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Published online by Cambridge University Press: 13 January 2010
The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established on 11 February 1993 and 8 November 1994 respectively by the Security Council to prosecute persons responsible for flagrant violations of international humanitarian law. The aim of the Security Council was to put an end to such violations and to contribute to the restoration and maintenance of peace, and the establishment of the ad hoc tribunals undoubtedly represents a major step in that direction. Moreover, it sends a clear signal to the perpetrators and to the victims that such conduct will not be tolerated.
Marie-Claude Roberge is a member of the ICRC's Legal Division. The author, who is a Canadian citizen, previously worked in various capacities for the Canadian Government. An expert in international humanitarian law, she also worked in the Office of the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda at The Hague.
1 This article in no way claims to cover all aspects of these crimes or the decisions rendered on them. Only examples have been given in order to illustrate the difficulties that might be encountered in the prosecution for genocide and crimes against humanity.
2 Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993), S/25704, para. 34. A more extensive approach to the choice of applicable law was, however, taken by the Security Council with regard to the ICTR. The ICTR included within its subject-matter jurisdiction international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime (see Report of the Secretary General pursuant to paragraph 5 of Security Council Resolution 955 (1994), S/1995/134).
3 Preamble, Hague Convention No. IV respecting the Laws and Customs of War on Land. 1907.
4 Cited in Schwelb, E., “Crimes against humanity”, British Year Book of International Law. vol. 23. no. 8, 1949, p. 181.Google Scholar
5 The Commission was established to inquire into the responsibilities of the German Empire and its Allies under international law for acts committed during World War I.
6 However, as a result of certain objections, no mention of the laws of humanity was made in the Peace Treaties of Versailles, St-Germain-en-Laye, Trianon and Neuillysur-Seine; only acts committed in violation of the laws and customs of war were referred to.
7 Schwelb, E., op. cit. (note 4), p. 183.Google Scholar
8 Soon after the signature of the London Charter, an agreement was concluded by the four Governments in Berlin to clarify the text of Article 6(c) and resolve the discrepancies found between the equally authentic Russian, English and French texts. Accordingly, alterations were made to the two former texts, to clarify the intention of these Governments to the effect that the meaning of crimes against humanity in the Charter was limited to such crimes committed in connection with any crimes within the jurisdiction of the Tribunal.
9 No further trials were to be conducted by the International Military Tribunal and the task of prosecuting and punishing the remaining suspected war criminals was left to each occupying power. Levie, Howard S., Terrorism in war: The law of war crimes, Oceana Publications, New York. 1993, p. 71.Google Scholar
10 However, these differences could arguably have been absorbed by the expression “or other inhumane acts” in the Charter.
11 United States v. Ohlendorf et al., Case No. 9, IV CCL Trials (1947), p. 49 Google Scholar. Same decision in United States v. Altstoelter et al. (Justice Case), Case No. 3, III CCL Trials (1947), p. 974. However, such an interpretation was not unanimously applied; see findings in United States v. von Weizsaecker et al. (Ministries Case), Case No. 1 I. XIII CCL Trials (1948), p. I 12, and in United States v. Flick et al. (Flick Case), Case No. 5, VI CCL Trials (1947), p. 1213.
12 The legal status of the CCL, whether considered international, national, or even hybrid law, has been discussed by a number of authors as well as in the Justice Case. Bassiouni clearly expresses this ambiguity in the following terms: “The inconsistency is obvious, since it [the CCL] was purported to be a national law applicable only territorially but its source deriving from international law, and its formulation and enactment was by the victorious Allies acting pursuant to their supreme authority over Germany by virtue of that country's unconditional surrender.” Bassiouni, C., Crimes against humanity in international criminal law, Martinus Nijhoff Publishers, Dordrecht, 1992, p. 36 Google Scholar. See also Schwelb, , loc. cit. (note 7), p. 218.Google Scholar
13 District Court of Jerusalem, Attorney General of the Government of Israel v. Eichmann, in Israel Law Review, vol. 36, no. 5, 1961. For a more complete discussion of the Eichmann case, see Baade, “The Eichmann trial: Some legal aspectsé, Duke Law Journal, 1961, p. 400 CrossRefGoogle Scholar; Fawcett, , “The Eichmann Case”, British Year Book of International Law. vol. 38, 1962, p. 181 Google Scholar; Schwarzenberger, , “The Eichmann judgement”. Current Legal Problems, vol. 15, 1962, p. 248.CrossRefGoogle Scholar
14 Judgement of 20 December 1985, published in Journal de droit international, 1986, pp. 129–142 Google Scholar, cited in Wexler, L.S., “The interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and back again”, Colombia Journal of International Law, vol. 32, 1994, p. 342.Google Scholar
15 Demjanjuk v. Petrovsky, 776 F. 2d 571 (6th Circ. 1985)Google Scholar. cert, denied, 475 U.S. 1016 (1986).
16 The Court of Appeals addressed the definition of crimes against humanity only as defined in the 1950 Israeli statute, the Nazis and Nazi Collaborators (Punishment) Act. This was done in order to satisfy the requirement of double criminality. The Court concluded that although the crime was not described in the same way in both countries — since in the US the act of unlawfully killing one or more persons with the requisite malice is punishable as murder, not as a crime against humanity or mass murder —, it was enough that the particular act for which extradition was sought be criminal in both.
17 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, 2 October 1995, para. 141.
18 Reservations to the Convention on Genocide Case (Advisory opinion), ICJ Reports, vol. 15, 1951, p. 23.Google Scholar
19 Barcelona Traction Case (Belgium v. Spain), ICJ Reports, vol. 3, 1970. paras. 33 and 34.Google Scholar
20 1996 ILC Report, UN doc. A/51/10, p. 88.
21 “…thus, one has to ask whether it is logical to have a legal scheme whereby intentional killing of a single person can be genocide and the killing of millions of persons without intent to destroy the protected group in whole or in part is not an international crime? Yet, that is the present situation.” Bassiouni, C., loc. cit. (note 12), p. 473.Google Scholar
22 Bussiouni, C., International criminal law: A draft International Criminal Code, Sijthoff and Noordhoff, Alphen aan den Rijn, 1980, p. 73.Google Scholar
23 Webb, J., “Genocide Treaty — Ethnic cleansing: substantive and procedural hurdles in the application of the Genocide Convention to alleged crimes in the former Yugoslavia”, Georgia Journal of International & Comparative Law, no. 377, 1993, p. 391.Google Scholar
24 Prosecutor v. Mladic and Karadsic, Review of the indictments pursuant to Rule 61 of the Rules of procedure and evidence, Case No. IT-95-5-R61, 11 July 1996, paras. 92 and 94.
25 Webb, J., loc. cit. (note 23), p. 393.Google Scholar
26 1996 ILC Report, p. 91.