1. S/RES/827 (1993).
2. IT/32/Rev. 13.
3. Art. 1 of the Statute.
4. The Rules referred to in this Judgement are those that
were in force at the time of the relevant motion, order or decision, in accordance
with sub-Rule 6(C).
5. IT/73/Rev. 5, 17 Nov. 1997.
6. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
Case No. IT-94-1-AR72, 2 Oct. 1995.
7. After the Dayton Peace Agreement of 1995, the Republic of Bosnia
and Herzegovina became Bosnia and Herzegovina. The latter designation is used
in this Judgement
to refer to the entity that declared itself independent on 6 March 1992.
8. Prosecutor's Pre-Trial Brief, 22 May 1998, p. 5.
9. Prosecution's Pre-Trial Brief, p. 6.
10. Case No. IT-94-1-AR72, para. 134.
11. Prosecution's Pre-Trial Brief, p. 14.
12. Ibid., p. 14.
13. Ibid., p. 14.
14. Ibid., p. 16.
15. Defence Counsel's Opening Statement, Transcript of trial proceedings,
p. 83 (T. 83). All transcript page numbers are hereafter referred to as "T.".
16. Defence Counsel's Opening Statement, T. 84.
17. T. 94.
18. . 97.
19. T. 97-98.
20. T. 95.
21. T. 102-103.
22. T. 98-100.
23. T. 102-103.
24. T. 103-104.
25. T. 105.
26. T. 106.
27. T. 107.
28. T. 107.
29. T. 108.
30. T. 109.
31. T. 110.
32. T. 119.
33. T. 112.
34. T. 116.
35. T. 121-122.
36. T. 122 and T. 125.
37. T. 275-276 and T. 381.
38. T. 516.
39. T. 277 and T. 382.
40. T. 279 and T. 385.
41. T. 277-286 and T. 382-390.
42. T. 246.
43. T. 249 and 251.
44. T. 249-250.
45. T. 253-255.
46. T. 321.
47. T. 323-324.
48. T. 325-326 and T. 353.
49. T. 353.
50. T. 517-519; Prosecution Exhibit P4.
51. T. 523.
52. Defence Closing Statement, T. 674.
53. Case No. IT-94-1-AR72, para.70.
54. Prosecution's Closing Statement, T. 646.
55. Prosecution's Closing Rebuttal Statement, T. 708.
56. T. 144-145 and T. 234-234.
57. T. 372.
58. T. 402.
59. T. 529.
60. T. 253.
61. T. 403.
62. T. 406.
63. T. 406-409.
64. T. 326-328.
65. T. 689, T. 691 and T. 720.
66. T. 432.
67. T. 432.
68. T. 438 and T. 461.
69. T. 441.
70. T. 442.
71. T. 323 and T. 451.
72. T. 358.
73. T. 368; Defence Exhibit D8, p. 2.
74. T. 554.
75. T. 325; Defence Exhibit D8, p. 3.
76. Caveat as above.
77. T. 558-559.
78. T. 329-330, T. 561 and T. 585; Defence Exhibit D8, p. 4.
79. T. 560.
80. T. 560.
81. T. 399.
82. T. 399.
83. T. 401.
84. T. 401-402 and T. 456; Defence Exhibit D13, p. 6; Prosecution
Exhibit P3, p. 23.
85. T. 403.
86. T. 403.
87. Defence Exhibit D13, p. 6.
88. T. 446.
89. T. 437.
90. T. 403.
91. T. 401-402; Prosecution Exhibit P3, pp. 24-25.
92. T. 403; Defence Exhibit D13, p. 6; Prosecution Exhibit P3,
p. 23.
93. T. 403 and T. 405; Defence Exhibit D13, p. 6.
94. T. 454-456.
95. Confidential Prosecution’s Reply to Trial Chamber’s
Order, 1 May 1998.
96. T. 406; Defence Exhibit D13, p. 6.
97. T. 406-407; Prosecution Exhibit P3, p. 25; Defence Exhibit
D13, p. 6.
98. T. 408-409.
99. T. 416.
100. T. 455.
101. T. 409-410.
102. T. 343; Defence Exhibit D8, p. 5.
103. T. 410-411; Defence Exhibit 13, p. 7.
104. T. 411.
105. Prosecution Exhibit P3, p. 26.
106. Defence Exhibit D13. P. 7.
107. T. 345; Defence Exhibit D8, p. 5.
108. T. 346.
109. Defence Exhibit D8, p. 6.
110. T. 413; Defence Exhibit D13, p. 7; Prosecution Exhibit P3,
p. 26.
111. T. 412; Defence Exhibit D13, p. 7.
112. Defence Exhibit D13, p. 7.
113. T. 413; Defence Exhibit D13, p. 7.
114. T. 347, T. 561 and T. 585; Defence Exhibit D8, p. 4.
115. T. 414.
116. T. 348; Defence Exhibit D8, pp. 5-6.
117. T. 348.
118. T. 413; Prosecution Exhibit P3, p. 26; Defence Exhibit D13,
p. 7.
119. Defence Exhibit D13, p. 7; Defence Exhibit 8, p. 6.
120. T. 415 and T. 350; Defence Exhibit D13, p. 6; Defence Exhibit
D8, p. 6.
121. T. 351; Defence Exhibit D8, p. 6.
122. T. 415.
123. T. 480.
124. Prosecution Exhibit P3, p. 27.
125. Defence Exhibit D13, p. 7.
126. T. 352 ("He remained there [ in the Holiday Cottage]
"); Defence Exhibit D8, p. 6.
127. Exhibit D37.
128. Exhibit D38.
129. Decision, 16 July 1998.
130. T. 996-997.
131. T. 1252-1254.
132. T. 1163.
133. T. 976-980.
134. T. 1312.
135. Exhibit D22, p. 2.
136. Exhibit D22, p. 3.
137. T. 886-892.
138. Report on the Medica Women’s Therapy Centre, Exhibit
D25, p. 5.
139. T. 894-895.
140. T. 1124, T. 1128 and T. 1136.
141. T. 1161-1163.
142. T. 1042.
143. Defence Exhibits D11 and D11a (English translation).
144. T. 440.
145. T. 593-628.
146. Rule 96 partly reads: "In cases of sexual assault (i)
no corroboration of the victim’s testimony shall be required [ . . .] ."
147. T. 323.
148. T. 359.
149. T. 527-529; Defence Exhibit D14.
150. Case No. IT-94-1-AR72, paras. 86-94.
151. See common Art. 3; Arts. 12 and 50 of Geneva Convention
I for the Amelioration of the Condition of Wounded and Sick in Armed Forces
in the Field,
12 Aug. 1949; Arts. 12 and 51 of Geneva Convention II for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at
Sea, 12 Aug. 1949; Arts. 13, 14 and 130 of Geneva Convention III Relative to
the Treatment of Prisoners of War, 12 Aug. 1949; Arts. 27, 32 and 147 of Geneva
Convention IV Relative to the Protection of Civilian Persons in Time of War,
12 Aug. 1949, hereafter "Geneva Convention IV".
152. Art. 75 of Geneva Protocol Additional to the Geneva Conventions
of 12 Aug. 1949, and Relating to the Victims of International Armed Conflicts
(Protocol I), 8 June 1977, hereafter "Additional Protocol I"; and
Art. 4 of Geneva Protocol Additional to the Geneva Conventions of 12 Aug. 1949,
and Relating to the Victims of Non-International Armed Conflicts (Protocol II),
8 June 1977.
153. Case No. IT-94-1-AR72, para.143.
154. On 22 May 1992, at the invitation of the International Committee
of the Red Cross, hereafter "ICRC", the parties to the conflict in
Bosnia and
Herzegovina signed an Agreement. The parties undertook to apply common Art.
3 of the Geneva Conventions, and "to bring into force" a number of
other provisions of the Geneva Conventions including Art. 27, as well as various
provisions of Additional Protocol I including Art. 77. This Agreement was
signed by the representatives of the President of the Republic, Mr. Izetbegovic,
the President of the Serbian Democratic Party, Mr. Karadzic and the President
of the Croatian Democratic Community, Mr Brkic. Another Agreement was signed
by the same parties on 23 May 1992.
155. Tadic Jurisdiction Decision, para 135; and Prosecutor
v. Zejnil Delalic et al., Judgement, Case No. IT-96-21-T, 16 Nov. 1998,
para. 1212,
hereafter "Delalic".
156. See [ Case name unknown] , Judgement, C-574/92, unpublished,
Section V, B2c, 28 Oct. 1992, and; Judgement, C-225/95, unpublished, Section
VD, 18 May 1995.
157. "Francis Lieber, Instructions for the Government
of Armies of the United States (1863)", reprinted in Schindler and Toman
(eds.), The Laws of Armed Conflicts (1988), p. 10.
158. 1907 Hague Convention (IV) Respecting the Laws and Customs
of War on Land, 18 Oct. 1907, hereafter "Hague Convention IV", and
the Regulations
attached to the 1907 Hague Convention (IV) Respecting the Laws and Customs of
War on Land.
159. Preamble to Hague Convention IV. The so-called 'Martens clause'
reads: "Until a more complete code of the laws of war has been issued,
the High
Contracting Parties deem it expedient to declare that, in cases not included
in the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilised peoples, from the laws
of humanity, and the dictates of the public conscience".
160. Official Gazette of the Control Council for Germany, No.
3, p. 22, Military Government Gazette, Germany, British Zone of Control, No.
5, p. 46,
Journal Officiel du Commandement en Chef Français en Allemagne, No. 12 of 11
Jan. 1946.
161. See Judgement, Case Concerning Military and Paramilitary
Activities in and against Nicaragua, (Nicaragua v. U.S.A.), (Merits),
1986 I.C.J.
Reports 14, 27 June 1986, pp. 113-114, para. 218.
162. See Trials of the Major War Criminals Before the
International Military Tribunal, hereafter "IMT", Vol. I, p. 223.
163. These provisions are contained in the European Convention
for the Protection of Human Rights and Fundamental Freedoms of 1950; the United
Nations Covenant on Civil and Political Rights of 1966, hereafter "ICCPR";
the Inter-American Convention on Human Rights of 1969; the African Charter on
Human and Peoples’ Rights of 1981; the United Nations Convention against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 1984,
hereafter "Torture Convention"; and the Inter-American Convention
to Prevent and Punish Torture of 1985, hereafter "Inter-American Convention".
164. Reference can be made to such mechanisms as the United Nations
Special Rapporteur on Torture, hereafter "Special Rapporteur"; the
European
Committee against Torture, set up under the European Convention for the Prevention
of Torture of 1987; and the United Nations Committee against Torture, set up
under the Torture Convention.
165. See Art. 3 of the Torture Convention; Art. 13(4) of
the Inter-American Convention Human Rights Committee, General Comment on Art.
7, para. 9,
Compilation of General Comments and Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev. 1 at 30 (1994); Soering v. United
Kingdom, Judgement of 7 July 1989, Eur. Ct. H.R., Series A, No.161,
para. 91, hereafter "Soering"; Cruz Varas and others v. Sweden,
Judgement of 20 March 1991, Eur. Ct. H.R., Series A, No. 201,
paras. 69-79; Chahal v. United Kingdom, Judgement of 5 Nov. 1996, Eur.
Ct. H.R., Series A, No. 22.
166. Torture Convention, Art. 5.
167. Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir.1980).
168. The Court stated: "It is not normally for the
Convention institutions to pronounce on the existence or otherwise of potential
violations of the Convention.
However, where an applicant claims that a decision to extradite him, if implemented,
be contrary to Article 3 [ prohibiting torture and inhuman or degrading treatment]
by reason of its foreseeable consequences in the requesting country, a departure
from this principle is necessary, in view of the serious and irreparable nature
of the alleged suffering risked, in order to ensure the effectiveness of the
safeguard provided by that Article." (para. 90).
169. See Mariposa Development Company and Others, Decision,
U.S.-Panama General Claims Commission, 27 June 1933, U.N. Reports of International
Arbitral Awards, Vol. VI, pp. 340- 341; German Settlers in Upper Silesia,
Advisory Opinion of 10 Sept. 1923, PCIJ, Series B, No. 6, pp. 19-20,
35-38; the arbitral award of 1922 in the Affaire de l’impôt sur les
benefices de guerre, in U.N. Reports of International Arbitral Awards,
Vol. I, pp. 302-305.
170. See also the General Comment No. 24 on "Issues
relating to reservations made upon ratification or accession to the Covenant
[ on Civil and Political
Rights] or the Optional Protocol thereto, or in relation to declarations under
Article 41 of the Covenant", issued on 4 Nov. 1994 by the United Nations
Human Rights Committee, para. 10 ("the prohibition of torture has the status
of a peremptory norm"). In 1986, the United Nations Special Rapporteur,
P. Kooijmans, in his report to the Commission on Human Rights, took a similar
view (E/CN. 4/1986/15, p. 1, para 3). That the international proscription of
torture has turned into jus cogens has been among others held by U.S.
courts in Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 (9th
Cir. 1992) Cert. Denied, Republic of Argentina v. De Blake, 507 U.S.
1017,123L. Ed. 2d 444, 113 S. Ct. 1812 (1993); Committee of U.S. Citizens
Living in Nicaragua v. Reagan, 859 F. 2d 929, 949 (D.C. Cir. 1988); Xuncax
et al. v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995); Cabiri v. Assasie-Gyimah,
921 F. Supp. 1189, 1196 (S.D.N.Y. 1996); and In re Estate of Ferdinand E.
Marcos, 978 F. 2d 493 (9th Cir. 1992) Cert. Denied, Marcos
Manto v. Thajane, 508 U.S. 972, 125L. Ed. 2d 661, 113 S. Ct. 2960 (1993).
171. Art. 53 Vienna Convention on the Law of Treaties, 23 May
1969.
172. As for amnesty laws, it bears mentioning that in 1994 the
United Nations Human Rights Committee, in its General Comment No. 20 on Art.
7 of the
ICCPR stated the following: "The Committee has noted that some States have
granted amnesty in respect of acts of torture. Amnesties are generally incompatible
with the duty of States to investigate such acts; to guarantee freedom from
such acts within their jurisdiction; and to ensure that they do not occur in
the future. States may not deprive individuals of the right to an effective
remedy, including compensation and such full rehabilitation as may be possible."
(Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev. 1 at 30 (1994)).
173. IMT, Vol. 1, p. 223.
174. See Attorney-General of the Government of Israel v. Adolf
Eichmann 36 I.L.R. 298; In the Matter of the Extradition of John
Demjanjuk, 612
F. Supp.544, 558 (N.D. Ohio 1985). See also Demjanjuk v. Petrovsky, 776
F. 2d 571 (6th Cir. 1985), cert. denied, 475 U.S. 1016, 106 S. Ct.
1198, 89 L. Ed. 2d 312 (1986), for a discussion of the universality principle
as applied to the commission of war crimes.
175. Judgment, Case No. ICTR-96-4-T, 2 Sept. 1998, para. 593.
176. Case No. IT-96-21-T, para. 459.
177. Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by the United Nations General Assembly resolution 3452 (XXX) of 9 Dec.
1975. Art. 1(2) describes torture as "an aggravated and deliberate form
of cruel, inhuman or degrading treatment or punishment."
178. Arts. 2 and 3.
179. The European Court of Human Rights found that torture
is deliberate inhuman treatment causing very serious and cruel suffering (Ireland
v. United Kingdom, Eur. Ct. H.R., Series A, No. 25, para. 167). The
level of pain and suffering was said to be the distinguishing factor between
torture and cruel, inhuman or degrading treatment: "[ T] he Convention,
with its distinction between "torture" and "inhuman or degrading
treatment", should by the first of these terms attach a special stigma
to deliberate inhuman treatment causing very serious and cruel suffering".
In the Greek Case, the Commission held that torture has a
purpose, such as the obtaining of information or confessions or the infliction
of punishment and it is generally an aggravated form of inhuman treatment (Greek
Case, 1969 Y.B. Eur. Conv. on H.R. 12, p. 186).
180. The Human Rights Committee, in its General Comment on Art.
7 of the ICCPR, indicated that the distinction between prohibited forms of mistreatment
depends on the kind, purpose and severity of the particular treatment. (Compilation
of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI\GEN\1\Rev. 1 at 30 (1994)).
181. See e.g. Art. 3 (1)(c ) common to the Geneva
Conventions, Art. 75 (2)(b) of Additional Protocol I and Art. 4 (2)(e) of Additional
Protocol II.
182. Human Rights Committee, General Comment No. 20 on Art.
7 of the ICCPR, Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev. 3, at 31-33
(1997).
183. The Special Rapporteur to examine questions relevant to torture
was appointed by the Commission on Human Rights in its resolution 1985/33. In
pursuance of this resolution, the Special Rapporteur submitted annual reports
to the Commission, which are contained in documents E/CN. 4/Sub. 2/1985/6, E/CN.
4/1986/15, E/CN. 4/1987/13, E/CN. 4/1988/17 and Add. 1, E/CN. 4/1989/15, E/CN.
4/1990/17 and Add. 1, E/CN. 4/1991/17, E/CN. 4/1992/17 and Add. 1 and E/CN.
4/1993/26.
184. See the Public Statement on Turkey adopted on 15 Dec.
1992 (CPT/inf (93)1) as well as the Public Statement adopted on 6 Dec. 1996
(CPT/Inf (96)
34).
185. See e.g. Aksoy v. Turkey, Judgment of 18 Dec.
1996, Eur. Ct. H.R., Reports of Judgments and Decisions 1996-VI; Aydin
v. Turkey, Judgment of
25 Sept. 1997, Eur. Ct. of H.R., Reports of Judgments and Decisions,
1997-VI, paras. 62-88, hereafter "Aydin"; Fernando and Raquel Mejia
v. Peru (Decision of 1 March 1996), Report No. 5/96, case no 10.970,
in Annual Report of the Inter-American Commission on Human Rights 1995
OEA/Ser.L/V/II.91, pp. 182-188, hereafter "Meijia".
186. See e.g. Report of 1986 (Special Rapporteur P. Kooijmans,
E/CN.4/1986/15, pp. 29-30) and the Report of 1995 (Special Rapporteur N. Rodley,
E/CN.4/1995/34, pp. 8-10).
187. Paras. 83-84.
188. At pp. 182-188.
189. Art. 27 of Geneva Convention IV.
190. Art. 76(1).
191. Art. 4(2)(e).
192. See common Art. 3, which prohibits "outrages
upon personal dignity, and in particular, humiliating and degrading treatment";
Art. 147 of Geneva
Convention IV; Art. 85(4)(c) of Additional Protocol I; and Arts. 4(1) and 4(2)(a)
of Additional Protocol II. In an aide-memoire of 3 Dec. 1992 and in its
recommendations to the Conference on the Establishment of an International Criminal
Court in Rome, July 1998, the ICRC has confirmed that the act of "wilfully
causing great suffering or serious injury to body or health", categorised
as a grave breach in each of the four Geneva Conventions, does include the crime
of rape.
193. "Francis Lieber, Instructions for the Government
of Armies of the United States (1863)", reprinted in Schindler and Toman
(eds.), The Laws of Armed Conflicts (1988), p. 10.
194. See Roeling and Ruter (eds.), The Tokyo Judgement:
The International Military Tribunal for the Far East (1977), vol. I, p.
385.
195. In this case, there was found to be command responsibility
for rape, and this was punished as a war crime. In its decision of 7 Dec. 1945
the
Commission held: "It is absurd [ . . .] to consider a commander a murderer
or rapist because one of his soldiers commits a murder or rape. Nevertheless,
where murder and rape and vicious, revengeful actions are widespread offences,
and there is no effective attempt by a commander to discover and control the
criminal acts, such a commander may be held responsible, even criminally liable,
for the lawless acts of his troops, depending upon their nature and the circumstances
surrounding them". (Text reprinted in Friedman (ed.), The Law of War
(1972), vol. II, p. 1597).
196. Art. 7 of the ICCPR prohibits cruel, inhuman or degrading
treatment, and complaints alleging State failure to prevent or punish rape and
serious sexual
assaults have been brought to the Human Rights Committee under this provision.
In the case of Cyprus v.Turkey, 4 EHRR 482 (1982), the European Commission
of Human Rights found that Turkey had violated its obligation to prevent and
punish inhuman or degrading treatment under Art. 3 as a result of the rapes
committed by Turkish troops against Cypriot women. In the Aydin case,
the European Court found that rape of a detainee by an official of the State
"must be considered to be an especially grave and abhorrent form of ill-treatment
given the ease with which the offender can exploit the vulnerability and weakened
resistance of the victim. Furthermore, rape leaves deep psychological scars
on the victim which do not respond to the passage of time as quickly as other
forms of physical and mental violence" (para. 83). Under the African
Charter on Human and Peoples’ Rights, rape and other serious sexual assaults
are caught by Art. 4 as violations of the right to respect for the integrity
of the person, and also under Art. 5 which prohibits all forms of cruel, inhuman
and degrading treatment. The Inter-American Convention on Human Rights enshrines
the right to humane treatment in Art. 5, under which "[ e] very person
has the right to have his physical, mental and moral integrity respected"
and "[ n] o one shall be subjected to torture or to cruel, inhuman or degrading
punishment or treatment."
197. Art. 3 of the Statute.
198. Art. 4 of the Statute.
199. Prosecution's Pre-trial Brief, p. 15.
200. Ibid., p. 15.
201. The parameters for the definition of human dignity can be
found in international standards on human rights such as those laid down in
the Universal
Declaration on Human Rights of 1948, the two United Nations Covenants on Human
Rights of 1966 and other international instruments on human rights or on humanitarian
law. The expression at issue undoubtedly embraces such acts as serious sexual
assaults short of rape proper (rape is specifically covered by Art. 27 of Geneva
Convention IV and Art. 75 of Additional Protocol I, and mentioned in the Report
of the Secretary-General pursuant to Paragraph 2 of Security Council resolution
808 (1993) S/25704, para. 48, hereafter "Report of the Secretary-General"),
enforced prostitution (indisputably a serious attack on human dignity pursuant
to most international instruments on human rights and covered by the provisions
of humanitarian law just mentioned as well as the Report of the Secretary-General),
or the enforced disappearance of persons (prohibited by the General Assembly
resolution 47/133 of 18 Dec. 1992 and the Inter-American Convention on Human
Rights of 1969).
202. Case No. ICTR-96-4-T, para. 597.
203. Ibid.
204. Ibid., paras. 597-598.
205. Case No. IT-96-21-T, para. 479.
206. Para. 5, Separate and Dissenting Opinion of Judge Cassese,
Prosecutor v. Drazen Erdemovic, Judgement, Case No. IT-96-22-A, 7 Oct.
1997.
207. See Section 361 (2) of the Chilean Code; Art. 236
of the Chinese Penal Code (Revised) 1997; Art. 177 of the German Penal Code
(StGB); Art. 177
of the Japanese Penal Code; Art. 179 of the SFRY Penal Code; Section 132 of
the Zambian Penal Code.
208. See Art. 201 of the Austrian Penal Code (StGB); French
Code Pénal Arts. 222-23; Art. 519 of the Italian Penal Code (as of 1978); Art.
119 of the
Argentinian Penal Code.
209. See Section 375 of the Pakistani Penal Code 1995;
Art. 375 of the Indian Penal Code; The Law of South Africa, W.A. Joubert 1996
at p. 257-8: "The
actus reus of the crime consists in the penetration of the female by the male's
sexual organ (R. v. M. 1961 2 SA 60 (O) 63). The slightest penetration
is sufficient."(R. v. Curtis 1926 CPD 385 389); Section 117 of the
Ugandan Penal Code: "[ t] here must be "carnal knowledge." This
means sexual intercourse. Sexual intercourse in turn means penetration of the
man's penis into the woman's vagina".
210. For a broad definition of sexual intercourse, see
the Criminal Code of New South Wales s. 61 H (1). See also the U.S. Proposal
to the U.N.
Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court (19 June 1998 A/CONF.183/C.1/L/10).
211. See e.g. the Dutch Penal Code stating in Art. 242:
"A person who by an act of violence or another act or by threat of violence
or threat of another act
compels a person to submit to acts comprising or including sexual penetration
of the body is guilty of rape and liable to a term of imprisonment of not more
than twelve years or a fine of the fifth category." See also Art.
201 of the Austrian Penal Code (StGB); French Code Penal Arts. 222-23.
212. See e.g. in England and Wales the Sexual Offences
Act 1956 to 1992.
213. See Art. 180 of the Dutch Penal Code; Art. 180 of
the SFRY Penal Code.
214. The Penal Code of Bosnia and Herzegovina (1988) Ch. XI states
that "[ w] hoever coerces a female person with whom he is not married to,
into sexual
intercourse by force or threat to endanger her life or body or that of someone
close to her will be sentenced to between one to ten years in prison".
215. Prosecutor's Reply Re: Art. 7(1) of the Statute of the International
Tribunal, 31 March 1998, p. 2: "The charges against the accused do not
portray him
as the actual perpetrator of the rape. The Prosecution will not be attempting
to show, under Art. 7(1) that the accused "committed" the rape".
216. Prosecution Opening Statement, T. 70.
217. Secondary liability was provided for in proceedings at the
IMT at Nuremberg in Art. 6 of the Charter annexed to the London Agreement: "Leaders,
organisers, instigators and accomplices participating in the formulation or
execution of a common plan or conspiracy to commit any of the foregoing crimes
are responsible for all acts performed by any persons in execution of such plan".
The IMT limited its consideration of liability in respect of the common plan
or conspiracy to the charge of waging aggressive war and did not apply it with
respect to the charges of war crimes and crimes against humanity. As such, the
IMT Judgement provides little assistance on the issue of complicity.
218. Art. 5 of the Charter of the IMT for the Far East contained
a provision identical to that of the Nuremberg Tribunal.
219. The text of the Royal Warrant of 14 June 1945 and the Regulations
for the Trial of War Criminals appended thereto is reproduced in Telford Taylor,
Final Report of the Secretary of the Army on the Nuremberg War Crimes Trials
under Control Council No. 10 (1949), p. 254 ff.
220. See in particular the Judge Advocate’s summary
of the law, Trial of Franz Schonfeld and Nine Others, Essen, 11-26 June
1946, Vol. XI, Law
Reports, p. 69f, hereafter "Schonfeld".
221. Case No. IT-94-1-T, paras. 688-692.
222. At p. 64.
223. The prosecutor referred to Regulation 8 (ii) of the Royal
Warrant concerning units or groups of men discussed above, and this may have
been taken into
consideration by the court. In his reference to English substantive law on complicity,
the Advocate General included the doctrine of "common design", whereby
if a group sets out to commit a crime, all are equally guilty of the act committed
by one of them in the pursuance of that criminal goal whether or not they materially
contribute to the execution of the crime.
224. Schonfeld, p. 70. A similar passage is to be found
in another British case, the Trial of Werner Rohde and Eight Others,
British Military Court,
Wuppertal, 29th May-1st June 1946, Vol. V, Law Reports, p. 56.
225. Ibid., p. 54.
226. However, two defendants appear to have been convicted
without proof of knowledge. See also the Almelo Trial, Trial
of Otto Sandrock and Three Others, British Military Court for the Trial
of War Criminals, held at the Court House, Almelo, Holland, on 24-26 Nov. 1945,
Vol. I, Law Reports, p. 35, in which four German soldiers were
charged with committing a war crime in that they participated in the execution
of a British prisoner of war and a Dutch civilian. One ordered the execution
and one fired the shots. The other two acted as lookouts, waiting near the car
and preventing people from coming near while the shooting took place. All four
were found guilty. See also the Stalag Luft III case (Trial
of Max Wielen and 17 Others, British Military Court, Hamburg, 1 July-3 Sept.
1947, Vol. XI, Law Reports, p. 31). Two defendants, Denkmann and Struve, were
convicted for having acted as drivers in the execution of British prisoners
of war. The Judge Advocate, stating English law on the matter, said: "If
people are all present, aiding and abetting one another to carry out a crime
they knew was going to be committed, they are taking their respective parts
in carrying it out, whether it be to shoot or whether it is to keep off other
people or act as an escort whilst these people were shot, they are all in law
equally guilty of committing that offence, though their individual responsibility
with regard to punishment may vary" (pp. 43-44, p. 17 of the Official Transcript,
Public Record Office, London).
227. In English law, the law relating to accessories after the
fact has generally been a separate statutory offence of "assisting an offender"
rather than a form of
aiding and abetting (see section 4(1) of the Criminal Law Act 1967).
228. The judgements referred to in the following are to be
found in Entscheidungen des Obersten Gerichtshofs für die Britische Zone.
Entscheidungen in Strafsachen, Vol. I (1949). Several contain the proposition
that in judging crimes against humanity under Control Council Law No. 10, no
recourse may be had to German law on aiding and abetting, although others do
apply German principles.
229. Strafsenat. Urteil vom 10. August 1948 gegen K. und A.
StS 18/48 (Entscheidungen, Vol. I, pp. 53 and 56).
230. Strafsenat. Urteil vom 10. August 1948 gegen L. u. a.
StS 37/48 (Entscheidungen, Vol. I, pp. 229 and 234).
231. Case No. ICTR-96-4-T, para. 692, emphasis added.
232. The Dachau Concentration Camp Trial, Trial of Martin
Gottfried Weiss and Thirty-Nine Others, General Military Government Court
of the
United States Zone, Germany, 15 Nov.-13 Dec. 1945, Vol. XVI, Law Reports,
p. 5. The Prosecution did refer to principles of American criminal law on the
subject of complicity (pp. 12-13).
233. Massenvernichtungsverbrechen und NS-Gewaltverbrechen in Lagern;
Kriegsverbrechen. KZ Auschwitz, 1941-1945, reported in Justiz und NS-Verbrechen,
1979, vol.
XXI, pp. 361-887.
234. Ibid., p. 858 (unofficial translation).
235. Schutzstaffel der Nationalsozialistische Deutsche Arbeiterpartei,
hereafter "SS'", p. 446 (unofficial translation).
236. On the legal status of this Statute, see para. 227 below.
237. Art. 25(3)(d).
238. Art. 25(3)(c).
239. Trial of Otto Ohlendorf and Others (Einsatzgruppen),
in Trials of War Criminals Before the Nuremberg Military Tribunals under
Control Council Law No. 10, Vol. IV.
240. Ibid. p. 569.
241. Ibid. p. 571.
242. Ibid. p. 572.
243. Ibid. p. 581.
244. Ibid. p. 585.
245. Trial of Bruno Tesch and Two Others, British Military
Court, Hamburg, 1-8 March 1946, Vol. I, Law Reports, p. 93.
246. Ibid. p. 102.
247. LG Hechingen, 28.6.1947, Kls 23/47 and OLG Tübingen, 20.1.1948,
Ss 54/47 (decision on appeal), reported in Justiz und NS-Verbrechen,
case
022, vol. I, pp. 469 ff.
248. Regarding the law applicable to complicity, the court of
first instance held that Control Council Law No. 10 is not only authoritative,
it is the exclusive
legal basis for the punishment of the conduct defined as a crime by that law.
The provisions of the first (general) part of the German Criminal Code are not
immediately applicable to crimes falling under Control Council Law No. 10: whenever
Control Council Law No. 10 is applied, the rules of the general part have either
to be found in Control Council Law No. 10 (e.g. rules concerning aiding
and abetting (Art. II 2(c)) and the rules concerning mitigating circumstances
(Art II 3)), or, in the event there should not be any express rules in Control
Council Law No. 10, they have to be supplemented from the object and purpose
of the statute and taking into consideration generally recognised principles
of criminal law (e.g. in relation to the so-called duress).
249. Ibid., p. 484.
250. "It is irrelevant that if a single accused or all of
them had refused to co-operate, the search would have been carried out by the
other accused or by
somebody else." (ibid., p. 490, unofficial translation).
251. Ibid., p. 498.
252. Case No. IT-94-1-T, para. 669.
253. Ibid., paras. 730 and 738.
254. See operative para. 2 of the resolution.
255. The significance of the Rome Statute has also been acknowledged
by the Sixth Committee of the United Nations in a resolution entitled "Establishment
of an international criminal court", dated 18 Nov. 1998 (A/C. 6/53/L. 9/Rev.
1), in which it "note[ s] that a significant number of States have signed
the Rome Statute"; "acknowledges the historic significance of the
adoption of the Rome Statute", and; "calls upon all States to consider
signing and ratifying the Rome Statute, and encourages efforts aimed at promoting
awareness of the results of the Conference and of the provisions of the Rome
Statute".
256. Report of the I.L.C., on the work of its forty-eighth
session, G.A. Supp. No. 10 (A/51/10) 1996, p. 18.
257. Ibid., p. 24.
258. See the Rohde case.
259. Report of the I.L.C., p. 24 (emphasis added).
260. This is reflected in passages quoted from the Einsatzgruppen
case in relation to Klingelhoefer and Fendler, pp. 568-573.
261. "As far as the mens rea is concerned, whether
the accused’s conduct is punishable or not depends on whether he intentionally
acted as an aider and
abettor. The aider and abettor’s intent (Gehilfenvorsatz) requires
in the first place, that he knew the conduct he was supporting by his participation;
he must have been aware that the action requested of him by the Gestapo served
a persecution on racial grounds. As a result of the trial proceedings and of
the evidence, the court finds that the accused had this awareness (Bewußtsein),
on the basis of the wording and of the contents of the Gestapo decrees he received,
although he has credibly asserted that he did not reckon with the possibility
that the deported Jews would be killed [ . . .] . The abettor’s intent
secondly requires that he knew that by means of his participation he supported
the principal criminal conduct. On the basis of the evidence produced in trial
this court finds that the accused had this awareness. The accused’s reasoning
that, if he had refused to execute the measures requested by the Gestapo himself,
somebody else would have implemented those measures, does not exclude this awareness;
on the contrary, it proves its existence [ . . .] . The abettor’s intent,
however, does not require that the accused himself acted for racist motives
or, generally, out of an inhuman cast of mind. Nor is it necessary that the
accused was aware of the illegality (Rechtswidrigkeit) of his conduct,
as CCL No. 10 [ Control Council Law. No. 10] provides for the punishment of
persecution on racial grounds whether they violate the domestic law of the country
on whose territory it is committed or not [ . . .] ". (pp.
484-485, unofficial translation).
262. The relevant part of the judgement reads as follows: "Under
Article II, 2(a) to (c), Control Council Law No. 10 treats all thinkable forms
of perpetration
and of complicity as equal. It does not distinguish between being a perpetrator
and being an accomplice [ as opposed to German law] . The aider and abettor
of a crime against humanity ‘is deemed to have committed a crime against
humanity without regard to the capacity in which he acted’. As a consequence
of this complete equality between perpetrator and aider and abettor, the
aider and abettor has to have acted out of the same cast of mind as the principal,
i.e. out of an inhuman cast of mind, or, in the case of persecutions, motivated
by a political, racist or religious ideology. The court of first instance
correctly assumed that the statute [ Control Council Law No. 10] had to be construed
without recourse to exterior sources." (ibid., p. 498, unofficial
translation, emphasis added).
263. Case No. IT-94-1-T, para. 674.
264. Ibid., para. 692.
265. Report of the I.L.C., p. 24.
266. Emphasis added. Art. 30, reads:
"1. Unless otherwise provided, a person shall be criminally responsible
and liable for punishment for a crime within the jurisdiction of the Court only
if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly."
267. Case No. IT-94-1-T, paras. 675-677.
268. See also the Eichmann case: "[
. . .] even a small cog, even an insignificant operator, is under our criminal
law liable to be regarded as an accomplice in the commission of
an offence, in which case he will be dealt with as if he were the actual murderer
or destroyer", p. 323, and Akayesu, Case No. ICTR-96-4-T, para.
541. See also the Pinochet Judgement of the House of Lords, 25 Nov.
1998, per Lord Steyn: "It is apparently conceded that if [ General
Pinochet] personally tortured victims the position would be different. This
distinction flies in the face of an elementary principle of law, shared by all
civilised legal systems, that there is no distinction between the man who strikes,
and a man who orders another to strike".
269. Case No. IT-94-1-AR72, para. 94.
270. Referred to in this Judgement as Witness D.
271. Rule 100 reads:
"(A) If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and the defence may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence.
(B) The sentence shall be pronounced in a judgement in public and in the presence of the convicted person, subject to sub-Rule 102(B)."
"(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person's life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2 of the Statute, as well as such factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.
(E) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal."
273. Closing Statement, T. 641.
274. Closing Statement, T. 641.
275. T. 630.
276. T. 632.
277. T. 634.
278. T. 636.
279. T. 634.
280. T. 635.
281. Note that an amendment to the law (published in the Official
Gazette of the FRY no. 37 of 16 July 1993 p. 817) stipulated that the most serious
criminal
offences could be punishable by up to 20 years imprisonment (and no longer the
death penalty).
282. Case No. IT-94-1-T, 14 July 1997, para. 8.
283. The SFRY Penal Code provided that a prison term of 20 years
(not life) may be imposed instead of a death sentence.
284. Sentencing Judgement, Prosecutor v. Drazen Erdemovic,
Case No, IT-96-22-T, 29 Nov. 1996, para. 65.
285. As he put it, "one of the greatest brakes on crime is
not the cruelty of the punishment but its infallibility, and, consequently,
the vigilance of judges.".
Beccaria, "Dei delitti e delle pene (Crimes and Punishment)",
1766 ed., para. XXVII, Venturi (ed.), 1965 p. 59.
286. The Republic of Croatia enacted its own Penal Code in 1997.
287. The text of Art. 48 partly reads: "(1) If the perpetrator
by one deed has committed several criminal offences or by several deeds has
committed several
criminal offences none of which has yet been adjudicated, the court shall first
assess the punishment for each criminal offence and then proceed with the determination
of the principal punishment in the following way; 1) If capital punishment has
been inflicted by the court for one of the concurring criminal offences, it
shall pronounce that punishment only; [ . . .] 3) If the punishments of imprisonment
were assessed by the court for the concurring criminal offences, it shall impose
one punishment consisting of an aggravation of the most severe punishment assessed,
but the aggravated punishment may not be as high as the total of all incurred
punishments, or exceed 15 years of imprisonment".
288. Case No. IT-94-1-T, para. 9.
289. An example of this approach is found in Arts. 55 and 56 of
the Dutch Penal Code.
290. See Delalic, Case No. IT-96-21-T, para. 1286.
291. Case No. IT-95-17-I, 8 Dec. 1995.