International Courts and Tribunals

T5 - Prof's opinion on Apartheid & Genocide

--> Apartheid is based on clear, a system of racial segregation. --> The definition is somewhat of a mix of genocide, CaH, and persecution. Prof says for e.g that she could easily make the case that what happened in South Africa could be regarded as genocide.

T5 - The crime of Apartheid

1. Apartheid: system of racial segregation in South Africa enforced through legislation by the National Party (NP) governments, the ruling party from 1948 to 1994 2. 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid, entered into force 18 July 1976 Article II For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: --> Might be very difficult to prove that a state is not occupying another state and committing Apartheid. If you see Palestine as a separate state but if you say it is occupied, even if separate does not enjoy its full independence. For Apartheid there needs to be the implementation of policy. (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) By murder of members of a racial group or groups; (ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups; --> Very clear overlap with the genocide convention! (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part; --> Also defined in the genocide convention, here it is only narrowed down to racial groups. (c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association; --> In other words: persecution/social inclusion/deprivation of fundamental rights but mostly persecution! So Apartheid does contain persecution. d) Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof; --> Again genocidal aspect. They also included a division of the population on bases of race. Apartheid is based on race cannot be based on religious groups. --> Crime of genocide against racial groups, more of genocide than CaH. (e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour; (f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid. --> This is interesting because here the definition the organisation of those who oppose, who might be in the persecutors group, and their persecution might also add to the crime of apartheid.

T2 - Impact of tribunals on domestic level

1. Very unclear 2. Domestic cases have their own ego, they do not always say they use the tribunal in reference 3. Difficult to discuss this case law on domestic courts 4. Caselaw on international level, if the ICC departs from it it almost has to justify itself, it did not operate in a vacuum, of course it is not binding on other courts

T5 - Verdict & Sentencing

1. Verdict - In its judgment of 20 July 2009, the Trial Chamber found Milan Lukić guilty of persecution, murder, inhumane acts as crimes against humanity, and murder and cruel treatment as violations of the laws and customs of war. Judge Van den Wyngaert dissenting, he was also found guilty of extermination as a crime against humanity. He was sentenced to 'a term of imprisonment for the remainder of his life', which he is serving in a prison in Estonia; a sentence which was subsequently confirmed on appeal. - It also found Sredoje Lukić guilty of persecution and inhumane acts as crimes against humanity, and of cruel treatment as a violation of the laws and customs of war. Judge Robinson dissenting, he was also found guilty of murder as a crime against humanity and as a violation of the laws and customs of war. He was sentenced to 30 years of imprisonment, reduced to 27 years on appeal; a sentence which he is serving in a Norwegian prison. 2. Sentencing: - Milan Lukić was sentenced to life imprisonment; i.e. genocide is not the only crime that may warrant the most severe of penalties. In this case, the Trial Chamber explicitly emphasised the seriousness of the crimes perpetrated by Milan Lukić: 'The serious gravity of these multiple murders and savage beatings must be recognized individually, even as the Trial Chamber considers the particular gravity of the monstrous mass killings that Milan Lukić committed in the Pionirska street fire and the Bikavac fire. The Trial Chamber reiterates that the Pionirska street fire and the Bikavac fires exemplify the worst acts of inhumanity that one person may inflict upon others. The Trial Chamber recalls its observations that these horrific events remain imprinted on the memory for the viciousness of the incendiary attack, for the sheer callousness and cruelty of herding, trapping, and locking the victims in the two houses, thereby rendering them helpless in the ensuing inferno, and for the degree of pain and suffering inflicted on the victims as they were burned alive.'[ para. 1061]. --> Normally CaHs do not lead to life imprisonment, only genocide does this, however here the life sentence is given! --> Interesting the legal and judicial debate, revolved around the qualification of these acts. Was it murder or extermination? At no point they think of genocide. Genocide does not require a minimum, at the ICTY it seems there is the extra requirement to have intent to destroy either in whole or in substantial part. Intriguing to have cases --> In law the ICTY has jurisdiction over genocide, she does not know whether it is not applied here. genocide might be too restrictive, extermination of other groups might then be excluded. Extermination is a very useful category. --> For some scholars think genocide is a term that is used to political. Maybe there is too much of a political weight. It is problematic due to the adequate naming can contribute to people accepting that victims were hurt. By denying the crimes the destruction may continue by denial of the attrocities that have taken place. --> Not the only caselaw on extermination but at the ICTY it was discussed as a charge of extermination on its own. At the ICTR it was decided in combination with genocide.

T5 - Crime of extermination: introduction

1. Widespread or systematic attack against civilian population. --> CaH 2. It is possibly the only real mass violence crime in ICL. By definiton extermination requires a large number of victims. - Murder v. Extermination - The law does not tell when a certain number is surpassed. 3. By essence it is a crime of mass violence

T3 - CaH isolated act? ICTY + ICC approach

ICTY APPROACH 1. In Tadić, the Trial Chamber held that the collective nature of crimes against humanity 'exclude[s] single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity'. [Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, Trial Chamber II, 7 May 1997, para.644] 2. It then held that: 'Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual need not commit numerous offenses to be held liable. Although it is correct that isolated, random acts should not be included in the definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilian population and thus "[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution"'. [Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, Trial Chamber II, 7 May 1997, para.649. See also Prosecutor v. Mrkšić et al., Case No. IT-95-13-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, 3 April 1996, para.30]. 3. Tadić : if the perpetrator acted while knowing that his acts 'were occurring on a widespread or systematic basis [...] that is sufficient to hold him liable for crimes against humanity'. [Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, Trial Chamber II, 7 May 1997, para.659]. 4. SUMMARY: In other words, if the perpetrator has knowledge of the broader pattern of occurrence, a single act may qualify as a crime against humanity. . Attack that needs to be widespread and systematic not the acts of the accused. 5.This formulation clearly increases the burden of proof for the Prosecution which thus has to prove that the perpetrator knew of the widespread or systematic attack on a civilian population while committing his or her act. 6. The Appeal judges in the Tadić case lightened this burden of proof by holding that such knowledge could be inferred from the circumstances. It indeed maintained that : 'it may be inferred from the words "directed against any civilian population" in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread and systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern'. [Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, para.248]. 7. The case law of the ICTY now seems settled as different Trial Chambers followed this path. For instance, in the Vukovar Hospital Decision, Trial Chamber I found that 'as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity'. [Prosecutor v. Mrkšić et al., Case No. IT-95-13- R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, 3 April 1996, para.30]. 9. the Kunarac case, Trial Chamber II specified that: '[o]nly the attack, not the individual acts of the accused, must be "widespread or systematic". A single act could therefore be regarded as a crime against humanity if it takes place in the relevant context.' [Prosecutor v. Kunarac et al., Case No. It-96-23 and IT-96-23/1, Judgment, Trial Chamber II, 22 February 2001, para.431]. ICC APPROACH 1 The ICC Statute is here more explicit as, by adding the requirement that there should be a 'multiple commission of acts',[1] it clearly excludes isolated acts from the definitional scope of crimes against humanity. 2. It can also be noted that the possibility brought out by the ICTY of considering crimes against humanity as isolated acts if the perpetrator knew of the wider context of the attack seems to have been rejected by the Rome Statute which equates 'knowledge' with 'awareness' and which, from the reading of its Article 30 (3), suggests that such a mental element 'must be subjectively demonstrated, rather than merely inferable from circumstancial evidence'.[2] - [1] See Article 7 (2) (a) of the ICC Statute. - [2] Sadat Wexler, Leila, 'A First Look at the 1998 Rome Statute for a Permanent International Criminal Court : Jurisidiction, Definition of Crimes, Structure and Referrals to the Court', in Bassiouni, M. Cherif (ed.), International Criminal Law, Volume III : Enforcement, Transnational Publishers, Inc., Second Edition, 1999, pp. 664-5

T4 - Crimes against humanity and Genocide: poetic statement

'The arrested opponent went alone to Dachau. Alone with his greatness, with his nobility. The little boy marked with the yellow star went to Auschwitz with his family ... No, it is not the same violence to track down the Résistance fighter and the child from Izieu, who is still hope and promise of life. The clandestine fighter knew the risks he was taking. The child from Izieu did not know he was unwelcome on the Earth where he had, for a while, the authorization to play... The opponent could cease his opposition. The Jew could not cease to be Jewish.' - Captures the difference - Genocide being the crime is to destroy, the actus rea can be similar but the mens rea is very different.

T4 - Acts of Genocide

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. --> No clear explanation, the international tribunals had to define them one by one.

T6 - War crimes in Nuremberg Charter

- Art. 6 (b): 'namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;' --> That there is a certain notion of victimhood, interestingly it also covers property! In certain cases military necessity will be a defense to acts which would otherwise be qualified as war crimes. Military necessity can only be used an excuse in property damage, not on civilians.

T5 - Persecutions as a heightened crime against humanity?

- Kordić and Čerkez :'With regard to the crime of persecution, a particular intent is required, in addition to the specific intent (to commit the act and produce its consequences) and the general intent (objective knowledge of the context in which the accused acted). This intent - the discriminatory intent - is what sets the crime of persecution apart from other Article 5 crimes against humanity.' [Kordić and Čerkez, 26 February 2001, Trial Chamber, Judgment, para. 212. For confirmation see Tadić, 15 July 1999, Appeals Chamber, Judgment, paras. 273 and 305; Blaškić, 3 March 2000, Trial Chamber, Judgment, paras. 244 and 260.] --> Not an intent to destroy but an intent to discriminate!

T4 - CaH v. Genocide

- Proving genocidal intent is very hard to prove - Prosecutor will go for CaH if genocide is very hard to prove due to the intent to destroy.

T5 - Introduction for today: CaH v. Genocide

- The crime of persecutions - The crime of Apartheid - The crime of extermination - The crime of enforced disappearances

T4 - Is the genocide convention part of ICL? (Question from Rosalind)

- Yes but not that obvious! - It also envisages an international criminal tribunal or court that would be permanent - I would include it within international criminal law, although there is state responsibility - Both would work though, this question does not have a straight forward question!

T4 - The destruction of a group 'in whole or in part'

--> Also partially, not the whole group everywhere needs to be destroyed. Case law does not really qualify what this part is??? --> Not a theoretical discussion, a very practical one, Mladic is a case where this is discussed. Srebrenica he was linked, but for the other parts there was intent to destroy but not of 'enough people' to fit within the definition of 'a group in whole or in part'. It is very much an ungoing discussion. --> Over all the legal scholars agree with the ICTY, Prof is very lonely in her position. Only Srebrenica was genocide other municipalities were not genocide, but in the case law this is not the case. 1. ICTR: there must be a "considerable number" of victims for the crime to qualify as genocide. [Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, Trial Chamber II, 21 May 1999, para. 97. Emphasis added.]. 2. ICTY: reference to a "substantial" part, although not necessarily a "very important part". [Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgment, Trial Chamber I, 14 December 1999, paras 81-82. Emphasis added.]. 3. ICC - Elements of Crimes: "one or more persons" may be the victim of the crime of genocide. [See Elements of Crimes, Article 6 (a')]

T3 - Crimes against humanity: what will be discussed on this subject

--> Crimes against humanity is a bit of odd phrasing, does this indicate there are crimes 'for' humanity? --> In the upcoming 5 lectures (including this one) we will discuss first crimes against humanity, genocide, and then a few crimes fall somewhere in between. 1. The connection to other crimes / The nexus (the link) to armed conflict 2. Widespread and/or systematic action 3. Crimes against humanity as isolated acts? 4. Grounds for commission: motives and knowledge of the perpetrator 5. Article 7 (1) of the ICC Statute

T2 - International v. Hybrid Courts and Tribunals

--> Mix of national law and international law, but they are usually a mix of the two, they are sponsored by the UN but they are not internationalised. Not purely international, not purely domestic. Some were successful, others not. If not succesful maybe due to resources or financial means. There is a huge difference in impact and effect. --> ICC, ICTY and ICTR are all international courts, no domestic law applied. The tribunals listed here are all hybrid courts as they also apply domestic law and function alongside the domestic law system as well as the international law system 1. Serious Crimes Panels in Dili District, East Timor - 2000 2. Regulation 64 Panels in the Courts of Kosovo - 2000 3. Special Court for Sierra Leone - 2002: succesful 4. Extraordinary Chambers in the Courts of Cambodia - 2006: succesful 5. War Crimes Chamber in the Court of Bosnia and Herzegovina - 2004 6. Supreme Iraqi Criminal Tribunal -2005 7. Special Tribunal for Lebanon - 2007: only one discussing terrorism

T4 - Case of Srebrenica

--> Only genocide where there is no focus on continent or country, here weirdly there is a focus on a municipality, this is therefore very unique 1. 'On 2 July 1995, the Drina Corps commander, General Zivanovic signed the orders for a planned attack on Srebrenica. So this is two years after the tribunal was already in place. 2. On 6 July the attack was launched from south of the enclave. Thousands of Bosnian Muslims fled to the town. The Bosnian Serb forces encountered no resistance. 3. On 9 July, President Karadzic decided that, under the prevailing conditions, the town was to be taken. 4. On 10 July, the panicked Bosnian Muslim population began to flee toward the United Nations facilities in the town or out of the town, to Potocari. The commander of the Dutch Battalion often called Dutchbat, asked for air support but did not receive it. 5. On 11 July, General Mladic, Chief-of-Staff of the Bosnian Serb army, along with General Zivanovic, General Krstic and many other VRS officers, made a triumphant entry into a Srebrenica deserted by its inhabitants. 6. By the evening of 11 July, Srebrenica was a dead town in the hands of the Bosnian Serb forces.' 7. 'In the evening of 13 July, all the women, children and old people were transferred. Not necessarily well treated, some beaten or raped in these centres. 8. The men were systematically separated. 9. They were beaten. Some were taken behind the house and killed. The survivors were taken away to various detention locations, they all killed the men since they could prepare the defense that they were combatants, and not victims or civilians. 10. Some were captured and were killed immediately or taken to detention centres. 11. Only very few survived and some of them testified before the Trial Chamber and described the horror of the mass executions which they miraculously escaped.' 12. 8,372 Bosnian Muslim men were executed between 13 and 19 July 1995. 13. Adjudicated by different courts, can radiate beyond the strict borders of ICL. e.g Srebrenica was ruled in: - ICTY - ECHR - ICJ - Dutch Supreme Court - War crimes chamber in Bosnia Herzegovina

T1 - Hierarchy in article 6 of the Nuremberg trial

--> Prof likes this hierarchy! 1. Now it is claimed that there is no hierarchy 2. At Nuremberg there was a hierarchy, first peace, then war, then against humanity, this is present in article 6. 3. War provides the adequate atmosphere of violence in which groups can be identified and exterminated. All genocides all took place during wars, you can have one without it though, as it offers the adequate incentive. 4. In that sense the allies were correct, however they were incorrect since the crimes against humanity and genocide started before the WWII, the ways deals with this. 5. Holocaust was not the focus of the trial, very few witnesses and only 3 were actually Jewish.

T6 - ICTY: war crimes

--> not 1, but 2 articles. Unlike genocide which only has 1 article 1. Art. 2 of the ICTY Statute - Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages 2. Art. 3 of the ICTY Statute - Violations of the laws or customs of war The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to (not exhaustive): (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. - More specific protection of property and institutions, and an increased protection of civilian towns. - IHL, the idea of criminalising war crimes is quite odd as war is always inhumane. Not sure what is necessary suffering? This definition raises quite some questions. - arguably b could cover c,d, and e. This can lead to interesting debates.

T4 - Killing members of the group

1. '"Killing" in sub-paragraph (a) needs no further explanation. As regards the underlying acts, the word "killing" is understood to refer to intentional but not necessarily premeditated acts.' [Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, Trial Chamber II, 31 July 2003, para. 515. See also Prosecutor v. Kamuhanda, Case No. ICTR-95-54-T, Trial Chamber II, Judgment, 22 January 2004, para. 632; Prosecutor v. Ntagerura, Bagambiki, Imanishimwe, Case No. ICTR-99-46-T, Judgment and Sentence, Trial Chamber III, 25 February 2004, para. 664]. 2. 'In order to be held criminally liable for genocide by killing members of a group, in addition to showing that an accused possessed an intent to destroy the group as such, in whole or in part, the Prosecutor must show the following elements: (1) the perpetrator intentionally killed one or more members of the group, without the necessity of premeditation; and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group'. [Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 319. Footnotes omitted. See also Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Trial Chamber II, 1 December 2003, Judgment and Sentence, para. 813.] - What makes the different is the intent to destroy a protected group, in sense of serious a CaH is less serious is genocide, since both outcomes the victim is dead. Thus the intent to destroy makes it a genocidal act. --> How many people is qualified to be genocide? Discussed under the intent part! --> Distinction CaH and genocide: genocidal intent to destroy.

T4 - Hague district court

1. 'The District Court deems Dutchbat's cooperation with the deportation in the late afternoon of July 13th 1995 of the able-bodied male refugees who had sought refuge at the compound an unlawful act for which the State is liable. It concerns about 320 men, among whom were Mustafić and Nuhanović's father and brother, to who the Nuhanović and Mustafić cases related. The majority of these men were never seen alive again.' [Stichting Mothers of Srebrenica v. Staat en Verenigde Naties, Rechtbank Den Haag, C/09/295247 / HA ZA 07-2973, Judgment, 16 July 2014, para. 4338] [ emphasis added]. 2. Artificial distinction between these 320 men, deported from the compound before UN aerial military support was requested and the thousands other men, deported after this military support was requested but in vain and whose murder would not fall under the responsibility of the Dutchbat and of the Dutch State. --> So before airsupport from the UN requested it was the fault of the Dutch government, after it was requested it became the fault of the UN but no-one held liable since the UN is immune. Prof says some decisions were made by the UN that assisted genocide such as the abandoning srebrenica and refusing aerial military support.

T4 - Forcibly transferring children of the group to another group

1. 'With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another.' [Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, para. 509. See also Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1- T, Judgment, 21 May 1999, para. 118; Prosecutor v. Rutaganda, Judgment and Sentence 6 December 1999, ICTR-96-3, para. 54; Prosecutor v. Musema, Case No. ICTR-96-13-A, Trial Chamber I, Judgment and Sentence, 27 January 2000, para. 159]. --> The Nazis for example aimed to exterminate the children, for reprisal and to exterminate the jews. --> Rwanda they also killed the children 2. Examples: --> Australia was no genocide! --> Argentina (?) 3. Only slight reference to the cultural genocide which was included in 1946 GA resolution.

T4 - Genocidal intent

1. 'intent is a mental factor which is difficult, even impossible, to determine" [...without confession of the accused, intent can only be] "inferred from a certain number of presumptions of fact".' [Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, para. 523]. - Not only the intent to kill, but the intent to destroy a group needs to be proven, very very hard to prove 2. 'Apart from its discriminatory character, the underlying crime is also characterised by the fact that it is part of a wider plan to destroy, in whole or in part, the group as such. As indicated by the ILC, "the intention must be to destroy the group "as such", meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group". By killing an individual member of the targeted group, the perpetrator does not thereby only manifest his hatred of the group to which his victim belongs but also knowingly commits this act as part of a wider-ranging intention to destroy the national, ethnical, racial or religious group of which the victim is a member.' [Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgment, Trial Chamber I, 14 December 1999, para, 79]. --> The perpetrator had to have had the intent to destroy a group, this intent can only be proven with indirect intent! This is why it is so difficult to prove, the tribunals sometimes use the circumstancial evidence. If genocide cannot be proven, then it becomes CaH. --> A lack of premeditation is only a lack of killing, but not for the whole act of genocide. --> Willingness does not equal intent!! Intent is wanting and knowing, and you want the consequences of the act: killing A, and destroying As group.

T4 - Causing serious bodily or mental harm to members of the group

1. 'to a large extent, "causing serious bodily harm" is self-explanatory. This phrase could be construed to mean harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses.' Prosecutor v. Kayishema and Ruzindana, Case No. ICTR- 95-1-T, Judgment, 21 May 1999, para. 109. See also Prosecutor v. Krstić Case No. IT-98-33, Judgment, Trial Chamber I, 2 August 2001, para. 483; Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 320 and 322; Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, Trial Chamber II, 31 July 2003, para. 516; Prosecutor v. Ntagerura, Bagambiki,Imanishimwe, Case No. ICTR-99-46-T, Judgment and Sentence, Trial Chamber III, 25 February 2004, para. 664; Prosecutor v. Seromba, Case No. ICTR-2001-66-I, Judgment, Trial Chamber, 13 December 2006, para. 317]. --> Quite wide and common sense definition and approach. 2. 'serious bodily or mental harm' is to be 'determined on a case-bycase basis, using a common sense approach' [Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 108. For the case-by-case assessment of mental harm, see id. para. 110 and para. 113]. --> To interpret as such harm that it covers rape and sexual violence is completely absent from the definition of genocide, as early as Ayakeshu then it will qualify as genocide. In Ayakeshu it went further rape by itself can be stated as a genocidal act. You can destroy physically and mentally by rape. Could be in front of the whole family, and there is a huge cultural and societal destruction included. Nothing cultural about rape. What can happen is also that the victim is being shunned by the community. Proving the intent to destroy is fairly straight forward! (not easy as it is always complex) --> No cases yet at the ICC about genocide, so interesting if this will be included in that definition.

T4 - Srebrenica ICTY

1. 'you are still guilty, General Krstic. - You are guilty of having knowingly participated in the organised forced transfer of the women, children and old people in Srebrenica at the time of the attack on 6 July 1995 against the United Nations safe area. You are guilty of the murder of thousands of Bosnian Muslims between 10 and 19 July 1995, whether these be murders committed sporadically in Potocari or murders planned in the form of mass executions. You are guilty of the incredible suffering of the Bosnian Muslims whether these be the ones in Potocari or survivors of the executions. - You are guilty of the persecution suffered by the Bosnian Muslims of Srebrenica. Knowing that the women, children and old people of Srebrenica had been transferred, you are guilty of having agreed to the plan to conduct mass executions of all the men of fighting age. You are therefore guilty of genocide, General Krstic. ... In July 1995, General Krstic, you agreed to evil.' Judge Almiro Rodrigues, 2 August 2001 2. Individual criminal responsibility 3. Still guilty: in delivering the guilty verdict, they start with the biography, he was part of the army + he was one of the thinking acts, he was not the only one deciding but he is therefore still! guilty

T4 - The case of Myanmar: introduction

1. 11 November 2019: The Gambia filed an application instituting proceedings and requesting provisional measures at the ICJ. 2. First state to act. 3. Gambia is not a victim state (contrary to cases brought by Croatia and Bosnia against Serbia) 4. The Gambia's Minister of Justice previously worked for the ICTR Prosecutor. Definetley someone who is concious of genocide and international crime. 5. Gambia's filing asks that Myanmar be found guilty of genocide and of failing to prevent and punish genocide; that Myanmar be requested by the Court to cease genocidal acts, provide reparations and punish perpetrators. 6. It also asks for provisional measures pending the Court's judgment; i.e. to stop the genocide against the Rohingya (ICJ proceedings are a lengthy process) --> So both processed at the ICJ and the ICC

T1 - The Tokyo Trials

1. 19 January 1946: Charter of the International Military Tribunal for the Far East (IMTFE) 2. Art. 1 of the IMTFE Charter: 'The International Military Tribunal for the Far East is hereby established for the just and prompt trial and punishment of the major war criminals in the Far East. The permanent seat of the Tribunal is in Tokyo.' 3. Art. 5 of the IMTFE Charter: 'The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offences which include Crimes against Peace. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: - a. Crimes against Peace; - b. Conventional War Crimes; - c. Crimes against Humanity.'

T1 - The reaction of the international community after WWI: the Politics

1. 1914-1918: WWI 2. 24 May 1915: joint declaration of the governments of Great Britain, France and Russia describing the Turkish genocide of Armenians as 'crimes against humanity and civilization'. The Allies condemned 'the tolerance and often [...] the support of the Ottoman authorities' in the massacres - First recorded appearance of the phrase 'crimes against humanity'. - End of WWI was very political reaction of the parties involved, thus the phrase crimes against humanity was a plitical statement not legal - Armenian genocide was the first one defined as such. 3. 18 January 1919: Paris Conference: appointment of a Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties - To study the origins of - and culpability for - the conflict, the offences against the laws and customs of war, and the constitution of a tribunal to try the accused. 4. The Commission concluded that, notwithstanding these 'culpable acts' and this 'high-handed outrage [...] committed upon international engagements, deliberately, and for a purpose which cannot justify the conduct of those who were responsible', it was 'of opinion that no criminal charge can be made against the responsible authorities and individuals'. - Thus it was a crime but cannot be linked to a responsible person. 5. It still declared to be 'desirable that, for the future, penal sanctions should be provided for such grave outrages against the elementary principles of international law'. Source: 'Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties' (1920) 14 AJIL 118]

T2 - International Criminal Tribunal for the former Yugoslavia (ICTY)

1. 1993: Resolution 827 of UN Security Council: Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY). 2. First one after Nuremberg and Tokyo, the UN before did not act on other awful stuff, why so suddenly? - Yugoslavian war on European soil threatened European peace - The fact that it happened on EU territory scared the international community, Sarajevo being the scene of WWI was scary - Fear that this conflict could escalate 2. http://www.icty.org/ 3. Document that showed how the 3 types of crimes that gave jurisdiction to the ICTY for this.

T2 - International Criminal Tribunal for Rwanda (ICTR)

1. 1994: Resolution 955 of UN Security Council: Statute of the International Criminal Tribunal for Rwanda (ICTR) 2. http://www.unictr.org/

T2 - International Criminal Court (ICC)

1. 1998: The Rome Statute of the International Criminal Court (ICC). (Den Haag) 2. The ICC only has jurisdiction over acts perpetrated after the entry into force of its Statute (1 July 2002): see Art. 11 of the ICC Statute, so only fairly recent crimes - Crimes against humanity, war, genocide and agression/crimes against peace. The ICTY and ICTR were not involved with crimes against aggression. - It explains next to this court, that other international courts and tribunals follows, since the other acts were not covered by this body. 3. http://www.icc-cpi.int/

T4 - Myanmar ICJ at PIL level

1. 23 January 2020: The ICJ (unanimously) indicated provisional measures to preserve the rights of the Rohingya population (ICJ acted very fast here!) preliminary indication that the facts are contrary to the genocide covnention 2. The Republic of the Union of Myanmar 'shall take all measures within its power to prevent the commission of all acts within the scope of Article II' of the Genocide Convention. 3. The Republic of the Union of Myanmar 'shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide. 4. The Republic of the Union of Myanmar 'shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II' of the Genocide Convention. 5. The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court'. 7. ICJ applying the genocide convention as PIL

T1 - The United Nations and International Law

1. 26 June 1945: Charter of the United Nations (San Francisco). The delegates of 49 states pledged their determination 'to save succeeding generations from the scourge of war, which twice in [their] lifetime [had] brought untold sorrow to mankind' [Preamble] 2. 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide 3. 1948 Universal Declaration of Human Rights 4. 1965 International Convention on the Elimination of All Forms of Racial Discrimination 5. 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 6. 2006 International Convention for the Protection of All Persons from Enforced Disappearance --> Not the most rapid movement of changing laws, however there was a clear change visible.

T1 - The impact of the Second World War on society - issues of memory

1. Academic studies 2. Memorial laws - There became a need to testity, not only at the trial but also through films, books and documentaries (e.g Shoah). 3. Museums - This need for memory, this is indeed one of the impacts of the WWII - Real need to remember - Real societal impact of these atrocities

T4 - UN Convention

1. Acts of genocide 2. The selective protection of groups 3. The destruction of a group 'in whole or in part' n 4. Genocidal intent

T2 - Introduction to how international criminal courts and tribunals were established

1. After WWII not much happened a long time where things stood still 2. In 90s a legal landscape started to form 3. This session we will discuss these new tribunals, as since the 90s the number of tribunals has multiplied 4. From Nuremberg to Den Haag, where there was Nuremberg and Tokyo and then this jump to Yugoslavia and this one is Den Haag. 5. We will focus on how these tribunals function 6. Heatlhy sign that these courts errupted and that some crimes are too huge to go unpunished such as Arusha. Here amnesties were discussed and in general the concept of amnesty does not fit at all with ICC and the system does not like amnesties, the ICC does not let itself be stopped if necessary.

T2 - Radovan Karadzić

1. After years of evading the jurisdiction of the tribunal and he benefitted from friendships in Serbia, he went into hiding 2. He was arrested in Den Haag and he was found guilty of crimes against humanity, genocide and he was sentenced to 40 years, he appealed and then he got life (so a higher sentence after his appeal). 3. He is now serving his sentence 4. Will be talked about later (super long non mandatory judgment) 5. Karadic was psychiatrist for children, when he went into hiding he became a guru then he was arrested, he was quite composed and likes to have an audience, something of an ego and a very complex individual.

T4 - International Court of Justice : (Non) State responsibility

1. Application of the Genocide Convention (BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO) case, 26 February 2007: 2. Did not question if there was genocide but did not find state responsibility for genocide: 'Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide 3. Serbia has not conspired to commit genocide, nor incited the commission of genocide 4. Serbia has not been complicit in genocide 5. Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995; 6. Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladic´, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal'

T4 - 5 cases of genocide under IL

1. Armenian genocide even though it predates the convention, questions if the convention should be used retroactively. 2. Holocaust 3. Rwanda 4. Srebrenica 5. Cambodja - Ungoing question of Oeigoeren in China and Myanmar

T2 - The primacy of the ICTY and ICTR

1. Art. 9 ICTY Statute and Art. 8 ICTR Statute: each Tribunal shall have concurrent jurisdiction with national courts but 'shall have primacy over national courts': - 'At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence [RPE] of the International Tribunal.' - Kind of judicial override from the UN over these states. - The Tribunals were over national courts, this can be seen in the statutes. They were above national courts 2. Overriding authority of the International Tribunals. 3. No statutory rules on how primacy is to be exercised. In his Report to the Security Council, the UN Secretary- General only stated that 'the details of how the primacy will be asserted shall be set out in the rules of procedure and evidence of the International Tribunals.' 4. Judicially elaborated rules which provide that at the request of the Prosecutor the Tribunal may assert its primacy in three cases: - Misrepresentation: When a national prosecutor investigates an international crime as an ordinary criminal offence. - Unreliability of the national court. - Relevance of the case to a case being tried by the International Tribunal. 5. Reasons for proclaiming the Tribunals' primacy: - Ongoing armed conflict, ICTY was created in 1993 so the conflict was not at all over. - Collapse of the national judicial system, there was no reliable system available to adjudicate these crimes 6. The scheme adopted by the ICTY (and ICTR) judges reconcile the need not to overload the ICTs and the demands of state sovereignty. 7. Recently, the ICTs have emphasised the importance of national courts: national courts of the states concerned are better structured and organised and the workload of the ICTs has considerably increased. Therefore as a solution: gradually the tribunals have referred cases back to the courts.

T5 - The crime of persecutions in the law

1. Art.6(c) Nuremberg Charter: persecutions on political, racial or religious grounds. 2. Art. 5 ICTY Statute: persecutions on political, racial and religious grounds. 3. Art. 3 ICTR Statute: crimes against humanity on national, political, ethnic, racial or religious grounds; persecutions on political, racial and religious grounds. 4. Art. 7(1)(h) ICC Statute: 'persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court'.

T1 - After WWI: The inter-war period and the League of Nation

1. Article 10 of the League's Covenant : the Member States of the League undertook 'to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League'. - It also stated that '[i]n case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled'. 2. Article 11 of the League's Covenant: the Council of the League had the power to intervene in cases of war, threat of war, or rupture of the friendly relations between states. However, for it to intervene, both contestant states were given the right to be present and vote on the Council, which had to be unanimous in its decisions. - Due to this unanimity it caused for the procedural rules to be inherently disabled 3. Objective of the League was to prevent war from happening and maintain peace. - League of nations of course failed miserably

T1 - After WWI: Examples of how the German Kaiser was tried for crimes within the treaty of Versailles

1. Article 227 of the Treaty of Versailles called for the trial by an international military tribunal of the Kaiser - the Supreme German Commander - for launching an aggressive war: -'The Allied and Associated Powers publicly arraign William II of Hohenzollern , formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties (...)'. 2. Article 231 of the Versailles Treaty ('war-guilt' clause): - responsibility of Germany and of its allies for the waging of the aggressive war, thus implying that the contracting parties had actually agreed on the qualification of war as an illegal act. 3. Articles 232 and following of the Versailles Treaty: Germany's obligation to repair the losses and damages caused to the Allied Powers. 4.The Kaiser was however never tried, The Netherlands having granted him asylum based on his status as Head of State.

T1 - Examples of the role of domestic jurisdiction: Augsoto Pinochet

1. Augusto Pinochet he was former Chilian dictator 2. Arrested in London, trial was stopped as he was not fit, send back to Chile, tried to put him on trial again this failed and he died. 3. But the judgments in the House of Lords is very interesting considering the absolute prohibition of torture and as well universal jurisdiction. 4. Focus on this course will be international criminal courts, but the point of these domestic court judgments is that they can also play a very interesting roles.

T1 - The reaction of the international community after World War II: The Law and the Trials

1. British Prime Minister Winston Churchill, 24 August 1941, BBC live broadcast: - 'The aggressor ... retaliates by the most frightful cruelties. As his Armies advance, whole districts are being exterminated. Scores of thousands - literally scores of thousands - of executions in cold blood are being perpetrated by the German Police-troops upon the Russian patriots who defend their native soil. Since the Mongol invasions of Europe in the Sixteenth Century, there has never been methodical, merciless butchery on such a scale, or approaching such a scale. And this is but the beginning. Famine and pestilence have yet to follow in the bloody ruts of Hitler's tanks. We are in the presence of a crime without a name.' --> Prof finds it very interesting, it is sort of sums up the legal dilemma in this situation. Here Churchill said we are in the presence of a crime without a name, undoubtly criminal but no name in the law to qualify this crime. So how to qualify and punish these laws? - Main problem with Nuremberg completley ignored the principle of legality as they charged individuals with new crimes. - Therefore WWII indeed changed the entire concept of conflict.

T4 - The Holocaust

1. Concentration camps to make sure that their destruction enterprise would succeed, the reason was destruction. - At Nurumberg there was no holocaust, at the tribunals of Auschwitz the architects of destruction where further judged. 2. Extermination camps: Treblinka clearly shows the two different sections of labour v. extermination. - Whole place was designed to serve the aim of destruction. - The victims where destroyed by cremation. 3. Roma and jews was clearly genocide. Disabled extermination started before the camps, they were targeted and exterminated, the gays were send to the camps but this is a social group so no genocide but CaH, same for PoW. The intent here is different according to law and does not fall within those groups. 4. Have been trials for those who have facilitated the crimes, some of them have been tried and convicted, some not. In France e.g the train company, I.G farben was contested. Hard to say no ofcourse but if so it should be very very clear that e.g your family was threatened.

T1 - The International Committee of the Red Cross (ICRC) and Humanitarian Law

1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. 2. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. 3. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. 4. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 5. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 7. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005

T4 - Ethnic Cleansing

1. Creation of ICTY 2. Not an actual crime 3. Very problematic since they refer to this but actually mean genocide.

T6 - War crimes: introduction and what will be discussed

1. Definition 2. Distinction between international and noninternational armed conflicts 3. Distinction between combatants and non-combatants 4. Prosecution of war crimes 5. The use of child soldiers

T4 - Cambodja

1. Extraordinary chamers by the Merouj was destroying a religious group and this qualified as genocide. 2. All the acts and crimes perpetrated to political opposition was not seen as genocide, so they were CaH. So sometimes acts can be exactly the same. --> Prof finds this problematic, if the intent is to destroy why should it matter which group it is? Also the perpetrators basically 'create' this group. She thinks that intent to destroy is absolutely leading 3. Genocide leads to life imprisonment and leads to higher sentencing, CaH not always but quite often. Officially no hierachy though

T2 - Similar/same cases at different courts

1. For example: Myanmar, was being processed by the ICC, as well as the ICJ. 2. Sbrenica different, parallel criminal and PIL - different level of adjuciation and they can come to different conclusions

T2 - Slobodan Milošević

1. He died in the course of the proceedings, no judgment. His trial had been going on for 4 years. - The lengthier the proceedings are the bigger the chance that perpetrators are dying and no official judicial culpability. 2. Ironic we talk on tuesday how hitler and mussolini could not be convicted, history repeats itself. 3. This case we will talk about, the crimes perpetrated.

T4 - ICC notion of HR

1. ICC article 21(3) 2. Use HR principles to interpet notion

T4 - Post-genocide society

1. If we have a judgment that states that genocide was committed this really contributes to remembering and honouring the victims. 2. Genocide denial becomes less if there is there is a clear judgment calling this genocide. 3. Wall of names, burial traditions, and a yearly remembrance day occurs in Srebrenica

T4 - Rwanda

1. Intent was not difficult to prove, since there were ungoing tensions, rising and hateful propoganda towards the Hutsi which lead to violence, systematic destruction of Hutsi. 2. The crime against tutsi, is genocide 3. Moderate Hutu is CaH 4. Evidence was overwhelming, 800000 and 1 million victims in 3 months, no particular attempt to hide their acts, referred to as 'daylight genocide'

T5 - The crime of enforced disappearances: definition in the 2006 International Convention for the Protection of All Persons from Enforced Disappearance + Rome Statute

1. International Convention for the Protection of All Persons from Enforced Disappearance - Article 2 'For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.' - Article 5 'The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.' 2. Rome Statute of the ICC - Art. 7 'For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.' - Art. 7 (2) (i): 'Enforced disappearance of persons' means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. There is a denial of the existence of groups, this is somewhat genocidal: illustrated by the Argentinian example. Not limited to the dictatorships in latin america in the 70s, this also happened during the apartheid regime, during the French regime and in Russia.

T1 - The postwar changes to the legal landscape: 3 areas will be discussed

1. International Law 2. International Humanitarian Law 3. Human Rights Law

T4 - Dutch Supreme Court - State responsibility

1. It had proclaimed the immunity of the UN: Stichting Mothers of Srebrenica c.s./Staat en Verenigde Naties, Supreme Court of The Netherlands, 10/04437, Judgment, 13 April 2012. 2.BUT on 6 September 2013, the Supreme Court found that the Dutch State was responsible for the deaths of Ibro Nuhanović, Muhamed Nuhanović and Rizo Mustafić, three Bosnian Muslims who were killed by the Serb army after the Dutch batallion had failed in its duty of protection towards them [The State of The Netherlands v. Hasan Nuhanović, Supreme Court of The Netherlands, 12/03324, Judgment, 6 September 2013].

T5 - Lukic case: Van wydegaert dissenting opinion on argumentation

1. Judge Van Den Wyngaert dissented and expressed the opinion that 'the killings in Pionirska street and Bikavac are [not] of the scale of massiveness required for extermination.' [para. 1114]. 2. While her argument that 'the crime of extermination almost necessarily must be of such a scale of killing as to be prohibitive to identifying, naming, or counting the victims with specificity' does not necessarily hold true, as forensic sciences and the work of forensic experts tend to show that the scale of crimes does not necessarily impede the identification of the victims, her contention that lowering the threshold of extermination risks devaluing both the crime against humanity of murder and that of extermination is more compelling. [ para. 1115] 3. According to Judge Van Den Wyngaert, the element of gravity is one that must be preserved as: '[t]o lower the threshold by which we measure massiveness necessarily lowers the threshold by which exterminations are defined, to the detriment of the standards of gravity the Appeals Chamber has set for the crime of murder and for the crime of extermination.' [paras 1116] 4. Judge Van Den Wyngaert also explained that: 'The multiple killings at Pionirska street and at Bikavac were brutal and cruel. The fact that I do not believe they reach the threshold of extermination does not reflect my belief that they are not extremely grave offences. Rather, my decision reflects the very high level of gravity that has been ascribed to the crime of murder. Indeed, I am concerned that if we find that mass killings of increasingly low scale to be extermination, then this inadvertently may suggest that the charge of murder is not significant enough to convey the seriousness of the crimes. Murder charges, particularly given the weight judges may give to the circumstances of the killing in sentencing, are appropriate for individual and multiple killings. To hold extermination to a lower standard because a multiple killing is considered to be particularly vicious would, I fear, have the unintended result of trivialising both the crime of murder and the crime of extermination.' [ para. 1120]. --> Prof: she does not question at all the gravity of the crime, multiple killing do not automatically become extermination. The crime exterminiation is not about modus operandi, it is about the number!

T2 - Ratko Mladić

1. Karadic accomplice, more the military side of this 2. Very different personalities, Mladic he committed these crimes anyway, at trial he was very agitated, very loud and aggressive. 3. Sentenced war crimes, genocide and war crimes immediate life sentence, he appealed 4. His poor health it is being postponed, possibly in may

T1 - Examples of the role of domestic jurisdiction: Klaus Barbie

1. Klaus Barbie was a nazi, he was send by Hitler to Lyon since this was in the free zone for a longer time. Was the home of the collaborators and resistance movement. Lyon did not want to capitulate, he was called the butcher of Lyon - He managed to escape in bolivia and changed his identity, he was then identified by nazi hunters. The extradition request was refused but he was locked up for financial crimes. He was put on a plane that was supposed to stay in Bolivia, but it had to get fuel, but it stopped on a French territory and the other individuals were police officers. - Tried in 1987 in Lyon, the tribunal Rwanda and Yugoslavia often refer to this for the definition of crimes against humanity. - These crimes will still be tried very later on, if the crimes are so atrocious that they explore the limits of the law. -Very important precedence

T5 - Persecutions as lower genocide?

1. Kupreškić :'the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide'. [14 January 2000, Trial Chamber, Judgment, para. 636]. 2. Nahimana : 'the intent to discriminate' is a 'lesser intent requirement'. [Nahimana, Barayagwiza and Ngeze, 3 December 2003,Trial Chamber, Judgment and Sentence, para. 1077]. 3. Kupreškić : 'Persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. [...] Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.' [14 January 2000, Trial Chamber, Judgment, para. 636 (emphasis added)]. - In law this is quite confusing that persecution and genocide share the same genre as they somehow share a same 'genre' - Difficulty to draw a line? Where does the intent to destroy start and where does the intent to discriminate stop? - So almost every genocide is also persecution, but not every persecution is also a genocide. (question/comment from student she agreed with) --> Prof is angry that ICC sees persecution as an assesory as it is a clear sign and starts with persecution and then leads to genocide, in the Prof's mind it should be an alarmbell. She finds the ICC problematic here. 4. Nuremberg Tribunal: Jews 'were forced into ghettos, subjected to discriminatory laws, deprived of the food necessary to avoid starvation, and finally systematically and brutally exterminated' [Nuremberg Judgment, pp. 297-98 (emphasis added)]. Persecutions are 'a record of consistent and systematic inhumanity on the greatest scale' paving 'the way for the 'final solution'' [Ibid., p. 300]. - So the tribunal sort of broke down the genocidal protest since persecution often starts genocide and discrimination can turn into destruction. Question is when does it start? At physical annihilation or at when they are excluded from society (which is at the core of persecution) 5. Kupreškić : the persecutory deprivation of 'the fundamental rights to life, liberty and basic humanity enjoyed by members of wider society ... can be said to have as its aim the death and removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself.' [14 January 2000, Trial Chamber, Judgment, para. 634 and Ruggiu, 1 June 2000, Trial Chamber, Judgment and Sentence, para. 22 (emphasis added). See Kordić and Čerkez, 26 February 2001, Trial Chamber, Judgment, para. 205.] - Uneasiness of the tribunal to draw the line between persecution and genocide. 6. Krstić : 'The [Genocide] Convention thus seeks to protect the right to life of human groups, as such. This characteristic makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, in particular persecution, where the perpetrator selects his victims because of their membership in a specific community but does not necessarily seek to destroy the community as such.'[2 August 2001, Trial Chamber, Judgment, para. 553 (emphasis added).] - Quite cautious, how do you draw the line of the perpetrators acts whether they are for discrimination or destruction. Not all discrimination leads to genocide but all genocide contains discrimination. Making persecution assessory is therefore once more is extremely dangerous. 7. Kupreškić persecutions are 'one of the most vicious of all crimes against humanity ... only one step away from genocide - the most abhorrent crime against humanity - for in genocide the persecutory intent is pushed to its uttermost limits through the pursuit of the physical annihilation of the group or of members of the group.' [Kupreškić, 14 January 2000, Trial Chamber, Judgment, para. 751 (emphasis added). See also Nikolić, 4 November 1994, Trial Chamber, Initial Indictment, , para. 24; Krstić, 2 August 2001, Trial Chamber, Judgment, para. 684.]' - So this reads well, but in law it is very difficult to understand, 'more vicious' is not a legal concept. - Genocide is brought back in the realm of CaHs - Here it states that persecutions are heightened CaHs but no genocide yet.

T5 - Crime of extermination: charges

1. Milan Lukić was charged with: - 9 counts of violations of the laws or customs of war punishable under Art. 3 of the ICTY Statute and Common Art. 3 of the Geneva Conventions of 12 August 1949, namely, murder and cruel treatment, and - 12 counts of crimes against humanity punishable under Art. 5 of the ICTY Statute, namely, persecution, extermination, murder and inhumane acts. 2. These charges related to : - the burning alive of approximately 70 Muslim civilians in Adem Omeragić's house on Pionirska street in Višegrad town on or about 14 June 1992; - the burning alive of approximately 70 Muslim civilians in Meho Aljić's house in Višegrad town on or about 27 June 1992; --> Reminds of nazi practus modus operandi, this was taken into account by the ICTY - the killing of five Muslim civilian men at the Drina river on or about 7 June 1992; - the killing of seven Muslim civilian men at the Varda factory in Višegrad town on or about 10 June 1992; - the killing of Hajra Korić, a Muslim civilian, on or about June 1992; and - the beating of Muslim detainees at the Uzamnica detention camp between August 1992 and October 1994. 3. Sredoje Lukić was charged with: - 5 counts of violations of the laws or customs of war pursuant to Art. 3 of the ICTY Statute, namely, murder and cruel treatment and - 8 counts of crimes against humanity pursuant to Art. 5 of the ICTY Statute, namely, persecution, extermination, murder and inhumane acts. These charges related to: - the burning alive of approximately 70 Muslim civilians in Adem Omeragić's house; - the burning alive of approximately 70 Muslim civilians in Meho Aljić's house; and - the beating of Muslim detainees at the Uzamnica detention camp. --> Different charges between the cousins: - Not only civilians! they are members of a specific group: muslims. - The intend to destroy is quite present, the ICTY made a parallel to the crimes of the Nazis. - However, no crime of genocide!

T4 - The selective process of protecting groups

1. National group: 'collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties'. (ICTR, Akayesu, para. 512). 2. Ethnic group: 'group whose members share a common language or culture'. (ICTR, Akayesu, para. 513). 3. Racial group: 'is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors'. (ICTR, Akayesu, para. 514). --> Inherently genocidal regimes have racist ideology, they create this race to destroy. --> So there is racist language in the law here, but if not it misses out on the racial component of the regime and cannot target it! --> The ICTR had to force a little bit of a definition of ethnic groups, they shared some aspects but the tribunal had to push a bit to get selective protection. 4. Religious group: 'is one whose members share the same religion, denomination or mode of worship'. (ICTR, Akayesu, para. 515). 5. 'for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction.' [Prosecutor v. Rutaganda (Case No. ICTR-96-3), Judgment, Trial Chamber I, 6 December 1999, para. 56. See also Prosecutor v. Musema, Case No. ICTR-96- 13-A, Trial Chamber I, Judgment and Sentence, 27 January 2000, para. 161; Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Trial Chamber II, 1 December 2003, Judgment and Sentence, para. 811; Prosecutor v. Gacumbtsi, Case No. ICTR-2001-64-T, Trial Chamber III, Judgment, 17 June 2004, para. 254.] [Emphasis added] --> e.g political groups are not protected so if it is one of the groups under this --> The intention was protecting group that were stable and permanent, people can change social belonging or politics. However this is not convincing at all since the UN declaration on human rights there is specifically the right to change religion and nationality, so very paradoxical. NB: Cambodja were permanent features such as political affiliation or societal belongins, this would mean individuals would be killed together with their family. Any feature could become a permanent member of a the targeted group.E.g the nuremberger laws drew up laws of who would be considered as Jewish, this was completely constructed by the perpetrators in their criminal fantasy. --> If it is not against any group of these selective 4 categories, and there is an intent to destroy it might still be CaH but not genocide, Prof thinks this is a laguna in the definition. --> Often domestic law is much more inclusive and much wider.

T4 - Introduction for today: Crime of genocide

1. No hierarchy between these different acts in the contemporary ICL 2. There is a hierarchy in the Nuremberg charter 3. The very word genocide seems to carry more seriousness with it. 4. Genocide is found especially as a horrid crime

T1 - The role of National Jurisdictions

1. Not everything happened on an international level. 2. Nothing after 1950s until the 1990s with the break up of Yugoslavia. 3. Something we will discuss a lot in the upcoming classes, as is this only the responsibility of IL at the domestic level

T4 - Myanmar at ICC

1. On 4 July 2019, the ICC Prosecutor had requested to open an investigation. 2. Three days after The Gambia submitted its application to the ICJ: 3. 14 November 2019: Pre-Trial Chamber III authorized the ICC Prosecutor to proceed with an investigation for the alleged crimes within the ICC's jurisdiction in the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar. 4. For the Chamber, the ICC may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. Myanmar is not a State Party but Bangladesh is since 2010. 5. For the Chamber, there is sufficient basis to believe that widespread and/or systematic acts of violence may have been committed that could qualify as deportation as a crime against humanity across the Myanmar-Bangladesh border and persecutions on ethnic and/or religious grounds against the Rohingya in the proces of deportation and once they have crossed the border 6. According to the evidence: 600,000 to 1 million Rohingya were forcibly displaced from Myanmar to Bangladesh. 7. Chamber is quite creative here, because of the limitations in the statute about the alleged genocide by Myanmar to the Ryohinga, only CaH can come out of this not genocide. There still might be a genocide but this is simply not the power of the ICC.

T2 - The boom of new tribunals since ICTY and Rwanda: why?

1. One year after the ICTY, the ICTR also appeared, so really a sudden boom after ICTY, why? - The mere presence of the UN is not enough to justify this 2. mix of all the reasons: - What happened in Rwanda: it is one of the greatest shame in the international community and in the history of the UN. There had been ethnic tensions between hutu and tutsi over several decades, these had been unfueled by the de-colonisation. In 1993 violence started to flare up, the UN committee rapporteurs were send to assess, they came back in 1994 actually saying there will be a genocide (there are very clear warning signes for this). 6 april of the hutu president was shot, president died and this started the genocide. During this genocide the UN was in rwanda, it lasted for 3 months the victim was 800,000 and 1 million, killed one by one so a very high level of violence. Medical ngos trying to save people and they appealed on international medias, appealing and explaining and yet the UN did nothing, refused to call it a genocide, did not prevent it. - None of the superpowers had used the word genocide, the French had this theory of the double genocide: both hutu and tutsi (they also had this for former yugoslavia). Why were the so reluctant? France was supporting the Hutu government (they have this tradition to support governments in place), also because they were favouring the French language. In other instances financial means could make a state more reluctant. In Rwanda there were UN troops present. However, often, such as here, political motives pave the way. - In july 94 also under pressure of public media, and the refugee crisis, if action had been taken earlier it could be prevented. Political speech came to apologize from the UN and he mentioned the word 11 times.

T1 - Examples of the role of domestic jurisdiction: Adolf Eichman

1. Perfect example of domestic law and ICL. 2. Interesting case on many levels - Adolf Eichman was basically the architect of the holocaust in Europe. - He was not tried at Nuremberg - He fled to south america to argentina, he took another identity and lived his life. - He was identified by the Israeli secret services, asked for extradition, Argentina refused. Eichman was abducted and here he stood trial. - Huge dispute between Argentina and Israel, you cannot have foreign secret services to abduct people, deport them and have them tried against IL - Argentina went to UN and asked for apology, this happened case closed. - This linked back to natural law and universal jurisdiction. 3. Interesting to see which created a political dispute 4. He was tried in Israel and executed 5. First case of universal jurisdiction for the crime of genocide. - Huge impact on memory: the prosecution in Eichman wanted to hear witnesses, a lot of the survivors came - First trial to be broadcasted on tv en radio. - For a lot of academics the era of the witness, it marks a moment where witnesses and survivors (before people did not want to hear about the holocaust, they wanted war hero stories) This triggered the younger generation.

T4 - Other guilty individuals in the ICTY

1. Popović et al., 10 June 2010. 2. Tolimir, 2 December 2012. 3. Karadžić, accused of genocide and complicity of genocide: Bijeljina, Bratunac, Bosanski Šamac, Doboj, Foča, Ilijaš, Ključ, Bosanski Novi, Prijedor, Rogatica, Sanski Most, Srebrenica, Vlasenica, Zavidovići, Zvornik. Convicted for genocide for Srebrenica only! 4. Mladić, accused of genocide and complicity of genocide : Ključ, Kotor Varoš, Prijedor, Sanski Most, Srebrenica, Banja Luka, Bosanska Krupa, Bratunac, Vlasenica, Zvornik. Convicted for genocide for Srebrenica only! 5. The judges retreated and said only srebrenica is genocide, rest is CaH. --> Prof finds the reasoning problematic, especially in Mladic, he had the intent to destroy in municipality but it was not deemed substantial enough! In Profs view in law it makes no sense, it is agreed upon that the intent to destroy is so difficult, but it is the most important part. However, the judges here said ok substantial is the problem here. The prosecution appealed that the other municapities were also victims of genocide. -->. Prof thinks keeping it like this might happen and that this is very problematic. She reads it strictly, there is the text of the law, why add a new requirement that needs to be met? 7. Why did they not proceed on state level, but on municipality level? this is ethically problematic since you cannot base a crime on a certain number, Prof believes it is all based on the intent to destroy. --> Seems to be a willingness that municipality approach with only acknowledging Srebrenica, Prof namely cannot see it in the law

T4 - Genocidal logic

1. Purely a logic of destruction, this is the pure aim of genocidal enterprises

T4 - Interest of having two cases in Myanmar

1. Qualification of genocide by the ICJ - because of jurisdictional limitations (the ICC may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party), the Prosecutor has limited her investigation to crimes against humanity (deportation, persecution on ethnic and/or religious grounds, other inhumane acts): the Prosecutor does not investigate genocide. 2. Recognition of State responsibility by the ICJ 3. This shows the difference of having different international courts.

T4 - Brief Legislative history of the crime of genocide

1. Raphaël Lemkin: Active ruler in Eastern Europe, he was a Polish lawyer, greek + latin (killing group), so not aimed at the individual, it is to destroy the individual as a member of the targeted group. 2. UNGA Resolution 96 (I), 11 December 1946: resolution adopted to define genocide, adopted anonoumisly, they are not binding necessarily but it gives clear indication of the state''s opinion. - Genocide is 'a denial of the right to existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern.' - Makes use of italics, to the cultural destruction in a way, the concept of cultural genocide is explicit. The group protected is not restrictably defined. - This definition is very broad and more inclusive then the later one in 1948. 3. 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide: Not a lot of different defnitions of genocide, this is the golden one! - Definition of genocide in Article II of the Convention reproduced verbatim in Art. 4 of the ICTY Statute, Art. 2 of the ICTR Statute and Art. 6 of the ICC Statute: 'In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such' - Since this was binding it was made to be more restrictive. - no more protection of political groups, no protection of cultural genocide.

T2 - The complementarity / subsidiary jurisdiction of the ICC

1. Reasons for the complementarity principle: - To avoid the overflooding of the ICC with cases. - Respect for state sovereignty. 2. See para. 10 of the Preamble; Art. 1 and Art. 17 of the ICC Statute. 3. National courts enjoy priority in the exercise of jurisdiction except under special circumstances. ICC was not a creation of the UN, the statute was a negotiated text. ICTY ICTR was created by UN and not negotiated.

T3 - CaH: the nexus (link) to armed conflict

1. Silence of the ICTR Statute. 2. The ICTY Statute expressly maintained it by requiring that the acts be 'committed in armed conflict, whether international or internal in character'. It is nonetheless true that, considering the temporal limitation to which the Tribunal is subjected, the Security Council did not have to address a broader definition. - Debate on whether it should be seen as independent crimes. Even if for the tribunal this was not limiting at all, it was going for quite a while during which conlfict was ungoing. During the drafting the SC did not have to address this since the conflict was lasting thus this nexus and jurisdiction part was not necessary to address - The national/international part, made the work of the tirbunal easier as they did not need to qualify the armed conflict. Within yugoslavia some were very international and internal, highly complex. The drafters of the ICTY were very lenient, as it would be very hard to establish this jurisdiction. 3. The U.N. Secretary-General stressed that crimes against humanity are prohibited 'regardless of whether they are committed in an armed conflict, international or internal in character', thus suggesting that this limitation is not definitional but merely jurisdictional. Source: See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 and Annex (3 May 1993), para.47 5. Tadic - 'It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law.' - recognition early on in 95 the appeals chamber of the ICTY holding that this definition in article 5 is more narrow than the CIL definition, this nexus to armed conlfict is a jurisdictional limitation not a definitional limiation. Source: Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para.141. Emphasis added] - 'The Prosecution is [...] correct in asserting that the armed conflict requirement is a jurisdictional element, not "a substantive element of the mens rea of crimes against humanity" (i.e. not a legal ingredient of the subjective element of the crime)'. [Ibid., para.249.] 6. Blaškić : 'An armed conflict is not a condition for a crime against humanity but is for its punishment by the Tribunal'. [Prosecutor v. Blaškić, Case No. IT-95-14, Judgment, Trial Chamber I, 3 March 2000, para.66].

T4 - ECtHR - UN immunity

1. Stichting Mothers of Srebrenica and others v. The Netherlands, ECtHR, (application 65542/12), 11 June 2013: application declared insadmissible The Court found that : 'the grant of immunity to the United Nations served a legitimate purpose and was not disproportionate' [para, 169]. The ECtHR recalled the limits of its jurisdiction: 'However, the attribution of responsibility for the Srebrenica massacre or its consequences, whether to the United Nations, to the Netherlands State or to any other legal or natural person, is not a matter falling within the scope of the present application. Nor can the Court consider whether the Secretary-General of the United Nations was under any moral or legal obligation to waive the United Nations' immunity. It has only to decide whether the Netherlands violated the applicants' right of "access to a court", as guaranteed by Article 6 of the Convention, by granting the United Nations immunity from domestic jurisdiction.' [para. 137, emphasis added]. 2. ECtHR was very clear dismissing the case, as the UN was immune. 3. UN said Ptocari was safe, everybody fled there, still UN is immune. 4. Thus UN has immunity, Prof says morally there might be an issue here! 5. Why is it against the NL? the UN battelion was a Dutch one called Dutchbat. But troops did not have the means to defend themselves, some were send there and too unexperienced.

T6 - Geneva Conventions

1. The Geneva Conventions, which codified International Humanitarian Law, marked the first inclusion in a humanitarian law treaty of a set of war crimes - the grave breaches. - international feature of the conflict. - protected persons status = notion of victimhood that is specific to the grave breaches regime: wounded and sick, shipwrecked, prisoners of war and 'protected persons'. 2. See also Additional Protocols I and II: one specifically on international conflict, and one on non-international conflict.

T1 - Nuremberg charter

1. The Nuremberg Charter was annexed to the London Agreement (8 August 1945) 'by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt trial and punishment of the major war criminals of the European Axis.' 2. The charter was drafted to try those responsible for the WWII. 3. Especially Churchill was a big fan of prosecuting them in the war law, and executing them. Probably there would have been less criticism as this was the current law 4. The Americans wanted a trial, they did not want to repeat the mistakes of the WWI, they really wanted to try those responsible of those for the WWII. 5. The composition of the tribunal was criticised as they had colonising powers on the judges and prosecutors bench. - Such as the presence of USSR and UK. - France often escapes criticism, during the WWII was occupied and its official Vichy government actively collaborated with the Nazis. The illegal government lead by de Gaulle in the UK and de Gaulle basically changed the course and criticism towards France. France had a bizarre position during this time.

T1 - The regional approach to Human Rights Law: The Council of Europe

1. The Treaty of London, establishing the Council of Europe, was signed on 5 May 1949. The Council of Europe was established as part of the Allies' program to "reconstruct durable civilization on the mainland of Europe". 2. The drafting of a human rights charter was a high priority for the new Council of Europe and, only 18 months after the Statute was signed, the (then) 10 member States signed in Rome the Convention for the Protection of Human Rights and Fundamental Freedoms [ ECHR] on 4 November 1950. 3. Not to favour them over other nations, but more that Europe was being watched since in a short period of time two conflict had broken out, especially France and Germany. 4. Explicity established through the alliance programme

T5 - Lukic argumentation/reasoning of the Court

1. The Trial Chamber found Milan Lukić guilty of extermination as a crime against humanity; a finding which turned out to be a point of divergence between the judges, leading Judge Van Den Wyngaert to dissent. 2. According to the Trial Chamber, '[t][he crime of extermination is the act of killing on a large scale', which 'differs from murder in that it requires an element of mass destruction.' [para. 938]. As explained by Mettraux, extermination indeed 'consists first and foremost of an act or combination of acts which contributes to the killing of a large number of individuals' and '[a]cts of extermination must ... be collective in nature rather than directed towards singled-out individuals.' [Guénaël Mettraux, International crimes and the ad hoc Tribunals, OUP, Oxford 2005, pp. 176-177]. 3. While earlier case law has not established a minimum number of victims to qualify a crime as extermination, the Trial Chamber here admittedly adopted a new approach based on population density as a qualification factor. 4. Basing its reasoning on the premise that 'there is no requirement that a certain number of victims must have been killed',the Trial Chamber held that '[a]n assessment of whether this element is met must be made on a case-by-case basis, taking account of all the relevant factors'. 5. Using the population density of the village of Koritnik as a determination factor, the Trial Chamber found, Judge Van Den Wyngaert dissenting, that the killing of 59 persons - mainly elderly persons, women and children - from Koritnik was 'killing on a large scale and ... sufficient to meet the element of mass destruction required for extermination'. 6. Likewise, it also found, Judge Van den Wyngaert dissenting, that the killing of at least 60 people - 'all extremely vulnerable, women, children and elderly persons' - in Bikavac was 'killing on a large scale and [met] the element of mass destruction required for extermination.' 7. NOTE: the Appeals Chamber in the Lukić case did not contradict the reasoning of the Trial Chamber and confirmed the qualification of extermination for the acts perpetrated by Milan Lukić at Ponirska street and at Bikavac. --> In the law there is no minimum amount of people, however in this judgment this is somewhat generated. It is not clear in the doctrine whether 60 victims could be sufficient to qualify as an act.

T2 - The principle of subsidiarity/complimentarity explained

1. The principle: The ICC is barred from exercising its jurisdiction over a crime when a national court asserts its jurisdiction over the same crime and - The state has jurisdiction under its domestic law - The case is being duly investigated or prosecuted by its authorities - The case is not of sufficient gravity to warrant the jurisdiction of the ICC. --> Very subjective! This is an open door for the court to pick what is for grabs, the principle might be priority for domestic courts, but the way the principle is formulated leaves quite a margin of appreciation! 2. The exceptions: The ICC may exercise its jurisdiction over a crime, even if a case is pending at the national level, and override domestic jurisdiction when: - The state is unable or unwilling to carry out the investigation or prosecution → who decides this?? Art. 17 (2) and (3) of the ICC Statute. - The case is of sufficient gravity to justify the exercise of the ICC's jurisdiction. - Initially they wanted to go for the big fish, the most wanted. The ICTY these fish were benefitting for help, it looks like the court wants to focus on high ranking people. 3. Art. 13 ICC Statute: The ICC may exercise its jurisdiction over a crime if: - (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; - (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or - (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

T1 - Introduction to ICL

1. Very young concept 2. Basically a story 3. History of ICL - Firstly, WWI - Secondly, WWII: The reaction of the international community after World War II: The Law and the Trials - Thirdly the post-war changes to the legal landscape post, as in 1946-47 is quite a drastic movement. - Lastly: the role of national jurisdictions

T1 - WWI vs. WWII

1. WWI: ordinary armies with non trained civilians, still atrocitites and horrible events but different. 2. WWII: was very different, civilians were not casualties, or collateral damage, but they were specifically targeted and exterminated. - A war that completely changed the conflict of customs, all the norms that existed of humanitarian law were completely breached and violated.

T6 - War crime: definition

1. War crimes can be defined as violations of the laws of armed conflict that incur individual criminal responsibility. 2. Unlike other international crimes, war crimes are an old notion in international law: the first war crimes trial can be traced back to 1474 (trial of Peter von Hagenbach, Austria). 3. By WWI, certain violations of the laws of armed conflict had been codified in the Hague Conventions of 1899 and 1907 and considered as crimes. 4. War crimes are regulated both by International Humanitarian Law and International Criminal Law. --> There is thus immense document of rules to ensure that armed conflicts are humane, however it is bound to fail as wars are often inhumane.

T4 - Imposing measures intended to prevent births within the group

1. Wide judicial understanding of this act: 'For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.'[Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, para. 507]. --> Forced pregnancy forced by the perpetrator to have a child not from her own group, such cases occurred in Bosnia. Rape with the aim to force pregnancy --> Rwanda, rape was performed against victims to transmit HIV/AIDS to the victims, this is a genocidal act --> Rape can be used to threat people so that they no longer wish to procreate due to trauma. 2. 'measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.' [Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, para. 508. See also Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 117; Prosecutor v. Rutaganda, Judgement and Sentence 6 December 1999, ICTR-96-3, para. 53; Prosecutor v. Musema, Case No. ICTR-96-13-A, Trial Chamber I, Judgment and Sentence, 27 January 2000, para. 158.] --> If there is an exam question about sexual violence then try to name as many categories this can fall under.

T4 - Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

1. this act 'should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.' [Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, paras 505- 506]. - No victims need to die, the imposition of these conditions to suffice a genocide 2. "Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part" under subparagraph (c) does not require proof of a result.' [Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, Trial Chamber II, 31 July 2003, para. 517].

T3 - Article 7 (1) of the ICC Statute (latest definition of CaH)

Art. 7(1) ICC Statute For the purpose of this Statute (whether this reflects CIL can be put to question), 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack (little caveat of the definition of attack which we discussed before) directed against any civilian population (will be discussed when we do war crimes), with knowledge of the attack (knowledge requirement again, even though article 30 that knowledge and awareness are equated): (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. --> New acts and further grounds of commission for further prosecution. 1. The ICC Statute went back to the Nuremberg 'bifurcation' and requires grounds for commission only in the case of persecutions. Thus, all the other acts listed can be deemed crimes against humanity even if they are committed without any specific motive. 2. Still, Article 7 (1) (h) arguably marks a step backwards in the definition of persecutions as it requires that persecutions be made 'in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court', thus adding a requirement which did not previously exist. The Court will thus not be able to prosecute persecution per se, as it is not, in itself, considered in its Statute as a crime against humanity.

T3 - Definition of CaH: Article 3 of the ICTR Statute

Article 3 ICTR The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts. 1. Year later also the ICTR defined the crimes against humanity 2. Again the act of sexual violence 3. No reference to armed conflict, but a widespread or systematic attack, so no nexus to armed conflict. In article 3 of the ICTR statute there are grounds on which these should be based. 4. Only once is ethnic mentioned! later in point h this is not mentioned! Did not have a lot of impact in the practice of the tribunal

T1 - The jurisdiction of the Nuremberg Tribunal: International crimes (they came up with 3 different types of crimes) & the criticism developed against it

Article 6: Jurisdiction & General principles 1. (A) CRIMES AGAINST PEACE: - More often than not war has been/is an incentive element in the commission of international crimes, including genocide: 'Throughout recorded human history, war has been the predominant cause or pretext for massacres of national, ethnic, racial or religious groups'. [Review of Further Developments in Fields with which the Sub- Commission has been Concerned, Revised and updated report on the question of the prevention and punishment of the crime of genocide prepared by Mr. B. Whitaker, United Nations Economic and Social Council, Commission on Human Rights, Sub- Commission on Prevention of Discrimination and Protection of Minorities, Thirty-eighth session, E/CN.4/Sub.2/1985/6, 2 July 1985, para. 20] - Criticism as the Charter created a new concept as before there were no crimes against humanity. Tribunal dismissed this since due to the Kellog Briant pact crimes agains peace were in some form mentioned before. 2. (B) WAR CRIMES: - Not necessarily breaching the principle of legality, least controversial category. 3. (C) CRIMES AGAINST HUMANITY: - Heavily criticised that the tribunal also breached the principle of legality and came up with new crimes and that therefore people could not be tried based on this laws. --> Prof finds this criticism tiring, all the acts listed here were already illegal in the majority of the legal systems, of course under the Nazi laws this was no issue, but it does not mean that these laws were not inherently legal. They coined and created this category. Crimes against humanity punishes behaviour that was already criminal, so necessarily the extermination of millions of people would also qualify as legal. --> When they were created they were considered as accessory crimes, they had to be connected to any crime within any crime in the tribunal, they had to be connected to the WWII, they could not be independent. This is important because this has been interpreted in some states e.g France, crimes against humanity can only be seen within the context of WWII, up until 1994 crimes against humanity could only be linked to WWII and thus very conveniently closed the notion of the context of the WWII and so they could not be prosecuted for the war in Nigeria. --> No qualification of genocide in the Nuremberg, this was coined by Lemberg mixing greek and latin, it was used in Nuremberg, but it was not one of the crimes over which the tribunal had actual jurisdiction. Contrary to popular believe, the Nuremberg trials were not the trials of the holocaust.

T3 - The widespread and/or systematic action: ICTY, ICTR and ICC approach

Both the ICTY and the ICTR Statutes require that these crimes be committed 'against any civilian population'. One singular crime can be judged if it is part of 10,000 people committing a single murder against a particular part of the civiliation then it becomes a CaH, as long as it is not a random act of violence. ICTY APPROACH 1. In Tadić, Trial Chamber II held that 'the requirement that acts be directed against a civilian population can be fulfilled if the acts are either widespread or systematic'. Source: Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, Trial Chamber II, 7 May 1997, para.646]. not just acts committed against civilians, it is against a civilian population! 2. Subsequently, Trial Chamber II specified that the widespread or systematic requirement is to be appreciated on a case-by-case basis: 3. 'The widespread or systematic nature of the attack is essentially a relative notion. The Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon this population, ascertain whether the attack was indeed widespread or systematic', [Prosecutor v. Kunarac et al.,Case No. IT- 96-23 and IT-96-23/1, Judgment, Trial Chamber II, 22 February 2001, para.430. Emphasis added]. 4. Tadić was confirmed by Trial Chamber I in Blaškić: - Tadic was the first case, not an important defendant, he was a footsoldier, the judgements in the Tadic case probably set the law for the whole ICTY case law, always refer to this case! - 'The "widespread or systematic" character of the offence does not feature in the provisions of Article 5 of the Statute which mention only acts "directed against any civilian population". It is appropriate, however, to note that the words "directed against any civilian population" and some of the sub-characterisations set out in the text of the Statute imply, both by their very nature and by law, an element of being widespread or organised, whether as regards the acts or the victims. [...] there can be no doubt that inhumane acts constituting a crime against humanity must be part of a systematic or widespread attack against civilians.' [Prosecutor v. Blaškić, Case No. IT-95-14, Judgment, Trial Chamber I, 3 March 2000, para.202. Emphasis added]. 5. The addition of adding systematic, it avoids to discuss what the morbid count should be to make it widespread. Where a count comes into play is when there needs to be distinction of murder and extermination 6. In Krstić , Trial Chamber I re-confirmed the Tadić ruling and affirmed that the attack must be 'widespread or systematic'. [Prosecutor v. Krstić, Case No. IT-98-33, Judgment, Trial Chamber I, 2 August 2001, para.482. See also Prosecutor v. Kunarac et al., Case No. IT-96-23 and IT-96-23/1, Judgment, Trial Chamber II, 22 February 2001, para.410]. 7. The ICTY Appeals Chamber also specified that 'only the attack, not the individual acts of the accused, must be widespread or systematic' and reaffirmed that: 'The requirement that the attack be "widespread" or "systematic" comes in the alternative. Once it is convinced that either requirement is met, the Trial Chamber is not obliged to consider whether the alternative qualifier is also satisfied'. [Prosecutor v. Kunarac et al., Case No. IT-96-23 and IT-96-23/1-A, Judgment, Appeals Chamber, 12 June 2002, para.96 and para. 93]. ICTR APPROACH 1. Adopting a more explicit approach, the ICTR Statute expressly provides that the acts be committed 'as part of a widespread or systematic attack'. Accordingly, the ICTR reads the requirement of widespread or systematic action disjunctively. 2. What Tadic is for the ICTY, Akayesu is for ICTR 3. the Akayesu case and in the Kayishema and Ruzindana case, both Trial Chambers I and II of the ICTR made the widespread and/or systematic characteristics essential elements of the offence:[1] in Akayesu, Trial Chamber I unequivocally stated that it 'considers that it is a prerequisite that the act must be committed as part of a widespread or systematic attack and not just a random act of violence'.[2] [1] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, paras 579-81, and Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, Trial Chamber II, para.123. [2] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Trial Chamber I, 2 September 1998, para.579. ICC APROACH - The ICC Statute also requires that the acts be committed 'as part of a widespread or systematic attack directed against any civilian population'.[1] -The question of the disjunctive reading of these requirements is however still unsettled as the Statute subsequently defines the term 'attack' as 'a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack'.[2] - For Schabas, '[i]t seems, therefore, that the term attack has both widespread and systematic aspects'.[3] [1] Article 7 (1) of the ICC Statute. Emphasis added.(says OR) [2] Article 7 (2) (a) of the ICC Statute. (this one seems to indicate to have BOTH) [3] Schabas, William A., An Introduction to the International Criminal Court, Cambridge University Press, 2001, p. 36. Emphasis added.

T3 - Definition of CaH: Article 6 (c) of the Nuremberg Charter

Definition in Nuremberg Charter article 6(c) 'Crimes against humanity: 'namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.' Discussion with Professor on this article: --> murder type v. persecution type: separated by a ';' according to this definition this murder type could be recognised as such even if committed before the war. This lead to a lot of discussion during the trial, the tribunal decided that all the crimes had to be connected with crimes against peace or war crimes. This created quite some misunderstanding. Generally the tribunal excluded acts from the jurisdiction if committed before 1939. However... in the case of julius streicher, defendant at Nuremberg, notibly put on trial for highly anti-semitic publications, especially those before the start of the war! --> Domestic law part, is the opposite of a margin of appreciation, does not matter if they were legal. --> Back to natural laws, so an individual does not have to obey illegal laws, so does not shift focus back from individual to state as much. An individual can still be found responsible for his or her acts. --> Crimes against humanity were sort of accessory crimes, they needed to be connected to the war, not stand alone crimes. --> They wanted to include other acts against civilians, they wanted to be sure other acts they did not think about when drafting the charter while still respecting the principle of legality. Clear willingness to try to respect this when applying the law, that is why there is the category of 'other inhumane acts'. Prof does not find this open-ended, since there are still requirements connected to this! Maybe open category could be correct, open-ended is a bit too inclusive.

T5 - The Crime of extermination: ICTY, Judgment, Prosecutor v. Lukić and Lukić, Case No. IT-98-32-1-T, T. Ch. III, 20 July 2009: fact

Facts: In the region of Višegrad (Bosnia Herzegovina), Milan Lukić and his cousin Sredoje Lukić massacred Bosnian Muslim civilians, summarily executing them or burning them alive in locked houses: 'In the all too long, sad and wretched history of man's inhumanity to man, the Pionirska street and Bikavac fires must rank high. At the close of the 20th century, a century marked by war and bloodshed on a colossal scale, these horrific events remain imprinted on the memory for the viciousness of the incendiary attack, for the obvious premeditation and calculation that defined it, for the sheer callousness, monstrosity and brutality of herding, trapping and locking the victims in the two houses, thereby rendering them helpless in the ensuing inferno and for the degree of pain and suffering inflicted on the victims as they were burnt alive.' [para. 740].

T3 - Intent element in ICC

First the mens rea of the murder needs to be established, then the mens rea of the CaH

T5 - Apartheid in the ICC statute

ICC statute also contains a definition of Apartheid in the Rome Statute - Art. 7 (1) (j) of the ICC Statute: the crime of apartheid is a crime against humanity 'when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack' - Art. 7 (2) (h) of the ICC Statute: 'The crime of apartheid' means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

T3 - Grounds for commission: ICTY and ICTR approach

ICTY APPROACH 1. Following the path drawn at Nuremberg, the ICTY Statute made grounds for commission relevant only for persecutions and not for the other acts listed. 2. Yet, the Trial Chamber in Tadić held that the term 'population' implied that all the acts enumerated - and not only persecutions - had to be committed on discriminatory grounds to qualify as crimes against humanity, while neither international customary law nor the Statute of the Tribunal itself require this. [See Prosecutor v. Tadić, Case No.IT-94-1-T, Opinion and Judgment, Trial Chamber II, 7 May 1997, paras 650-2]. 3. The requirement is a new one. It was imposed by a decision of the Security Council as a limitation upon the jurisdiction of the Tribunal which stated that:: 'Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds'. [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, para.48, 32 ILM 1173]. 4. The risk contained in such a holding is that acts involving motives not expressly enumerated might be excluded from the definitional scope of crimes against humanity. However, the Appeals Chamber overruled this decision and subsequently held that: 'The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with a discriminatory intent. Such intent is only made necessary for one sub-category of those crimes, namely "persecutions" provided for in Article 5 (h).' [Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, para.283]. ICTR APPROACH 1. In the ICTR Statute, the definition of crimes against humanity was modified so as to specifically require that there be discrimination in the form of an 'attack against any civilian population on national, political, ethnic, racial or religious grounds'.[1] 2. This greatly reduced the scope of crimes against humanity by requiring grounds for commissions for all offences and not only for persecutions. 3. For Meron, this addition makes 'the burden of proving crimes against humanity more difficult to meet'.[2] [1] Article 3 of the ICTY Statute. [2] Meron, Theodor, 'International Criminalization of Internal Atrocities', (1994) 89 AJIL 557. 4. Within the context of the jurisdiction of the ICTR proving this discriminatory grounds was not too difficult, since all the crimes were committed on a discriminatory grounds, it did not limit the grounds for the court to adjudicate. Thus for ICTR this was no issue, this added requirement it would immensely reduce the scope of CaH crimes. Precisely because CaH there are some subcategories. This will be further discussed next week! 5. custom inter law requires a ground of commission for persecution

T3 - Definition of CaH: Article 5 of the ICTY Statute

ICTY art 5 The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: - (a) murder; - (b) extermination; - (c) enslavement; - (d) deportation; - (e) imprisonment; - (f) torture; - (g) rape; - (h) persecutions on political, racial and religious grounds; - (i) other inhumane acts. 1. First actual clear definition of a crime against humanity! 2. What changed here? Inclusion of sexual violence, it is very interesting in the ICTY within the ambit of crimes against humanity, this did not happen in Nuremberg. 3. War is never mentioned, it is always called armed conflict. 4. Again an 'open-ended' definition.

T2 - International Courts and Tribunals v. Truth and Reconciliation Commissions (TRCs)

Not tribunals as such, the aim is to bring together victims or survivors or family thereof with perpetrators, so that they can get the truth and usually in exchange is an amnesty. 1. South Africa: against apartheid --> Prof is very cautious since it has not been long and she cannot assess the functionality. To let the perpetrators go free can leave sour taste. 2. Argentina: has not worked at all, the families were very willing and the perpetrators not at all. Particularly atrocious, since a lot of the crimes in dictatorship with torture and forced dissapearances. The crimes were continuing with their silence. In Argentina there were domestic trials, called the Etzma case #4 (torture centre), hybrid court is when the state on its own if the state is unwilling or unable to fix it, thus international pressure arises. Will actually adjudicate these crimes, it is the best way forward. 3. Brazil 4. Colombia 5. Chile 6. El Salvador 7. Sierra Leone 8. East Timor --> Truth is good, but reconcilliation is a big word! Not something that can be imposed, maybe a few generations. --> Prof thinks it cannot be imposed. A lot of the time the victims wanted truth, but reconcilliation not so much. Victims might not want to engage, it might not be that they do not want to cooperate. Cooperate is wrong word. --> Prof can see the need for reconcilliation, but she believes it is a very personal choice. --> Terminology is something to think about.

T2 - Some ICC stastics

See https://www.icc-cpi.int/about: - 30 cases in 13 situations, with some cases having more than one suspect. - 35 arrest warrants. - 17 people have been detained in the ICC detention centre and have appeared before the Court. - 13 people remain at large. - Charges dropped against 3 people due to their deaths. - 9 summonses to appear. - 9 convictions.

T6 - Art. 4 of the ICTR Statute: Violations of Art.3 common to the Geneva Conventions and of AP II

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) Collective punishments; c) Taking of hostages; d) Acts of terrorism; e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage; g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; h) Threats to commit any of the foregoing acts. --> Relvolutionary since it discusses a non-international conflict as described them as war crimes --> Hope with this precedent that the distinction between national/international conflict would be removed. This hope was soon crushed, in art 8 ICC

T5 - Crime of enforced dissapearences: Argentina desperacidos

The case of Argentina: 30.000 desaparecidos 1. Some numbers and info: - The question of the group that 'disappeared' were either targeted victims (left-wing activists), dissapearances and systematic destruction of evidence - Often students and young people, quite a substantial part of the victims. - It is especially very hard for the family to mourn and as the crime keeps on continuing. 2. 'The determination of whether a group comes within the sphere of protection created by Article 2 of the Statute ought to be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators'. [Prosecutor v Semanza, para 317. Emphasis in original; Prosecutor v Musema, para 163; Prosecutor v Kajelijeli, para 811; Prosecutor v Seromba, para 318]. 3. General Ibérico Saint-Jean, governor of Buenos Aires: 'First we will kill all the subversives, then we will kill their collaborators, then their sympathizers, then those who remain indifferent.' --> wide understanding 4.. The denial of 'the right to existence' U.N. Resolution 96 (I) - 1946: 'Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.' 'Many instances of such crimes of genocide have occurred when racial, religious, political, and other groups have been destroyed, entirely or in part.' 5. General Jorge Rafael Videla talking at a meeting with the foreign press in 1978: 'The disappeared do not exist, they are not alive or dead, they simply do not exist - Bit unclear what he mean there, whether the practice does not exist, or that those individuals do not exist. - The foreign press was in Argentina due to the football worldcup. Argentina was under international scrutiny, the number increased, so the perpetrators really did not care. Videla answered here the questions. - might be the right that these individuals were deprived of their rigth to exist. - The mothers decided to demonstrate in front of the governmental buildings, they asked for the return of their children. Often the answer would be: you have no son he does not exist. 6. The stolen children and the genocidal act of 'forcibly transferring children of the group to another group' - Women were often pregnant, this again shows similarities with genocidal policies. They often let her have the baby and gave it to a 'proper' family. +/- 500 kids. - Some dna was taken forcibly ordered by the Court in order to unite these kids with their actual families. Sometimes traumatic, sometimes happy endings. --> Not state policy organised discrimination, persecution would not be accurate in this case. Here are indicators, that would not fall within genocide. The genocide flaviour of that crime is there due to the intent to destroy. The only qualifications that would prevent this from really becoming a genocide is that in the Argentinian cases it was based on political group. In the trials it was not qualified as genocide, but there was judicial recognition it happened within a genocidal context.