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2. ‘Afghanistan joins international court’, Associated Press, 10 02 2003Google Scholar.
3. ‘Afghan kids with realistic replica guns a serious concern for Canadian Forces’, Canadian Press, 30 11 2003Google Scholar.
4. ‘Different wars, different postwars’, NY Times online, 13 07 2003Google Scholar.
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9. Information and commentaries provided by Professor Kamal Filali, Professor of International Law, University of Constantine, Algeria.
10. Art. 8 of Presidential Decree 01/71.
11. Ibid., Art. 8(1).
12. Ibid., Art. 8(2).
13. UN Press Release, April-May 2003.
14. ‘Ksentini dévoile les grandes lignes du rapport sur les disparus’, in Le Jeune Indépendant, 12 05 2004Google Scholar <http://www.LeJeuneIndependant.dz>.
15. Ibid.
16. ‘Algeria: country report on human rights practices’, released by the Bureau of Democracy, Human Rights and Labour, 4 March 2002, p. 6.
17. Information and commentaries by Professor José Alejandro Consigli, Head of the Rectorate of the Austral University, Buenos Aires, and Gabriel Pablo Valladares, Legal Advisor on the ICRC Office for Argentina, Brazil, Chile, Paraguay and Uruguay (Advisory Service on IHL on the International Committee of the Red Cross) and Invited Professor of IHL in the Magister in Human Rights at the National University of La Plata, Argentina), and Kevin Afghani, BA, University of Texas at Dallas; JD, Tulane University; LL.M., Universiteit van Amsterdam.
18. ‘Argentina to probe its Nazi past’, NY Times online, 25 06 2003Google Scholar.
19. Law No. 23.521 of 4 June 1987.
20. Law No. 23.492 of 23 December 1986.
21. See O'Shea, A., Amnesty for Crime in International Law and Practice (The Hague, Kluwer Law International 2002) p. 58Google Scholar.
22. ‘Argentine judges reopen cases against military’, NY Times online, 1 09 2003Google Scholar; ‘Argentina nears repeal of “dirty-law” amnesty’, in The International Herald Tribune, 21 08 2003Google Scholar.
23. ‘Argentina to adhere to UN's 1968 war crimes convention’, Agence France-Presse, 12 08 2003Google Scholar.
24. ‘France to seek “blond angel of death” extradition’, Reuters, 27 07 2003Google Scholar.
25. Kevin Afghani, B.A., University of Texas at Dallas; J.D., Tulane University; LL.M., Universiteit van Amsterdam.
26. MERCOSUR, the South American common market, consists of Argentina, Brazil, Paraguay and Uruguay. For more information, see <http://www.guia-mercosur.com>.
27. Information and commentaries by Tim McCormack, Australian Red Cross Professor of International Humanitarian Law, University of Melbourne, Foundation Director of the Asia-Pacific Centre for Military Law and General Editor, Yearbook of International Humanitarian Law.
28. (1998)27 AAR 482.
29. 89 DLR (4th) 173 (SCC, 1992).
30. 107 DLR (4th) 424 (SCC, 1993).
31. 28 CR (4th) 265 (SCC, 1994).
32. (1998) 27 AAR 482 at 497–500.
33. [1998] AATA 948.
34. [2000] AATA 128.
35. [2000] AATA 983.
36. [2002] AATA 365.
37. Arquita v. Minister for Immigration and Multicultural Affairs [2000] FCA 1889.
38. Following Re SRNN and Department of Immigration and Multicultural Affairs [2000] AATA 983. See Correspondents' Reports, 3 YIHL (2000) pp. 418–419Google Scholar.
39. Information and commentaries by Dr Thomas Desch, Federal Ministry of Defence, Vienna, and Mag. Peter Kustor, Federal Chancellery, Vienna.
40. The original version of the agreement can be found in Correspondents' Reports, 3 YIHL (2000) p. 422Google Scholar.
41. The Federal Law Gazette is also available at <http://www.ris.bka.gv.at>.
42. Parliamentary documents are also available at <http://www.parlament.gv.at>.
43. See Correspondents' Reports, 4 YIHL (2001) p. 449Google Scholar.
44. See Correspondents' Reports, 3 YIHL (2000) p. 422Google Scholar.
45. ‘Bangladesh army deaths amnesty’, BBC News online, 9 01 2003Google Scholar.
46. Information and commentaries by Eric David, Professeur ordinaire, Free University of Brussels.
47. See the reports on Belgium, 4 YIHL (2001) pp. 454–455Google Scholar and 5 YIHL (2002) pp. 445–451Google Scholar.
48. In Le Soir, 19 March 2003; in La Libre Belgique, 19 March 2003.
49. Keesing's Record of World Events (1991) p. 37984Google Scholar.
50. In Le Monde, 8 April 2003.
51. 108th Cong., 1st Sess. (2003).
52. In Moniteur belge (Belgian official journal), 7 May 2003.
53. For more details on the questions raised by the law, see David, E., ‘La compétence universelle en droit belge’, 64 Annales de droit de Louvain: revue trimestrielle de droit belge (2004) pp. 83–150Google Scholar.
54. In La Libre Belgique, 14 May 2003.
55. Ibid., 21 May 2003.
56. Ibid., 12, 16, 18, 22 and 23 June 2003.
57. In Moniteur belge, 7 August 2003.
58. See the report on Belgium, 5 YIHL (2002) pp. 445–447Google Scholar.
59. Some of these rules raise problems which are too complex to be dealt with here; the interested reader is referred to the study by David, supra n. 53.
60. Ibid., §§ 13, 15, 16 and ref.
61. For the history of the case, see the reports on Belgium, 4 YIHL (2001) pp. 455–457Google Scholar and 5 YIHL (2002) p. 447Google Scholar.
62. (Cass., 27 May 1971), JT (1971) p. 471Google Scholar.
63. (Cass., 17 December 2003) <http://www.juridat.be/juris/jucf.htm>.
64. ‘RS government set up a commission for establishing the truth of what happened in Srebrenica’, Tanjug, 16 December 2003; ‘Commission for the investigation of the Srebrenica massacre formed’, in Liberation, 17 December 2003.
65. ‘Financing local justice’, TOL, 3 November 2003 <http://www.tol.cz/look/TOL/searchall.tpl>; ‘Bosnia gets war crimes court’, BBC News online, 31 October 2003; ‘Bosnia gets $18.4M for war crimes court’, Associated Press, 30 October 2003.
66. Information provided by Dimpho Mogami, Principal State Counsel Attorney General's Chambers, Gaborone, Botswana.
67. ‘Burundi govt., main rebel group sign peace deal’, Reuters, 8 10 2003Google Scholar.
68. 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.
69. Sixth Annual Report, ‘Canada's war crimes program, activities for the period of April 1, 2002 to March 31, 2003’.
70. Ibid.
71. ‘Process needed so countries know when to intervene to protect human rights: PM’, CBC News (Canada), 13 07 2003Google Scholar.
72. Report on Canada, 4 YIHL (2001) p. 474Google Scholar.
73. Ibid., 4 YIHL (2001) pp. 474–475Google Scholar.
74. Ibid., 4 YIHL (2001) p. 475Google Scholar.
75. Sixth Annual Report, supra n. 69.
76. See the report on Canada, 5 YIHL (2002) p. 466Google Scholar.
77. See Correspondents' Reports, 3 YIHL (2000) p. 443Google Scholar for an overview of the case law in this area.
78. Harb, Alwan, and Salami.
79. Aseel Khan.
80. Rojas.
81. Akanni (Kabir).
82. Kathiravel.
83. Chowdhury.
84. Cirilo Ruiz.
85. Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 FC 306 (CA).
86. See Correspondents' Reports, 3 YIHL (2000) p. 446Google Scholar; see also decisions by the Federal Court, Trial Division (Docket: IMM–5946–98), 10 May 2001 <http://decisions.fct-cf.gc.ca/fct/2001/2001fct460.shtml> and by the Federal Court of Appeal (A–316–01), 8 September 2003 <http://decisions.fca-caf.gc.ca/fca/2003/2003fca325.shtml>.
87. See Schabas, W.A., ‘Musema: decision of the Immigration and Refugee Board (Appeal Division), 6 November 1998’, in Correspondents' Reports, 2 YIHL (1999) pp. 345–346Google Scholar.
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96. (Docket: DES–5–02) <http://decisions.fct-cf.gc.ca/fct/2003/2003fct43.shtml>.
97. (Docket: DESA–1–03) <http://decisions.fct-cf.gc.ca/fct/2003/2003fca246.shtml>.
98. See summary of events in R v. Ribić (Docket: 99–G10018), 16 June 2004, para. 10 <http://www.canlii.org/on/cas/onsc/2004/2004onsc10007.html>.
99. See Correspondents' Reports, 3 YIHL (2000) pp. 445–446Google Scholar.
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101. See <http://www.bailii.org/cgi-bailii/disp.pl/uk/cases/UKHL/1999/17.html?query=%7e+pinochet>. See for commentary Warbrick, C. et al. , ‘The Pinochet cases in the United Kingdom’, 2 YIHL (1999) pp. 91–117CrossRefGoogle Scholar.
102. ‘Face to face with those he tormented: war crimes trial for tyrant of Chad’, in The Independent, 17 10 2003Google Scholar <http://news.independent.co.uk/world/africa/story.jsp?story=454157>.
103. ‘Chile court rules out new Pinochet rights trial’, Reuters, 27 08 2003Google Scholar; Jonas, S., ‘The ripple effect of the Pinochet case’, 11 Human Rights Brief (No. 3, 2004) pp. 36–38Google Scholar <http://www.globalpolicy.org/intljustice/universal/2004/0524ripple.htm>-.
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105. ‘Former chief of secret police is indicted by judge in Chile’, Reuters, 16 05 2003Google Scholar.
106. Information and commentaries by Rafael Prieto Sanjuán, Professor of Public International Law at the Universities of Andes and Xaverian of Bogotá, Director of the Centre of Socio-Juridical Researches of Catholic University of Colombia.
107. See the 2004 report in 7 YIHL (2004), forthcomingGoogle Scholar.
108. Ley 684 de 2001 ‘por la cual se expiden normas sobre la organización y funcionamiento de la seguridad y defensa nacional y se dictan otras disposiciones’, published in Diario Oficial No. 44.522, 18 August 2001, p. 1. Declared unconstitutional by Sentence C–251/02 of 11 April 2002.
109. See ICRC News 02/47, 21 November 2002 <http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/ODACD2DAEE2FA61F41256C78003DD0D4>.
110. See Circular No. 2064 MDDHH–725 of 4 March 2003, Ministry of National Defence Policy for the Protection of Human Rights of Indigenous Communities; Transitory Guideline No. 14 of 5 September 2003, Training Workshops on Indigenous Legislation for the Armed Forces and National Police; Guideline 09 No. 9175 of 8 July 2003: Ministry of National Defence Policy for the Protection of Human Rights of Union Members and Human Rights Defenders; Transitory Guideline No. 08 of 13 June 2003, Armed Forces and National Police Training Programme on Protection and Prevention in Situations of Forced Displacement by Violence; Transitory Guideline No. 22 of 23 October 2003, ‘What more can we do in human rights and international humanitarian law?’ Project.
111. See Correspondents' Reports, 3 YIHL (2000) p. 453Google Scholar.
112. In this area of action, the ‘Help and Recuperation Operation’ project, costing Col.$130 billion, was signed by the Colombian Institute for Family Welfare (ICBF), the Social Solidarity Network, the Colombian International Cooperation Agency (ACCI) and the World Food Programme (WFP), whose principal objective is to provide emergency assistance to the displaced population. The resources invested by the ICBF to improve the situation of displaced children in Colombia amounted to Col.$2,863 million by September 2003.
115. See the report of the United Nations High Commissioner for Human Rights, UN Doc. E/CN.4/2003/13, 24 February 2003, paras. 28–29, 34–35, 43, 57, 75 and 105.
116. Law No. 782 of 2002 allows for the creation of a special committee with regard to medical missions.
117. ‘Croatia demands 15 billion euros war damages from Yugoslavia’, b92.net, 24 January 2003.
118. ‘Presidents apologise over Croatian war’, BBC News online, 10 09 2003Google Scholar <http://news.bbc.co.uk/2/hi/europe/3095774.stm>.
119. ‘Political parties in Croatia differ on president's apology for war crimes’, BBC News online, 12 09 2003Google Scholar.
120. ‘Croat general guilty of executions’, BBC News online, 24 March 2003 <http://news.bbc.co.uk/1/hi/world/europe/2881049.stm>; ‘Croat general jailed for war crime’, CNN.com/World, 24 March 2003 <http://edition.cnn.com/2003/WORLD/europe/03/24/croatia.trial/>; ‘View from The Hague: trial against Mirko Norac’, ICTY Outreach, 2 June 2004 <http://www.un.org/icty/bhs/outreach/articles/eng/article-040602e.htm>.
121. ‘Two Croats on trial for 1991 massacre of Serbs’, Agence France-Presse, 9 06 2003Google Scholar.
122. US AID Field Report, March 2003 <http://www.usaid.gov/hum_response/oti/country/congo/rpt0303.html>.
123. Information and commentaries by Peter Otken, LL.M., Special Assistant to the Judge Advocate General, Copenhagen.
124. See Correspondents' Reports, 5 YIHL (2002) p. 483Google Scholar.
125. The Serious Crimes Unit was established by the United Nations Transitional Authority in East Timor (UNTAET) pursuant to SC Res. 1272 (1999).
126. See the Indonesia report, infra, p. 494.
127. The verdict in the case against Damiri was heavily criticised by Human Rights Watch for being the result of a sham process <http://www.hrw.org/press/2003/08/indonesia080503.htm>.
128. All the judgements and indictments relate to cases dealt with by the Special Panel for Serious Crimes of the Dili District Court, and are available online at <http://www.jsmp.minihub.org>.
129. JSMP Press Release, 3 December 2002 <http://www.jsmp.minihub.org/News/X%20%2003N_12_02.pdf>.
130. The case was reported in 4 YIHL (2001) p. 494Google Scholar, and the part of the judgement concerning the applicable law is reprinted at p. 696 of the same volume.
132. JSMP Serious Crimes Unit Information Release, 10 December 2003 <http://www.jsmp.minihub.org/News/dec03/10dec_scu_Marcelino_and_Damiao_eng.htm>.
133. ‘France to seek “blond angel of death” extradition’, Reuters, 27 07 2003Google Scholar.
134. ‘UN to vote on Bunia force’, BBC News online, 28 05 2003Google Scholar; ‘French troops arrive in Congo war zone’, Reuters, 6 06 2003Google Scholar; ‘French-led force to tackle tip of Congo's war’, Reuters, 12 06 2003Google Scholar.
135. ‘Chirac denies secret deal with Serbs’, United Press International, 11 07 2003Google Scholar; ‘Milosevic trial evidence alleges Jacques Chirac offered to shield Serb general’, Associated Press, 10 07 2003Google Scholar; ‘Chirac accused of making deal with Mladic’, in The Daily Telegraph, 12 07 2003Google Scholar <http://www.smh.com.au/articles/2003/07/11/1057783356706.html>.
136. ‘French general's torture fine upheld’, BBC News online, 26 04 2003Google Scholar <http://news.bbc.co.uk/1/hi/world/europe/2977681.stm>.
137. Information and commentaries provided by Gregor Schotten, Desk Officer in the Political Department of the Federal Foreign Office, Berlin. The views expressed in these commentaries are those of the author alone.
138. For an analysis of this judgement, see Institute of International Law of Peace and Armed Conflict, Bochum University (IFHV), BOFAXE 267 E by Noelle Quénivet.
139. Full text reprinted in 42 ILM (2003) pp. 1027 et seqGoogle Scholar.
140. See the report on Indonesia, 5 YIHL (2001) p. 518Google Scholar.
141. Ibid.
142. UC Berkeley War Crimes Studies Center at <http://socrates.berkeley.edu/%7Ewarcrime/East_Timorand_Indonesia/Reports/Indonesia_Cohen_Appeals.htm>.
143. It has to be pointed out here that the NGO ELSAM based its report on information from the Indonesian Attorney General's Human Rights Task Force. According to information obtained by David Cohen, Director of the UC Berkeley War Crimes Studies Center, the Supreme Court had denied the appeal in the case against Sudrajat and had upheld the acquittal. Furthermore, in the case of Suratman, the deadline for filing an appeal was said not to have been met and, therefore, the verdict would be upheld.
144. Information and commentaries by Mehrdad Molaei, former legal advisor of the National Humanitarian Committee of the Islamic Republic of Iran.
145. Information and commentaries by Ray Murphy, Irish Centre for Human Rights, School of Law, National University of Ireland.
146. British-Irish Agreement done at Belfast, 10 April 1998. Belfast Agreement, Rights, Safeguards and Equality of Opportunity, para. 1. See generally Murphy, R., ‘The incorporation of the ECHR into Irish domestic law’, 6 European Human Rights Law Review (2001) pp. 640–656Google Scholar.
147. The European Convention on Human Rights Act 2003, sec. 2(1). The section will apply retrospectively and prospectively.
148. See Irish Council for Civil Liberties website at <http://www.iccl.ie>.
149. Information and commentaries by Dr Yuval Shany, School of Law, Academic College of Management, Israel. The reporter would like to thank the Research Foundation of the Law School of the Academic College of Management for their financial support of this research. Additional thanks are due to Ms Matat Gutterman, who assisted in the research for this report, and to Mr Rotem Giladi of the ICRC Mission in Tel Aviv and to Col. Michael Ben-David of the IDF Legal Corps for providing some of the information covered by the report.
150. See the report on Israel, 5 YIHL (2002) pp. 529–530Google Scholar.
151. SC Res. 1515 (2003).
152. See the report on Israel, 5 YIHL (2002) pp. 530–531Google Scholar.
153. For details on Military Orders Nos. 1500, 1502, 1505 and 1512, see the report on Israel, 5 YIHL (2002) pp. 529–530Google Scholar. For details on Military Order No. 1518, see supra p. 503.
154. Brogan v. United Kingdom, 11 EHRR (1988) p. 117Google Scholar.
155. Military Order No. 1531 subsequently shortened the period of detention without judicial review to eight days. See supra p. 503.
156. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by GA Res. 43/173, UN Doc. A/43/49 (1988).
157. See, e.g., Tamimi v. Minister of Defence, HCJ 507/85, 41(4) PD 57; Jerusalem District Electric Co. Ltd. v. Minister of Energy and Infrastructure, HCJ 351/80, 35(2) PD 673; Dawikat v. Government of Israel, HCJ 390/79, 34(1) PD 1.
158. For more on this aspect, Ben-Naftali, O. and Shany, Y., ‘Living in denial: the application of human rights in the Occupied Territories’, 37 Israel Law Review (2004) pp. 17–118CrossRefGoogle Scholar.
159. Braham v. Military Judge Sheffi, HCJ 4400/98, 52(5) PD 337.
160. See, e.g., Alhigga v. IDF West Bank Military Commander, HCJ 10258/03 (not yet published).
161. Ajuri v. IDF West Bank Military Commander, HCJ 7015/02, 56(6) PD 352. See the report on Israel, 5 YIHL (2002) pp. 535–538Google Scholar.
162. See also infra, pp. 518–519.
163. See Centre for the Defence of the Individual v. Government of Israel, HCJ 9961/03; Salim v. IDF West Bank Military Commander, HCJ 11344/03; Hamidan v. Minister of Defence, HCJ 9674/03.
164. Hamidan v. Minister of Defence, Decision of 6 November 2003, HCJ 9674/03.
165. Benni Udah v. State of Israel, CA 5964/92, 56(4) PD 1. See the report on Israel, 5 YIHL (2002) pp. 534–535Google Scholar.
166. See the report on Israel, 5 YIHL (2002) p. 541Google Scholar.
167. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed Excessively Injurious or Have Indiscriminate Effects of 1980, 19 ILM (1980) p. 1523Google Scholar.
168. International Convention for the Suppression of the Financing of Terrorism of 1999, 39 ILM (2000) p. 270Google Scholar.
169. Information and commentaries by Professor Sergio Marchisio and the team of researchers at the Institute for International Legal Studies, National Research Council (CNR), Rome.
170. See Marchisio, S., ‘The Priebke case before the Italian military tribunals: a reaffirmation of the principle of non-applicability of statutory limitations to war crimes and crimes against humanity’, 1 YIHL (1998) pp. 344–353CrossRefGoogle Scholar.
171. See Chamber of Deputies' report on Bill No. 973 ‘Establishment of the parliamentary inquiry committee on the concealment of the reports on Nazi-Fascist crimes', 21 June 2001. Passed into law by virtue of Law No. 107/2003.
172. See Art. 2 of Law No. 107/2003.
173. See ibid., Art. 3.
174. See ibid., Art. 4.
175. See ibid., Art. 5.
176. See Senate Bill No. 2524 of 7 October 2003 on The Enlargement of the Powers of the Parliamentary Inquiry Committee on the Concealment of the Reports on Nazi-Fascist Crimes.
177. Rosa Dinuzzi is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome.
178. See Peccioli, A., ‘Lotta agli attentati terroristici mediante ordigni esplosivi: le modifiche al codice penale’, in 9 Diritto penale e processo (2003) pp. 934–944Google Scholar.
179. ‘Strumenti atti ad offendere’ in the original text.
180. Valeria Eboli, Ph.D. in International Law, University ‘La Sapienza’ of Rome, is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome. She is National Instructor of IHL of the Italian Red Cross and Qualified Advisor of the Italian Armed Forces for IHL.
181. See also Chamber of Deputies' Bill No. 3564, presented on 22 January 2003, published at <http://parlamento.it>; Chamber of Deputies' Bill No. 3564 A, presented on 22 January 2003 <http://www.parlamento.it>.
182. See Hoffman, H., ‘Peace-enforcement actions and humanitarian law: emerging rules for “interventional armed conflict”’, 82 IRRC (2000) pp. 193–204Google Scholar.
183. See for the Chamber of Deputies' Res. No. 298, Risoluzione in Assemblea 6–00065, approved on 15 April 2003 <http://www.camera.it>; for the Senate's resolution, see Senato della Repubblica, XIV Legislatura, 382° Seduta pubblica, Risoluzioni n.7 (testo 2) e 8, Resoconto sommario e stenografico, 15 aprile 2003 <http://www.senato.it>.
184. Risoluzione in Assemblea 6–00063, partially approved on 15 April 2003 in Sess. No. 298 <http://www.camera.it>. The part of the resolution that was rejected (para. d) concerned the promotion of the creation of a special international tribunal by the Security Council with the scope to try Saddam Hussein and the other main Ba'athist leaders.
185. See Ministry of Defence, Rapporto 2003, pp. 85 et seq. <http://www.esercito.difesa.it>. See also Risoluzione in Assemblea 6–00060, partially approved on 15 April 2003 in Sess. No. 298 <http://www.camera.it> for the engagement upon the government to support all the initiatives for Iraq coming from UNESCO. Special reference is made to the protection of the Hatra site, the ancient towns of Babilonia, Ashur, Mossul and Ur, where Abraham, the father of the three main monotheistic religions, came from.
186. See Campbell, C., ‘Peace and the laws of war: the role of international humanitarian law in the post-conflict environment’, 82 IRRC (2000) pp. 627–652Google Scholar.
187. Risoluzione in Assemblea 6–00061, approved on 15 April 2003 in Sess. No. 298, p. 3 <http://www.camera.it>.
188. See Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954.
189. Risoluzione in Assemblea 6–00060, supra n. 185.
190. Premier Silvio Berlusconi's interventions on the Iraqi crisis to the Senate and to the Chamber of Deputies, 19 March 2003.
191. See M. Patel, ‘The legal status of Coalition Forces in Iraq after the June 30 handover’, in Asil Insights, March 2004 <http://www.asil.org/insights/insigh129.htm>; Paust, J., ‘The U.S. as Occupying Power over portions of Iraq and relevant responsibilities under the laws of war’, in Asil Insights, 04 2003Google Scholar <http://www.asil.org/insights/insigh102.htm>; cf. SC Res. 1483 (2003) para. 5.
192. Communication on ‘The employment of a military contingent in the framework of the Italian humanitarian intervention in Iraq’, by Minister of Defence, Antonio Martino, to the Chamber of Deputies and Senate Joint Commissions for Foreign Affairs and Defence in joint session on 14 May 2003 <http://www.difesa.it>.
193. The end of the conflict is assumed to be 1 May 2003, on the basis of the Bush declaration of 1 May 2003. This assumption is contestable in principle, as a conflict could still exist insofar as effective acts of war are ongoing. See also A. Dworkin, ‘Saddam Hussein's trial and the handover of power in Iraq’, Crimes of War Project, 5 July 2004, <http://www.crimesofwar.org/onnews/news-handover.html>.
194. Communication by the minister of defence, supra n. 192, p. 9.
195. In particular, it extended the following missions: Joint Force (Bosnia), Multinational Specialised Unit (MSU) in Bosnia and Kosovo; Joint Guardian (Kosovo); NATO Headquarters Skopje (NATO HQS)/FYROM; United Nations Mission Kosovo (UNMIK) and Criminal Intelligence Unit (CIU) Kosovo; Albit, Albania2 and NATO Headquarters Tirana (NATO HQT) Albania; Temporary International Presence in Hebron (TIPH2); United Nations Mission in Ethiopia and Eritrea (UNMEE).
196. See Santi, R. Della, ‘Il nuovo diritto penale militare per le operazioni multinazionali’, in Rassegna dell'arma dei Carabinieri (No. 2, 2002) pp. 1 et seqGoogle Scholar.
197. See Brunelli-Mazzi, A., Diritto penale militare (Milano, Giuffré 2002)Google Scholar. On the law applicable to military operations abroad, see especially pp. 491–540.
198. Para. 3 adds that the competent Italian jurisdiction is the Rome Tribunal.
199. See Ministry of Defence, supra n. 185, pp. 82–83.
200. See Ronzitti, N., ‘Una legge organica per l'invio di corpi di spedizione all'estero?’, 85 RDI (2002) pp. 139–143Google Scholar.
201. On 28 June 2004 the CPA passed its powers to the new Iraqi government. The number of Italian experts fluctuates according to the operational needs. At the beginning of 2004 Italian experts present in Iraq numbered about 30, and were distributed in Baghdad (15), Basra (12), Nassyriah (3), Kurdistan and Erbil (1).
202. There are about 50 volunteers in Iraq representing about a dozen Italian NGOs (Cesvi, Coopi, Emergency, Ics, Intersos, Movimondo, Spes, Terres des Hommes and others).
203. In the area of culture, Italy has made a significant contribution by sending experts from the Ministry of Foreign Affairs to carry out a programme of recovery, restoration and conservation of archaeological/cultural assets in Iraq in collaboration with the Centro ricerche archeologiche e scavi of Turin (CRAST). In the health sector, the Italian Red Cross in Baghdad has set up an emergency hospital.
204. Decree-Law No. 165 of 2003 also provided for the extension of the other Italian missions abroad, but Conversion Law No. 219 does not contain articles on these missions. In fact, during the parliamentarian debate, the opposition party, contrary to ‘Antica Babilonia’, requested to regulate the military missions abroad by a separate law, because they present different characteristics compared with the Operation in Iraq. See <http://www.gruppi.margheritaonline.it/cgi-bin/getdettaglioseduta.cgi?id_seduta=26572&codice=s280.htm>.
205. According to Art. 18 of Law No. 219, the cost of the Operation for 2003 shall be financed through the Reserve Fund for unforeseen expenses.
206. On the Iraq conflict, see Yoo, J., ‘International law and the war in Iraq’, 97 AJIL (2003) pp. 563–576CrossRefGoogle Scholar; T.J. Farer, ‘The prospect for international law and order in the wake of Iraq’, ibid., pp. 621–627.
207. Regarding Law No. 6 of 31 January 2002, see Della Fina's contribution in 4 YIHL (2001) pp. 563–565Google Scholar.
208. Valentina Della Fina is a researcher at the Institute for International Legal Studies of the National Research Council (CNR), Rome.
209. Adopted on 25 July 2003 and published in Gazzetta Ufficiale 2003 No. 208.
210. On 18 May 1981 the President of the Security Council announced that it would not be possible for the United Nations to provide such a peacekeeping force.
211. Moreover, the MFO receives financial contributions from three donor states: Germany, Japan and Switzerland.
212. In Gazzetta Ufficiale 1983 No. 42. However, by that date the Italian vessels had already sailed for the Gulf of Aqaba. For commentary thereon, Gaja, G., ‘L'incerta missione di tre dragamine’, 65 RDI (1982) pp. 1044–1045Google Scholar.
213. The Agreement on the participation in the MFO belongs to the class of treaties having a political nature, for which Art. 80 of the Italian Constitution requires parliamentary authorisation for its ratification by the president.
214. In Gazzetta Ufficiale 1988 No. 78, p. 3, and ibid., 1988 No. 89, p. 15.
215. The Exchange of Notes dated 16 March 1984 between the Italian Minister of Foreign Affairs, Giulio Andreotti, and the MFO Director General, constituting an agreement to extend the participation of Italy in the MFO for a period of two years commencing 25 March 1984, took effect provisionally on 25 March 1984, upon notification by the Italian government of the provisional implementation of the agreement in conformity with the text of the Notes. The Italian Parliament authorised the ratification and execution of the Exchange of Notes by Law No. 721 of 28 November 1985, in Gazzetta Ufficiale 1985 No. 292, p. 41. The Agreement entered into force only on 1 March 1986, after Italy notified the completion of the necessary constitutional procedures. See Gazzetta Ufficiale 1986 No. 75, p. 9.
216. Australia, Canada, Colombia, Fiji, France, Hungary, Italy, New Zealand, Norway, the United States and Uruguay.
217. Amina Maneggia, Ph.D. in International Law, University ‘La Sapienza’ of Rome, is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome.
218. Based on the Treaty of Economic, Social and Cultural Collaboration and Collective Self-Defence (Brussels Treaty) of 1948, as amended by Protocol signed in Paris on 23 October 1954, modifying and completing the Treaty. The WEU is an intergovernmental organisation for European cooperation in the security and defence area. In the 1990s the WEU developed as the defence component of the European Union and as a means of strengthening the European pillar of the Atlantic Alliance under NATO. There are ten WEU members, all of which are NATO and EU member states <http://www.weu.int>.
219. The Common Foreign and Security Policy (CFSP) objectives listed in the EU Treaty are, among others, to preserve peace and strengthen international security and to develop and consolidate respect for human rights. On the subject, see Smith, K.E., European Union Foreign Policy in a Changing World (Oxford, Malden 2003) p. 12Google Scholar; Smith, M.E., Europe's Foreign and Security Policy. The Institutionalization of Cooperation (Cambridge, Cambridge University Press 2004)Google Scholar. See also Marchisio, S., ‘EU's membership in international organizations’, in Cannizzaro, E., ed., The European Union as an Actor in International Relations (The Hague, Kluwer Law International 2002) pp. 231260Google Scholar.
220. From October 2000 to April 2001, EUROFOR participated in Operation Joint Guardian in Albania, together with the NATO Force. In March 2003 EUROFOR took over the command of the military operation in Macedonia, named ‘Concordia’, from NATO. The mandate of EUROFOR was initially due to expire on 30 September 2003 but was extended until 15 December 2003 after a request from the Macedonian authorities. Texts of the declarations and EUROFOR Statute and missions <http://www.eurofor.it>.
221. In 2003 the EU officially created its own rapid reaction force, which will undertake peacekeeping operations. See Diedrichs, U. and Jopp, M., ‘Flexible modes of governance: making CFSP and ESDP work’, 38 The International Spectator (No. 3, 2003) pp. 15–30CrossRefGoogle Scholar.
222. See Arts. 1–40, 111–210 and 111–211 of the Provisional Consolidated Version of the Draft Treaty Establishing a Constitution for Europe, 25 June 2004, Doc. CIG 86/04.
223. On these missions, see Law No. 219 of 1 August 2003, Conversion in Law, with Modifications, of the Decree No. 165 of 10 July 2003, Concerning Urgent Interventions in Favour of Iraqi People, supra pp. 529–531.
224. Not yet in force. The text of the Treaty is published in 35 ILM (1996) pp. 1439–1478.
225. In Gazzetta Ufficiale 1999 No. 10, Supp. Ord. No. 11. See also <http://www.parlamento.it/parlam/leggi/031971.htm>.
226. Once the Treaty enters into force the Commission will cease to exist and will be replaced by the CTBT Organization (see ‘Overview of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization’) <http://www.ctbto.org/prepcom/background.html>.
227. In Gazzetta Ufficiale 2003 No. 175.
228. See Art. 111(4) CTBT.
229. Ibid., Art. 1V(34–67).
230. Ornella Ferrajolo is a senior researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.
231. Premier Silvio Berlusconi's intervention on the Iraqi crisis to the Senate, 19 March 2003 <http://www.governo.it>.
232. Ibid., p. 1.
233. The Supreme Defence Council is a constitutional body with consulting and policy powers on the subject of national defence (Art. 87 Italian Constitution).
234. The text of the advisory opinion is available at <http://www.quirinale.it/Comunicato.asp?id=21748>; a commentary can be found at <http://www.analisidifesa.it/articolo.shtm/id/2673/ver/IT>.
235. Giovanni Carlo Bruno is a researcher at the Institute for International Legal Studies of the National Research Council (CNR), Naples.
236. See the report on Italy, 5 YIHL (2002) pp. 551–553Google Scholar. See also Art. 3 of the Agreement between the United Nations and Italy on the enforcement of judgements of the International Criminal Tribunal for the former Yugoslavia, done at The Hague on 6 February 1997.
237. See Law No. 181 of 2 August 2002 on Provisions Concerning Cooperation with the International Tribunal Having Jurisdiction over Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Neighbouring States, in Gazzetta Ufficiale 2002 No. 190.
238. See Art. 7(4) of Law No. 181/2002 which provides: ‘The Court of Appeal of Rome, stating the recognition of the judgment, imposes the sentence that must be enforced in the State. To this end, the Court converts the penalty imposed by the International Tribunal into an imprisonment sentence. In any case, the length of the sentence must not exceed thirty years of imprisonment.’
239. On this topic, see Paust, J.J. et al. , eds., International Criminal Law: Cases and Materials (Durham, NC, Carolina Academic Press 2000)Google Scholar; Wald, P.M., ‘Judging war crimes’, 1 Chicago Journal of International Law (2000) p. 189Google Scholar; Dormann, K., ‘Contributions by the ad hoc tribunals for the former Yugoslavia and Rwanda to the ongoing work on elements of crimes in the context of the ICC’, 94 Proc. ASIL (2000) p. 284Google Scholar; McCoubrey, H., ‘From Nuremburg to Rome: restoring the defence of superior orders’, 50 ICLQ (2001) p. 386CrossRefGoogle Scholar; Cassese, A., International Criminal Law (Oxford, Oxford University Press 2003)Google Scholar.
240. Information and commentaries by José A. Guevara, Coordinator of the Human Rights Programme of the Iberoamericana University, Lecturer in International Human Rights Law at the Law Faculty of the same university and Latin America/Caribbean Coordinator of the Coalition for the International Criminal Court.
241. See the report on Mexico, 4 YIHL (2001) pp. 588–590Google Scholar.
242. See ibid., 5 YIHL (2002) pp. 567–568Google Scholar.
243. Barrios Altos Case, Judgement of 14 March 2001, Series C No. 75.
244. Bulacio v. Argentina Case, Judgement of 18 September 2003, Series C No. 100.
245. Ana María Testa, Asociación de Ex Detenidos-Desaparecidos de Argentina, Academia Mexicana de Derechos Humanos, Centro de Estudios Legales y Sociales de Argentina (CELS), Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. (CMDPDH), International Human Rights Clinical Program (George Washington University Law School), José Antonio Guevara Bermúdez (México), Acción de los Cristianos para la Abolición de la Tortura de México, Abuelas de Plaza de Mayo de Argentina, Alejandro Vieyra (España), Antonio Segura (España), Asamblea Permanente por los Derechos Humanos (APDH), Asociación Argentina Pro Derechos Humanos de Madrid, Casa Argentina de Madrid, Carlos Slepoy (España), Centro de Derechos Humanos ‘Fray Francisco de Vitoria’ de México, Fabián Omar Salvioli (Argentina), Familiares de Desaparecidos y Detenidos por Razones Políticas de Argentina, Liga Argentina por los Derechos del Hombre (LADH), Madres de Plaza de Mayo Línea Fundadora de Argentina, y Movimiento Ecuménico por los Derechos Humanos (MEDH).
247. Information and commentaries by Professor Emeritus Nico Keijzer, Justice Extraordinary, Supreme Court of the Netherlands and Dr Elies van Sliedregt, Lecturer/researcher in international (criminal) law at Utrecht University.
248. Staatsblad (Bulletin of Acts, Orders and Decrees) (hereafter, Stb.).
249. A more elaborate account of the (background of the) ICA can be found in Bevers, H. et al. , ‘The Dutch International Crimes Act (Bill)’, in Neuner, M., ed., National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (Berlin, Berliner Wissenschafts-Verlag 2003) pp. 179–197Google Scholar.
250. Act of 10 July 1952, in Stb. 1952 No. 408.
251. Act for the implementation of the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment [Uitvoeringswet folteringverdrag], Act of 29 September 1988, in Stb. 1988 No. 478.
252. See Bevers et al., supra n. 249, p. 181.
253. Ibid., pp. 182–183.
254. For reference to this case, see Explanatory Memorandum, p. 16.
255. Ibid., p. 29; Bevers et al., supra n. 249, p. 187.
256. Explanatory Memorandum, p. 26.
257. Ibid., p. 27.
258. Ibid., p. 31.
259. ‘Report of the Secretary-General pursuant to GA Res. 53/35: the fall of Srebrenica’, UN Doc. A/54/549, 15 November 1999.
260. As laid down in Art. 6:162 of the Dutch Civil Code.
261. Netherlands Institute for War Documentation (NIOD), ‘Srebrenica a “safe” area: reconstruction, background, consequences and analyses of the fall of a safe area’ (2001). Reported on in 5 YIHL (2002) pp. 574–576Google Scholar.
262. Zwanenburg, M.C., Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations (Leiden, E.M. Meijers Instituut 2003)Google Scholar.
263. Ibid., pp. 117–128.
264. Parliamentary Inquiry Committee, ‘A mission without peace: final report’ (Een missie zonder vrede: eindrapport) (2003).
265. Information and commentaries by Treasa Dunworth, Lecturer in Law, Faculty of Law, University of Auckland.
266. Ss. 14, 15 and 18 Terrorism Suppression Act 2002.
267. S. 67 Terrorism Suppression Act 2002.
268. Foreign Affairs, Defence and Trade Committee, ‘Report on the Diplomatic Privileges and Immunities Amendment Bill 61–1’ (undated) <http://www.clerk.parliament.govt.nz/Publications/CommitteeReport/Default.htm>.
269. Foreign Affairs, Defence and Trade Committee, ‘Report on international treaty examination of the Agreement on the Privileges and Immunities of the International Criminal Court’ (2002) <http://www.clerk.parliament.govt.nz/Publications/CommitteeReport/Default.htm>.
270. See the report on New Zealand, 3 YIHL (2000) pp. 553–555Google Scholar.
271. Foreign Affairs, Defence and Trade Committee, ‘Report on the Crimes and Misconduct (Overseas Operations) Bill’ (undated) <http://www.clerk.parliament.govt.nz/Publications/CommitteeReport/Default.htm>.
272. Information and commentaries by Dr Mustafa Mari, Professor of Laws, Institute of Law, Bir Zeit University, Bir Zeit, Palestine. For the report on Israel, see supra pp. 503 et seq.
273. B'Tselem reported these lower numbers at <http://www.btselem.org/English/Statistics/Al_Aqsa_Fatalities_Tables.asp>. B'Tselem also reported the killing of six Palestinians in the OPT by Israeli settlers, armed with the permission of the Israeli authorities. The Palestinian Red Crescent Society reported the higher figure of 664 deaths <http://www.palestinercs.org/Database/Date/mf.pl?moin=01&yin=2003&mout=12&yout=2003>. The PICCR reported the killing of 627 Palestinians, including 123 children, during the year, in addition to 24 others in unclear circumstances. See PICCR Ninth Annual Report, ‘The status of Palestinian citizens' rights in 2003’ (2004) p. 5 <http://www.piccr.org> (hereafter, PICCR Report).
274. See PICCR Report, supra n. 273, pp. 5 et seq.
275. See ‘Country reports on human rights practices – 2003: Israel and the occupied territories’ <http://www.state.gov/g/drl/rls/hrrpt/2003/27929.htm> (hereafter, State Department Report).
276. Ibid.
277. PICCR Report, supra n. 273, p. 34.
278. The PICCR reports the number at 24, and provides a list of names and the date on which he/she was deported by the Israeli authorities, with the last deported on New Year's Eve. See ibid., pp. 30–3l.
279. See State Department Report, supra n. 275, and also PICCR Report, supra n. 273.
280. See State Department Report, supra n. 275.
281. See Administrative Detention – Statistics, B'Tselem <http://www.btselem.org/English/Administrative_Detention/Statistics.asp>. According to PICCR, there were 669 Palestinian civilians under Israeli administrative detention by the end of 2003. See also PICCR Report, supra n. 273, p. 26.
282. PICCR Report, supra n. 273. See also State Department Report, supra n. 275.
283. See PICCR Report, supra n. 272.
284. Press Statement No. 2003/451. Released by the Office of the Spokesman of the US State Department.
285. See Human Rights Watch Press Release, ‘Roadmap fails rights test’, 8 May 2003; Human Rights Watch, ‘The “Roadmap”: repeating Oslo's human rights mistakes’, Briefing Paper, 8 May 2003. On the role of international law and principles generally in the Palestinian-Israeli negotiation processes, see ‘The negotiation process: the lack of a human rights component’, 10 Palestine-Israel Journal of Politics, Economics and Culture (2003) pp. 5–16Google Scholar.
286. The approved amendment, in Hebrew, is available at <http://www.knesset.gov.il/provatelaw/data/2645_3_1.rtf>. An unofficial translation of an earlier draft is available at <http://www.btselem.org>.
287. On the Amendment generally, see Mari, M. and Pujara, M., In Light of the Israeli Draft Law on Denying Compensation to Palestinians: Accountability of the Israeli Occupier for Violations of Palestinian Rights (Ramallah, Al-Haq 1998)Google Scholar.
288. Art. 2 Civil Wrongs Law (Amendment No. 4) 2002.
289. Ibid., Art. 3.
290. Appendix, Regulation No. 1, Kovets Hatakanot 2003 No. 6232, pp. 615-619.
291. PRCS Press Release, ‘Exploring humanitarian law to be introduced in Palestinian schools’, 16 April 2003 <http://www.palestinercs.org/pressreleases/PR160403WBRR.htm>. See also, ‘Al-Jam'iyah Takhtatim Dawrah Hal Estikshaf Al-Qanoun Al-Dawli Al-Insani fi Gaza’ (The [Palestinian Red Crescent] Society has begun a training session on exploring IHL in Gaza), 343 Balsam (2004) pp. 74–75Google Scholar.
292. See Secretariat invitation letter dated 28 October 2003 (on file with author).
293. GA Res. A/ES-10/L.16, adopted by 90 votes in favour, eight against and 74 abstentions, 3 December 2003. See also Letter of Mr Kofi A. Annan, Secretary-General of the UN, to Mr Shi Jiuyong, President of the International Court of Justice, 8 December 2003. Both documents are available at <http://www.icj-cij.org>.
294. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for Advisory Opinion, Order by the President of the Court, 19 December 2003, paras. 1 and 2.
295. Ibid.
296. Many groups highlighted the severe consequences the construction of the wall had and would have on the Occupied Palestinian Territories and their civilian populations. See Amnesty International, ‘Israel/OT: Israel must immediately stop the construction of the wall’, 7 November 2003; ‘The impact of Israel's separation barrier on affected West Bank communities: report of the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the Local Aid Coordination Committee (LACC)’, 4 May 2003; Human Rights Watch, ‘Israel: West Bank barrier endangers basic rights: U.S. should deduct costs from loan guarantees’, 1 October 2003; and report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, 24 November 2003.
297. For the verbatim record of the first and other sessions of the hearing, visit <http://www.icj-cij.org>.
298. English translation of the Hebrew original provided by Human Rights Watch <http://hrw.org/press/2003/04/israelisupremecourt.pdf>. See also Palestinian Centre for Human Rights Press Release on the matter, Ref 52/2003, 27 April 2003 <http://www.pchrgaza.org/files/PressR/English/2003/52-2003.htm>. The Hebrew original is available at <http://62.90.71.124/files/02/900/089/f04/02089900.f04.pdf>.
299. See Human Rights Watch Press Release, ‘Israel: stop using flechettes in Gaza’, 29 April 2003 <http://www.hrw.org/press/2003/04/israel042903.htm>.
300. Information and commentaries by Attorney Soliman M. Santos, Jr., LL.B., LL.M., Filipino lawyer, legislative consultant and legal scholar based in Quezon City, Philippines. He would like to acknowledge the research assistance of Franz Vincent D. de los Santos, LL.B. This is the first report on the Philippines for the YIHL and covers the reporting period from 1 January 2003 to early 2004 (in the case of continuing events).
301. Gloria, G.M., ‘Remember Oakwood?’ in Newsbreak, 24 11 2003, pp. 24–25Google Scholar.
302. Ibid.
303. Based on information from Atty. Maria Glenda R. Ramirez, Coordinator of the Southeast Asia Coalition to Stop the Use of Child Soldiers, and Atty. Jose Victor V. Chan-Gonzaga, Director, Division 6 (Human Rights and Humanitarian Affairs), Office of the UN and International Organizations, DFA, Philippines. See also the UN website for treaty ratifications and the country report on the Philippines, in Coalition to Stop the Use of Child Soldiers Report, ‘Child soldier use 2003: a briefing for the 4th UN Security Council open debate on children and armed conflict’ (2004) pp. 32–33.
304. This report item is based on the article, ‘GMA spells out do's and don't's for field commanders in military operations’, 13 March 2003 on the news page of the Office of the President website, at <http://www.op.gov.ph>. GMA refers to President Gloria Macapagal Arroyo.
305. See the country report on the Philippines, in International Campaign to Ban Landmines (ICBL), ‘Landmine monitor report 2003: toward a mine-free world’ (2003) pp. 396–401.
306. Based on information from Lorena B. de la Cruz, Executive Director of the Balay Rehabilitation Center (NGO for internally displaced persons) whose efforts contributed to the House Committee's approval of the House resolution.
307. This report item is based on the news story, ‘GMA offers aid to purge victims’, in Philippine Daily Inquirer, 31 12 2003, p. AlGoogle Scholar.
308. See Muyot, A.T. and Yambao, V.P.F., ‘Steps taken to ensure implementation of international humanitarian law in the Philippines’, 81 IRRC (1999) p. 303Google Scholar.
309. The most significant of these directives were compiled and reprinted in the 3rd edition of a UNICEF pamphlet entitled ‘Protection of non-combatants in the Philippines’ (1994). An updated edition was to be published by the Philippine Commission on Human Rights (CHR) in 2004.
310. H.Q. Dee, remarks at the National Workshop of Indigenous Peoples on Human Rights, 24–27 February 2004, Ateneo de Manila University, Quezon City, Philippines.
311. Art. VII, sec. 21 Philippine Constitution 1987.
312. ‘Commission to probe murder and harassment of genocide survivors’, IRIN, 19 12 2003Google Scholar <http://www.irinnews.org/report.asp?ReportID=38509&SelectRegion=Great_Lakes&SelectCountry=RWANDA>.
313. ‘100 convicted in Rwanda genocide trial’, NY Times online, 4 08 2003Google Scholar; ‘Mass genocide verdict delivered’, BBC News online, 1 08 2003Google Scholar <http://news.bbc.co.uk/l/hi/world/africa/3117915.stm>.
314. ‘Rwandan court convicts 18 for genocide’, Reuters, 2 12 2003Google Scholar.
315. ‘Saudi to host human rights conference’, BruneiDirect News, 30 08 2003Google Scholar; ‘Saudis' empty moves won't fool anyone’, in The Boston Globe, 2 09 2003Google Scholar <http://www.boston.com/news/globe/editorial_opinion/oped/articles/2003/09/02/saudis_empty_moves_wont_fool_anyone/>; Royal Saudi Embassy in Washington, DC website <http://www.saudiembassy.net/Issues/HRights/IssuesRig.asp>.
316. ‘Belgrade apology for Bosnia war’, BBC News online, 13 11 2003Google Scholar. <http://news.bbc.co.uk/2/hi/europe/3267683.stm>; ‘Serbia-Montenegro president apologises in Sarajevo’, b92.net, 13 11 2003Google Scholar <http://www.b92.net>
317. Amnesty International Press Release, ‘Serbia and Montenegro: Sjeverin war crimes verdict in Belgrade’, 2 October 2003.
318. Humanitarian Law Center, ‘The Sjeverin case – a test for the Serbian judiciary’, 16 May 2003 <http://www.hlc.org.yu/english/War_Crimes_Trials_Before_National_Courts/Serbia/index.php>.
319. ‘War crimes legislation approved’, b92.net, 1 07 2003Google Scholar.
320. Information and commentaries by Michael E. Hartmann, International Prosecutor 2000–2005, Office of the Public Prosecutor of Kosovo (before the Supreme Court) (hereafter, OPPK), UNMIK, at email [email protected]. This report is written in his private capacity, and does not necessarily reflect the opinion of the OPPK or UNMIK. This report concerns only the small minority of war crimes cases that reached a court trial. Many more cases were under investigation by the Complex Criminal Investigative Unit of the UNMIK Police, with guidance from international prosecutors, and other cases were selected by international prosecutors and judges at the judicial investigation stage and resulted in no indictment being filed.
321. UNMIK Regulation No. 2003/1 of 6 January 2003, amending the Applicable Law on Criminal Offences Involving Sexual Violence.
322. UNMIK Regulation No. 2003/26 of 6 July 2003, on the Provisional Criminal Procedure Code of Kosovo.
323. UNMIK Regulation No. 2003/27 of 18 August 2003, on the Promulgation of the Law Adopted by the Assembly of Kosovo on Amendments and Additions to Law No. 2002/5 on the Establishment of an Immovable Property Rights Register.
324. See Correspondents' Reports, 4 YIHL (2001) pp. 500 at 505–506Google Scholar.
325. Pursuant to UNMIK Regulations 6 and 34 of 2000, international prosecutors were given the powers to select and take responsibility for any cases selected, and had different appointment and tenure provisions as compared to Kosovo prosecutors, but otherwise the international prosecutors were subject to the same applicable law, including the Law on Public Prosecutor Office, as the Kosovo prosecutors. The Public Prosecutor of Kosovo (formerly, Provincial Public Prosecutor) is the hierarchical higher prosecutor over his/her deputies and the five district public prosecutors, who are likewise the higher prosecutors for their deputies, and the municipal public prosecutors and their deputies.
326. See the ICTY internet site at <http://www.un.org/icty/> and the Fatmir Limaj et al. case, Case No. IT-03–66, at <http://www.un.org/icty/cases/indictindex-e.htm>. The only other Kosovo Albanians being prosecuted are those named in the indictment of Ramush Haradinaj et al., Case No. IT-04–84, which was unsealed in 2005.
327. For background, see Correspondents' Reports, 4 YIHL (2001) p. 508Google Scholar.
328. Applicable pursuant to UNMIK Regulation 1999/24.
329. Citing Hauschildt v. Denmark, Judgement of 24 May 1989, Series A No. 154, para. 46.
330. Citing De Cubber v. Belgium, Judgement of 26 October 1984, Series A No. 86, para. 25.
331. Citing Le Compte, Van Leuven and De Meyere v. Belgium, Judgement of 23 June 1981, Series A No. 43, para. 58; Debled v. Belgium, Judgement of 22 September 1994, Series A No. 292-B, para. 37; and Piersack v. Belgium, Judgement of 1 October 1982, Series A No. 53, para. 30.
332. Citing Sander v. The United Kingdom, Judgement of 9 May 2000, 31 EHRR (2000), p. 1003, para. 26Google Scholar.
333. ‘During the retrial proceedings the first instance court shall re-examine all existing evidence and evaluate it in strict accordance with Article 347 LCP and with the specific case-law mentioned above in this decision. The court can also explore the possibility of gathering new evidence. Bearing in mind that accused is indicted with committing a murder in complicity, the first instance court shall ask for evidence proving the form of the accused' participation in the criminal act, his mens rea etc. (see definition of complicity in Art. 22 CCY).’
334. The defendant was found not guilty. The trial court (with an international majority and different international judges than in the previous panel) found that the inculpatory witnesses were not sufficiently credible.
335. For background, see Correspondents' Reports, 4 YIHL (2001) p. 513Google Scholar.
336. The first verdict of the District Court in Prizren dated 14 June 2001, as a result of the appeals from both parties was overturned by the decision of the Supreme Court of 2 November 2001.
337. See Correspondents' Reports, 4 YIHL (2001) p. 505Google Scholar.
338. The retrial started on 1 October 2002 and lasted through January 2003, with the last month devoted mainly to hearing the closing speeches. The verdict was handed down on 31 January 2003.
339. The Criminal Code of the Federal Republic of Yugoslavia, which at Arts. 141 and 142 criminalises genocide and war crimes, respectively, is the applicable law pursuant to UNMIK Regulation 1999/24.
340. On 30 May 2003 the ‘64’ panel international-majority trial court orally announced the verdict of the retrial, the result and a short explanation, but the full written verdict was not filed until 28 November 2003. The oral verdict/written verdict dichotomy follows the applicable criminal procedure of Kosovo.
341. For background, see Correspondents' Reports, 4 YIHL (2001) pp. 512–513Google Scholar. The Kosovo Supreme Court had reversed the original Kosovan-majority trial panel's finding of guilt on 30 November 2001.
342. On 30 May 2003 the ‘64’ panel international-majority trial court announced the verdict of the retrial, which was not guilty on all eleven counts of war crimes. The accused was found guilty of postwar attempted murder (shooting at a Kosovan-Albanian hoisting an Albanian flag at the Department of Internal Affairs in Kaminica, the accused's office). The retrial court's 2003 verdict had been foreshadowed by the International Public Prosecutor of Kosovo's lengthy opinion on the first verdict, which called for reversal on several grounds, including a detailed analysis of the lack of evidence supporting the finding of command responsibility liability for the acts of police officers which were the basis of the war crimes counts.
343. The OPPK opinion is available at <http://www.ridi.org/adi/documents/trajkovicopp.pdf> along with the Supreme Court's verdict from first trial court verdict at <http://www.ridi.org/adi/documents/trajkovicsck.pdf>.
344. It may be queried as to why the presiding judge allowed the testimony of 20 plus witnesses on the issue of the criminal acts committed by police officers and others allegedly under the command (and command responsibility) of the defendant, when the presiding judge could have first required the testimony of witnesses purporting to establish the command responsibility or commander liability. If no such liability was established, there would accordingly have been no need or relevance for a great number of witnesses. The issue of control over the decision to retry cases – accountability and responsibility – may be illustrated by this and other retrials in Kosovo. The testimonies of 42 witnesses were heard in this trial.
345. The verdict acknowledged that: ‘Whilst at first sight such an explanation might seem all too convenient, the fact is that there was a deal of credible evidence in the case to support it and an absence of credible alternative evidence. Furthermore, it has to be observed that similar functional divisions occurred in other institutions of the former Yugoslavia. The defendant's assertion that he knew little of the actions of the regular police based in Kamenica whilst to a degree suspicious was not disproved.’
346. ‘The Court was concerned throughout the entire trial proceedings as to whether those who had perpetrated the atrocities could confidently be identified and if so whether they could be shown to have any link with the defendant. There were many instances where forces of multiple types took part in joint operations; this feature of the case pointed towards high-level organization, well above the level at which the defendant was employed, and with obvious consequences concerning both the direct and command responsibility allegations leveled [sic] against him.’
347. E.g., ‘Mehmet Ramnabaja stated that whilst standing by his gate at Mocare village … he was shot by a neighbour of his, Dragan Trajkovic, and that he suffered injuries to his shoulder. This witness stated “I believe he (the defendant) gave the orders for me to be shot because of his position as chief of police”. Later in his testimony the witness added that he believed this to be so as the person who shot him stated that he was doing so on the orders of the defendant. There was no other evidence in support of this count. In the opinion of the trial panel, this evidence is wholly insufficient for a conviction. … the panel cannot in any sense be sure that such a declaration [of the shooter] represented the true facts.’ This reporter notes that there is no indication of an attempt to summons Dragan Trajkovic to testify.
E.g., ‘Xhemajl Limani stated that he was stopped by the police and ordered to deliver up his car to the police …. On either that or the following day he was shot near his house on the outskirts of Kamenica by a policeman from Kamenica named Stankovic Streko. The panel was able to see physical evidence of a bullet wound on the leg of the witness close to his ankle. The witness stated that he had had problems with the defendant in 1993 when he had been arrested and sentenced to thirty days imprisonment. Whilst he had been in custody the witness alleged that the defendant had visited him and had insulted him. As to the incident in April 1999, the witness stated that “I believe it was done through the accused because he was chief and he gave orders, so my conclusion is that he must have ordered, simply because he was the chief of police”. Accepting that the incident of shooting took place as described by the witness, and even bearing in mind the previous event in 1993, the trial panel cannot support the conclusions of the witness. There is nothing in the circumstances so described that lead to the conclusion that the defendant ordered the shooting to take place, or that he gained knowledge of it afterwards so as to place him under a duty to investigate and punish as appropriate. Accordingly, again, it is not established that the defendant either ordered or participated in the offence in any manner.’
348. For background, see Correspondents' Reports, 4 YIHL (2001) pp. 510–511Google Scholar.
349. The applicable Kosovo procedure, unlike US and other common law procedures where juries are involved, allows trials to be conducted on non-consecutive days, and thus there were in this case one to twelve trial days per month; given the schedules of the international judges and prosecutors and commitments to appear in other cases, this was not unusual for UNMIK.
350. See details in the report on Kosovo, 5 YIHL (2002) p. 492Google Scholar.
351. The delay was due to scheduling and international personnel availability at the OPPK, resulting in a 2004 opinion from the OPPK.
352. Count 20: ‘… the accused and four other people displayed violent behaviour when they drove around in a car playing loud Chetnik music. They drove around past Neke Ramush Bytyqi and others knowing that this was impudent and that it would endanger the tranquility of the citizens considering that a war had just been ended and that the accused and his group had terrorized Neke Ramush Bytyqi and his fellow villagers of Poqest.’ This was charged as ‘Violent Behaviour contrary to Article 190 of the Criminal Law of Kosovo.’ The verdict found the accused not guilty of this count. Similarly, before the conflict, the defendant was charged in count one with ‘insulting Shaban Misin Shala at a public gathering contrary to Article 65 paragraph 2 of the Criminal Law of Kosovo’ during 1997–1998. The Chetnik music was, oddly, also charged as a war crime. The further amended indictment cited ended with a ‘Compendium Charge’ alleging that ‘Besovic is therefore on each and every count from count 3 to 27 charged with War Crimes contrary to Article 142’.
353. The trial began 20 May 2002. That first trial panel stated:
‘A major reason for failure of the panel to complete the trial of the accused prior to the departure of the panel member resulted from the complexity of the case alleged against him. The amended indictment charges the accused with 26 counts, 23 of which are charged as war crimes. The factual allegations underpinning those counts are highly complex and to date the panel has heard thirty-nine witnesses, six of whom were defense witnesses, which required the panel to organize to travel to Belgrade in order to receive their evidence. Delays in being able to complete the trial prior to the departure of one of the panel members resulted from difficulties associated with collecting evidence alleged to be relevant to the defense of the accused, including documents from the Zastava factory, medical records from the Belgrade hospital, and information regarding the mobilization or otherwise of the accused from the Ministry of the Interior. To date the panel still has not received any of the requested materials and the causes of the delay are currently being investigated by the Department of Justice.’
354. Art. 305 Yugoslav Law of Criminal Procedure of 1986 provides:
‘A main trial which is adjourned shall recommence from the beginning if the membership of the panel has changed, but after the parties have been examined, the panel may decide that in such a case the witnesses and expert witnesses shall not be examined again, and that a new on-the-spot inquest will not be performed again, but that the testimony of witnesses and expert witnesses given in the previous main trial shall be read or the record of the on-the-spot inquest will be read. If a main trial which was adjourned is held before the same panel, it shall be resumed, and the presiding judge shall briefly summarise the course of the previous main trial, but even in that case the panel may order that the trial recommence from the beginning. If the adjournment has lasted longer than one month, or if the trial is being held before another presiding judge, the main trial must recommence from the beginning, and all evidence must again be presented.’
355. Referring to the Criminal Code of the Federal Republic of Yugoslavia (FRY CC).
356. ‘Anybody creating or making use of an organization, gang, cabal, group or any other association for the purpose of committing criminal acts is criminally responsible for all criminal acts resulting from the criminal design of these associations and shall be punished as if he himself has committed them, irrespective of whether and in what manner he himself directly participated in the commission of any of those acts.’
357. Verdict, p. 2.
358. ‘If several persons jointly commit a criminal act by participating in the act of commission or in some other way, each of them shall be punished as prescribed for the act.’
359. The verdict spends 14 pages discussing the facts and sentences given by the ICTY.
360. Verdict, p. 181, being the last section, numbered 730. It must be noted that in contrast to the 14 pages spent in the verdict discussing the facts and sentences given by the ICTY, it only cites Art. 41 (1) FRY CC, which sets out the factors to be considered in determining sentence, and takes five sentences to make general, descriptive and conclusory references to what Art. 41(1) requires. The verdict does not attempt a substantive discussion of the gravity of the crime, including the specific elements of the acts attributed to the accused, the concerns of prevention and specifics of mitigating and aggravating circumstances. Art. 41(1) requires that:
‘the court shall weigh the punishment to be imposed on the perpetrator of a criminal offence within the legal limits of the punishment for that offence, keeping in mind the purpose of punishment and taking into consideration all the circumstances which influence the severity of the punishment, and particularly: the degree of criminal responsibility; motives for the commission of the offence; the intensity of threat or injury to the protected object; circumstances of the commission of the offence; the perpetrator's past life; the perpetrator's personal circumstances and his behaviour after the commission of the offence; as well as other circumstances relating to the perpetrator.’
361. This contradiction violates the requirements of Art. 357 of the LCP, which states that the written verdict ‘must fully correspond with the verdict which was announced’. In the oral enacting clause, in relation to counts 20–21, the verdict found that the accused, in association with a group of paramilitaries and police, committed acts of torture, attempted murder of an injured party, robbery of possessions and burned houses; a number of people were killed and others were expelled by force. These acts were qualified as a war crime. In relation to counts 22 to 26, the verdict found that the accused, in association with a group of paramilitaries committed acts of torture, with some people being killed, and attempted murder of five injured parties, for the purpose of expelling Kosovo Albanians from Kosovo, acts qualified as a war crime. In distinct contrast, the written verdict reached a finding that the accused was guilty of having committed war crimes of torture, displacement of the civilian population and pillaging with regard to counts 20–21 and counts 22 to 26. Significantly, the enacting clause of the written verdict did not include murder and attempted murder, which contradicts the findings made in the announcement of the verdict. Moreover, in the reasoning part of the written verdict the District Court specifically stated that it did not hold the accused accountable for the killings alleged in these counts of the indictment.
362. Verdict, p. 97.
363. Two paragraphs are given over to explaining why the District Court collectively accepted the testimony identifying the defendant and rejecting the possibility that the witnesses (it is unclear whether the court refers to all or some, as no witness names are identified by the court) might have mistaken the defendant for someone who resembled the defendant. Over a page is dedicated to analysing and rejecting the alibi defence.
364. Verdict, p. 99
365. Ibid., p. 89, starting with para. 372. This witness name is also spelled as Haxi Gashi.
366. Ibid., p. 99.
367. In its summary of the testimony of Haki Gashi, the verdict notes that witness Gashi testified that ‘[t]he accused with a lot of friends killed 47 people….’ ( p. 90, para. 374). Additionally the witness testified that he saw it with his own eyes that the accused killed Berisha’, who is described as an old man, (ibid., para. 375). Further on in the verdict's summary there is an indication that the witness might not have actually seen the shooting. These statements were made to the investigation judge. At the first trial the witness, when asked about Berisha, stated, ‘[n]o I don't know about this old man but Hazir Berisha was wounded and this person is not an old man.’ He went on to say that ‘Hazir Berisha was wounded not killed.’ Also in the first trial the witness withdrew from what he had said before the investigating judge: when the witness said in the investigation that the accused burned his brothers but did not kill them, he explained that what he really meant to say was that the accused first killed them and then set the houses on fire with them inside. Haki Gashi blamed the confusion on poor translation.
368. ‘UCK’ is the Albanian-language acronym for ‘KLA’ or Kosovo Liberation Army.
369. The indictment was amended again on 4 February 2003 and during trial on 30 June 2003.
370. While there was one Serbian forest ranger as an injured party, all of the other victims were Kosovan Albanians. This was a case that relied upon the testimony of Kosovan Albanians.
371. See Institute for War and Peace Reporting website at <http://www.iwpr.net/balkans_index1.html>. For some commentary and reaction to the Latif Gashi et al. case, see <http://www.iwprnet/index.pl?balkans_bcr_archive.html>. See in particular the following commentary and articles by: A. Kelmendi in Pristina, Balkan Crisis Report No. 445, 18 July 2003; A. Qirezi in Pristina, ibid., No. 449, 31 July 2003; N. Kandić in Belgrade, ibid., No. 449, 31-July 2003; and M.E. Hartmann in Washington, ibid., No. 451, 8 August 2003.
372. ‘During the period 30th October 1998 to late April 1999, in complicity with Rrustem Mustafa, and aided and abetted by Nazif Mehmeti and others, and pursuant to a joint criminal plan, he illegally detained Kosovo Albanian citizens suspected of collaboration with Serbs in a detention centre organised by and under the control of the KLA at Llapashtica, and also at Majac and Potok by causing them to be detained in inhumane conditions, depriving them of adequate sanitation and beating and torturing them thus causing them great suffering and violation of their health, and thereby depriving them of their right to a fair trial: the citizens so detained included [eight names omitted, anonymous and Kosovo Albanian] witnesses…, the purpose of the plan being to seek to force those detained to confess to disloyalty to the KLA and to punish those detained for that alleged disloyalty to the KLA (Counts 2, 5 and 8). During the period from 31th May 1999 until an unknown date in mid June 1999, at an unknown location in Koliq, in complicity with Naim Kadriu, he illegally detained, beat and tortured [two anonymous names omitted] witnesses … thus exposing them to great suffering and violation of bodily health and thereby depriving them of their right to a fair trial (Counts 3 and 9). During the period 1st August 1998 to 26th September 1998, at a detention centre organised by and under the control of the KLA at Bajgora, he beat and tortured [one Kosovo Serbian name omitted] thereby exposing him to great suffering and violation of bodily health, and thus aided and abetted the unlawful detention of [same name omitted] (Counts 12 and 14). In relation to Latif Gashi, the following acts were not established: Count 1 – Allegation relating to illegal detention (Kosovo Albanian victims) at Bajgora; Count 4 – Allegation relating to inhumane treatment (Albanian victims) at Bajgora; Count 5 (part) – Allegations relating to inhumane treatment at Majac and Potok only; Count 6 – Allegation relating to inhumane treatment at Koliq; Count 7 – Allegation relating to beating and torture at Bajgora; Count 8 (part) – Allegations relating to beating and torture at Majac and Potok only; Count 10 – Allegation relating to killing of Victim 1, [another name omitted]; Count 11 – Allegation relating to killing of [five Kosovo Albanian names omitted]; Count 13 – Allegation relating to inhumane treatment [Kosovo Serbian name omitted] at Bajgora.’ Reporter's Note: ‘()’ are in verdict, while ‘ []’ are added by this reporter.
Verdict, p. 2.
373. ‘During the period 30th October 1998 to late April 1999, he aided and abetted Rrustem Mustafa and Latif Gashi illegally to detain Kosovo Albanian citizens in a detention centre organised by and under the control of the KLA at Llapashtica, by supervising the detention centre and directing the guards under his control and ensuring that the detainees remained in detention whilst knowing that they were detained in inhumane conditions and deprived of adequate sanitation and that unlawful measures of beating and torture were being applied to them, thus causing them great suffering and violation of their health and thereby depriving them of their right to a fair trial: the citizens so detained included witnesses [eight names omitted, anonymous and Kosovo Albanian] (Counts 2, 5 and 8). On a date unknown during but prior to late April 1999, in complicity with Rrustem Mustafa and in compliance with his order that [three Kosovo Albanian names omitted], detained at that time at Majac, and [two Kosovo Albanian names omitted] detained at that time at Potok, be killed, he conveyed the order from Rrustem Mustafa to kill these persons to unknown members of the KLA and further himself ordered those members of the KLA to carry out the killings which they then did (Count 11). In relation to Nazif Mehmeti, the following acts were not established: Count 5 (part) – Allegations relating to inhumane treatment at Majac and Potok only; Count 8 (part) – Allegations of torture at Majac and Potok only; Count 12 – Unlawful detention at Bajgora [Kosovo Serbian name omitted]; Count 13 – Inhumane treatment at Bajgora [same Kosovo Serbian name omitted]; Count 14 – Torture at Bajgora [same Kosovo Serbian name omitted].’
Verdict, pp. 2–3.
374. ‘During the period 31st May 1999 until an unknown date in mid June 1999, at an unknown location in Koliq, in complicity with Latif Gashi, he illegally detained, beat and tortured witnesses [two anonymous witness names omitted] thus exposing them to great suffering and violation of bodily health and thereby depriving them of their right to a fair trial (Counts 3 and 9). In relation to Naim Kadriu, the following act was not established: Count 6 – Inhumane treatment at Koliq.’
Verdict, p. 3.
375. ‘During the period 1st August 1998 to 26th September 1998, knowing that Kosovo Albanian citizens and [Kosovo Serbian name omitted] were being illegally detained at a detention centre organised by and under the control of the KLA at Bajgora in the Llap zone, and being in a position of responsible command as Commander of the Llap zone, he failed to prevent the further illegal detention of those persons and failed to take any steps to identify and punish the members of the KLA responsible for those offences (Counts 1 and 12). During the period 30th October 1998 to late April 1999, in complicity with Latif Gashi, and aided and abetted by Nazif Mehmeti and others, and pursuant to a joint criminal plan, he illegally detained Kosovo Albanian citizens suspected of collaboration with Serbs in a detention centre organised by and under the control of the KLA at Llapashtica, and also at Majac and Potok by causing them to be detained in inhumane conditions, depriving them of adequate sanitation and beating and torturing them thus causing them great suffering and violation of their health, and thereby depriving them of their right to a fair trial: the citizens so detained included witnesses [eight names, including anonymous and Kosovo Albanians, omitted], the purpose of the plan being to seek to force those detained to confess to disloyalty to the KLA and to punish those detained for that alleged disloyalty to the KLA (Counts 2, 5 and 8). On an unidentified date between 31st May 1999 and mid June 1999, he ordered Naim Kadriu to torture witness [anonymous witness name omitted] by directing Naim Kadriu to coerce [that] witness to agree to commit an act of murder in order to obtain his own release from illegal detention at a location at Koliq (Counts 3 and 9). On a date unknown during but prior to late April 1999, he ordered the murder of [three Kosovo Albanian names omitted], detained at that time at Majac, and [two Kosovo Albanian names omitted] detained at that time at Potok, by ordering Nazif Mehmeti to travel to Majac and Potok for the purpose of ensuring that his order for these killings be carried out by members of the KLA and which killings were then carried out as ordered by him (Count 11). In relation to Rrustem Mustafa, the following acts were not established: Count 4 – Allegation relating to inhumane treatment (Albanian victims) at Bajgora; Count 5 (part) – Allegations relating to inhumane treatment at Majac and Potok only; Count 6 – Allegation relating to inhumane treatment at Kolec; Count 7 – Allegation relating to beating and torture at Bajgora; Count 8 (part) – Allegations relating to beating and torture at Majac and Potok only; Count 10 – Allegation relating to killing of Victim 1, [Kosovo Albanian name omitted]; Count 13 – Allegation relating to inhumane treatment [Kosovo Serbian name omitted] at Bajgora; Count 14 – Allegation relating to torture [same Kosovo Serbian name omitted] at Bajgora.’ Verdict, pp. 3–4.
376. The verdict noted that the allegations as to torture, inhumane treatment and illegal detention at Majac, Potok, and Koliq were not established due to insufficient evidence, explained in part by the ‘relatively short periods’ of detention in those facilities. See verdict, p. 88.
377. ‘As explained above, the fact that international treaty based law fails to reflect the entire content of customary international law, particularly in the area of armed conflict, is understandable and, perhaps, inevitable. Having considered all the above matters and for the reasons given, the Court concludes: a) that the victims in the present case were victims of unlawful confinement due to the absence of proper procedural guarantees aggravated by their treatment whilst in detention, and that their confinement was therefore arbitrary and illegal, and thus those responsible committed serious breaches of international humanitarian law; b) that the rule described was, at the time of the events, and to the extent that persons so described were entitled to independent and prompt review of the orders for their detention, and other essential and basic procedural guarantees, part of the established customary law of internal armed conflict and enforceable by prosecution for the offence of war crime.’
Verdict, p. 22.
378. UNMIK Regulation 1999/24, sec. 1(4): ‘In criminal proceedings, the defendant shall have the benefit of the most favorable provision in the criminal laws, which were in force in Kosovo between 22 March 1989, and the date of the present regulation.’ The verdict at pp. 22–26 argues this point, but given the Kosovo Supreme Court's rejection of much of that logic in its 2004 opinions in Kolasinac, Besović and Vucković, and the pending appeals in this case, this reporter will not go into details here. In short, the counter-argument is that Regulation 1999/24, sec. 1(4) grants the defendants the benefit of the most lenient provisions in the criminal law. The verdict's analysis does not take into account Regulation 1999/24, sec. 1(1), which states that the applicable law is the Regulations (including 1999/24) and the law in force in Kosovo on 22 March 1989, and ‘[i]n case of a conflict, the regulations … shall take precedence’. Thus international customary law cannot take precedence over the Regulations. Second, Regulation 1999/24, sec. 1(3) also requires observance of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the Protocols thereto, and thus its non-derogable provision against retroactive criminal legislation applies even in time of war. Third, simply because ‘“Illegal detention”, as such is neither mentioned in Common Article 3 nor in Additional Protocol II’ (verdict, p. 21), it does not give rise to impunity; if it is not considered a war crime under Art. 142 FRY CC it could be prosecuted as a common crime under the applicable law. It could also be considered an inhumane act under common Art. 3. Moreover, Regulation 1999/24, sec. 1(2) arguably cannot be used to import international customary law, as discussed in the verdict at p. 23, because it cannot be used to retroactively import criminal laws. Even if it could, it could only be done if ‘a subject matter or situation is not covered’ in the current law. The subject matter/situation of war crimes and even illegal detention as a common crime is already covered in current law. These issues will no doubt be fully fleshed out by appeals and briefing before the Kosovo Supreme Court on this case. Overall, Regulation 1999/24 provides guarantees and international standards of protection for an individual, and arguably cannot be used to import penal provisions more severe than those that otherwise would apply. Finally, the fact that Regulation 2003/27 does not apply retroactively modern provisions of IHL, including command responsibility, also provides an argument against this verdict's decision to do so.
379. Verdict, pp. 4–5.
380. E.g., ‘[the defendants stressed] detention was a preventative measure which it was considered was justified as necessary in the light of all the conditions that existed at the time and was the only measure that could be taken with any prospect of alleviating the dangers caused by Kosovar Albanian collaborators.’ Ibid., pp. 38–39.
381. Ibid., p. 38. See also at n. 83: ‘This is the natural consequence of Protocol II, Articles 4, 5 and 6 and is obviously consistent with the principle of self-defence.’
382. Ibid., pp. 38–39.
383. Ibid., pp. 40–42 (including its citing of Art. 9 ICCPR, adopted by the former Yugoslavia in 1971, the report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/1998/44 (1997), and ICTY case, Prosecutor v. Krnolejac, Case No. IT-97-25-T, Judgement, Trial Chamber, 15 March 2002). The verdict at pp. 40–41 also quotes as an authoritative source the OSCE Verification Mission Report, ‘Kosovo: as seen, as told’ (1999) p. 13. The report can be accessed online at <http://www.osce.org/documents/mik/1999/11/1620_en.pdf>.
384. Rrustem Mustafa on 17 March 2003: ‘There was no process by which a detainee could challenge his detention nor a process in which it could be decided if a suspect detained was a collaborator, they were all suspects’, and a KLA witness on 22 May 2003: ‘We did not have a court structure competent enough to pronounce a decision or sentence…’. Ibid., p. 40.
385. ‘Article 6(2) of Protocol II additional to the four Geneva Conventions states that “no sentence shall be passed and no penalty executed on a person found guilty of an court offering the essential guarantees of independence and impartiality”. Few if any of the guarantees listed in the Article were provided in UCK proceedings.’ Ibid., p.40 at n. 90.
386. Ibid., p. 15 at n. 31 (citing Art. 5 of Additional Protocol II).
387. Ibid., pp. 15–16.
388. ‘[U]nlawful bringing in concentration camps and other illegal arrests and detention….’
389. The Court states its agreement ‘with the definition of torture as explained in the decision in Prosecutor v Kunarac’ without further discussion or complete citation. Verdict, p. 16.
390. ‘In contrast to torture, inhumane treatment clearly involves some physical or mental abuse of a person or persons that for some reason(s) falls short of torture. Typically, the absence of a necessary aim or purpose, or the fact that the level of gravity of the maltreatment falls short of that which should plainly be characterised as torture, would support a finding of inhumane treatment rather than torture. Obviously, in circumstances of war not every aspect of human inconvenience imposed by one person on another will amount to inhumane treatment. For a conviction to be based on inhumane treatment it would be necessary to demonstrate that the conditions and/or treatment of the person(s) concerned were significantly worse than those generally prevailing in the affected territory. In relation to both torture and inhuman treatment it is appropriate to consider all the relevant circumstances as established by the evidence in order properly to assess the nature and gravity of the case. Lastly, before a conviction can be recorded it must be shown that the defendant acted with intent to inflict torture or inhuman treatment as the case may be.’
Verdict, p. 17. The verdict does not cite any authorities for support of this particular definition.
391. Ibid., p. 5. This finding of command responsibility liability is highly contested in the appeals, at least as for the omission to act when the commander ‘should have known’, and for the omission to act when the commander does not find out until after the war crimes have finished and fails to punish/discipline/report the soldiers under command. The 2004 Kosovo Supreme Court analyses in Kolasinac, Besović and Vucković did not agree with this District Court's analysis here. See also the discussion of arguments in n. 378, supra.
392. Ibid., p. 26.
393. See n. 375, infra, for the text of the verdict's findings as to these command responsibility counts. See also Verdict, pp. 3–4.
394. Verdict, p. 26.
395. Ibid., n. 375 provides the trial transcript citation: TM 14.03.03, p. 9.
396. Ibid., n. 375 states: ‘See Exhibit 14, item 18, document from Rrustem Mustafa concerning duties of personnel, and his evidence TM 17.03.03, p.5. “There was a clear chain of command in the KLA, which was made clear in training and writing.”’
397. Latif Gashi, ten years' imprisonment; Nazif Mehmeti, 13 years' imprisonment; Naim Kadriu, five years' imprisonment; and Rrustem Mustafa, 17 years' imprisonment.
398. Verdict, pp. 91–93.
399. Allowed under UNMIK Regulation 2001/6.
400. For information about developments at the Special Court for Sierra Leone, see O. Swaak Goldman and M. Nybondas, ‘International criminal courts round-up’, in this volume, pp. 292 at 317–318.
401. ‘Sierra Leone truth body starts’, BBC News online, 14 04 2003Google Scholar.
402. Information and commentaries by Tim McCormack, Australian Red Cross Professor of International Humanitarian Law, University of Melbourne and Foundation Director of the Asia-Pacific Centre for Military Law; General Editor, Yearbook of International Humanitarian Law.
403. For background to the simmering conflict, see Correspondents' Reports, 3 YIHL (2000) pp. 577–578Google Scholar.
404. Balasubramany, P. and Ridgway, J. ‘Solomon Islands update: commentary on the Facilitation of International Assistance Bill 2003’, in PLN News, Winter No.2 2003Google Scholar <http://www.pln.com.au/legal.jsp>.
406. See UN Press Release SG/SM/8437, ‘Secretary-General welcomes opening of Somali National Reconciliation Conference in Kenya’, 16 October 2002 <http://www.unis.unvienna.org/unis/press_releases.html>.
407. Information and commentaries provided by Dr Phenyo Keiseng Rakate, Defence Secretariat, Department of Defence, Pretoria, South Africa. Formerly, Visiting Research Fellow, Max-Planck Institute for Comparative Public Law and International Law, Heidelberg, Federal Republic of Germany.
408. Act No. 44 of 1957.
409. Act No. 108 of 1996.
410. Sec. 91(2)(a) of Act No. 42 of 2002.
411. Ibid., sec. 58.
412. Sec. 203 of the Constitution.
413. Sec. 89 of Act No. 42 of 2002.
414. TRC Final Report, Vols. 1–5 (1998).
415. Ibid.
416. TRC Final Report, Vol. 6 (2003) (Report of Amnesty Committee).
417. Inkatha Freedom Party and Others v. Truth and Reconciliation Commission, 2000 (5) BCLR 534 (C).
418. TRC Final Report, Vol. 6, paras. 41–45 (Report of Amnesty Committee).
419. Ibid., Vol. 1, paras. 64–81.
420. Ibid., Vol. 6, paras. 28 et seq. (Report of Amnesty Committee).
421. Ibid., Vol. 7, para. 38. The full text of the ANC's declaration is attached as an appendix.
422. Fullard, M. and Rousseau, N., ‘An imperfect past: the Truth and Reconciliation Commission in transition’, in Daniel, J. et al. , eds., State of the Nation: South Africa 2003 – 2004 (Pretoria, Human Sciences Research Council 2003) pp. 78 at 85Google Scholar.
423. TRC Final Report, Vol. 5.
424. Sec. 47Abis Promotion of National Unity and Reconciliation Amendment Act, Act No. 23 of 2003.
425. Sec. 47A of Act No. 23 of 2003 provides:
‘Minister may appoint subcommittee on amnesty after dissolution of Commission
…
(6) If a subcommittee appointed in terms of subsection 1(1) grants amnesty to any person, the Minister shall by notice in the Gazette, make known the full names of any person to whom amnesty has been granted, together with sufficient information to identify the act, omission or offence in respect of which amnesty has been granted.
(7) If a subcommittee has refused to grant amnesty to any person, the provisions of section 21 shall apply, with the necessary changes required by the context.'
426. TRC Final Report, Vol. 1, paras. 253–254.
427. Ibid., Vol. 5, para. 68.
428. Ibid., Vol. 6, paras. 44–45 (Report of Amnesty Committee).
429. Ibid., Vol. 6, paras. 47–48 (Report of Amnesty Committee).
430. See the report on the United States of America, 5 YIHL (2002) pp. 622–624Google Scholar.
431. See the Burundi report, supra p. 471.
432. Sec. 228(4)(a) of the Constitution of 1993 read with sec. 201(3) of the Constitution of 1996.
433. Information and commentaries provided by Antoni Pigrau, Professor of International Law, Rovira i Virgili University, Tarragona. Translations of the Spanish documents are made by the correspondent.
434. UN Doc. A/CONF.183/9 (1998); in BOE 2002 No. 126. Following the parliamentary authorisation granted by Organic Law 6/2000 of 4 October 2000, in BOE 2000 No. 239.
435. Remember that Art. 29 of the Statute of Rome states that: ‘The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.’
436. See the report of the General Council on Judicial Power of 26 March 2003 on the Preliminary Draft of the Organic Law for reforming Organic Law 10/1995 of 23 November on the Penal Code, pp. 64–65. This can be consulted at <http://www.poderjudicial.es/CGPJ>.
437. As reported by several authors, including González, M. Pérez and Castelos, M. Abad, ‘Los delitos contra la comunidad internacional en el Código penal español’, 3 Anuario da Facultade de Dereito da Universidade da Coruña (1999) p. 439Google Scholar. This covers a need manifested in the Pinochet case.
438. The code is divided into two books. The first one contains general provisions on crimes and offences, those responsible for these crimes and offences, penalties, security measures and other consequences of criminal violations. The second one concerns the crimes and their penalties.
439. ‘1. Anyone who commits the crimes outlined in the following section as part of a generalised or systematic attack against a civilian population, or part of a civilian population, is guilty of crimes against humanity. In all cases, the perpetration of any of the following crimes will be considered a crime against humanity: (i) if they are perpetrated because the victim belongs to a group that is persecuted for reasons of politics, race, nationality, ethnicity, culture, religion or gender, or for other reasons that are universally recognised as unacceptable in accordance with international law; (ii) if they are perpetrated in the context of an institutionalised regime that supports the systematic oppression and domination of one racial group over one or more other racial groups with the aim of maintaining that regime.
2. Those found guilty of crimes against humanity will be sentenced to: (i) between 15 and 20 years in prison if they have caused someone's death. The highest sentence will be applied if any of the circumstances outlined in Article 139 concur; (ii) between 12 and 15 years in prison for rape and between 4 and 6 years in prison for any other form of sexual aggression; (iii) between 12 and 15 years in prison for causing any of the injuries outlined in Article 149 and between 8 and 12 years in prison for subjecting persons to situations that put their lives in danger or seriously damage their health or for causing any of the injuries outlined in Article 150; The sentence will be between 4 and 8 years in prison for causing any of the injuries outlined in Article 147; (iv) between 8 and 12 years in prison for deporting or transferring, by force and for none of the reasons authorised by international law, one or more persons to another State or place by expulsion or any other form of coercion; (v) between 6 and 8 years in prison for forcing pregnancy upon a woman with the aim of modifying the ethnic composition of a population, without prejudice to any sentences applicable for other crimes; (vi) between 12 and 15 years in prison for detaining a person and refusing to recognise that person's deprivation of liberty or provide information about his fate or whereabouts; (vii) between 8 and 12 years in prison for detaining a person and depriving him of his liberty contrary to the international rules on detention. The lowest sentence will be applied if the detention was for less than 15 days. (viii) Between 4 and 8 years in prison for committing serious acts of torture on persons in their custody or control and between 2 and 6 years in prison for less serious acts of torture. For the effects of this Article, torture is understood to be subjecting a person to physical or psychological suffering. The sentences in this section will be applied without prejudice to any sentences applicable for other infringements of the victim's rights; (ix) between 4 and 8 years for any prostitution-related conduct outlined in Article 187.1, and between 6 and 8 years for conduct outlined in Article 188(1). A sentence of between 6 and 8 years in prison will be applied to anyone who transfers a person from one place to another for the purpose of sexual exploitation by means of violence, intimidation or deceit or by abusing a position of seniority or the need or vulnerability of the victim. The highest sentences will be applied when the forms of conduct outlined in the previous section and in Article 188(1) are committed against minors or the handicapped; (x) between 4 and 8 years in prison for subjecting a person to slavery or for maintaining a person in slavery. This sentence will be applied without prejudice to those applicable for specific infringements of a person's rights. Slavery is understood as the situation of a person over whom another exercises, even de facto, all or some of the attributes of ownership, such as sale, purchase, lending or exchange.’
440. See González, M. Pérez and Castelos, M. Abad, ‘Offences against the international community according to the Spanish Penal Code’, 4 Spanish Yearbook of International Law (1995–1996) pp. 351Google Scholar; Y Meca, M. Pignatelli, La sanción de los crimenes de guerra en el Derecho español (Madrid, Ministerio de Defensa 2003)Google Scholar.
441. In BOE 1989 No. 177, BOE 1989 No. 241 and BOE 1989 No. 242.
442. The text of the proposal is published in Revista Española de Derecho Militar (No. 56–57, 1990–1991) p. 693.
443. See González, M. Pérez, ‘Un caso test en las relaciones entre el orden internacional y el interno: la adaptación de la legislación penal española a las exigencias del Derecho internacional humanitario’, in Menéndez, F.M. Mariño, ed., El Derecho internacional en los albores del siglo XXI, Homenaje al profesor Juan Manuel Castro-Rial Canosa (Madrid, Editorial Trotta 2002) pp. 533–544Google Scholar.
444. ‘Anyone who, during an armed conflict, employs or orders others to employ prohibited methods or means of combat or methods or means designed to cause unnecessary suffering or superfluous injury or those conceived to cause or are still to be seen to cause extensive, lasting and serious harm to the environment, thus compromising the health or survival of the population, or orders that no quarter be given, will be sentenced to between 10 and 15 years in prison, without prejudice to sentences applicable for the results produced.’ Added text is shown in italics.
445. ‘(iv) The deportation, enforced transfer, hostage taking, illegal detention or confinement of any protected person or use of that person for the purposes of protecting certain areas, zones or armed forces from enemy attacks. (v) The direct or indirect transfer and settlement of people of the occupying party into occupied territory for the purposes of permanent residence.’ Added text is in italics.
446. ‘(i) Knowing violation of protection afforded to hospitals, installations, material, units and means of medical transport, prisoner-of-war camps, zones and localities for health and safety, neutralised zones, places of internment of the civilian population, non-defended localities and clearly signalled demilitarised zones. (ii) The use of violence against medical or religious personnel or members of a medical mission or aid societies, or against personnel permitted in accordance with international law to use signs and signals of the Geneva Conventions.’ Added text is in italics.
447. ‘1. Anyone who, during an armed conflict, carries out or orders others to carry out, any of the following actions will be sentenced to between 4 and 6 years in prison: a) Attacks or reprisals or acts of hostility on [against] clearly recognised cultural property or places of worship that are part of a people's cultural or spiritual heritage that have been given protection via special agreements, or against cultural property under reinforced protection, causing extensive destruction, provided this property is not situated in immediate proximity to military objectives and is not used to support the military effort of the enemy’. Added text is in italics and removed text is between square brackets.
448. See Art. 28 of the Statute of the International Criminal Court. Art. 615bis punishes ‘any authority or military commander or person effectively acting as such’ who does not take the measures at his disposal to prevent any crime of genocide, any crime against humanity or any crime against protected persons or property, including gross imprudence, from being committed by the forces under his command or effective control, or who does not take the measures at his disposal to bring to justice any person responsible for such crimes who is subject to his command or effective control. The same applies to any ‘superior not covered by the previous sections’ in relation to these crimes if committed by his ‘subordinates’. The Article also punishes any ‘official or authority who does not follow the conduct outlined in the previous section but fails in his obligation to bring to justice those responsible for crimes outlined in Chapters II, II bis and III of this Title he knows have been committed’.
449. ‘In no case will the provisions of Article 20(7) of this Code be applicable to those who follow orders to commit or participate in the crimes included in Chapters II and II bis of this Title.’ Article 20 (7) reads: ‘Exempt from criminal responsibility are: … 7° Anyone who acts in the fulfilment of his duty or in the legitimate exercise of a right, profession or office.’
450. Art. 33 states: ‘1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: a) The person was under a legal obligation to obey orders of the Government or the superior in question; b) The person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. 2. For the purposes of this Article, orders to commit genocide or crimes against humanity are manifestly unlawful.’
451. Spain ratified the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 1972 on 20 June 1979, in BOE 1979 No. 165.
452. In BOE 2000 No. 239.
453. In BOE 2002 No. 258.
454. To avoid any misunderstanding, the report of the General Council on Judicial Power of 15 January 2003 on the Preliminary Draft of the Organic Law on Cooperation with the International Criminal Court recommends that: ‘it should be clarified that the maximum sentence referred to in the declaration formulated in the Additional Provision of Organic Law 6/2000 of 4 October 2000 refers to the maximum sentence for certain crimes in the Special Section of the Penal Code, not to the general maximum for prison sentences established in Article 36 of the Penal Code’, pp. 38 and 43 <http://www.poderjudicial.es/CGPJ>.
455. See the comment on this sentence in this volume, pp. 618–627.
456. The amendments introduced by the parliamentary opposition led to the inclusion of the following para. 3: ‘However, if the Court Prosecutor decides not to open the investigation, or the Court decides that the case is inadmissible, the complaint, action or application may be re-presented before the appropriate bodies.’
457. See comment by Cottier, M., 3 YIHL (2000) pp. 587–594Google Scholar.
458. Para. 4 of Art. 23 of the OLJP reads: ‘Spanish jurisdiction will be valid for those crimes committed by Spanish or foreign nationals outside Spanish territory that may, according to Spanish penal law, be qualified as any of the following: (a) Genocide; (b) Terrorism; (c) Piracy and Unlawful Seizure of Aircraft; (d) Forgery of foreign currency; (e) Crimes related to prostitution and corruption of minors or the handicapped; (f) Illegal trafficking of psychotropic, toxic and narcotic drugs; (g) Any other crimes that, according to international treaties or agreements, must be prosecuted in Spain.’
459. Supreme Court, Criminal Division, Sentence No. 327/2003 of 25 February 2003. Appeal for cassation No. 803/2001. <http://www.poderjudicial.es/CGPJ>. Reporting magistrate, Miguel Colmenero Menéndez de Luarca. This sentence is signed by the following magistrates: Luis Román Puerta, Luis Enrique Bacigalupo Zapater, Joaquín Delgado García, José Antonio Martín Pallin, Carlos Granados Pérez, Cándido Conde-Pumpido Tourón, José Antonio Marañón Chávrri, Joaquín Giménez García, Andrés Martínez Arrieta, Juan Saavedra Ruiz, Julián Sánchez Melgar, Perfecto Andrés Ibéñez, José Ramón Soriano Soriano, Miguel Colmenero Menéndez de Luarca and José Manuel Maza Martín.
460. Supreme Court. Criminal Division. Dissenting opinion formulated by magistrates Joaquín Delgado García, José Antonio Martín Pallín, Cándido Conde-Pumpido Tourón, José Antonio Marañón Chavarri, Joaquin Giménez García, Andrés Martinez Arrieta and Perfecto Andrés Ibáñez on appeal for cassation No. 803/2001. <http://www.poderjudicial.es/CGPJ>. These magistrates dissented from the resolution of the Court because in their opinion the doctrine underlying the application of the principle of universal justice is too limited. ‘This doctrine does not respect the text drawn up by the Legislator on extraterritorial criminal prosecution for the crime of genocide outlined in article 23(4) of the Organic Law on Judicial Power.’
461. BGHSt 27, 30; order of 13 February 1994 (1 BGs 100/94).
462. Decision of the Belgian Court of Appeals, 26 June 2002.
463. The sentence mentions: the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomats, of 1973; the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984; the Convention Against the Taking of Hostages of 1979; the European Convention on the Suppression of Terrorism of 1977; the International Convention for the Suppression of the Financing of Terrorism of 1999; and the Vienna Convention against the Illicit Traffic of Narcotic Drugs and Psychotropic Substances of 1988 (in BOE 1986 No. 33; 1973 No. 13; 1974 No. 9; 1987 No. 268; 1984 No. 162; 1980 No. 242; 2002 No. 123; and 1990 No. 270, respectively). ‘Although the criteria for allocation vary according to the nature of the crime, in no case do these treaties expressly establish universal jurisdiction,’ (tenth legal ground).
464. The Court refers to the Act to Introduce the Code of Crimes against International Law [Gesetz zur Einführung des Völkerstrafgesetzbuches] of 26 June 2002, in BGBl. I 2002 No. 42, pp. 2254–2260.
465. Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium), ICJ Rep. (2002) p. 3.
467. Fédération nationale des déportés et internés résistants et patriotes et autres c. Barbie (Cass. crim.), Sentence of 20 December 1985, 78 ILR (1988) p. 136Google Scholar.
468. Regina v. Bartle and Others (ex parte Pinochet) & Regina v. Evans and Others (ex parte Pinochet), Judgement of the House of Lords, 24 March 1999 <http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm>.
469. Organic Law 18/2003 of 10 December 2003 on Cooperation with the International Criminal Court; in BOE 2003 No. 296. See the comment in this volume, pp. 614–617.
470. Order of indictment of 98 members or former members of the Argentinian Armed Forces, Central Investigating Court No. 5 of the National Court, 2 November 1999, Court record 19/97 L: Terrorism and Genocide. Can be consulted in Spanish at <http://www.derechos.org/nizkor/espana>.
471. Before Cavallo, Jorge Olivera was arrested on 6 August 2000 in Rome at the request of the French Judge Roger Le Loire. Among other crimes, he was accused of the kidnapping and disappearance of Marianne Erize, a French national, in October 1976. He was later released for reasons of court procedure.
472. The Treaty on Extradition and Mutual Assistance in Penal Matters [Tratado de Extradición y Asistencia Mutua en Materia Penal] of 1978, in BOE 1980 No. 145, has been in force between Spain and Mexico since 1 June 1980. It was modified by the Protocol of 23 June 1995, which came into effect on 1 September 1996, in BOE 1996 No. 190.
473. Order to prosecute Miguel Angel Cavallo, Central Investigating Court No. 5 of the National Court, Madrid, 1 September 2000, Court record 19/97: Terrorism and Genocide. The Court orders in relation to this case can be consulted in Spanish at <http://www.derechos.org/nizkor/espana>.
474. Order extending the order for the prosecution of Miguel Angel Cavallo of 1 September 2000, Central Investigating Court No. 5 of the National Court, Madrid, 5 October 2000, Court record 19/97: Terrorism and Genocide.
475. Sentence of the Supreme Court of Justice in the case of the extradition of counter-intelligence officer of the Argentine Navy, Ricardo Miguel Cavallo. Revised Injunction 140/2002. Reporting magistrate, Humberto Román Palacios. This sentence can be consulted at <http://www.scjn.gob.mx/inicial.asp>.
476. For an analysis of these matters from the Mexican perspective, see the Mexican report in this volume, pp. 542–543.
477. See the comment on the sentence of the Supreme Court of 25 February 2003 in this volume, pp. 618–627.
478. See Order of 2 November 1999, Central Investigating Court No. 5 of the National Court, Court record 19/97-L: Terrorism and Genocide. See also Order of 24 November 2000, Central Investigating Court No. 5 of the National Court, Court record 19/97-L: Terrorism and Genocide. These can be consulted at <http://www.derechos.org/nizkor/espana>.
479. See the comment on the sentence of the Supreme Court in this volume, pp. 618–627.
480. Until then the official position of the Prosecutor's Office was not to oppose the criminal proceedings that had been open since 1996. The general election of March 1996 brought a new government to power. After the election, a new Attorney General, Jesús Cardenal, a man with extremely conservative views, was appointed. The main ideas in the new position of the Prosecutor's Office were expressed by Chief Prosecutor of the National Court Eduardo Fungairifio in an interview published in El Mercurio of Santiago, Chile, 22 October 1997.
481. The prosecutor proposed ‘the full nullity of the Order on the Start of Trial Proceedings on account of the lack of proper defence of the Department of Public Prosecutions, in agreement with articles 5(4) and 238(3) of the OLJP: this violation is reported to the effect of the corresponding appeal before the Constitutional Court.’ Art. 5(4) of the OLJP states that: ‘In all cases in which, in accordance with the Law, an appeal for cassation is allowed, violation of a constitutional precept will provide sufficient grounds to support it’. Para. 3 of Art. 238 states that any trial will be invalid ‘if essential rules of procedure are missing and a lack of proper defence has occurred’.
482. The challenge is based on the first four sections of Art. 666 of the Law of Criminal Prosecutions. See the comment on the Order of 4 November 1998 of the plenary session of the Criminal Chamber of the National Court, 2 YIHL (1999) pp. 411–413Google Scholar.
483. These were: Jorge Rafael Videla Redondo, Emilio Eduardo Massera, Omar Rubens Graffigna, Armando Lambruschini Dellavalle, José Isaac Anaya, Basilio Arturo Lami Dozo, Carlos Guillermo Suárez Masón, Jorge Olivera Rovere, Antonio Domingo Bussi, Ramón Genaro Díaz Bessone, Luciano Adolfo Jaúregui, Juan Carlos Ricardo Trimarco, Luciano Benjamin Menéndez, José Antonio Vaquero, Jorge Eduardo Acosta Aubone, Carlos Eduardo Daviou, Luís María Mendía, Jorge Enrique Perren, Carlos José Pazo, Gonzálo Dalma Torres de Tolosa, Rubén Oscar Franco, Alfredo Ignacio Astiz, Antonio Pernias Basterreix, Juan Carlos Rolón, Pablo Eduardo García Velazco, Adolfo Miguel Donda Tigel, Carlos Octavio Capdevilla, Julio César Coronel, Ernesto Frimón Weber, Hector Antonio Febres Méndez, Juan Antonio Azic, Juan Orlando Rolon, Luís Santiago Martella, Fernando Humberto Santiago, Alberto Luís Cattaneo, Albino Mario Alberto Zimmerman, Luís Ricardo Rizo Avellaneda, Roberto Heriberto Albomoz, Augusto Leonardo Neme and Héctor Mario Schwab.
484. This declaration was signed by the parliamentary spokespersons of the Spanish Socialist Party, Convergència Democràtica de Catalunya i Unió Democràtica de Catalunya (Catalan coalition party), Izquierda Unida (the United Left Party), the Basque Nationalist Party, the Canarian Coalition Party, the Galician Nationalist Block, Esquerra Republicana de Catalunya (the Republican Left of Catalonia), the Aragonese Union, the Andalusian Party, Initiative for Catalonia – the Greens, and Eusko Alkartasuna (Basque Solidarity).
485. On 14 March 2004 the ruling Popular Party was defeated in a general election and the Spanish Socialist Party was returned to power for the first time since 1996.
486. Dr Ola Engdahl, Swedish National Defence College.
487. Pledge 104 to which Finland and Switzerland aligned themselves <http://www.icrc.org/Applic/p128e.nsf/va_PBA/6A1BA84F6E295805C1256DF100606166?openDocument§ion=PBP>.
489. OJ (2002) L 164/3.
490. Ministry of Justice Press Release, 12 May 2002, when the legislative proposal was referred to the Council of Legislation.
491. Lag (2003:1156) om överlämnande från Sverige enligt en europeisk arresteringsorder.
492. OJ (2002) L 190/1.
493. <http://www.humanrights.se/index.html> (in Swedish).
494. Förordning om folkrättslig granskning av vapenprojekt, Svensk författningssamling (SFS) 1994:536.
495. The Delegation monitors new arms project in accordance with Art. 36 of Additional Protocol I to the Geneva Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
496. For the following, see the decision by the Delegation, Beslut T 2002–11–20 Dnr 17/02 (not published).
497. The following text is largely based on the English summary of the report. It refers to the report in SOU 2003:32 above.
498. Information and commentaries provided by Dr Djura Inomzoda, President of Tajikistan Red Crescent.
499. Information and commentaries by Emmanuel Kasimbazi, Senior Lecturer, Faculty of Law, Makerere University and Senior Partner, Kasimbazi and Company Advocates, Kampala, Uganda.
500. The case is still pending in court.
501. Amnesty Act, Act No. 2 of 2000, preamble.
502. Amnesty Commission, ‘A guide to Amnesty Act, 2000’ (2003) p. 1.
503. Sec. 4(1)(c) Amnesty Act.
504. Under sec. 2 of the Act, a Reporter is defined as some one who takes steps to receive the amnesty.
505. Records at the Amnesty Commission, Kampala headquarters.
506. Sec. 4(1)(d) Amnesty Act.
507. This is the Ugandan name for machete.
508. According to records available at the Commission in Kampala.
509. Interview with the principle relations officer at the Amnesty Commission.
510. Anti-Terrorrism Act (No. 14)of 2002.
511. Ibid., sec. 7(1)(a) and (b).
512. Amnesty International, ‘Uganda: First steps to investigate crimes must be part of comprehensive plan to end impunity’, 30 January 2004 <http://web.amnesty.org/library/print/ENGAFR590012004>.
513. Ibid.
514. Ibid.
515. Ibid.
516. Sec. 17 Amnesty Act.
517. Information and commentaries provided by A.P.V. Rogers, Yorke Distinguished Visiting Fellow, Faculty of Law and Fellow, Lauterpacht Research Centre for International Law, University of Cambridge. Thanks to Ms Helen Upton, Assistant Legal Adviser, and Mr Nick McDuff, United Nations Department, Foreign and Commonwealth Office, London for their help in compiling the documents referred to.
518. See pledges by other states in their respective correspondents' reports in this volume of the Yearbook.
519. It is planned to be published by Oxford University Press in July 2004 and details can be found on <http://www.oup.co.ukunder'internationallaw'>.
520. See the report on the United Kingdom, 3 YIHL (2000) p. 598Google Scholar.
521. ‘Freed Chechen envoy vows to continue freedom fight’, in The Scotsman, 13 11 2003Google Scholar <http://www.news.scotsman.com/latest.cfm?id=2172815>; ‘Extradition case puts Russian justice on trial at Bow St’, in The Guardian, 15 09 2003Google Scholar <http://www.guardian.co.uk/russia/article/0,2763,1041979,00.html>; Amnesty International Press Release, AI Index: EUR 46/090/2003, ‘Russian Federation/UK: UK Court decides not to extradite Chechen envoy Akhmed Zakayev’, 13 November 2003 <http://web.amnesty.org/library/engindex>.
522. Information and commentaries by Burrus M. Carnahan, Professorial Lecturer in Law, the George Washington University, Washington, DC, and Kevin Afghani, B.A., University of Texas at Dallas; J.D., Tulane University; LL.M., Universiteit van Amsterdam.
523. DoD News Release No. 908–03, ‘DoD announces detainee allowed access to lawyer’, 2 December 2003.
524. Ibid.
525. Ibid.
526. See DoD News Releases No. 311–03, 9 May 2003; No. 524–03, 18 July 2003; and No. 882–03, 24 November 2003.
527. Ibid.
528. Ibid.
529. DoD News Releases No. 541–03 and No. 892–03.
530. ‘Military turns to software to cut civilian casualties’, in The Washington Post, 21 02 2003Google Scholar; Smith, G., ‘Bugsplat’, in The Village Voice (New York), 12–18 03 2003Google Scholar.
531. 5 USC sec. 552.
532. 18 USC sec. 2339B(a)(l).
533. 50 USC secs. 1701 et seq.
534. 5 USC sees. 701 et seq.
535. This two-pronged standard was articulated by the US Court of Appeals for the District of Columbia in National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (DC Cir. 2001).
536. For the relevant portion of the IEEPA, see 50 USC sec. 1702(c).
537. 262 F. Supp. 217 (SDNY 2003).
538. 116 Stat. p. 2322.
539. 28 USC sec. 2241(c)(3) authorises a district court to grant a writ of habeas corpus whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States’.
540. Codified as Note to 8 USC sec. 1231.
541. The Foreign Sovereign Immunities Act entitles foreign states to immunity from civil suits in US courts, with specific exceptions. The ‘terrorism exception’, embodied in 28 USC sec. 1605(a)(7), denies immunity to foreign states for damage actions for personal injury or death resulting from certain acts, including acts of ‘torture’ and ‘hostage taking’ when such foreign states have been designated as state sponsors of terrorism, as Libya has.
542. Art. I International Convention Against the Taking of Hostages of 1979, 1316 UNTS p. 205.
543. Art. 3 of the Convention Against Torture states, in relevant part, that ‘[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’
544. 8 CFR sec. 208.18(a)(l).
545. 8 CFR sec. 208.18(a)(7).
546. Sec. 354(6) of the California Code of Civil Procedure provides:
‘(a) As used in this section:
(1) “Second World War slave labor victim” means any person taken from a concentration camp or ghetto or diverted from transportation to a concentration camp or from a ghetto to perform labor without pay for any period of time between 1929 and 1945, by the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under control of the Nazi regime or its allies and sympathizers.
(2) “Second World War forced labor victim” means any person who was a member of the civilian population conquered by the Nazi regime, its allies or sympathizers, or prisoner-of-war of the Nazi regime, its allies or sympathizers, forced to perform labor without pay for any period of time between 1929 and 1945, by the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under control of the Nazi regime or its allies and sympathizers.
(3) “Compensation” means the present value of wages and benefits that individuals should have been paid and damages for injuries sustained in connection with the labor performed. Present value shall be calculated on the basis of the market value of the services at the time they were performed, plus interest from the time the services were performed, compounded annually to date of full payment without diminution for wartime or postwar currency devaluation.
(b) Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate. That action may be brought in a superior court of this state, which court shall have jurisdiction over that action until its completion or resolution.
(c) Any action brought under this section shall not be dismissed for failure to comply with the applicable statute of limitation, if the action is commenced on or before December 31, 2010.’
547. Cal. Ins. Code secs. 13800–13807.
548. Hwang Geum Joo v. Japan, 172 F.Supp.2d 52, 56 (DDC 2001).
549. In the Tate Letter, the US adopted the doctrine of ‘restrictive immunity’. Under that doctrine, ‘immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts’.
550. 3 UST p. 3169.
551. ‘Court upholds deportation of Nazi suspect’, NY Times online, 28 August 2003.
552. The Alien Tort Claims Act, 28 USC sec. 1350, reads: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’
553. 78 UNTS p. 277.
554. The Court cites common Art. 3(1) of the Geneva Conventions as support for this proposition.
555. The TVPA, at 28 USC sec. 1350(2)(b), provides: ‘A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.’
556. Codified at 28 USC sec. 1350 note.
557. 28 USC sec. 1350.
558. Section 2(b) of the TVPA, codified at 28 USC sec. 1350(2)(b), provides: ‘A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.’
559. 28 USC sec. 1331 provides: ‘The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.’
560. Namely, Citigroup, JP Morgan Chase, UBS AG, Credit Suisse, Deutsche Bank, Barclays Bank.
561. Namely, Shell and ExxonMobil.
562. Namely, Ford, DaimlerChrysler and GM.
563. Namely, IBL and UNISYS.
564. Plaintiffs include 91 victims of apartheid and the Khulumani Support Group, a South African NGO representing 33,000 victims.
565. Panuel Maduna's Affivadit, para. 12, dated September 2003 (on file); Cf. Mkhize, H., ‘Reparation issue needs political solution’, in The Sunday Times, 7 07 2002, p. 19Google Scholar (arguing that the reparation's lawsuit will not only undermine the TRC process but also make potential investors ask themselves whether the rainbow nation being championed worldwide is real or just an illusion).
566. Johannes Terreblanche's Affidavit, para. 19, dated September 2003 (on file).
567. 28 USC sec. 1350.
568. Ibid.
569. See the TVPA's definition of ‘torture’ and ‘mental pain of suffering’ at 28 USC sec. 1350, note sec. 3(b)(l) and note sec. 3(b)(2), respectively.
570. 82 UNTS p. 284.
571. ‘Marines press charges against 8 over the death of an Iraqi prisoner’, in The New York Times, 19 10 2003Google Scholar.