 219,467 n. 234 Ruiz Blanco (Colombia), 19 May 2006,466 n. 218,467 n. 234 Sabadao (Philippines), 7 March 2006, 467 n. 227, n. 239,468 n. 256 Selvanayagam (Sri Lanka), 29 June 2006,466 n. 219,467 n. 234, n. 235, n. 236, n. 242 Teganya (Rwanda), 12 March 2006, 467 n. 232 Torres Rubianes (Colombia), 29 September 2006,466 n. 218,467 n. 238, 468 n. 255,469 Superior Court of Justice of Ontario Zhang et al. v. Jiang Zemin et al., 17 July 2006,469 Superior Court o f Quebec Munyaneza case, 20 November 2006, 470-471
Colombia Constitutional Court in re the Unconstitutionality Action against Law No. 975,2005,471-473 Denmark High Court Alleged Abuse of Iraqi Detainees by Danish Troops in 2004,6 July 2006, 476-478 City Court Alleged Abuse of Iraqi Detainees by Danish Troops in 2004, 12 January 2006,474-475
France State Council Comite contre la guerre en Irak et autres, 30 December 20003,481482 Consitutional Council International Commitments on Abolition of Death Penalty, 13 October 2005,482 Court of Cassation Nizzar Sassi et al., 4 January 2005,482
India High Court ofAllahabad Union of India v. Mohamad Yasin Ansari, 485 High Court of Madhya Pradesh Union of India v. Satyanand Singh, 485 Iraq High Tribunal (High Criminal Court) Anfal, Case No. 1I J SecondI2006, 187, 190, 191,209n. 88,232 n. 161,242243 al-Dujail, Case No. 11J Firstl2005, 118119, 121-127, 130-136, 140-148, 150, 155-157, 160-165, 169-170, 171-175, 179, 181-243 Revolutionary Command Council Court citizens of al-Dujail, Case No. 944lCl 1984, 147 n. 149, 155 n. 11
Israel Supreme Court Abud Village Council et al. v. The Govemment of Israel, 2 1 May 2006, 50 1 Adalah et al. v. The Govemment of Israel, 12 December 2006,509 Adalah et al. v. IDF West Bank Military Commander et a]., 6 October 2005,497 Adalah v. Minister of Interior, 14 May 2006, 500-501 Ahmed Zaki Najar et al. v. IDF Commander in the West Bank, 17 December 2006,498-499 Al-Ram Local Council et al. v. The Govemment of Israel et al., 13 December 2006,504-505 Amona Agricultural Cooperative for Communal Settlement Ltd. et al. v. Minister of Defence at al, 29 January 2006, 507-508 Avocats Sans Frontieres v. IDF Commander in the South et al., 28 June 2006,499 Barakeh v. Prime Minister, 29 January 2002,94 n. 40 Beilin et al. v. the Prime Minister et al., 1 August 2006,496 Beit Arie Local Council v. Minister of Defence, 21 May 2006,501 Beit Sourik Village Council v. The Government of Israel et al.
Table of Cases 30 June 2004,91 n. 26,92,502,503, 504,505 9 January 2006,50 1 Beit Umar and Halhul Local Councils v. Military Commander in the West Bank et al., 3 1 July 2006, 502 Bidu Village Council et al. v. The Government of Israel, 10 September 2006,502
Bir Neballa Local Council et al. v. The Government of Israel et al., 26 November 2006,502 The Committee for the Development of Hebron and the Muslim Wakf Administration in Hebron v. The State of Israel et al., 27 June 2006, 500 Dr. Nafez Hader Manzour et a]. v. The State of Israel et al., 26 October 2006,502 Head of Council of Azoun et al. v. The State of Israel, 15 June 2006, 503 Hebron Local Council et al. v. The State of Israel et al., 1 March 2006, 506 Izaria Village Council et al. v. The Government of Israel, 23 May 2006, 501 Kamal Yousuf Mahmoud Moussa et al. v. The Prime Minister et al., 10 January 2006,501 Mahmoud Halua et al. v. The Prime Minister et al., 18 June 2006, 501 Mara'abe v. Prime Minister of Israel, 15 September 2005, 502, 504, 505 Mayor of Dahariya et al. v. Commander of the IDF in the West Bank, 14 December 2006,503-504 Mayor of Sebastia et a]. v. The State of Israel, 30 May 2006, 501 Mhamad Abdulhamud Srur and Two Others v. State of Israel, 20 November2006,379n. I l l , 511 Mhamad Haled Alian et al. v. The Prime Minister et al., 16 March 2006,501 Minister of Defence et al. v. Adalah et al., 27 February 2006,497 Murar et al. v. The Military Commander in the West Bank et al., 26 June 2006,506-507 Neot Reut and Makabim Charities v. Prime Minister, 9 January 2006, 50 1
723
Omar Salame et al, v. Military Commander, Central Command et al., 6 August 2006,504-505 Peace Now and Dror Etkes v. Minister of Defence et al 18 January 2006,507-508 3 1 May 2006,508 The Public Committee against Torture in Israel et al. v. The Government of
Israel et a]., 11 December 2005 & 13114 December 2006,42,43, 51, 52,63, 87-98, 110, 111, 112-113, 264-270,497-498 Riad Sa'adi Abdulhamid Iad and Hassan Masoud Hsein Iad v. The State of Israel, 14 March 2006, 509510 Salah Nabil Unes Ward et al. v. Military Commander in the West Bank et al., 26 July 2006,499-500 Samir al Hams et al. v. Chief Military Prosecutor et al., 14 December 2006, 508-509 Shaher Abdulkader Shtia et al. v. The State of Israel et al., 17 July 2006, 502 Shaker Salame Alrazikat et al. v. The Government of Israel, 6 July 2006, 50 1 The State of Israel v. Mhamad Naif Shaker and 28 Others, 30 July 2006, 505-506 Susia et al. v. The Government of Israel et al., 6 July 2006, 504 Taleb Hsein Radad et al. v. Minister of Defence et al., 17 August 2006,502 Tene Committee v. The Prime Minister, 1 February 2006,504 Magistrate Court Tel Aviv Sheikh Sa'ed Neighorhood Committee et al. v. Director General, Ministery of Defence et al., 19 March 2006, 505-506 District Court Obeid v. State of Israel, 5 10 State of Israel v. Hussein ben Ali and Two Others, 2006, 379 n. 111 District Court of Nazareth The State of Israel v. Hussein ben Ali and Two Others, 19 October 2006, 510-511
724
Table of Cases
District Court of Tel Aviv The State of Israel v. Hassan Masoud Hsein Iad and Riad Sa'adi Abdulhamid Iad, 19 July 2006, 509-5 10 Italy Court of Cassation Mohammed Daki et al. case, 11 October 2006, 524-527 Third Court of Appeal Milan 'Bazar' case, 13 March 2006, 523-524 Mohammed Daki et al., 28 November 2005,524,525 Court ofMilan 'Bazar' case, 10 May 2005, 523 Mohammed Daki et al., 24 January 2005.524 Lithuania Court ofAppeals Dailide case, 534-535 Rlnius Regional Court Dailide case, 533-534 The Netherlands Supreme Court Kesbir v. The Netherlands, 15 September 2006,538-539 Prosecutor v. W. A1 Delaema, 5 September 2006,537-538 District Court of The Hague Prosecutor v. G. Kouwenhoven, 7 June 2006,537 W. A1 Delaema v. The Netherlands , 9 December 2006,538 New Zealand District Court of Auckland Janfrie Julia Wakim v. Lieutenant General Mosche Ya'alon, 29 November 2006, 540-541 Spain Constitutional Court Guatemala genocide Case, 26 September 2005,565,566 Supreme Court Causo Case, 5 December 2006,55856 1 Falun Gong Case, 20 June 2006,566 Hamed Abderrahaman Ahmed Case, 20 July 2006, 562-565
a1 Qaeda cell in Spain Case, 3 1 May 2006,564 n. 460 National Court Causo Case 8 January 2002,558-561 29 October 2005, 558-561 Cavallo Case, 20 December 2006, 555558 Falun Gong Case 16 September 2004,566 29 April 2005,566 Fotea Case 7 February 2006,561-562 12 December 2005,561-562 20 December 2006,561-562 Hamed Abderrahaman Ahmed Case, 4 October 2005, 562-565 Spanish Civil War Case (ongoing), 567 Tibet Case, 10 January 2006, 565 The Western Sahara Case (ongoing), 566 Sweden District Court Stockholm Arklof case, 18 December 2006, 567569 Switzerland Federal Court Nyionteze Case, 11 September 2006, 577 Social-Democrat Party of Basel-Stadt et al. v. Canton of Basel-Stadt, 14 November 1991,92 n. 28 Timor-Leste Court of Appeal Prosecutor v. Alarico Mesquita et al., 16 July 2005,591 Prosecutor v. Anastacio Martines and Domingos Gonqalves, 14 September 2004,597 Prosecutor v. Augusto Asameta Tavares, 24 November 2004, 597 Prosecutor v. Carlos Soares, 11 February 2004,600 Prosecutor v. Francisco dos Santos Laku, 3 1 May 2004,596-597 Prosecutor v. Marcelino Soares, 17 February 2005,597-598 Prosecutor v. Mateus Lau (Ena Poto), 12 April 2005,599
Table of Cases Prosecutor v. Paulino, 4 November 2004,597 Prosecutor v. Rusdin Maubere, 18 March 2005, 598-599 Prosecutor v. Umbertus Ena and Carlos Ena, 18 March 2005,598 Prosecutor v. Victor Manual Alves, 26 April 2005,600-601 Special Panel for Serious Crimes Prosecutor v. Abilio Mendes Correia, 29 March 2004, 587-588 Prosecutor v. Agostinho Cloe, Agostinho Cab, Lazarus Fuli and Antonio Lelan, 16 November 2004,589-590 Prosecutor v. Alarico Mesquita et al., 6 December 2004,590-591 Prosecutor v. Anastacio Martines & Domingos Gocalves, 13 November 2003,600 Prosecutor v. Anton Lelan Sufa, 16 November 2004,589-590 Prosecutor v. Aparico Guterres, 28 February 2005,592 Prosecutor v. Augostino da Costa, 16 July 200 1, 599-600 Prosecutor v. Beny Ludji & Another, 19 May 2004,588 Prosecutor v. Cailaco, 2003, 586 n. 571 Prosecutor v. Carlos Soares, 15 May 2001,600 Prosecutor v. Domingos Amati and Francisco Matos, 28 February 2005, 591-592 Prosecutor v. Domingos de Deus, 12 April 2005,592 Prosecutor v. Domingos Metan, 16 November 2004,589-590 Prosecutor v. Florenco Tacaqui (Passabe Case), 9 December 2004,588589 Prosecutor v. Florido Morreira, 19 May 2004,588 Prosecutor v. Francisco Pedro, 14 April 2005,593 Prosecutor v. Francisco Perreira, 27 April 2005,595 Prosecutor v. Januario da Costa and Mateus Punef, 25 April 2005,594595 Prosecutor v. Joanico GusmSlo, 27 January 2004,587 Prosecutor v. Joni Marques et al., 11 December 2001,599
725
Prosecutor v. Josep Nahak, 1 March 2005,592 Prosecutor v. Joseph Leki, 1 1 June 2001,601 Prosecutor v. Lino Beno, 16 November 2004,589-590 Prosecutor v. Lino de Carvalho, 17 February 2004,600 Prosecutor v. Rudolfo Correia, 25 April 2005,593-594 Prosecutor v. Sisto Barros and Cesar Mendonca, 12 May 2005,596 Prosecutor v. Victor Manual Alves, 18 June 2004,600 Prosecutor v. Wiranto et al., 5 May 2005.595-596 Uganda Human Rights Coinmissiorr Tumuramye v. Gerald Bwete & others, 605 United Kingdom Privy Council Osman Bin Mohamed Ali v. Public Prosecutor Respondent [1969], 21 n. 77 Public Prosecutor Appellant v. Oie Hee Koi [1968], 13 n. 43, 17 n. 60 House o f Lords R v. Jones [2006], 61 1 Court of Appeals R (on the Application of Abbasi) v. Secretary of State for Foreign Affairs [2002], 6 12 R (on the Application of Gentle and another) v. Prime Minister and others [2006], 5 n. 8, 10 n. 27, 612 R (on the Application of Al-Jedda) v. Secretary of State for Defence [2006], 612-613, 614 R (on the Application of Al Rawi and others) v. Secretary of State for Foreign and Commonwealth Affairs and Another [2006], 612 R (on the Application of al-Skeini et al) v. Secretary of State for Defence [2005], 609 n. 650, 610 n. 653 Courts Martial Kendall-Smith case (2006), 613 Militmy Court United Kingdom v. von Lewinski (called von Manstein), 104 n. 80
726
Table of Cases
United States Supreme Court Ex parte Quirin (1942), 250 n. 11 Faretta v. California, 1975, 130 n. 65 Hamdan v. Rumsfeld (2006), 249-259, 435,436-437,438,624, 629, 631 Johnson v. Eisentrager (1950), 251 Klopfer v. North Carolina (1967), 68 n. 13 Rasul v. Bush (2004), 250 n. 10,276
Court ofAppeals Hamdan v. Rumsfeld (2005), 249 United States v. Algimantas M. Dailide, 15 January 2003,534 n. 378 District Court of Columbia In re. Guantanamo Detainees cases (2005), 276 Military Commission United States of America v. Alstotter et al. ('The Justice Case') (1948), 146
Abdel Aziz, Ali, 560 n. 455 Ahdel Rahman, Ra 'ouf Rasheed, 119, 133 Abduction, 59 1 Abkhazia conflict, 29 1 Abu Graib prison, abuse of detainees in, 58, 59 'Accumulation of events' doctrine, 372-374 Active part in hostilities see Direct participation in hostilities Adams, B., 406 n. 58 Additional Protocols see Geneva Conventions Adversarial criminal law systems, 77 Afghanistan British armed forces in, handling of detainees, 614 held responsible for 11 September 2001 terrorist attacks, 382 international armed conflict in, 252 ISAF forces in, 52-53 Italian armed forces in, 521 UN Security Council Resolutions on, 284 African Charter on Human and Peoples' Rights, 1981, 68 n. 9 African Union (AU), Memorandum of Understanding with International Criminal Court, 3 15 Aggression, 6 11 Agiza, Mr., 57 1 Ago, Roberto, 372
Ahmed, Hamed Abdermhaman, 562-565 Ajami, E , 176 n. 164 'Alewi, Mohammed, 198, 199 Algeria Charter on Peace and Reconciliation, national commission, 423-424 victims of national tragedy, indemnisation, 424 Mi, 'Ali Dayih, 146 n. 142, 155 n. 15, 156 Ali, Ali Hasun ('Chemical Ali '), 187 n. 19 I l i , Muhamad 'Azzawi, 145-146 Alves, Victor Manual, 600-601 Alze~y,M r , 571-572 Amati, Domingos, 590-592 American College of Physicians, 279 n. 144 American Convention on Human Rights, 1969,68 n. 9 American Medical Association (AMA), 280 American Psychological Association (APA), 280 Amin, Rizgar, 124, 130 Amman, H. Jaber, 177 n. 168 Amnesty International on human rights abuses in Nepal, 397398,399 on Israel-Lebanon war 2006, 5 11-5 12 on Israeli occupied territories, 5 13 Andrun, Nikola, 455 Anfal trial (Iraq), 187 n. 19, 195 n. 42,209 n. 88,242-243
* The index contains references to all matters of substance dealt with in the text of the articles. Detailed references to cases dealt with will be found in the accompanying Table of Cases. The section on Correspondents' Reports is also indexed, but for information on the practice of individual states regarding detailed aspects of international humanitarian law the reader should consult the index under the states concerned. Footnotes containing substantive material are also indexed, as are references to the work of scholars the first time such work is listed. The index was compiled by Mrs. C.C. Diepeveen, Middelburg, The Netherlands. Yearbook of'lnternational Humanitarian Law
Volume 9 - 2006 - pp. 727-760
728
Index
Ansar A1 Islam, 526 Arab League, Model Law on crimes within Jurisdiction of International Criminal Court, 424-426 Arab states, reactions to Hizbollah's 12 July 2006 attack on Israel, 368 n. 36, 369 Arbitrary deaths, 22,23, 94 Arboul: Louise, 239 Argentina, prosecution of crimes against humanity in, 556-557,562 Arklox Jackie, 567-569 Armed attacks by irregular forces, 373 n. 74, 375,393 responsibilities of host states for, 377 n. 100,383 and right to self-defence, 375-377, 385-387, 393 threshold of gravity for, 370 Armed conflicts, 254,260 in Afghanistan, 252 businesses in, 28 1 children in, 262-263,548-549, 554 see also Child soldiers in Colombia, 471-472 contractors in, 27-28,46-47, 608 direct participation, 35,47, 50-5 1,52, 63 in Iraq, 29 responsibilities of states for, 57-61, 62 status of, 28,31-32,32-33,34-36 supplying armed forces, 34-35 targeting of, 47-49,55-57,63 environmental protection in, 282, 5 18 fiiendly-fire incidents, 7-8, 10 n. 28 internal see Non-international armed conflicts intemational humanitarian law of, 4-5, 16-22,416-417 and human rights law, 11- 16 Israeli policy of targeted killing of Palestinian militants, 88-89, 265-266 protection of civilians, 26,36,42-43, 62,260 targeting of civilians, 27-28,44,47,5 1, 57 in Nepal, 394-402,404 in Occupied Palestinian Territories, 265, 266-277 right to life in, 14-16,22, 94 in Timor-Leste, 580-58 1 'war on terror' as, 253-254,257,278
Armed conflicts, cont. see also Civilians in armed conflicts; Non-international armed conflicts; Wars Armed forces changes in, 24 n. 85 definitions of, 3 1 membership of, 30-31,33-34 contractors, 3 1-32, 36, 44 and loss of civilian status, 55-57 protection of, international obligations of states to, 5, 10-11, 23-24 supply contractors, 34-35 women in combat roles in, 540 see also Civilians in armed conflicts; Soldiers Arms see Weapons Arms embargoes against Congo Democratic Republic, 288-289 against Liberia, 294 against North Korea, 304 against Somalia, 295 Arms Trade Treaty proposals, 619 Association for Civil Rights in Israel (ACRI), 5 12-513 Associative identity with armed forces, 32, 36 Astor, Lord, 6 10 n. 653 Asymmetric warfare, 27, 39 Attacks direct, 107, 109 see also Armed attacks Australia agreement with Timor-Leste on military assistance, 584 Criminal Code Act 1995, Section 268.24 and 268.70,45 n. 92 Defence Force, 433-435 extradition legislation in, 43 1-433 Guantanamo Bay detainee from, 435-438 Magistrates Court Act, 2004 (Western Australia), 433 Refugee Convention applied in, 427-43 1 Ayyub, Tarek, 560 n. 455 Aziz, Tariq, 214 Azzawi, Mohammed, 156,216 n. 118,233 Babii, Milan, 343 Bagambiki, Emmanuel, 35 1-352 Bagaragaza, Michel, 350 Balance of interests, in military necessity principle, 105-106
Index
al-Bandar; Awad Hamad, 146-148, 155 n. 11, 156, 195, 197 Barak, A , , 42,267,268-269 Al-Barak, Fadhil, 21 2 Burros, Sisto, 596 Bassiouni, M.C., 131-132 n. 73 Beckett, Margaret, 6 19 Beinisch, Dorit, 498 Bejtii., Samir, 447, 455
Belams, destruction of landmines in, 536 Belgium Law on the Cooperation with the Intemational Criminal Court and the International Criminal Tribunals, 463464 Law on the Punishment of Grave Breaches of International Humanitarian Law, 463 Ben Abdelaziz, Bouyahia Maher, 524 Ben Sassi, Toumi Ali, 524 Ben-Meir, Y , 390 n. 169 Bencun, Goran, 458 Beno, Lino, 589,590 Benvenisti, E., 129 n. 59 Bhattarai, Baburam, 402,404 n. 52 Biological and Toxins Weapons Convention, 1972, 307-308 Bisengimana, Paul, 352-354 Blackwater (company), 59 BlagojeviC, Miaden, 459 BlaSkiC, Tihomir, 339-340 Blinderman, E.H., 173 n. 147 'Blue Line' (border between Israel and Lebanon), 364 n. 13 Hizbollah fighters at, 365 Bodily injury, intentional causing of, 637 Boskailo, Fikret, 456 Bosnia and Herzegovina Armed Forces, 444-445,450 Association of Women-Victims of War, 444 Center for Judicial and Prosecutorial Training, 444 Citizenship Law, 2006,45 1 Criminal Defence Support Section, 443, 450 Criminal Procedure Code, 443 exhumation of mass graves, 440 High Judicial and Prosecutorial Council, 443 High Representative, 452 internal armed conflict in, 568
729
Bosnia and Herzegovina, cont. International Committee for the Red Cross in, 439-440 missing persons in, 440,449 Peace Implementation Council, 450 peacekeeping forces in, accountability of, 440-44 1 prosecution of war crimes in, 441 -449, 45 1-463
Srebenica Commission, 440 Srebenica Working Group, 449 UN Security Council Resolutions on, 285 Bosnia Indictment (MiloSeviC case), 74, 8 1 Bowett, D., 383 n. 137 BoziC, Zdravko, 458,459 Brammertz, Serge, 3 13 Breaches of international obligations, 11, 22,24, 59 Brekalo, Damir, 462-463 Bremel: Paul, 137, 139 Brooke, Henry, 6 13 B'Tselem, 88 n. 8 on human rights situation in Palestinian Occupied Territories, 5 13, 5 14-5 15, 543-544 Buergenthal, Thomas, 376 Burial of Saddam Hussein, 179 n. 179 Burns, J.F, 120 n. 16, 178 n. 174 Burundi, UN Security Council Resolutions on, 285-286 Bush Doctrine, 382-383,387 Bush, George K on extraordinary rendition program, 273274 on trial of Saddam Hussein, 118 Businesses, and international humanitarian law. 28 1-283 Cab, Agostinho, 589 Cambodia, Extraordinary Chambers (ECsC), Belgian law of cooperation with, 464 Camp, Philip de, 559, 560 Canada application of Rekgee Convention in, 465-469 Crimes against Humanity and War Crimes Act, 2000,470 law suits of Falun Gong members against China, 469-470 prosecution of war crimes in, 464-465, 470-47 1 State Immunity Act, 1985,469
730
Index
Cawalho, Lino de, 600 Case management in international criminal trials, 72,77-81, 84-85 in MiloSevic trial, 79-80, 8 1 Case Matrix, 2 19 n. 125 Cassese, Antonio, 18 n. 66,42, 324 Causal proximity to force tests, 39-41 Cavallo, Ricardo Miguel, 556-558 Central African Republic International Criminal Court investigations in, 324-325 The Charge of the Light Brigade (poem, Tennyson), 6 Chechnya conflict Council of Europe on, 21 n. 78 war crimes committed in, 570 Chemical weapons Geneva Protocol Prohibiting Asphyxiating, Poisonous or other Gases and Analogous Liquids and Devices, 1925,96 n. 48 prohibition on use of, 635 Cheney, Dick, 273-274 n. 108 Child soldiers, 10 n. 29,263 in Maoist Nepalese forces, 406 Moro Islamic Liberation Front policies, 553-554 prohibition on recruitment of, 17-18,290 Children in armed conflicts, 262-263,404, 548-549, 554 China, judicial proceedings for crimes against humanity by leaders of in Canada, 469-470 in Spain, 565-566 Chubin, S., 6 n. 10 Civilian objects targeting of, 632-633,635 Civilians in armed conflicts contractors, 27-28,29,46-47,608 entitlements to prisoner of war status, 3334,35 participation of, 27,28, 37-38,41-44, 109,267 n. 79,268 see also Direct participation in hostilities protection of, 3-4, 19,26,29-30, 36, 39, 43, 62,266, 629-630, 634 abuse of, 57 children, 262-263 journalists, 264 LJNSecurity Council on, 260-261 women, 261 -262
Civilians in armed conflicts, cont. targeting of, 27-28,44,47, 51, 107, 109 n. 106,635 direct attacks, 109 indirect, 48 'least harmful means'-requirement, 8991, 93-94,95-96, 97, 99, 111, 112113 Palestinian militants see Targeted killing policy state practice, 52-55, 56, 63 terrorizing of, 34 1-342 see also Contractors in armed conflicts Civilians in armed forces, 608-609 see also Contractors Civilians in occupied temtories protection of, 129, 136, 138 Claims, by soldiers against governments, 10 n. 27 Clark, Ramsey, 134 n. 9 1 Clausewitz, Karl Marie von, 62 n. 150 Cloe, Agostinho, 589 Cluster weapon systems, 479-480, 573-574, 617-618 Co-perpetratorship in international law, 331-332 Coercion, admission of evidence obtained under, 258 Coercive authority of occupying powers, 129 Colletta, N., 29, 62 Colombia demobilized paramilitaries in, 473 n. 270 Law of Justice and Peace, 2005 (Law No. 975), 47 1-473 Combatants definitions of, 30 offences by, 63 1 see also War crimes privileges of, 30, 33, 34 status of, 28, 29, 30-36 unprivileged, 42-43, 55, 57-58 see also Unlawful combatants Command responsibility, 225-226 Commission on Responsibility of the Authors of the War, 1919 Report, 110 n. 108 Common purpose ground for criminal liability, 227-230 Communist Party of Nepal (Maoists) see Maoists Complainants in Iraqi trials, 191- 192 at al-Dujail trial, 200, 203-204
Index Complicity, 468-469 Congo Democratic Republic International Criminal Court investigations in, 3 17-32 1 proceedings against Rwanda at International Court of Justice, 299-302 sexual abuse by UN peacekeeping forces
in, 263 U N Security Council Resolutions on,
288-290 Conscript soldiers, 9, 16, 2 1-22 Conspiracy, 63 1-632, 639 Contractors in armed conflicts, 27-28,29, 46-47,608 direct participation in hostilities, 35, 47, 50-5 1, 52, 63 in Iraq, 29 responsibility of states for, 57-61, 62 status of, 28, 3 1-32, 32-33, 34-36 supplying armed forces, 34-35 targeting of, 47-49, 55-57, 63 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) New Zealand's withdrawal of reservation, 540 Convention Governing the Specific Aspects of the Refugee Problem in Africa, 1969 (OAU), 605 Convention on the Prevention of Terrorism (Council of Europe, 2005), 474 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction ('Ottawa Treaty'), 536 Art. 7 reports, of the Philippines, 549-550 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1980,96 n. 48 3rd Review Conference, 574 Amended Protocol IT, 1996, 550 Protocol V on Explosive Remnants of War, 309,480, 620 Convention Relating to the Status of Refugees, 1951, application of in Australia, 427-43 1 in Canada, 465-469 in Uganda, 605-606 Convention on the Rights of the Child see International Convention on the Rights of the Child (ICRC)
731
Convention on the Safety of United Nations and Associated Personnel, 1994 Optional Protocol, ratification by New Zealand, 541 Swiss ratification of, 574-575 Conventional Weapons convention on prohibitions or restrictions on the use of, 96 n. 48, 309,480, 550,620
Coomaraswamy, Radhika, 262 C?opelj, Habib, 455-456 Core crimes in international criminal law, 67 n. 6 Correia, Abilio Mendes, 587-588 Correia, Rudolfo, 593-594 C6te d'Ivoire see Ivory Coast Council of Europe Parliamentary Assembly Recommendation 1456 (2000), Chechnya conflict, 2 1 n. 78 report on extraordinary rendition program, 274 recommendations on fight against terrorism and human rights, 575 Couso Permuy, Josd Manuel, 558-561 Crawley, Chri.stine M., 6 18 Crimes abduction, 591 aggression, 6 1 1 committed by Saddam Hussein, 122 n. 24 conspiracy, 63 1-632, 639 core, 67 n. 6 deportation, 163 n. 64, 33 1, 332 enforced disappearances, 27 1-273,379 n. 13, 399,406,443-444 extermination, 353 genocide, 300-301, 339, 350-351, 357, 470-471 hostage taking, 635 inhumane acts, 1 19 n. 10, 587 intentionally causing of bodily injury, 637 murder, I63 n. 70, l64-165,635, 637 willful, 182 n. 3,221,229 perfidy, 637 persecution, 59 1 pillage, 28 1-282, 635 rape, 357, 638 seriousness of, 334 terrorism, 638 support or resources provided for, 632, 638 terrorizing of civilians, 34 1-342 torture, 591,604-605, 632, 636
732
Index
Crimes, cont. transnational, 529-53 1 treachery, 637 wanton destruction, 335 see also Humanity, crimes against Criminal law adversarial systems of, 77 non-retroactivity principle in, 145 in occupied territories, 129 see also International criminal law Criminal responsibility Iraqi High Tribunal on, 224-230 for omissions, 356 for war crimes, 8 n. 22,21,283 Criminal trials, international case management in, 72, 77-8 1, 84-85 expedition in, 69, 70 indictments in, 76 legal representation in, 8 1-84, 130 n. 65, 347-348 Croatia extradition of Vasiljkovic to, 43 1-433 Cross-border incursions, 373 n. 74 Cruel, inhuman or degrading treatment definitions of, 623, 625, 636-637 prohibition of, 624,626,629 as war crime, 625 see also Torture Customary law, international, 106, 38 1, 568-569, 593 and civilians/combatants distinction, 43, 268 development of, 20,23 and 'least harmful means'-requirement, 91-92,93,95-96,97 state of, 37-38,44-45, 51-52, 569 Cyprus UN Security Council Resolutions on, 287-288 Da Costa, Angelino, 590-591 Da Costa, Augustino, 599-600 Da Costa, Januario, 494-495 Da Costa, Laurindo, 590-591 Da Costa, Paulo and Jodo, 599 Dailide, Algimantas Mykolas, 533-534 Daki, Mohamed, 524 D'Alema, Massimo, 521 Damaj, Oussama, 382 n. 130 DamjanoviC, Goran and Zoran, 457 Dana, Mazen, 560 n. 455
Darfur International Criminal Court investigations in, 323-324 Peace Agreement (2006), 270,296 prosecution of war crimes committed in, 616 Davis, Terry, 575 Dead bodies, mistreatment of, 638 Death penalty abolishment of, international legislation on, 482 in Iraq crimes canying conviction of, 162-I65 High Tribunal's authority and obligations with regards to, 158, 159-161, 166-I69 procedural requirements, 165-17 1 for Saddam Hussein, 120, 157, 172179 suspended by Coalition Provisional Authority, 138-139, 140, 147, 158159 Deaths arbitrary, 22, 23, 94 needless, 20 of soldiers investigations into, 10,614 responsibilities of states for, 5-6, 10, 13-15 states as cause of, 6-9, 12,24 'debellatio' concept, 129 Declaration on Principles of Customary lnternational Law, 1970, 38 1 Defence counsel model, 8 1-82 Defence lawyers in al-Dujail trial, 117-120, 195-196,205,206,210-211, 215216,217-220,237-239,242 disclosure of evidence to, 23 1-233 Defendants in al-Dujail trial, 124, 125-127, 130-131, 133, 155 in international ad hoc tribunals, 126, 130 n. 65 Definitions of armed forces, 3 1 of combatants, 30 of hostilities, 5 1, 268 of international humanitarian law, 17 of military necessity, 101 of military objectives, 630 of protected civilians in armed conflicts, 630,634 of terrorism, 363 n. 6
Index Definitions, cont. of unlawful combatants, 55 of war crimes, 45,624,63 1 Degrading treatment see Cruel, inhuman or degrading treatment Oelahunty, Robert J., 249 n. 5 A1 Delaema, Wesam, 537-538
Delhruck, J., 92 n. 28
Democracy, in Nepal, 395-396, 416 Denmark alleged abuse of Iraqi detainees by troops from, 474-478 Law No. 542,2006, amending Penal Code, Administration of Justice Code and several other statutes, 474 Military Penal Code, Section 27, 474, 476,477 Penal Code, Section 83,475 Deportation, 163 n. 64, 331,332 Dereta, Nikola, 446 Destruction, wanton, 335 Detainees abuse of, in Iraq, 58, 59,474-478 in Afghanistan, 614 Hizbollah members in Israel, 509-5 11 ICRC visits to, 408 treatment of, 335 see also Guantanamo Bay detainees Detention, secret, US program of, 273-275 Deuba, Sher Bahadur, 398 Deus, Domingos de, 592 Diamond trade in Liberia, 294-295 Dicker, Richard, 66 n. 4,74 n. 36 Dinstein, Y , 40,42, 100 n. 61, 371,386 Direct attacks, 107 against civilians, 109 Direct participation in hostilities, 27, 28, 2930, 36-38,268,497-498 by contractors, 35,47, 50-51, 52, 63 limits to, 39-4 1, 43 and loss of protection, 36, 43, 89, 107, 267 n. 79,269,630 tests of, 49-5 1, 52,62-63 Disappearances, enforced in Bosnia and Herzegovina, 443-444 International Convention for the Protection of all Persons from (UN, 2006), 271-273 in Nepal, 397 n. 13, 399,406 Displaced persons, 399 see also Internal displacement Distinctive emblems improper use of, 637-638
733
Distinctive emblems, cont. protocol to Geneva Conventions on, 484, 542, 572-573 Dixon, N., 9 n. 25,20 n. 74 Domestic courts, war crimes tried by, 149 Domestic law in occupied territories, 129, 135-138, 142 self-defence in, 49, 58 and unprivileged combatancy, 57-58 Dos Santas Laku, Francisco, 596-597 Doswald-Beck, Louise, 30 n. 19, 3 1, 33 n. 33,37,47, 5 1-52, 55-56 Downes, Garry, 430 Due diligence obligations, 382, 383, 387 al-Dujail (Iraq) incident and government response, 118119, 124, 148, 154, 185, 197 Taha Yaseen Ramadan's role in, 155 n. 12, 197-203 trial defence lawyers in, 117-120, 195-196, 205,206,210-21 1,215-216, 237239,242 disclosure of evidence to, 23 1-233 defendants in, 124, 125-127, 130-13 1, 133, 155 evidence in, 142-144,199-203,23 1-233 judgment lex mitior principle in, 140- 141, 160161 on occupation law, 132-136 political interference with, 174-175, 221-222, 234,239-240,242, 243 proceedings against Saddam Hussein, 65-66, 73 n. 36, 118-119, 121-127, 130-131, 133-136, 140-148, 150151, 179, 185-186, 190n. 24, 192 appeal, 142, 145, 146 n. 142, 148, 149-150, 156-157, 173-175 judgment, 172-173,222 prosecution for crimes against humanity, 162-165 proceedings against Taha Yaseen Ramadan, 146 n. 142, 174, 182-183, 194,241-242 appeal, 156, 194-195,222,230-236 defence phase, 210-220 enquiry phase, 195-203 indictment, 203-209,219 judgment and sentencing, 154 n. 8, 221-230 re-sentencing, 236-241 referral file, 193- 195
734
Index
Duke Et Decorum Est (poem, Owen), 6 DynCorp International (company), 3 1 East India Company (British), 29 Effective control, 358 Eisenhowev, Dwight D., 133 n. 82 El Baradei, Mohamed, 304 Ellison, Christopher, 436-437 Ena, Umbertus and Carlos, 598 Enforced disappearances convictions, in Bosnia and Herzegovina, 443-444 International Convention for the Protection of all Persons from (UN, 2006), 27 1-273 in Nepal, 397 n. 13, 399,406 Enforcement of international obligations by individuals, 11 of respect for judicial institutions, 84 of sentences of International Criminal Tribunal for the Former Yugoslavia, 326-327 see also Law enforcement England, Gordon, 624 EnterAl-Jenabi, Sa'doon, 195-196 Enter Al-Jenabi, Salam, 196 n. 45 Enterprises see Businesses Environmental protection, in armed conflicts, 282, 5 18 Equality of arms, in MiloSeviC trial, 71 Eritrea, UN Mission in (UNMEE), 290-291 Ethiopia, UN Mission in (UNMEE), 29029 1 Eurest Support Services (company), 34 European Convention on Human Rights (ECHR), 1950,68 n. 9 Art. 2, 10 n. 27, 11 n. 32, 13, 14, 612 Art. 2(2), 98 n. 55, n 56 Art. 3, 538, 539 Art. 6,482, 538, 539 Art. 13, 16 n. 56 Art. 15,23 n. 82 Protocol No. 13 concerning the abolition of the death penalty in all circumstances, 2002,482 right to life in, 11-12,22,23 European Court of Human Right case law on right to life, 13-16 on standards of precaution, 93-94 on proportionality principle, 98 n. 56
European Union (EU) agreement with International Criminal Court, 3 14 Framework Decision No. 20021475 on Combating Terrorism, 525-526 Evidence in al-Dujail trial, 142-144, 199-203,231 233 rules of, in international tribunals, 142143 in US trials of 'war on terror' suspects, 258-259 Execution of Barzan Ibrahim al-Tikriti, 185, 236 of Saddam Hussein, 120, 157-158, 170171, 175-179 of soldiers, 6 n. 11, 609 n. 649 of Taha Yaseen Ramadan, 184- 1 85 Expedition in trial proceedings, 67-7 1, 75 Extermination, 353 Extradition of Kesbir from Netherlands to Turkey, 538-539 and referrals to International Criminal Tribunal for the Former Yugoslavia (ICTY), 344,345 treaty between Spain and Argentina, 557558,562 treaty between United States and the Netherlands, 537-538 of war criminals, 43 1-433,616 Extraordinary Chambers for Cambodia (ECsC) Belgian law of cooperation with, 464 Extraordinary rendition program by United States, 273-275 Extraterritorial human rights obligations and occupation law, 139-140 n. 114 fair trial rights, 69 n. 15, 70-7 1 and expedition in judicial proceedings, 67-71, 75 Falun Gong members, law suits against China, 469-470,566 al-Faroon, Munqith, 157, 178 Flags of truce, improper use of, 637 Force, use of causal proximity, 39-41 excessive, 111 n. 113 gravity of, 370-37 1 by irregular forces, 373 n. 74, 375,393 by security personnel, 28 1
Index Force, use of, cont. United Nations Force and Firearms Principles, 1990, 98n. 55 Forcible transfer of population see Deportation Fotea Dimieri, Juan Carlos, 562 France approach towards internal disturbances and international humanitarian law, 479 cluster bombs in, 479-480 cooperation with International Criminal Court, 480-48 1 cooperation with International Criminal Tribunal for Rwanda, 482-483 Guantanamo Bay detainees from, 482 humanitarian emergency help, 478 and international legislation concerning abolishment of the death penalty, 482 and Iraq War (2003), 482 legislation on arms' trade, 479 ratifications of Amendment to Conventional Weapons Convention, 1980,480 of Protocol on Explosive Remnants of War, 480 FretiliniFalintil (Timor-Leste), 580, 581, 583 Friendly-fire incidents, 7-8, 10 n. 28 Frontier incidents, 370-371 Fuli, Lazurus, 589 FuStav, Du.Can, 45, 442,4590 G-8, on Hizbollah's 12 July 2006 attack on Israel, 368-369 n. 40, 385 n. 144 Gacumhitsi, Sylvestre, 354-355 GaliC, Stanislav, 341-343 Gardam, J.G., 101 n. 63 Garzon, Baltasar, 562 Gaza Strip entry of residents into Israel, 499-500 Israeli discriminatory policies, 5 14-5 17 Israeli military operations in bombing of A1 Daraj neighbourhood, 541 bombing of power plant, 5 15 Operation Summer Rains, 493-495 rules of engagement, 508-509 Israeli punitive home demolitions in, 543544 Israeli withdrawal from, 5 18-519, 545
735
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1929 Art. 81, 34 Geneva Convention relative to the Treatment of Prisoners of War, 27 July 1929,251 n. 15 Geneva Conventions, 1949,26 n. 4,475, 525
Additional Protocol No. I, Protection of Victims of International Armed Conflicts, 1977,4, 19, 27 n. 7, 33, 36, 39,55 Art. 3(b), 130 n. 64 Art. 16, 105 n. 86 Art. 19,561 Art. 35,97 n. 51 Art. 35(1), 96 n. 47 Art. 35(2), 96, 106 n. 90 Art. 40, 96 n. 48 Art. 43, 3 1 Art. 43(2), 30 Art. 43(3), 30-3 1 Art. 48,29 n. 17,42,44,479 Art. 50, 30 n. 19, 630 Art. 50(1), 29 n. 16, 32 Art. 51,29 n. 17, 48,55, 56,479, 630 Art. 51(3), 29-30, 35,36, 51,90,267 n. 79,269,497 Art. 5 l(5), 106 n. 89 Art. 51(7), 57 Art. 52(2), 26 n. 6, 106 n. 88,630 Art. 55, 105 n. 86 Art. 57,48,479 Art. 57(2), 93 n. 32, 106 n. 89 Art. 58, 16 n. 58 Art. 75,43 n. 83,253 Art. 78,569 Art. 79, 34 Art. 82, 9 n. 24 Art. 85(3), 44 Art. 85(4)(c), 496 Art. 90,283, 573 Art. 91, 8 n. 22 Additional Protocol No. 11, Protection of Victims of Non-International Armed Conflicts, 1977,4,37,352, 568 Art. 4, 569 Art. 7, 569 Art. 13(3), 30, 36 Art. 17, 569 Preamble, 1l n. 30
736
Index
Geneva Conventions, cont. Additional Protocol No. 111, Adoption of an Additional Distinctive Emblem, 2005 ratification by New Zealand, 542 ratification by Switzerland, 572-573 common articles Art. 1 , 4 n . 7 Art. 2,251, 581 Art. 3,4, 30 n. 18,249 n. 5,25 1-252, 253-255, 352,404,407,438, 538539,568,569 US interpretation and implementation of, 62 1, 624-625,627-629 Convention I, Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art. 24, 105 n. 86 Convention 11, Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 8(d), 105 n. 86 Convention 111, Treatment of Prisoners of War, 33-34 Art. 4, 63, 252 Art. 4(2)(b), 379 n. 1 11 Art. 4A(1), 31, 32, 379, 511, 629 Art.4A(2),31,32,379n. 111,511, 629 Art. 4A(3), 629 Art. 4A(4), 33,34,35,46,264, 629 Art. 4A(5), 629 Art. 4A(6), 630 Art. 5, 511 Art. 52, 8 n. 21 Art. 102,631 Art. 118,4n. 6 Art. 130, 18 n. 65 Convention IV, Protection of Civilian Persons in Time of War, 129,252253,254 n. 31,613 Art. 3,429,496 Art. 4, 630 Art. 5, 111,253 Art. 6, 130 n. 64 Art. 13,496 Art. 13-26, 16 n. 58 Art. 27,475,476,496,507 Art. 3 1,475,476 Art. 33,569 Art. 42,510 Art. 47, 138 n. 108, n. 109, 139 Art. 47-78, 128 n. 49
Geneva Conventions, cont. Convention IV, cont. Art. 53, 106 n. 91 Art. 54, 129 n. 57 Art. 64, 105 n. 86, 136-137 Art. 78,499,510,569 Art. 95,569 Art. 146 & 147,561 Art. 147,18 n. 65 Commentary, 1 38 obligation of states to train its armed forces, 8-9 protected persons by, 3-4, 17 ratification of, by Nepal, 403,404 universal acceptance of, 4 and 'war on terror', 250-255 Geneva Protocol Prohibiting Asphyxiating, Poisonous or other Gases and Analogous Liquids and Devices, 1925,96 n. 48 Genocide, 339 prohibition of, 300-30 1 public incitement to, 357 Rwandan, 350-35 1 Convention (l948), 300,301 Georgia, conflict in Abkhazia, 291 Germany, Allied powers establishing authority in, 133, 134-135 Gerson, A , , 29, 62 Ghajar, 364 n. 13 Gibson, Thomas, 558,560 Gimiauskas, Kazimieras, 534 Girls, as child soldiers, 263 Gleeson, Murray, 432 Global Initiative to Combat Nuclear Terrorism (2006), 306-307 Goldsmith, Peter, 437,610 n. 653 Goncalves, Domingos, 597 Gray, C., 373, 374,386 Greenwood, C., 103 n. 75 Gronis, A,, 509 Gruban, Momtilo, 442,450,459 Guantanamo Bay detainees Australian nationals, 435-438 British residents and nationals, 6 12 British views on circumstances for, 620 French nationals, 482 Spanish nationals, 563 treatment of, 622-623 trial of, 250 n. 10, 251-253, 256 UN reports on situation of, 275-280 Guerilla groups in Colombia, 472 Gusmdo, Joanico. 587
Index
Gusmiio, Xanana, 579,584,599
Hill,Robert, 436
Guterres, Aparicio, 592 Guterres, Mateus, 590-59 1 Gyanendra (king of Nepal), 396, 398, 399, 40 1
Hirohito (Emperor of Japan), 67 n. 7
Haddad, Munir, 177, 178 HadiihasanoviC, Enver, 330 Hague Convention IV Respecting the Laws and Customs of War on Land and its annex: Regulations conceming the Laws and Customs of War on Land, 1907,629 Art. 1, 127 n. 49,267 Art. 13, 34 Art. 23, 96 n. 49 Art. 23(1), 96 n. 48, 106 n. 90, 106 n. 91 Art. 42, 128 n. 50,581 Art. 43, 105 n. 86, 128-129, 135, 136137, 141, 160, 161,613 Art. 55, 105 n. 86 Hague Convention for the Protection of Cultural Property, 1954 Art. 53, 105 n. 86 British ratification of, 6 19 Second Protocol, Hungarian ratification of, 483,484 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965,469 Hague Declaration IVI3 conceming Expanding Bullets, 1899, 96 n. 48 Haiti Un Stabilization Mission in (MINUSTAH), 29 1-292 Hamad, Awad see al-Bandav, Awad Hamad Hamas, attacks on Israel by, 493 Hamdan case (United States), 249-259,435, 436-437,438,624,629, 631 Harding Clark, Maureen, 3 12 al-Hashemi, Tariq, 166 n. 88, 176 Hays Park, W , 39 Heads of state, former, trials of, 66 Health care professionals, and torture of Guantanamo Bay detainees, 278-280 Heaton, J. Ricou, 46 Hebron, Cave of the Patriarchs in, separation of prayer areas, 500 Henkaerts, J-M., 30 n. 19, 37, 51-52, 55-56 Hicks, David, 435-438 Higgins, R., 11 n. 30, 376 Hijacking a vessel or aircraft, 638
737
Hitler, Adolj; 67 n. 7 Hizbollah, 364-366 attacks on Israel by, 292,293,363-364, 365, 372-374 12 July 2006 attack gravity of, 370-371 international responses, 368 n. 36, 369,384-385 Israeli responses to, 388-393 Lebanese endorsement of, 380-38 1 Lebanon's responsibilities for, 377384, 386-387 legality of, 366-370 detainees from, seeking prisoner of war status in Israel, 509-5 11 as irregular force, 362 as Lebanese organization, 368 n. 37, 379 targeting by Israel of, 54 warfare of, 5 12 Horta, Josi Ramos, 579,583,584-585 Hostage taking, 635 Hostilities, 5 1, 268 see also Direct participation in hostilities Human rights European convention on, 10 n. 27, 11-12, 13, 14, 16 n. 56,23, 68 n. 9, 98 n. 55, n. 56,482, 538, 539,612 and fight against terrorism, 99-100.575576 violations in Nepal, 397-398, 399,401 in Occupied Palestinian territories, 5 13, 514-5 17, 5 19, 543-544 in Sweden, 57 1-572 Human Rights Council (UN), 99-100,299 Human rights groups on Israel-Lebanon war (2006), 5 11-512 Israeli, 5 13-517, 544-545 Human rights law in armed conflicts, 4-5 obligations of states in, 11-16 and fairness and expedition in judicial proceedings, 68 and intemational humanitarian law, 11 n. 30,22,23-24, 94 and 'least harmful means'-requirement, 93-94 necessity considerations in, 97-98 in occupied territories, 139 proportionality principle in, 98 n. 55, 507 right to life in, 11-13, 22, 23
738
Index
Human rights law, cont. violations of, 271,552-553,571-572 Human Rights Watch, 20 n. 75 on conflict in Nepal, 400,406 n. 58 on contractors in armed conflicts, 58, 59 on human rights situation in Palestinian Occupied Territories, 544 on Israel-Lebanon war 2006, 5 12 Human shields, prohibition on use of, 636 Humanitarian emergency help, 478 Humanity basic principle of, 107, 108 n. 102 crimes against, 119 convictions for, 146 ICC Statute on, 428 inhumane acts, 1 19 n. 10 prosecutions of in Argentina, 556-557, 562 in Iraq, 144-145, 162-165,221-222 in Spain, 556-558, 562, 565-567 in Sweden, 569-571 in Switzerland, 577 rape as, 357 willful murder as, 163 n. 70, 182 n. 3 and military necessity principle, 108 Humiliating treatment see Cruel, inhuman or degrading treatment Hungary acts additional distinctive emblem of the Red Crystal (LXXVIIII2006), 484 authorisation process related to production of military equipment (CIXI 2005), 483 non-proliferation of nuclear weapons (LXXXII/2006), 484-485 privileges and immunities of International Criminal Court (XXXIi2006), 484 protection of cultural property (XXIXI 2006), 484 extradition of Zentai sought by, 433 ICRC Friedrich Born Essay Competition, 483-484 participation in UN Peacekeeping Operation in Lebanon (UNIFIL), 485 ratifications of Hague Convention for the Protection of Cultural Property, 1954, Second Protocol, 483 of Status of Forces Agreement (EUSOFA), 483
Hussein, Saddam, 118 execution of, 120, 157-158, 170-171, 175-179 judicial proceedings against (al-Dujail trial), 65-66,73 n. 36,75, 118-119, 121-127, 130-131, 133-136, 140148, 150-151, 179, 185-186, 19011. 24, 192 appeal, 142, 145, 146 n. 142, 148, 149150, 156-157, 173-175 defence tactics, 2 10-211,242 judgment, 172-173,222 prosecution for crimes against humanity, 162-165 and Taha Yaseen Ramadan, 184, 197, 213-214 Hybrid organisations, 468
IAEA see International Atomic Energy Agency Ibrahim, Barzan see a/-Tikriti, Barzan Ibrahim Ibrahim, Sab'awi see al-Tihiti, Sabawi Ibrahim Hasan ICCPR see International Covenant on Civil and Political Rights ICRC see International Committee of the Red Cross; International Convention on the Rights of the Child Id al-Adha holiday, 177 Imanishimwe, Samuel, 35 1-352 Immunity as aggravating factor in sentencing, 150 of International Criminal Court, 532-533, 619 and prosecution of war crimes, 570 revocation of, 149,298-299 India British colonisation of, 28-29 civilians killed in Jammu & Kashmir, 486 discharge of army personnel due to disease or disabilities, 485 legislation on refugees, 486-487 National Human Rights Commission, annual report, 486 ratification of Convention against Torture, 486 Indictments international, 73, 76 of Lubanga, 66 n. 4 in MiloSeviC case, 72-77 of Ramadan, 203-209,2 19 of Taylor, 75
Index Indirect participation in hostilities, 41, 109 Individuals, and obligations of international law, 11 Indonesia Ad Hoc Human Rights Court, 596 and armed conflict in Timor-Leste, 580581, 582-583 agreement on Truth and Reconciliation Commission, 578
Penal Code, 59 1 Informal Sector Service Centre (INSEC, Nepal), 399,404 Inhuman treatment see Cruel, inhuman or degrading treatment Inhumane acts, 119 n. 10,587 Inquests into deaths of British soldiers, 10 n. 28 Instructions for the Government of Armies of the United States in the Field see Lieber Code Insurgency in Iraq, 122, 195-196, 241 -242 Insurgents, targeting of, 52-54 Intelligence collection, 40, 55 Intent to cause bodily injury, 637 to direct participation in hostilities, 39 requirement for crimes against humanity, 163 Inter-American Convention on Forced Disappearance of Persons (1994), 271 n. 99 Interahamwe militias, 354 Internal armed conflicts see Non-intemational armed conflicts internal displacement, legislation in Philippines, 549 internal disturbances, 479 International Atomic Energy Agency (IAEA), reports on Iranian nuclear program, 304-305 International Commission of Jurists, 155 n. 11 International Committee of the Red Cross (ICRC), 17 agreement with lnternational Criminal Court, 3 14 in Bosnia and Herzegovina, 439-440 on business and international humanitarian law, 28 1-283 on civilian participation in armed conflicts, 27 n. 7, 109 in Hungary, 483-484 in Nepal, 405,407-416
739
ICRC, cont. on prohibition to cause unnecessary suffering, 97 n. 54 studies Direct Participation in Hostilities (DPH) (2003 onwards), 27,37, 38, 4 1,44,49-50, 5 1, 56 State of Customary International Humanitarian Law (2005), 37-38,4445, 51-52, 569 on US Military Commissions Act, 256 n. 38 International Convention for the Protection of all Persons from Enforced Disappearance (UN, 2006), 27 1-273 International Convention on the Rights of the Child (ICRC), 1989 Art. 38, 18 n. 64 Optional Protocol on the Involvement of Children in Armed Conflict, 2000, 17 n. 63, 19,404 International Court of Justice on civilian-combatant distinction, 44 on Marten's clause, 106 n. 93 on military necessity principle, 103 n. 74 proceedings Congo Democratic Republic v. Rwanda, 299-302 see also Table of cases on prohibition to cause unnecessary harm, 97 on responsibility of United States for activities of contras in Nicaragua, 61 on right to self-defence, 373-374, 375376 Statute, Art. 120, 301 on threshold of control of states over armed groups, 382 on threshold of gravity for armed attacks, 370-371 International Covenant on Civil and Political Rights (ICCPR), 1966, 22, 68 n. 9 Art. 6,94 Art. 7,278, 571 Art. 9, 276 Art. 14, 69 n. 15, 277 Art. 15, 140, 141, 145 n. 139, 159, 162 n. 61 Optional Protocol 1, 1976, Art. 1, 572 Optional Protocol 2, 1991,482
740
Index
International Criminal Court agreements with African Union, 3 15 with Belgium, 463-464 with France, 480-48 1 with Hungary, 484 with International Committee of the Red Cross (ICRC), 3 14 with Italy, 53 1-533 with Special Court for Sierra Leone, 3 14 with United Kingdom, 619 With European Union, 3 14 Arab League Model Law on Crimes within Jurisdiction of, 424-426 Assembly of State Parties, 3 15-317 cases and investigations, 3 17-325,603604 see ulso Table of Cases defence counsel office, 8 1-82 Elements of Crimes, 121,430 judges, 3 11-312 MiloSeviC trial influencing, 66, 84-85 Office of the Prosecutor, 3 12-313 Pre-Trial Chambers, 3 11-312 Presidency, 3 11 privileges and immunities of, 532-533, 619 Registry, 3 14 Rules No. 8l(2) and (4), 318 n. 55 No. 85(a), 3 17 Statute, 1998,427-428 Art. 3, 533 Art. 6, 186 Art. 7, 186 Art. 7(l)(a), 430 Art. 7(l)(i), 271 n. 99 Art. 7(2)(i), 272 Art. 7(2)(ii), 272 Art. 8,45 n. 91, 186,481 Art. 8(2)(b), 17 n. 61, 18 Art. 9, 121 n. 21 Art. 25, 5 n. 8, 186 Art. 25(3)(a), 3 18, 320 Art. 25(3)(d), 227-228,230 Art. 27, 149 n. 157 Art. 28, 186 Art. 29,48 1 Art. 33,428 Art. 48,532 Art. 68(3), 3 17 Art. 69(3), 143 n. 127
International Criminal Court, cont. Statute, 1998, cont. Art. 91(2)(c), 487 Art. 124,48 1 implementation of in Ireland, 487-488 in Switzerland, 577 in United Kingdom, 607 ratification by Philippines, 546-547 on war crimes, 45 Strategic Plan, 3 13, 3 16 Trust Fund for Victims, 3 15 International criminal law, 5 n. 8 fairness and expedition in judicial proceedings in, 67-68 Iraqi High Tribunal's expertise in, 187188, 206-209,241,243 Lex mitior principle in, 140-141, 142, 159-161 MiloSeviC trial's influences on, 66-67, 82 International criminal trials case management in, 72, 77-81, 84-85 expedition in, 69, 70 indictments in, 76 legal representation in, 8 1-84, 130 n. 65, 347-348 International Criminal Tribunal for the Former Yugoslavia (ICTY) cases transferred to, 326 on criminal command responsibility, 225226 on direct participation concept, 37 establishment of, 132, 134 n. 91 indictments, new, 326 judges, 325-326 judgments and decisions, 328-348 see ulso Table of Cases on membership of armed forces, 32 MiloSevic trial, 65-67, 84-85, 123 n. 25 case management, 77, 79-80, 81 end of, 343 fairness of, 67, 68-70, 71 indictments, 72-77, 8 1 legal representation, 82-83, 84 protracted nature of, 71-72, 81 on positive rules of international humanitarian law, 106-107 on premeditated murder, 165 referrals to War Crimes Chamber (Bosnia and Herzegovina), 344-345, 346, 348,442,450-45 1 reforms of, 327
Index
ICTY, cont. Rules of Procedure and Evidence, 325 Rule 1l bis, 327, 344, 345, 346,441, 442 Rule 1Sbis, 325 Rule 73bis, 81, 325 Rule 77(A)(ii), 329, 336
Rule 92quarter, 325
Rule 92ter, 325 sentences, 328, 332, 341-342 enforcement of, 326-327 Statute, 427 n. 20 Art. 7(1), 334,337, 340, 341 Art. 7(3), 330, 334 Art. 12,325 Art. 13quarter, 325 Art. 21, 126 n. 45 UN Security Council Resolutions on, 132, 327, 568-569 International Criminal Tribunal for Rwanda (ICTR) agreements with France, 482-483 Italy, 527-529 cases transferred to, 350 completion strategy, 349 cooperation with, United Kingdom, 616 judges, 349 judgments, 35 1-359 see also Table of Cases releases, 35 1 Rules of Procedure and Evidence, Rule I1 his, 350 Statute, 427 n. 20 Art. 2, 357 Art. 3(i), 358 Art. 6(1), 356, 357,359 Art. 6(3), 352, 357, 358 International Fact-Finding Commission (IFFC), 283-284 International human rights law see Human rights law International humanitarian law, 17,24, 106lo7 in armed conflicts, 4-5, l6-22,416-417 and human rights law, 11-16 and Israeli policy of targeted killing of Palestinian militants, 88-89, 265-266 protection of civilians, 26, 36,42-43, 62,260 targeting of civilians, 27-28,44,47, 5 1, 57 and business, 281 -283
741
International humanitarian law, cont. and human rights law, l l n. 30,22,2324,94 in internal disturbances and tensions, 479 and 'least harmful means'-requirement, 91-92, 93, 95-96,97 military necessity principle in, 98-101, 104, 106-107, 108, 110, 111 In Nepal, 403-405 prohibition of maux superflus in, 96-97 proportionality in attack principle, 9 1-93 protection of armed forces in, 5, 24 training sessions in Bosnia and Herzegovina, 439 violations of in Nepalese conflict, 405-406 in Occupied Palestinian territories, 542-545 in Timor-Leste, 58 1-583 and 'war on terror', 250-255,259 International indictments, 73, 76 International Law Commission Articles on Responsibility of States for internationally Wronghl Acts (ARISWA), 200 1 Art. 4, 59 n. 142, 60 Art. 5,60 Art. 7,380 n. 1I6 Art. 8, 61 Art. 9,380 on military necessity principle, 103 n. 74, 112n. 115 International prosecutors, 75, 3 13 International Security Assistance Force (ISAF), 52-53 International tribunals see Tribunals Iran nuclear program of, 304-306 responsibilities for Hizbollah attacks on Israel, 377 n. 100 Iraq Coalition Provisional Authority, 131-133. 137, 141 Australian participation in, 433-434 death penalty suspended by, 137, 141, 159, 160, 161 Order No. 7, Amending Iraqi Criminal Code, 137, 139, 140, 142, 160, 161 Section 3, 141, 160 Order No. 48, Delegation of Authority Regarding an Iraqi Special Tribunal, 125 Regulation 1, 133
742
Index
Iraq, cont. Coalition Provisional Authority, cont. Secure Evidence Unit (SEU), 23 1 n. 157,232 Constitution, 2005 Art. 19, 133 n. 87 Art. 73, 169, 170, 175 Art. 134, 144 n. 134 Art. 138, 166 n. 88, 176 Court of Cassation, 168- 169 Criminal Procedure Code, 1971, 122-123 n. 24, 125 n. 39, 126 n. 43, 133 n. 87, 158, 189,205 5 l3O(b), 194 n. 38 5 154, 190 n. 26 $ 168(b), 190 n. 25 3 179, 190 n. 24 5 252(A), 167, 195 n. 41 5 254, 166-167, 172 9 264(a), 233 n. 166 266, 168, 170 5 267, 168, 169 5 286, 170, 170 n. 118, 175-176, 177 5 288, 170-171, 178 5 289, 178 290, 177 5 290-293, 171 4 291, 178 death penalty in authority of High Tribunal for conviction of, 159-161 crimes carrying conviction of, 162-165 procedural requirements, 165-171 for Saddam Hussein, 120, 157, 172179 suspended by Coalition Provisional Authority, 138-139, 140, 147, 158159 al-Dujail incident and government response, 118-119, 124, 148, 154, 185, 197 Taha Yaseen Ramadan's role in, 197203 High Tribunal (High Criminal Court), 66, 126n. 45, 127, 132, 148, 151, 186, 188-189 Anfal trial, 187 n. 19, 195 n. 42,209 n. 88,242-243 and death penalty, 158, 159-161, 166I69 deficiencies of, 182, 189, 190-191, 204,215-216,223,232-233
Iraq, cont. High Tribunal, cont. deficiencies of, cont. expertise in international criminal law, 187-188, 206-209,241,243 al-Dujail trial defence lawyers in, 117- 120, 195196,205, 206,210-211,215-216, 237-239,242 disclosure of evidence to, 23 1-233 defendants in, 124, 125-127, 130131, 133, 155 evidence in, 142-144, l99-203,23 1 233 judgment, 144-147 lex mitior principle in, 140-141, 160-161 on occupation law, 132- 136 political interferences with, 174-175, 221-222, 234,239-240,242, 243 proceedings against Saddam Hussein, 65-66, 73 n. 36, 75, 118-119, 121-127, 130-131, 133-136, 140148, 150-151, 179, 185-186, 190n. 24, 192 appeal, 142, 145, 146 n. 142, 148, 149-150, 156-157, 173-175 judgment, 172-173,222 prosecution for crimes against humanity, 1 62- 165 proceedings against Taha Yaseen Ramadan, 146 n. 142, 174, 182-183, 1 94,24 1-242 appeal, 156, 194-195,222,230236 defence phase, 2 10-220 enquiry phase, 195-203 indictment, 203-209,219 judgment and sentencing, 154 n. 8,221 -230 re-sentencing, 236-241 referral file, 193-195 Elements of Crimes, 121 International Law Advisor, 193 n. 35, 207,218,219 judges, 189-191 legitimacy of, 130-131, 133, 134 Regime Crimes Liaison Office (RCLO), 193 n. 35,207 Rules of Evidence and Procedure, 123, 142, 143 Rule 21, I88 n. 20 Rule 26,232 n. I62
Index Iraq, cont. High Tribunal, cont. Rules of Evidence, cont. Rule 27, 123 n. 26 Rule 53(1), 232 n. 161 Rule 68, 166, 195 n. 41 Rule 79, 143 n. 128 Statute, 121, 125, 127, 131, 134, 140, 144-145, 205
Art. 1, 186 Art. 11, 186, 187,209 Art. 12, 162-163, 186, 187, 194, 204,205,207,209,2 17 Art. 13, 186, 187,209 Art. 14,187 Art. 15, 149 n. 157, 186-187, 194, 204-205, 207-209, 215,217, 221, 223,235,242 Art. 15(2)(d), 227-228,229,230 Art. 15(4), 224 n. 141, 225-226 Art. 19, 125 Art. 19(4)(f), 190 n. 24 Art. 20, 125 Art. 24(5), 165 Art. 25, 166 Art. 27(2), 169-170, 175 Art. 47, 137-138 insurgency in, 122, 195-196,241-242 Interim Constitution, 1970, Art. 20, 133 n. 87 Interim Government Law No. 3,2004, 160, 161, 165 4 6, 170,175 International Criminal Court investigations in, 3 12 Italian humanitarian mission in, 520-52 1 Law on Criminal Proceedings (Procedural Law), 1971 see Criminal Procedure Code, 1 97 1 Law of Judicial Organization, 1979, 133 Law No. 23, 197 1, Criminal Proceedings see Law on Criminal Proceedings legal system in, 191-192,227, 232 occupation law in, 127-129, 13 1, 132138,612-613 Penal Code, 1969, 139, 158, 162, 189 g 2(2), 140, 141, 159-160 Q: 325, 163 n. 64 5 405, 164 Q: 406, 160, 164-165 Popular Army, 200-201 Ramadan's association with, 2 13, 224225, 226-227, 235
743
Iraq, cont. Presidency Council, 166 n. 88, 169, 170, 175-176 Revolutionary Command Council (RCC), I83 Courts (RCCCs), 146-147, 155 n. 11, 197 UN Assistance Mission in (UNAMI), 292 Iraq War (2003)
abuse of detainees in Abu Graib prison, 58, 59 by Danish troops, 474-478 civilian contractors in, 29, 52. 58-59 and France, 482 Spanish cameraman killed by US army in, 558-561 targeting of insurgents in, 53-54 and United Kingdom armed forces' rules of engagement, 609-6 11 inquests into deaths of soldiers, 10 n. 28,614 jurisprudence on legality of war, 6 11612, 613 Ireland acts Criminal Justice, 2006,489-490 Defence (Amendment), 2006,488-489 Genocide, 1973, repealed, 487 International Criminal Court, 2006, 487-488 Irregular forces attacks by, 373 n. 74, 375, 393 responsibilities of states for, 377 n. 100,381 and right to self-defence, 375-377, 385-387,393 hosted by states, 382-383, 385-387 national defence tasks exercised by, 380 ISAF see International Security Assistance Force Israel and Gaza Strip Amnesty International on, 5 13 discriminatory policies, 5 14-517 Israeli military operations bombing of Al Daraj neighbourhood, 54 1 Operation Summer Rains, 493-495 rules of engagement, 508-509 permission of Gaza Strip residents to enter Israel, 499-500 punitive home demolitions, 543-544
744
Index
Israel, cont. and Gaza Strip, cont. withdrawal from, 5 18-5 19, 545 Hizbollah attacks on, 292,293, 363-364, 365,372-374 12 July 2006 attack gravity of, 370-37 1 international responses, 368 n. 36, 369,384-385 Israel's response to, 388-393 Lebanese endorsement of, 380-381 Lebanon's responsibilities for, 377384,386-387 legality of, 366-370 laws Administrative Detention, 5 10 Basic, 509 Art. 40,496 Citizenship and Entry (Temporary Provision), 2003,495, 500-501 Civil Wrongs (Liability of the State), Art. 5C, 509 Incarceration of Unlawful Combatants, 2002,55,5 10 Art. 1 , 57-58 n. 133 liability of the state for acts committed by its security forces, 509 Palestinian civilians used in military operations, 497 proportionality principle in, 90, 9 1 , 99 right to self-defence of, 265 n. 69, 363, 3 74 international opinion on, 385, 393 separation bamer (security fence) criticism of, 5 13-5 14, 5 19, 544-545 judicial proceedings against, 501 -506 targeted killing policy against Palestinian militants, 87-88,264-270,497-498 and international humanitarian law, 8889,265-266 unlawful combatants, status of, 509-5 1 1 war with Lebanon (2006), 54,292-294, 363-364,491-493,496 human rights groups on, 5 11-5 12 jus ad bellurn issues related to, 362, 391-392 United Nations on, 370, 5 17-5 18 and West Bank access of residents to their cultivated lands, 506-507 discretionary policies, 5 12-5 13,5 145 17
Israel, cont. and West Bank, cont. entry of West Bank residents into Israel, 498-499 freedom of movement directives, 496 legality of Ministry of Defence outposts, 507-508 military operations in, 495 punitive home demolitions, 543-544 separation of prayer areas in Cave of the Patriarchs (Hebron), 500 Italy agreements, with International Criminal Tribunal for Rwanda, 527-529 Code of Penal Procedure, Art. 593,523 Constitution, Art. 1 1 1(2), 523 laws No. 612002, participation in Operation Enduring Freedom, 522 No. 4612006, modification of Code of Penal Procedure, 523 No. 5112006, participation in international missions, 5 19-52 1 No. 6412006, cooperation with Intemational Criminal Tribunal for Rwanda, 527-529 No. 13012006, ratification and implementation of the Agreement on Privileges and Immunities of the International Criminal Court, 53 1-533 No. 14612006, ratification and implementation of United Nations Convention against Transnational Organised Crime, 529-53 1 No. 18 112002, cooperation with International Criminal Tribunal for Rwanda, 528 No. 24712006, participation in international missions, 52 l No. 27012006, participation in UNIFIL, 521-523 peacekeeping missions, 5 19-523 Penal Code Art. 270bis, 523, 524, 525, 526, 527 Art. 270sexies, 525-526, 527 Penal Military Code of Peace~War,522 terrorism, prosecution of, 523-527 Ivanov, Sergei, 535 Ivory Coast UN Security Council Resolutions on, 286-287
Index Jackson, Robert H., 136 n. 99, 142, 149, 150-151 Jallow, Hassan B., 349 Janatantrik Terai Mukti Morcha (Nepal), 402 n. 39 JankoviC, Gojko, 442,448,458 JankoviC, Zoran, 46 1-462 Jeffrex Lt. General, 19 n. 70 Jesus, Paulino de, 597 Jinidi, Mohammed Moneeb, 196 Joint criminal enterprise, 229-230, 332, 338,340 application in Canada, 468-469 Jokik, Miodrag, 327 Journalists in armed conflicts, 264 killed in Iraq, 558-561 JoviC, Josip, 336-337 Judges at International Criminal Court, 3 11-312 at International Criminal Tribunal for the Former Yugoslavia (ICTY), 325-326 at International Criminal Tribunal for Rwanda, 349 at Iraqi High Tribunal, 189-19 1 at Special Court for Sierra Leone, 360 convicted of crimes against humanity, 146 Juhi. Ra'id, 118 n. 6, 122. 193 Jurisdiction military criminal, in United Kingdom, 606-609 over prisoners of war, 12 n. 34 of states over its soldiers, 12 universal, 565, 566 Jus ad bellum, 88, 266 and war between Israel and Lebanon (2006), 362, 391-392 Jus in hello, 88,266, 391-392 Kabura, Amir, 330 Al-Kahatji, Ali Hasan, 222,236-237,239, 240,242 Al-Kahazai, Thamer, 196 Kalshoven, F , 8 n. 22 Kambanda, John, 67 n. 7 KaradiiC, Radovan, 326,441 Karki, A,, 404 n. 52 Kellogg, Brown and Root (company), 29, 35,59 n. 142 Kendall-Smith, Malcolm, 6 13 Keraterm Camp, 450-45 1 Kesbir, N., 538-539
745
al-Khalifa, Mohammed Orabi Majeed, 239 Khalil, Bushra, 196,2 11 Khalil, Waddah Isrna 'il, 1 98- 199, 2 11-212 Al-Khatih, Ali, 560 n. 455 Killing with intent, 163 n. 70 of protected civilians, 635 in violation of law of war, 637 see also Murder; Targeted killing policy Kirgis, FL., 128 n. 53 Kneievik, DuSko, 450,459 KneieviC, Radoslav, 445 Koirala, Girija Prasad, 402 Kony, Joseph, 322-323 Kooijmans, P , 370,376 KordiC, Dario, 326 Kosovo campaign 1999, 8 n. 20 Kosovo Indictment (MiloSevic case), 76 Kouwenhoven, G., 537 KovaCeviC, Vladimir, 345-346 Krajiinik, Morntilo, 337-339 Kriegsraison doctrine (Prussia), 104-105, 111 Krndija, Dras'ko, 445 Kr.smanoviC, Boro, 446
Labour, uncompensated and abusive, 282 Lahoud, ~ r n i l e380-38 , 1 Landmines in Belarus, 536 in the Philippines, 549-550 Lattanzi, Flavia, 356 Lau, Mateus, 599 Lauterpacht, H., 107 n. 94 Law enforcement agencies, combatant status of, 30-3 1 measures outside state's territory, 377 officials, United Nations Code of Conduct for, 1979,98 n. 55 Lawful combatants offences by, 63 1 'Least harmful means'-requirement in targeting civilians, 89-91,93-94,9596, 97, 99, 111, 112-113 Lebanon and Hizbollah attacks on Israel endorsement of, 380-381 responsibilities for, 377-384,386-387 Heibollah fighters in south of, 365 UN Interim Force in (UNIFIL), 292, 294 Hungarian participation, 485 Italian participation, 522-523
746
Index
Lebanon, cont. war with Israel (2006), 54,292-294, 363364,491-493,496 human rights groups on, 5 11-512 jus ad bellurn issues related to, 362, 391-392 United Nations on, 370, 5 17-518 Legal repxsentation in international criminal trials, 81-84, 130 n. 65, 347-348 Leki, Joseph, 601 Lelan, Antonio, 589 Lelek, ~ e l j k o462 , Levee en masse concept, 630 Lex mitior principle, 140- 141, 142, 159-161 Liabilities of businesses in armed conflicts, 281-283 criminal, 227-230,356 of states, 5-6, 509 Liberia arms supplied to, 537 UN Mission in (UNMIL), 294-295 Lieber Code, 1863,87, 101, 102-103 Art. 14-16, 101 n. 64 Life right to in armed conflicts, 14-16, 22, 94 in international human rights law, 1113,22,23 Lileikis, Aleksandras, 534 Lithuania Criminal Code, Art. 100, 534 prosecution of war criminals in, 533-535 war damages demanded from Russia, 535-536 Livni, Tzipi, 378, 389-390 Ljevo, Zikrija, 455-456 LjubiBC, PaSko, 344-345,45 1,458-459 Ljubinac Radislav, 456-457 Logistics Civilian Augmentation Program, 29 Lords Resistance ArmyIMovement (LRAI M), 468 prosecution of leaders of, 322, 603-604 ~ u b a n ~Thomas, a, 66 n. 4,74 n. 36,3 1732 1 LutiC, KreSo, 46 1 Ludji-Beny, 588 LukiC, Milan, 326 Lukwiya, Raska, 322 McCain, John, 623 McDonald, A., 254 n. 3 1 Mahara, Krishna Bahadur, 400 n. 32
Mahdi, Adil Abdul, 166 n. 88, 176 Mahendra (king of Nepal), 395 Maiming, 637 Maktouf; Abduladhirn, 448,452 al-Maliki, Nouri, 157, 175 n. 157, 176 n. 164,234 MandiC, Morndo, 461 ManjaEa Camp, 453-454 Maoists in Nepal, 395, 396-398,400,402403 and international humanitarian law, 404, 405 Margetik, Dornagoj, 326 MariC, Marinko, 461 Mar@ztiC, Ivica, 329 Maritime law, Paris Declaration (1856), 29 n. 15 Marques, Joni, 599 Marten's clause, 18, 106-107 Martines, Anastacio, 600 Martinovii, Vinko (a.k.a. 'Stela'), 332-333 Marty, Dick, 274 Martyrdom, 6 n. 10 Mass graves exhumed in Bosnia and Herzegovina, 440 MatanoviC, Tornislav, 445 Material support to hostilities, 630 to terrorism, 632,638 Matos, Francisco, 590-592 Maubere, Rusdin, 598-599 May, Sir Richard, 71, 13 1 n. 73 Media coverage of Saddam Hussein trial, 124 of war crimes, 334 Medical ethics, 279 MejakiL, ~ e l k j o442,450,459 , Membership of armed forces, 30-3 l,33-34 contractors, 3 1-32, 36,44 and loss of civilian status, 55-57 of organised groups, and loss of civilian status, 43-44, 5 1-55,63 Mendonca, Cesar, 596 Mesquita, Alarico, 590-591 Metan, Dorningos, 589, 590 Meyrowitz, H., 97 n. 54 Al Mezan Center for Human Rights, 543 MihajloviC, Tomo, 446 Military criminal jurisdiction, in United Kingdom, 606-609 Military law, on soldiers refusing orders, 56
Index
747
Military manuals
Munyaneza, Desire, 470-47 1
on military necessity principle, 108 on occupation law, 128 n. 50, 138 n. 108 on purposes of wars, 102 Military necessity principle, 10 1- 104 in international humanitarian law, 98- 101, 104, 106-107, 108, 110, 111 and occupying power amending domestic
Murder, 635,637 willful, 163, 164-165, I82 n. 3, 221, 229 see also Killing Mutilating, 637 Mutual legal assistance, 53 1 treaty between Spain and United States, 560
law, 135
permissive function of, 104- 108 restrictive function of, 107, 108- 1 11 and targeted killing policies, 99-100, I1 l 112, 113 Military objectives, 630 of Israeli attacks on Hizbollah in 2006, 389-390 ofwars, 101-102, 104 Military operations, 15 of Israel in West Bank and Gaza Strip, 493-495,497, 508-509, 51 5, 541 proportionality principle in, 48-49 Militias, 32, 354 MiloSeviC, Slohodan judicial proceedings against, 65-67, 8485, 123 n. 25 case management, 79-80,81 end of, 343 fairness of, 67, 68-70, 71 indictments, 72-77, 81 legal representation in, 82-83, 84 protracted nature of, 7 1-72, 84 Mines see Landmines Missing persons in Bosnia and Herzegovina, 440,449 in Nepal, 409 MitroviC, ~ e l j k o448 , Mladib, Ratko, 326 Moley, Kevin Edward, 278 Montenegro, acceptance of International Fact-Finding Commission (IFFC), 283 Moreira, Florindo, 590-59 1 Moro Islamic Liberation Front (Philippines), 553-554 Morocco, proceedings in Spain for crimes against humanity in Western Sahara, 566 Morreira, Florido, 588 Moscow Declaration, 1943, 149 Maw, E., 349 Al-Moussawi, Jaffer, 196- 197 Mpambara, Jean, 356 Munyaneza, Charles, 6 17 n. 687
Muvunyi. Tharcissr, 357-3 5 8
Nahak, Josep, 592 Naletilik, Mladen (a.k.a. 'Tuta'), 332-333 Napoleon Bonaparte, 40 Nasrallah, Hassan, 363 National defence tasks, by irregular forces, 380 National Strategy for Combating Terrorism, 2006 (United States), 382 n. 130 NATO see North Atlantic Treaty Organization Nazi party oath, 136 n. 99 Ne his in idem principle, 568, 596 Necessity, 97-99 of amending domestic laws by occupying powers, 135, 136, 142 as limit of legality, 108 requirement for self defence, 387-388 see also Military necessity principle 'Needless deaths', 20 Nepal armed conflict in, 394-402,404 armed conflictlcivil war in ICRC's role in, 409-4 16 violations of international humanitarian law, 405-406 Comprehensive Peace Agreement (2006), 401,404 n. 50,416 Truth and Reconciliation Commission (TRC), 406 Constitution, 1990, 397,404 n. 49 democracy in, 395-396,4 16 elections in, 400, 401 human rights violations in, 397-398, 399, 40 1 International Committee of the Red Cross (ICRC) in, 405,407-409 international humanitarian law in, 403405 Maoists in, 395, 396-398,400,402-403 and international humanitarian law by, 404,405 'Palace Coup' in, 397, 398
748
Index
Nepal, cont. Public Security Act, 1991 (2nd Amendment), 396, 397 n. 13 security forces in, 403,406 Terrorist Disruptive Activities (Control and Punishment) Ordinance (TADO), 397 Nepali Rrnes, 399 Netherlands extradition of Kesbir sought by Turkey, 538-539 treaty with United States, 537-538 prosecution of war crimes in, 537 Sanctions Act, 1977, 537 The New York Times, 273 n. 107 New Zealand Arms Amendment Bill (No. 3) 2005, 539-540 Geneva Conventions Act 1958, section 3 (11,541 Human Rights Act 1993, section 33, 540 Human Rights (Women in Armed Forces) Amendment Bill 2006,540 International Crimes and International Criminal Court Act 2000, section 11 (11,541 prosecution of war crimes in, 540-541 ratifications of Convention on the Safety of United Nations and Associated Personnel, 1994, Optional Protocol, 541 of Convention for the Suppression of Acts of Nuclear Terrorism, 542 of Geneva Conventions on the Laws of War, 1949, Additional Protocol No. 111, Adoption of an Additional Distinctive Emblem, 2005, 542 women in combat roles in armed forces and police, 540 Nikola, KovaCeviC, 453-454 NikoliC, Dragan, 327, 328-329 Niyonteze, Fulgence, 577 Non-international armed conflicts, 4, 25 1, 254n.31,625 in Bosnia and Herzegovina, 568 international obligations of states in, 12, 16 in Nepal, 394-402,404 protection of civilians in, 30 right to life in, 16 n. 55 in Timor-Leste, 580 and trial of Guantanamo Bay detainees, 253 n. 27
Non-proliferation of nuclear weapons, 302, 305-306,484-485 Non-retroactivity principle, 145 Non-state actors, 272, 553-554 see also Irregular forces Normality principle, 128 Norms in international law, 145 North Atlantic Treaty Organization (NATO) ISAF forces in Afghanistan, 52-53 on nuclear non-proliferation, 302 Riga Summit Declaration (2006), 302 North Korea nuclear program, 303-304 Ntagerura, Andrt!, 35 1-352 Ntakirutimana, Elizaphan, 35 1 al-Nu 'aymi, Najih, 130 Nuclear programs of Iran, 304-306 of North Korea, 303-304 Nuclear terrorism global initiative against, 306-307 Nuclear weapons, non-proliferation of, 302, 305-306,484-485 Nullurn crimen sine lege principle, 162, 427 Nuremberg International Military Tribunal, 132, 136 n. 99, 142, 149, 150-151 Charter, 429,43 1 Art. 6(c), 119 n. I0 Nzahirinda, Joseph, 350 Objectives see Military objectives Occupation law in Iraq, 127-129, 131, 132-138, 612-613 in Israel, 135, 265 obligations of, 139-140 n. 113, n. 114, 142 Occupied Palestinian territories armed conflict in, 265,266-277 human rights violations in, 5 13, 5 14-517, 5 19,543-544 justification for Hizbollah's 12 July 2006 attack, 368, 369 violations of international humanitarian law in, 542-545 see also Gaza Strip; West Bank Occupied territories protection of civilians in, 129, 136, I38 O'Connell, M.E., 386 Olmert, Ehud, 378,389 OmanoviC, Be&, 455-456 OmanoviC, Miralem, 446-447 Omarska Camp, 450-45 1 Omissions, criminal responsibility for, 356 Ongwen, Dominic, 322
Index Organs of states, 379 Orid, Naser, 334-335 Orutevid, Husnija, 455-456 Owen, kWfFed, 6 Pakistan, targeting of Taliban suspects in, 53 Palameta, Drago, 447 Palestinians
militants Israel's policy of targeted killing of, 87-88,264-270,497-498 and international humanitarian law, 88-89,265-266 as unlawful combatants, 89, 99, 267, 268 self-determination of, 368 violence against Israel, 542, 543 PaliC, Advo, 443-444 Panchayat system in Nepal, 395 Paramilitary units in Columbia, demobilization of, 473 n. 270 combatant status of, 30-3 1 see also Militias Paris Declaration Respecting Maritime Law (1 856) Art. 1, 29 n. 15 Parker; N , 175 n. 159 PaunaviC, Dragoje, 448,452 Paust, J.D., 386 n. 150 Peace agreements in Darfur, 270, 276 in Lebanon, 365 in Nepal, 401,404 n. 50,416 Peaceful measures, exhaustion of, 388 Peacekeeping forces in Bosnia and Herzegovina, accountability of, 440-44 1 Irish participation in, 488-489 Italian participation in, 5 19-523 sexual abuse by, 263 Swiss participation in, 576-577 of United Nations, 263,290-29 1, 292, 294-295, 298,401,485, 522-523 Pedraz, Santiago, 560, 56 1 Pedro, Francisco, 593 People's Liberation Army (PLA, Nepal), 396,402-403 Perfidy, 637 Perreira, Francisco, 595 Persecution, 591 Petar; MitroviC, 456
749
Philippines acts Anti-Terrorism, 55 1-552 Comprehensive Law on Landmines, 550 Crimes Against International Humanitarian Law and Other Serious International Crimes, 547-548 Human Security, 551-552 Internal Displacement, 549 Providing Compensation to Victims of Human Rights Violations During the Marcos Regime, 552-553 Providing for Reasonable Compensation and Benefits for the Loss of Lives, Injuries and Damages to Property Suffered by Non-Combatants, 552 armed forces (AFP), Rules of Engagement, 554-555 Cebu Concord, 552 implementation of UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons, 550-55 I landmines in, 549-550 non-state armed groups in, 553-554 policies, on children in armed conflicts, 548-549, 554 ratification of Statute of International Criminal Court, 546-547 Phinnev, D., 59 n. 142 Pictet, J., 33-34, 110, 128 n. 53, 138 n. 109 Pillage, 281-282, 635 Pinjid, Salem, 446 Pinochet, Augusto, 65-66 Prachanda (Pushpa Kamal Dahal), 400 n. 32,402,404-405 n. 52 Premeditated murder, 1 64- 1 65 Prevention of terrorism, 383 Previiid, Boiko, 449 Primary causes, 5 Prisoners see Detainees of war jurisdiction over, 12 n. 34 status of, 33-34,35,252,509-511,629630,63 1 Private firms see Contractors Privatisation of warfare, 28-29, 35 n. 39,46, 62 Privileges of combatants, 30, 33, 34 see also Unprivileged combatants
750
Index
Prohibition of genocide, 300-301 of maux superJlus, 96-97, 112 of recruiting child soldiers, 17-18,290 of torture, cruel, inhuman or degrading treatment, 571-572, 624, 626, 629 on use of chemical weapons, 635 on use of human shields, 636 Properties destruction of, 637 protected in armed conflicts, 634, 635 Hague Convention on, 105 n. 86,483, 484,619 prohibition on use as shield, 636 unlawful acquisition of, 28 1-282 Proportionality principle, 92-93 in human rights law, 98 n. 55, 507 in international humanitarian law, 91-93 in Israel, 90, 9 1, 99 and military necessity principle, 109 n. 106 in military operations, 48-49 and right to self-defence, 388-392 Prosecution of complex international criminal cases, 72-73 of crimes committed by soldiers, 609-610 in MiloSevic case, 72-75 in Saddam Hussein case, 75 of terrorism, 523-527, 562-565 of unlawful combatants, 630-63 1, 632633 of war crimes/crimes against humanity in Bosnia and Herzegovina, 44 1-449, 45 1-463 in Canada, 464-465,470-47 1 in Iraq, 144-145, 162-165,221-222 in Lithuania, 533-535 in the Netherlands, 537 in New Zealand, 540-541 post-Second World War, 103 n. 74, 112, 149 in Spain, 556-558, 558-561, 562, 565567 in Sweden, 567-571 in Switzerland, 577 in Timor-Leste, 585-601 in Uganda, 603-604 in United Kingdom, 6 14-617 Prosecutors international, 75, 3 13 Prospel; Pierre-Richard, 141 n. 123
Protected civilians in armed conflicts, 3-4, 19,20,29-30, 36,39,43,62, 266, 629-630,634 abuse of, 57 children, 262-263 journalists, 264 UN Security council on, 260-26 1 women, 26 1-262 Protsyuk, Taras, 558, 561 Public order obligations of occupying powers, 129 PuneJ; Mateus, 494-495 Al-Qaeda, 25 1,254 n. 3 1 Radakovik, Dargo, 445 RadanoviC, Dragoje, 446 RadiC, Marko, 462-463 RadiC Mlado, 339 Radio T&husion Libre de Mille Collines (RTLM), 354 Rajak, Novo, 455 RajiC, Ivica, 333-334 Ramadan, Taha Yasseen, 183-184 association with Popular Army, 213,224225,226-227,235 execution of, 184- 185 judicial proceedings against, 146 n. 142. 174, 182-183, 194-195,241-242 appeal, 156, 194-195,222,230-236 defence phase, 2 10-220 enquiry phase, 195-203 indictment, 203-209,2 19 judgment and sentencing, 154 n. 8, 22 1-230 re-sentencing, 236-241 referral file, 193-195 role in government response to al-Dujail incident, 155 n. 12, 197-203 RamiC, Niset, 460 Rape, 357,638 RaSeviC, Mitar, 348,45 1,459-460 Rashid, RaouJ 2 19,236 Rauch, E., 103 n. 75 Razzak, ArefAbdul, 236,239, 241 Reasonableness standard, 49 Rebel groups, 23 Rebii, Markica, 329 Refugees Convention Governing the Specific Aspects of the Refugee Problem in Africa, 1969 (OAU), 605
Index
751
Refugees, cont. Convention Relating to the Status of in Australia, 427-43 1 in Canada, 465-469 in Uganda, 605-606 Indian legislation on, 486-487 Reid, John, 621 Reinado, Alfredo, 583-584,585
Rules of engagement, cont.
Reinisch, A . , 23 n. 84
Rwamakubu, Andr.4, 358-359
Remnants of war, 309,480,620 Reporters Without Borders, 559 Reserve soldiers, 9 Resistance movements, 58 1 Respect for judicial institutions, 84 Responsibility command, 225-226 criminal, 8 n. 22, 21, 224-230, 283, 356 of states for contractors in armed conflicts, 33, 57-6 1, 62 for deaths of its soldiers, 5-6, 10, 13-15 for wrongful acts, 379, 381-382 Rice, Condoleeza, 274 n. 108,293 Right to life in armed conflicts, 14-16,22,94 in international human rights law, 11- 13, 22,23 Right to self-defence, 266,367, 385-392 and 'accumulation of events' doctrine, 372-374 and attacks by irregular forces, 375-377, 393 of Israel, 265 n. 69,363, 374 international opinion on, 385, 393 Right to self-determination, 367, 368 Right to self-representation in international criminal trials, 81-84, 130 n. 65, 347-348 Right to silence, 190 n. 24 Rivlin, Eliezer, 498 Robathan, A,, 610 n. 653 Rogers, A.I? I?, 48,55 Rome Statute see International Criminal Court, Statute, 1998 Roosevelt, Franklin D., 148-149 Rousseau, J.J., 62 al-Rubaie, Mowaffak, 178 Rule of law, UN Security Council on, 298299 Rules of engagement, 8 n. 22 for British armed forces in Iraq, 609-61 1 for Israeli military operations in Gaza Strip, 508-509
Rwanda genocide in, 350-35 1 prosecutions in Canada, 470-47 1 proceedings by Congo Democratic Republic at International Court of Justice, 299-302 see also International Criminal Tribunal for Rwanda (ICTR)
for Philippini armed forces, 554-555 Russia war damages sought by Lithuania from, 535-536 a/-Ruwaid, 'Abdallah, 146 n. 142, 155 n. 14, 156 al-Ruwaid, Mizhir, 146 n. 142, 155 n. 13
Saddam Hussein see Hussein, Saddam al-Sadr; Muqtada, 157 n. 35 Safety of United Nations personnel convention, 541, 574-575 St. Petersburg Declaration banning the use of certain explosive projectiles, 1868,96 n. 49, 100 n. 62, 102 n. 65 Salem, P , 382 n. 123 Samaradiid, Nedo, 454 Samaradiija, Marko, 453 Samarctija, Marko, 463 Sandoz, r, 97 n. 53 Santora, M., 120 n. 16 Sawoniuk, Anthony, 615 Scheinin, Martin, 100 n. 59 Schmitt, Michael, 29, 31, 38, 39-41,47,48 n. 99,49, 50, 51, 52, 55, 57-58 Scilingo, Adolfo, 556 SCSL see Special Court for Sierra Leone Secondary causes, 5 Secret detention program of US, 273-275 Security personnel, use of force by, 281 Seddon, D., 404 n. 52 Self-defence against terrorism, 266 in domestic law, 49, 58 and non-prevention responsibility of host states, 383 right to, 266, 367, 385-392 and 'accumulation of events' doctrine, 372-374 and attacks by irregular forces, 375377,393 of Israel, 265 n. 69,363, 374 international opinion on, 385, 393
752
Index
Self-determination right to use force in pursuit of, 367, 368 Self-representation in international criminal trials rights to, 81-84, 130 n. 65, 347-348 11 September 2001 terrorist attacks, 382 Serajnowicz, Syzmon, 6 15 Serco Sodexho Defence Services (company), 35 Serornba, Athanase, 359 Serugendo, Joseph, 354 Seielj, Milan, 447 Se~elj,Voljislav, 346-348 Sexual abuse by UN peacekeeping forces, 263 crime of, 638 see also Rape Shab'a Farms area, 365 Shaw, M., 32 Sheridan, Greg, 43 3-434 al-Shibli, Hashim, 176, 177 n. 166 Sierra Leone UN Integrated Office in (UNIOSIL), 295 see also Special Court for Sierra Leone Silence, right to, 190 n. 24 SimiC, Blagoje, 340-34 1 Simma, Bruno, 370, 376, 386 SimonoviC, Konstantin, 447 $im.~id,Boban, 448,453 Singh, Jaswant, 396 Siniora, Fouad, 380 n. 115 Siopis, A,, 433 Sissons, M., 203 n. 70 Skakavac, Momir, 444,456 Soares. Carlos, 600 Soares, Marcelino, 597-598 Solana, Javier, 39 1 Soldiers child, 10 n. 29, 263 in Maoist Nepalese forces, 406 Moro Islamic Liberation Front policies, 553-554 prohibition on recruitment of, 17-18, 290 claims against governments by, 10 n. 27 conscripted, 9, 12, 16,24 death of investigations into, 10,614 responsibility of states for, 5-6, 10, 1315 states as a cause of, 6-9, 12, 24 obligations of states towards, 15-16, 1819,22,23-24
Soldiers, cont. prosecution of crimes committed by, 8 n. 22,609-6 10 reserve, 9 see also Armed forces Solomon Islands, Australian military in, 435 Somalia, UN Security Council Resolutions on, 295-296 Sovereignty of occupying power, 129, 141 Spain Organic Law of Judicial Power, Art. 23.4, 56 1 Penal Code, Art. 6 11.12, 56 1 prosecutions of terrorism, 562-565 of war crimesicrimes against humanity, 556-558, 558-561, 562, 565-567 Special Court for Sierra Leone agreements with Belgium, 463-464 with International Criminal Court, 3 14 with United Kingdom, 616 cases, 361 defence counsel office, 8 1-82 judges, 360 prosecutors, 75, 360 Registry, 360 Spying, 638 Srebenica Commission (Bosnia and Herzegovina), 440 StakiC, Milomir, 330-332 Stankovid, Radovan, 442,454 Starovlah family, 440-44 1 States as a cause of death of its own soldiers, 69, 12,24 hosting irregular forces or terrorists, 38 1, 382-383,385-387 jurisdiction of, over its soldiers, 12 obligations of breaches, 11,22,24, 59 due diligence, 382, 383, 387 in human rights law, 11- 16 in international humanitarian law, 1622,23 in occupation law, 139-140 n. 113, n. 114, 142 towards its armed forces and soldiers, 5, 10-11, 15-16. 18-19, 22, 23-24 organs of, 379 practice of, targetability of civilians in armed conflicts, 52-55, 56, 63
Index States, cont. responsibilitles of for contractors in armed conflicts, 33, 57-6 1,62 for death of its soldiers, 5-6, 10, 13-15 hosting terroristslirregular forces, 382383 for internationally wrongful acts, 379, 381-382
Stevens, John Paul, 624,63 1 Stockholm Intemational Peace Research Institute (SIRPJ), 260 Straw, Jack, 141 n. 123 Sucharev, Vjatjeslav Ivanovitj, 570 Sudan Darfur Peace Agreement (2006), 270 UN Security Council Resolutions on, 296-298, 616 Sufa, Anton Lelan, 589, 590 SunjiC, Dragan, 462-463 Supply contractors of armed forces, 34-35 Support or resources provided to terrorism, 632,638 Sutlers, 34 Swain, J., 177 n. 168 Sweden Human Rights Committee on violation of prohibition against torture by, 57 1572 Penal Code Ch. 2 sect. 5a, 568 sect. 7a, 570 Ch. 22, sect. 6, 567, 568, 569, 570 prosecution of crimes under international law, 567-57 1 Switzerland fight against terrorism and human rights, 575-576 hosting conference on cluster weapon systems, 573-574 implementation of Statute of International Criminal Court in, 577 International Humanitarian Law FactFinding Commission, 573 participation in peacekeeping forces, 576577 prosecution of crimes against humanity in, 577 ratifications of Convention on the Safety of United Nations and Associated Personnel, 574-575
753
Switzerland, cont. ratifications, cont. of Geneva Conventions Additional Protocol 111, 572-573 Syria, responsibilities for Hizbollah attacks on Israel. 377 n. 100 Tacaqui, Florenco, 588-589 Tael, Lazarus, 589
Taha Yaseen see Ramadan, Taha Yaseen Ta'if Accord (Lebanon, 1989), 365 Talabani, Jalal, 166 n. 88, 175, 176 Taliban, 53 TanaskoviL, Nenad, 460 Targeted killing policy of Israel against Palestinian militants, 8788, 111,264-270,497-498 and international humanitarian law, 8889,265-266 as military necessity, 99-100, 111-112, 113 Targeting of civilian objects, 632-633, 635 businesses, 28 1 of civilians in armed conflicts, 27-28,44, 47,51, 107, 109 n. 106,635 direct attacks, 109 indirect attacks, 48 'least harmful means' requirement, 8991,93-94,95-96,97,99, 111, 112113 Palestinian militants see Targeted killing policy state practice, 52-55, 56,63 Targeting policies of Coalition Provisional Authority in Iraq, 433-434 Tavares, Augusto Asameta, 597 Tavares, Lauren~o,590-59 1 Taylov, Charles, 75, 36 1, 6 16 Tennyson, Alfieed, Lord, 6 Terrorism, 363 n. 6,638 fight against conventions on, 474,525, 526,542 in Philippines, 55 1-552 in Switzerland, 575-576 UN Special Rapporteur on promotion and protection of human rights and hndamental freedoms while countering terrorism, 99- 100 in United States, 382-383, 632-633 see also 'war on terror' nuclear, global initiative against, 306-307
754
Index
Terrorism, cont. prosecutions in Italy, 523-527 in Spain, 562-565 and right to self-defence, 266 Terrorists Nepali Maoists as, 397 and protection of civilians, 89 states hosting of, 38 1 targeted killing of, 88, 99, 111 Thirty Years War, 28 al-Tikriti, Barzan Ibrahim, 130, 146 n. 142, 155 n. 10, 156, 174 execution of, 185,236 role in al-Dujail attack and arrests, 197, 198 witness on behalf of Ramadan, 2 12-213 al- Ebiti, Sabawi Ibrahim Hasan, 2 14 Timor-Leste armed conflict in, 580-58 1 Australian military in, 434-435, 584 Constitution, Section 9.1, 593 Law on Truth and Clemency (draft), 601 military assistance requested, 583-585 prosecution of war crimes, 585-601 Truth and Reconciliation Commission in, 578-583 UN Office in (UNOTIL), 298,585,586 n. 568 UN Transitional Administration of (UNTAET), Reg 2000115, 591 violations of international humanitarian law in, 58 1-583 Todovid, Savo, 348,45 1,459-460 Tokyo Charter (1946), 119 n. 10 Tokyo Declaration (World Medical Association), 279 Tonga, Australian military in, 435 Torture crime of, 59 1,604-605, 632, 636 of Guantanamo Bay detainees, 258,277280 prohibition of, 571-572 United Nations Convention against, 275, 278,486,623,625 see also Cruel, inhuman or degrading treatment Trafficking of humans, 530 of weapons, 309-3 10,530-53 1,539-540 Transnational crime, 529-53 1 Treachery, 637
Tribunals international ad hoc and allegations of victor's justice, 131132 Belgian law of cooperation with, 463464 defendants in, 126, 130 n. 65 indictments of, 206 influences on Iraqi High Tribunal, 207209,230 and international criminal law, 187 legitimacy of, 134 n. 91 rules of evidence, 142- 143 Tunisia, Israeli attacks on (1986), 386-387 Turkey, extradition of Kesbir sought from the Netherlands, 538-539 Tutsi ethnic group, 350-35 1 Al-Ubaidi, Khamees, 217 Uganda Amnesty Act (2000), 602-603, 604 application of UN Convention against Torture in, 604-605 hybrid organisations in, 468 International Criminal Court investigations in, 322-323 prosecution of war crimes in, 603-604 Refugees Act (2006), 605-606 United Arab Emirates, Arab Model legislation concerning ICC Statute, 426 United Kingdom acts Air Force, 1955,613 Armed Forces, 2006, 6 n. 11, 606-609, 610 Criminal Law, 1967, s. 3, 6 11 n. 659 Extradition, 2003, 616 Human Rights, l998,6 12 International Criminal Court, 2001, 607 War Crimes, 1991, 6 1 5 agreement with Afghanistan on handling of detainees, 6 14 bills The Hague Convention (Artifacts in War), 6 19 Waging War (Parliament's Role and Responsibility), 2006,622 colonisation of India, 29 Guantanamo Bay detainees from, 6 12 on Hizbollah's 12 July 2006 attack on Israel, 368-369 n. 40
Index United Kingdom, cont. and Iraq war inquests into deaths of soldiers, 10 n. 28.614 jurisprudence on legality of, 6 1 1-612, 613 rules of engagement for armed forces, 609-6 11 military criminal jurisdiction, 606-609 policies on arms trade, 6 1 8-6 19 on deployment of armed forces abroad, 621-622 on use of cluster bombs, 6 17-618 prosecution of war crimes in, 6 14-617 ratifications of Conventional Weapons Convention, Protocol on explosive remnants of war, 620 of Geneva Conventions, Additional Protocol I, 19 views on circumstances for Guantanamo Bay detainees, 620 on rules for armed conflicts, 62 1 United Nations Charter, 134 n. 9 1 Art. 39, 132 n. 76 Art. 51,265 n. 69,363, 366, 367 n. 32, 48 1 interpretations of, 370, 375, 376 Art. 103.613 convention on the safety of personnel of, 541,574-575 General Assembly Decisions, No. 6015 19 (2005), Illicit trade in small arms, 310 General Assembly Resolutions No. 471133 (1992), Protection of all persons from enforced disappearance, 27 1 n. 99 No. 60125 1 (2006), Human Rights Council, 299, 5 17 on Guantanamo Bay detainees, joint report, 275-280 High Commissioner for Human Rights agreement with Nepal, 399-400 amicus brief in Taha Yaseen Ramadan case, 239 High Commissioner for Refugees, field mission in Bosnia and Herzegovina, 440
755
United Nations, cont. High-level Panel on Threats, Challenges and Change (2004), report, 363 n. 6, 367 n. 34 Human Rights Committee on Nepal, 404 n. 49 on Swedish expulsion of two Egyptians, 571-572 Human Rights Council, 299 on Israel-Lebanon war 2006, 370, 5 17518 on Israeli separation barrier, 5 19 Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism, 99- 100 missionslpeacekeeping forces in Congo Democratic Republic, 263 in EritreafEthiopia (UNMEE), 290-29 1 in Iraq (UNAMI), 292 Irish participation in, 488-489 in Lebanon (UNIFIL), 292,294,485, 522-523 in Liberia (UNMIL), 294-295 in Nepal (UNMIN), 40 1 in Western Sahara (MINURSCO), 298 Secretary-General on children in armed conflicts, 262-263 on Hizbollah's 12 July 2006 attack on Israel, 368, 384 n. 139 on small arms and illicit trade, 309-3 10 Special Representative on Nepal, 402 n. 40 on violence against women in armed conflicts, 26 1-262 Security Council, on 'accumulation of events' doctrine, 373,374 Security Council President on rule of law, 298-299 on small arms and illicit trade, 3 10 n. 279 Security Council Resolutions No. 733 (1992), Somalia, 295 No. 75 1 (1992), Somalia, 295 No. 808 (1 993), Tribunal (Former Yugoslavia), 568-569 No. 827 (1993), Tribunal (Former Yugoslavia), 132, 568-569 No. 1320 (2000), Eritrea and Ethiopia, 291 No. 1325 (2000), Women and peace and security, 26 1 No. 1343 (2001), Liberia, 537
756
Index
United Nations, cont. Security Council Resolutions, cont. No. 1368 (200 I), Threats to international peace and security caused by terrorist acts, 373, 375, 376 No. 1373 (2001), Threats to international peace and security caused by terrorist acts, 373, 375, 376, 383 No. 1408 (2002), Liberia, 537 No. 1410 (2002), Timor-Leste, 585 n. 565 No. 1430 (2002), Eritrea and Ethiopia, 29 1 No. 1480 (2003), Timor-Leste, 585586 n. 565 No. 1483 (2003), Iraq, 131, 132-133, 134 No. 1493 (2003), Congo Democratic Republic, 288,289,290 No. 1511 (2003), Iraq, 134 No. 1521 (2003), Liberia, 294,295 No. 1533 (2004), Congo Democratic Republic, 288,289-290,318 No. 1534 (2004), International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, 327 No. 1540 (2004), Non-proliferation of weapons of mass destruction, 306 No. 1546 (2004), Iraq and Kuwait, 131 n. 71,292, 613 No. 1559 (2004), Middle East, 292, 293,365,381-382,388,390,517 No. 1572 (2004), Ivory Coast, 286-287 No. 1573 (2004), Timor-Leste, 586 n. 565 No. 1591 (2005), Sudan, 296,616 No. 1593 (2005), Sudan, 616 No. 1596 (2005), Congo Democratic Republic, 288,289-290 No. 1609 (2005), Ivory Coast, 287 No. 1612 (2005), Children and armed conflict, 262 No. 1616 (2005), Congo Democratic Republic, 288 n. 190 No. 1621 (2005), Congo Democratic Republic, 290 No. 1635 (2005), Congo Democratic Republic, 290 No. 1640 (2005), Eritrea and Ethiopia, 29 1 No. 1643 (2005), Ivory Coast, 286,287
United Nations, cont. Security Council Resolutions, cont. No. 1649 (2005), Congo Democratic Republic, 289-290 No. 1652 (2006), Ivory Coast, 286 No. 1654 (2006), Congo Democratic Republic, 288 No. 1655 (2006), Middle East, 292 No. 1656 (2006), Georgia, 29 1 No. 1657 (2006), Ivory Coast, 286 No. 1661 (2006), Eritrea and Ethiopia, 290 No. 1662 (2006), Afghanistan, 284 No. 1663 (2006), Sudan, 296 No. 1664 (2006), Middle East, 292 No. 1665 (2006), Sudan, 296 No. 1666 (2006), Georgia, 291 No. 1667 (2006), Liberia, 294 No. 1669 (2006), Congo Democratic Republic, 285,288 No. 1670 (2006), Eritrea and Ethiopia, 290 No. 1671 (2006), Congo Democratic Republic, 288,289 No. 1672 (2006), Sudan, 296 No. 1673 (2006), Non-proliferation of weapons of mass destruction, 306 No. 1674 (2006), Protection of civilians in armed conflict, 260-26 1 No. 1675 (2006), Western Sahara, 298 No. 1676 (2006), Somalia, 295 No. 1677 (2006), Timor-Leste, 298 No. 1678 (2006), Eritrea and Ethiopia, 29 1 No. 1679 (2006), Sudan, 296 No. 1680 (2006), Middle East, 292, 293 No. 1681 (2006), Eritrea and Ethiopia, 29 1 No. 1682 (2006), Ivory Coast, 286 No. 1683 (2006), Liberia, 294 No. 1686 (2006), Middle East, 292 No. 1687 (2006), Cyprus, 287-288 No. 1689 (2006), Liberia, 294-295 No. 1690 (2006), Timor-Leste, 298, 585 No. 1692 (2006), Burundi, 285 No. 1693 (2006), Congo Democratic Republic, 288 No. 1694 (2006), Liberia, 295 No. 16% (2006), North Korean nuclear weapons program, 303
Index United Nations, cont. Security Council Resolutions, cont. No. 1696 (2006), Non-proliferation, 305-306 No. 1697 (2006), Middle East, 293 No. 1698 (2006), Congo Democratic Republic, 288 No. 1700 (2006), Iraq, 292 No. 1701 (2006), Middle East, 293, 370, 376-377, 384,493, 522, 523 No. 1702 (2006), Haiti, 291 No. 1703 (2006), Timor-Leste, 298, 585 No. 1704 (2006), Timor-Leste, 298, 585 No. 1706 (2006), Sudan, 296-297 No. 1707 (2006), Afghanistan, 284 No. 1708 (2006), Ivory Coast, 286 No. 1709 (2006), Sudan, 297 No. 1710 (2006), Eritrea and Ethiopia, 29 1 No. 171 1 (2006), Congo Democratic Republic, 290 No. 1712 (2006), Liberia, 295 No. 1713 (2006), Sudan, 297 No. 1714 (2006), Sudan, 297-298 No. 1716 (2006), Georgia, 29 1 No. 1718 (2006), North Korean nuclear weapons program, 304 No. 1719 (2006), Burundi, 285-286 No. 1720 (2006), Western Sahara, 298 No. 1721 (2006), Ivory Coast, 287 No. 1722 (2006), Bosnia and Herzegovina, 285 No. 1723 (2006), Iraq, 292 No. 1724 (2006), Somalia, 295-296 No. 1726 (2006), Ivory Coast, 287 No. 1727 (2006), Ivory Coast, 287 No. 1731 (2006), Liberia, 295 No. 1734 (2006), Sierra Leone, 295 No. 1735 (2006), Threats to intemational peace and security caused by terrorist acts, 284 No. 1736 (2006), Congo Democratic Republic, 290 No. 1737 (2006), Non-proliferation, 306 No. 1738 (2006), Protection of civilians in armed conflict, 264 Working Group on Enforced or Involuntary Disappearances, 271 n. 100
757
United Nations Code of Conduct for Law Enforcement Officials, 1979 Art. 3,98 n. 55 United Nations Convention for the Suppression of Acts of Nuclear Terrorism, 2005,474 ratification by New Zealand, 542 United Nations Convention for the Suppression of Terrorism, 1999
Art. 2(b), 525, 526 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 application in torture cases in Uganda, 604-605 Art. 3,275,278 Indian ratification of, 486 US reservation to, 623,625 United Nations Convention against Transnational Organised Crime Italian ratification of, 529-53 1 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, 539540 United Nations Environment Programme (UNEP), on post-conflict environmental assessment in Lebanon, 5 18 United Nations Force and Firearms Principles, 1990, pr. 5 and 9, 98n. 55 United Nations Guiding Principles on Internal Displacement (UNGPID), 549 United Nations Principles of Medical Ethics, 279 United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons, 550-55 1 United States acts Department of Defense Appropriations, 2006, 4 1005,250 n. 10 Detainee Treatment, 2005,250,622623,625-626 5 2 and 3,256 n. 37 Section 1403,623 Military Commissions, 2006, 255-259, 274,437,438,629-640 Section 3 $948d, 257 5 948q-S, 258 5 949a, 258 5949d, 258-259 4 950v., 258
758
Index
United States, cont. acts, cont. Military Commissions, cont. Section 6, 259 Section 7,256 n. 37 War Crimes, 1996, 624-625 Amendment 2006,625,626-629 Administrative Review Boards, 276 Army Field Manual, 128 n. 50,138 n. 108 Behavioural Science Consultation Teams (BSC), 279 civilian contractors in Iraq, 29 Combatant Status Review Tribunals (CSRTS), 257-258,276 Constitution, 623 Department of Defense Directive 23 10.0 1E Dept. of Defense Detainee Program. 259, 624 Directive 3 115.09 Intelligence Interrogations, 623 Instruction 23 10.08E, Medical Program Support for Detainee Operations, 279 Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces, 279 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (Military Order), 249 extradition treaty with Netherlands, 537538 extraordinary rendition program, 273-275 holding Afghanistan responsible for 11 September 2001 terrorist attacks, 382 inquiry into deaths of two journalists in Iraq, 559-560 military commissions trials against 'war on terror' suspects, 250,256-259, 277 occupation law principles in, 128, 137 n. 103, 138 n. 108 ratification of International Convention on the Rights of the Child, Optional Protocol, 19 n. 72 State Department, on human rights situation in Israeli occupied territories, 519 Uniform Code of Military Justice, 63 1632 amendments, 639-640 'war on terror', Hamdan case, 249-255
Universal jurisdiction doctrine, in Spain, 565,566 Unlawful acts by contractors, 57, 58-59 Unlawful belligerency, 63 1 Unlawful combatants, 42, 55, 57-58 n. 133, 266,625 Palestinian militants as, 89,99, 267, 268 prosecution of, 630-63 1,632-633 status of, 268 in Israeli law, 509-5 1 1 in US law, 629-630, 633 and 'war on terror', 252 n. 21, 257 Unlawful reprisals, 373 n. 74 Unprivileged combatants, 42-43, 55, 57-58 see also Unlawful combatants Uriribe Vklez, Alvaro, 472 VasiC, Goran, 446 Vasiljkovic, Dragan, 43 1-433 Venezuela, International Criminal Court investigations in, 3 12 Veselin, cantar, 447 Victims compensation/justice for in Algerian conflict, 424 in Colombian armed conflict, 472-473 for human rights violations of Marcos regime in Philippines, 552-553 and indictments in Miloiievic case, 73-74 in Iraqi trials, 191 - 192 participation of, at International Criminal Court proceedings, 3 17,3 19 of war, women, 444 Victor's justice, 131- 132 Violence against women, 261 -262 of Palestinians against Israel, 542, 543 sectarian and political, in Iraq, 195-196, 24 1-242 Volunteer corps, 32 Volunteer soldiers, 8, 16 VujanoviC,Milanko, 455 VukoviC,Radmilo, 460-46 1 Walsh, RodoIfo, 562 Wanton destruction, 335 War crimes criminal responsibility for, 8 n. 22, 2 1, 283 definitions of, 45,624, 63 1 and excessive use of force, 111 n. 113 extradition on basis of, 43 1-433, 616 media coverage, 334
Index War crimes, cont. prosecutions of in Bosnia and Herzegovina, 44 1 -449, 45 1-463 in Canada, 464-465,470-47 1 in Lithuania, 533-535 In the Netherlands, 537 in New Zealand, 540-541 post-Second World War, 103 n. 74, 112, 149 in Spain, 558-56 1 , 567 in Sweden, 567-571 in Timor-Leste, 585-601 in Uganda, 603-604 in United Kingdom, 6 14-6 17 see also Humanity, crimes against, prosecutions of suspects of, ICRC access to, 439 'War on terror', 249, 382 n. 130 as armed conflict, 253-254, 257,278 and Geneva Conventions, 250-255 US military proceedings against suspects of, 250, 256-259, 277 Warfare asymmetric, 27, 39 by Hizbollah, 5 12 linear notions of, 26 privatisation of, 28-29, 35 n. 39,46, 62 Wars laws of, 265 n. 69,266 military objectives of, 101-102, 104 remnants of, protocol on, 309,480, 620 see also Armed conflicts The Washington Post, 273 n. 107 Weapons biological, Convention on, 1972, 307-308 cluster bombs, 479-480, 573-574,6 1761 8 conventional, convention on prohibitions or restrictions on use of, 96 n. 48, 309,550,574,620 landmines, 536, 549-550 maintenance of, by contractors, 46 nuclear, non-proliferation of, 302, 305306,484-485 supplied to Liberia, 537 trade and industry, 282-283,550-551 British policies on, 61 8-61 9 French policies on, 479 trafficking of, 309-3 10, 530-53 1, 539540 Wedgwood, R., 3 86
759
West Bank access by residents to their cultivated lands, 506-507 entry of residents into Israel, 498-499 Israeli construction of separation barrier on territory of, 544-545 Israeli discriminatory policies, 5 12-5 13, 514-517 Israeli freedom of movement directives, 496 Israeli military operations in, 495 legality of Israeli Ministry of Defence outposts, 507-508 punitive home demolitions by Israel, 543544 separation of prayer areas in Cave of the Patriarchs (Hebron), 500 Western Sahara proceedings in Spain for crimes against humanity by Moroccan officials, 566 UN Mission for Referendum in (MINURSO), 298 Wierda, M., 131 n. 73,203 n. 70 Wilcox, Murray, 430 Willful killing convictions Saddam Hussein, 163, 164- 165 Taha Yaseen Ramadan, 22 1,229 as crime against humanity, 163 n. 70, 182 n. 3 Winograd Commission (Israel), interim report, 392 Wiranto, 595-596 Witnesses at Saddam Hussein's execution, 178 in al-Dujail case, 2 10,2 12-2 16 see also Complainants in Miloievic case, 79-80 in Thomas Lubanga case, 320 Woljord, Phillip, 558,560 Women in combat roles in armed forces and police, 540 victims of war, 444 violence against, 26 1-262 Women's Initiative for Gender Justice, 3 19 World Bank on Nepal, 399 Worth, R.E, 124 n. 35 Wrongful acts, 1I1 n. 1 1 3 responsibility of states for, 379, 381-382
760
Index
Yastrzhembsky,Sergei, 535 Yoo, John, 249 n. 5 Yoo Memorandum, 249 n. 5,259 n. 50 ZahiroviC, Vernes,455-456 ZariC, ~ e G k o459 ,
ZelenoviC, Dragan, 326,457 Zentai, Charles, 433 Zhang, Kunlun, 469-470 ZigiC, Zoran, 326-327,335-336 ~ivanoviC, Zoran, 459 AI-Zubeidi, Adel, 196
I S B N 901
42b
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