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Genocide, War Crimes and Crimes Against Humanity:
Topical Digests of the Case Law of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia

Case Law of the International Criminal Tribunal for the Former Yugoslavia

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Case Law of the International Criminal Tribunal for Rwanda

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International Justice in the Rwanda

International Justice in the Balkans

SUMMARY OF JUDGMENTS AGAINST THE ACCUSED

LISTING OF CASES INCLUDED

I) WAR CRIMES: GRAVE BREACHES OF THE GENEVA CONVENTIONS OF 1949 (Article 2)

a) Statute

b) General elements for Article 2 crimes

i) the existence of an armed conflict (element 1)

(1) armed conflict required

(2) armed conflict defined

(3) duration of application of international humanitarian law

ii) there must be a nexus between the conflict and crimes alleged (element 2)

iii) the armed conflict must be international (element 3)

(1) international armed conflict defined

(2) overall control test applies

(3) overall control test satisfied where a state has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support

(4) do not just look at the locality where the crimes occurred to determine if conflict is international

(5) application

(a) conflict between Bosnia and Herzegovina and Croatia

(b) conflict between Bosnia and Herzegovina and the Federal Republic of Yugoslavia (FRY)

iv) the person or property at issue must be “protected” (element 4)

(1) protected persons defined

(2) use ethnicity or substance of relations and not formal nationality to determine protected status

(3) protected persons can be same nationality as captor

(4) “in the hands of a Party to the Conflict or Occupying Power” defined

c) Mental state (mens rea)

i) generally

d) Underlying offenses

i) willful killing

(1) defined

(2) mental state (mens rea)

ii) torture or cruel and inhuman treatment

(1) torture

(2) cruel and inhuman treatment

iv) willfully causing great suffering or serious injury to body or health

(1) defined

(2) requires showing of serious mental or physical injury, although need not be permanent or irremediable

v) extensive destruction of property not justified by military necessity

vi) unlawful confinement of civilians and imprisonment

(1) generally

(2) responsibility more properly allocated to those responsible for detention, not those who merely participate in it, such as those who maintain a prison

(3) responsibility of camp commander

vii) unlawful transfer

viii) taking civilians as hostages

e) Miscellaneous

i) occupation (relevant to unlawful labor of civilians, unlawful transfer and destruction of property)

(1) where “occupation” is relevant

(2) definition

(3) guidelines for determining occupation

(4) only applies to areas actually controlled by the occupying power

(5) different test would apply regarding individuals or property and other matters

II) WAR CRIMES: VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR (Article 3)

a) Statute

b) Generally

i) Article 3 of the Statute functions as a residual clause, covering any serious violation of humanitarian law not covered by other Articles of the Statute

ii) Article 3 of the Statute covers acts committed in both internal and international armed conflict

iii) conditions for determining which violations fall within Article 3

iv) violations of international humanitarian law that are covered

v) rationale for why Common Article 3 violations are covered

(1) Common Article 3 is part of customary law

(2) violations of Common Article 3 are serious

(3) Common Article 3 imposes individual criminal responsibility

(4) Common Article 3 is applicable to international armed conflicts

c) General elements for Article 3 crimes

i) there must have been armed conflict, whether internal or international (element 1)

ii) there must be a close nexus between the armed conflict and alleged offense (element 2)

(1) the acts of the accused must be closely related to the hostilities

(2) the armed conflict need not be causally linked to the crimes, but it must have played a substantial role

(3) the crimes may be temporally and geographically remote from actual fighting

iii) added element for Common Article 3 crimes: must be committed against civilians or civilian property

iv) mental state (mens rea)

(1) generally

(2) proof of discriminatory intent or motive not required

d) Underlying offenses

i) torture

(1) defined

(2) the prohibition against torture is jus cogens

(3) severe pain and suffering must be inflicted (element 1)

(a) permanent injury not required

(b) mental suffering can qualify

(4) mental state (mens rea) : the act or omission must be intentional (element 2)

(5) prohibited purpose or goal required (element 3)

(a) prohibited purpose need not be predominating or sole purpose

(6) whether role of public official is necessary

(7) application

(a) examples of acts constituting torture

(b) rape and other forms of sexual violence as torture

ii) rape

iii) cruel treatment

(1) defined

(2) mental suffering requirement lower than for torture

(3) prohibited purpose not required

(4) examples

iv) murder

(1) defined

(2) comparison between murder under Article 3 and willful killing under Article 2

(3) proof of dead body not required

(4) suicide as murder

v) violence to life and person

vi) outrages upon personal dignity

(1) defined

(2) requires humiliation so intense any reasonable person would be outraged

(3) humiliation must be real and serious

(4) murder is not an outrage upon personal dignity

(5) mental state (mens rea)

(6) prohibited purpose not required

(7) discriminatory intent or motive not required

(8) examples

vii) taking of hostages

viii) wanton destruction not justified by military necessity

ix) plunder

(1) defined

(2) includes both large-scale seizures and appropriation by individual soldiers

(3) plunder must involve grave consequences for the victims/sufficient monetary value

(4) where applies

(5) plunder includes “pillage”

(6) application

x) destruction or willful damage to institutions dedicated to religion or education

xi) unlawful attacks on civilians and civilian objects

xii) unlawful labor

(1) defined

(2) mental state (mens rea)

xiii) slavery

III) GENOCIDE (Article 4)

a) Statute

b) Defined

c) Mental state (mens rea) : intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such

i) generally

ii) intent to destroy, in whole or in part

(1) requires an intentional attack against a group, and the intention to participate in or carry out the attack

(2) even if destruction was not original goal, it may become the goal

(3) destruction “in part”

(a) “substantial” part of group required

(b) evidence of destruction of leadership may establish intent to destroy “in part”

(d) application

(4) no lengthy premeditation required

(5) distinguish intent from motive

(6) intent may be inferred

(7) no policy or plan required, but may be important factor

iii) “a national, ethnical, racial or religious group, as such”

(1) “as such”

(a) victims must be targeted by reason of their group membership

(b) the group must be targeted, not specific individuals

(2) groups protected by Article 4

(a) national, ethnical, racial or religious groups

(b) not political groups

(d) evaluate using subjective criterion: stigmatization by the community

d) Underlying offenses

i) killing members of the group

ii) causing serious bodily or mental harm to members of the group

iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

iv) imposing measures intended to prevent births within the group

v) forcibly transferring children of one group to another group

IV) CRIMES AGAINST HUMANITY (Article 5)

a) Statute

b) General elements

i) the Statute requires that there must be an armed conflict (element 1)

(1) whether there is any linkage required between the acts of the accused and the armed conflict

ii) there must be an “attack” (element 2)

(1) the “attack” may be, but need not be, part of the “armed conflict”

(2) “attack” and “armed conflict” are distinct

(3) “attack” not limited to use of armed force

(4) when establishing the attack, irrelevant that the other side committed atrocities (reciprocity of obligations)

iii) the acts of the accused must form part of the attack (element 3)

iv) the attack must be “directed against any civilian population” (element 4)

(1) “directed against”

(a) an attack is “directed against” a civilian population if the civilian population is the primary object of the attack

(b) not entire population, but a “sufficient number” must be subject to the attack

(2) civilian population

(a) must be “predominantly” civilian

(b) presence of those involved in conflict does not deprive population of civilian nature

(c) civilian includes those who were members of a resistance movement and former combatants but who are no longer taking part in hostilities

(d) construe civilian population liberally

(e) protects “any” civilian population

v) the attack must be “widespread or systematic” (element 5)

(1) widespread or systematic

(2) only the attack, not the accused’s acts, must be widespread or systematic

(3) widespread

(4) systematic

(5) factors in assessing widespread or systematic

(6) single act, if linked to a widespread or systematic attack, can qualify as a crime against humanity

(7) whether there is plan or policy requirement

vi) mental state (mens rea) (element 6)

(1) intent

(a) the perpetrator must have intent to commit the underlying offense(s)

(b) motive is irrelevant

(c) it is irrelevant whether the accused intended his acts to be directed against the targeted population or merely the victim

(d) discriminatory intent only required for persecution

(2) knowledge

(a) the perpetrator must knowingly participate in a widespread or systematic attack, i.e., have knowledge of the attack and the nexus between his acts and that context

(b) alternatively, the perpetrator must have knowledge of the attack and taken the risk his acts were part of it

(d) no requirement that the perpetrator must approve of the context

(e) factors from which to infer knowledge of context

c) Underlying offenses

i) murder

(1) elements

(2) “murder” under Article 5 of the Statute, compared to Articles 2 and 3

(3) proof of dead body not required

(4) suicide as murder

(5) “murder” not “premeditated murder” is the underlying offense

(6) mental state (mens rea)

ii) extermination

(1) generally

(2) number of individuals involved

(3) extermination must be collective, not directed toward singled out individuals

(4) mental state (mens rea)

(a) discriminatory intent not required

iii) enslavement

(1) actus reus and mens rea

(2) indicia of enslavement

(a) keeping someone in captivity usually not enough

(b) duration of enslavement is a factor, but not a required element

(3) lack of resistance is not a sign of consent; lack of consent is not an element

iv) imprisonment

v) torture

(1) elements

(2) requirement of severe pain and suffering

(a) rape necessarily implies severe pain or suffering

(3) requirement of a prohibited purpose

(a) prohibited purpose need not be the predominating or sole purpose

(4) mental state (mens rea)

(5) role of a state official not necessary

vi) rape

vii) persecution

(1) required acts (actus reus)

(a) persecution must be of “same gravity” as other crimes enumerated in Article 5

(b) persecutory acts include crimes under other sub-clauses of Article 5, crimes found elsewhere in the Statute and crimes not expressly prohibited under the Statute

(d) may encompass physical or mental harm or infringements upon individual freedom

(e) single act can constitute persecution if discriminatory intent proven

(f) examples of persecution

a. destruction of property or means of subsistence

b. unlawful detention of civilians

c. deportation or forcible transfer of civilians

d. harassment, humiliation and psychological abuse

e. murder, extermination, torture

f. political, social, economic rights violations generally

g. violations of the right to life, liberty and the security of person; the right not to be held in slavery or servitude; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; and the right not to be subjected to arbitrary arrest, detention or exile

h. additional examples

i. acts that do not rise to the level of persecution

(2) mental state (mens rea)

(a) discriminatory intent required for persecution

(b) mental state (mens rea) requirement for persecution higher than for other crimes against humanity, but lower than for genocide

(d) discriminatory intent can be shown by positive or negative criteria

(e) discriminatory intent can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds

(f) no requirement of discriminatory policy

(g) knowledge that one is acting in a way that is discriminatory is insufficient; must intend to discriminate

(h) intent to discriminate need not be the primary intent, but must be a significant one

(i) discriminatory intent must relate to the act charged as persecution, not the attack

(j) discriminatory consequences required

viii) other inhumane acts

(1) generally

(2) elements

(a) seriousness/severity of the act

(b) serious bodily or mental harm

(3) equivalent to “cruel treatment” under Article 3

(4) application

V) INDIVIDUAL RESPONSIBILITY (Article 7(1))

a) Statute

b) Generally

i) criminal responsibility of superiors under Article 7(1)

ii) overlap of Articles 7(1) and 7(3)

c) Planning, instigating, ordering, committing

i) mental state (mens rea) generally

ii) planning

(1) person who committed crime cannot also be held responsible for planning it

(2) circumstantial evidence may prove plan

iii) instigating

(1) generally

(2) the act (actus reus)

(a) requires a clear contribution to the conduct of the other person, but unnecessary to show that the crime would not have occurred without the accused’s involvement

(b) both positive acts and omissions may constitute instigating, as well as express and implied conduct

(3) mental state (mens rea)

iv) ordering

(1) generally

(2) order may be explicit or implicit, and proven through circumstantial evidence

(3) order need not be given directly to person who performs the offense

(4) no formal superior-subordinate relationship required

(5) irrelevant whether the illegality of the order was apparent on its face

v) committing

(1) generally

(2) the act (actus reus)

(a) involves direct personal or physical participation

(b) alternatively, can involve a culpable omission

(3) mental state (mens rea)

d) Aiding and abetting

i) generally

ii) based on customary international law

iii) defined

iv) the act (actus reus)

(1) requires practical assistance, encouragement or moral support

(2) may occur through an omission

(3) must have a substantial effect on the commission of the crime

(4) presence at scene

(a) is not conclusive, unless it demonstrates a significant encouraging effect or a direct and substantial effect

(b) example

(d) actual physical presence not required

(5) assistance may occur before, during or after the act is committed

(6) the aider and abettor will be responsible for all that naturally results from his act

v) mental state (mens rea) : intent and knowledge

(1) aider and abettor needs to have intended to assist or facilitate, or accepted that assistance would be a possible and foreseeable consequence

(2) need not know precise crime intended or committed

(3) need not share principal’s intent, but must be aware of essential elements of the crime, including the principal’s mental state

(4) must have knowledge that actions will assist commission of the crime

(5) mental state (mens rea) may be deduced from circumstances, such as position of authority and presence

(6) mental state (mens rea) for aider and abettor of persecution

vi) difference between “aiding and abetting,” and “participation in a joint criminal enterprise” (i.e., acting pursuant to a common design or purpose)

(1) generally

(2) elements distinguished

(3) mental state (mens rea) distinguished

(4) application: torture

e) Joint criminal enterprise/ the common purpose doctrine

i) generally

ii) three categories of common purpose doctrine

iii) elements

(1) need to establish existence of an arrangement or understanding

(a) arrangement need not be express/can be unspoken

(b) common plan or purpose may materialize extemporaneously

(2) level of participation in joint criminal enterprise must be significant

(a) level of participation for aider and abettor: must have a substantial effect

(3) responsibility for crimes outside the common purpose occurs if it was foreseeable that such a crime might be perpetrated and the accused willingly took that risk

(4) whether participation in a joint criminal enterprise is more akin to direct perpetration or accomplice liability

iv) mental state (mens rea)

(1) if the crime fell within the joint criminal enterprise

(a) must prove common state of mind for co-perpetrator

(b) must prove knowing assistance for an aider or abettor

(2) if the crime went beyond the enterprise, need to prove that the accused was aware that the further crime was a possible consequence and that, with that awareness, he participated in that enterprise

(3) where crime requires special intent, must prove such intent

v) difference between participating in a joint criminal enterprise, and aiding and abetting a joint criminal enterprise

(1) generally

(2) mental state (mens rea) compared

(3) when an aider or abettor becomes a co-perpetrator

(4) application: participation in operation of a detention facility

VI) COMMAND RESPONSIBILITY (Article 7(3))

a) Statute

b) Elements

i) the existence of a superior-subordinate relationship (element 1)

(1) the superior-subordinate relationship

(a) relationship to subordinate may be direct or indirect, including command of informal structures

(b) relationship between commander and his subordinates need not be formalized

(d) the giving of orders or exercise of powers generally attached to a military command are strong indications an individual is a commander, but are not the sole relevant factors

(e) effective control required: the ability to prevent and punish the crimes

(f) temporary nature of military unit or ad hoc command do not exclude relationship

(g) may be de jure or de facto power to control

(h) degree of de facto authority must be equivalent to de jure authority

(2) two or more superiors may be held responsible

(3) application to civilian leaders: test of effective control

ii) mental state (mens rea) (element 2)

(1) actual knowledge

(a) knowledge may be proven through direct or circumstantial evidence

(b) evidence required to demonstrate actual knowledge may differ based on position of authority

(c) the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary

(d) other indicia of knowledge

(2) reason to know

(a) analyze whether superior had information which would put him on notice

(b) commander who exercises due diligence distinguished from situation where the absence of knowledge results from negligence

iii) the failure of the superior to take the necessary and reasonable measures to prevent or punish (element 3)

(1) measures required are limited to what is feasible, but commander must use every means in his power

(2) degree of effective control will determine what is required

(3) cannot make up for failure to prevent crime by punishing subordinates afterwards

(4) when duties arise

(5) what the duty to punish entails

(6) superior need not be the person who dispenses punishment, but must take important step in disciplinary process

(7) civilian superiors are under similar obligations

c) Superior responsibility is not a form of strict liability

VII) AFFIRMATIVE DEFENSES

a) Duress does not afford a complete defense

b) Tu quoque principle rejected: the argument that the adversary committed similar crimes is not a valid defense

c) Involvement in defensive operation is not a defense

d) Diminished mental responsibility is not a defense

VIII) JURISDICTION

a) Generally

IX) ETHICS

a) Contempt proceedings

i) Tribunal possesses “inherent jurisdiction” to deal with contempt

ii) contempt imposed for putting forward a case known to be false in material respects and manipulating witnesses

b) Impartiality of judges

i) two-pronged test for judicial bias

ii) high threshold required to rebut the presumption of impartiality

iii) qualifications that play an integral role in satisfying eligibility requirements do not, in the absence of the clearest contrary evidence, show bias or impartiality

iv) application

(1) Judge Mumba’s acting as a representative on the United Nations Commission on the Status of Women not grounds for disqualification

(2) Judge Benito’s membership on the Board of Trustees of the United Nations Voluntary Fund for the Relief of Victims of Torture not grounds for disqualification

v) Judges not disqualified from hearing two or more trials arising out of the same series of events

X) CHARGING, CONVICTIONS AND SENTENCING

a) Cumulative charging and convictions

i) cumulative charging permitted

ii) cumulative convictions based on same conduct permitted only where crimes involve materially distinct element

iii) where crimes not materially distinct, convict under the more specific provision

iv) application

v) cumulative convictions of themselves involve additional punishment

b) Sentencing/penalties

i) instruments governing penalties

(1) Article 24: Penalties

(2) Rule 101 of the Rules of Procedure and Evidence

ii) generally

(1) sentencing factors

(2) sentence to reflect gravity of the crime

(3) “totality principle”/discretion to impose global, concurrent, consecutive, or a mixture of concurrent and consecutive sentences

(a) application

(4) goal of penalties

(a) goals are deterrence and retribution

(b) deterrence must not be accorded undue prominence

(d) public reprobation and stigmatization

(5) consistency of sentences; yet individualized sentencing

(a) consistency of sentences

(b) a sentence should not be capricious or excessive

(d) no established “penal regime” regarding sentencing

(e) factors for why different sentences might be imposed for same type of crime

(6) taking account of sentencing practices in the former Yugoslavia: should be considered, but not controlling

(a) domestic sentencing practices, other than those of the courts of the former Yugoslavia, are of little assistance

(7) ranking of crimes

(a) whether genocide is the most serious crime

(b) whether there is a distinction between the seriousness of a crime against humanity and a war crime

(c) no rule that crimes resulting in loss of life should be punished more severely than those not leading to loss of life

(8) sentence can be lengthened if discernible error

(9) must give credit for time in detention pending trial

(10) must order sentence to run from date of judgment

(11) may recommend a minimum sentence to be served before any commutation or sentence reduction

(12) factors for assessing gravity of offenses

(a) generally

(b) regarding offenses committed under Article 7(3)

(13) sentence should reflect the relative significance of the role of the defendant

(14) double jeopardy impacting on sentence

(15) discretion to impose life imprisonment

iii) aggravating and mitigating factors

(1) generally

(2) burden of proof

(3) aggravating factors

(a) position of the accused

(b) active and direct criminal participation

(d) discriminatory state of mind

(e) informed, voluntary, willing or enthusiastic participation in crime

(f) premeditation and motive

(g) egregious nature of how crime was committed

(h) sexual, violent and humiliating nature of the acts, and vulnerability of victims

(i) status of the victims and effect of the crimes on them

(j) active participation of superior in criminal acts of subordinate

(k) proving responsibility under both Article 7(1) and Article 7(3)

(l) youthful age of victims, number of victims and recurrence of crimes

(m) extended time period during which offenses committed

(n) magnitude of the crime and the scale of the accused’s role

(o) civilian detainee

(p) character of the accused

(q) circumstances of offenses generally

(r) accused not testifying is not an aggravating factor

(4) mitigating factors

(a) generally

(b) co-operation of the accused

(d) duress

(e) indirect or forced participation

(f) diminished mental responsibility

(g) voluntary surrender

(h) post-conflict conduct

(i) age

(j) personal circumstances/family concerns

(k) character of the accused

(l) poor health: only in exceptional or rare cases

(m) assistance to detainees or victims

(n) lack of strength of character not a mitigating factor

XI) MISCELLANEOUS

a) Weight to give prior decisions

i) the Appeals Chamber should follow its previous decisions, absent a cogent reason in the interests of justice

ii) decisions of the Appeals Chamber are binding on Trial Chambers

iii) decisions of Trial Chambers have no binding force on each other

b) Unreasonableness is test for appellate review of Trial Chamber’s factual findings

c) “Equality of arms” principle

d) Lawyer-client privilege does not cover prior defense witness statements: Trial Chamber may order their disclosure

e) Test for accepting guilty pleas

i) whether there is a sufficient factual basis for the crime and the accused’s participation in it, and whether the elements presented establish the crime acknowledged

ii) plea must be voluntary, informed and unequivocal

February 2004

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