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⁶ Art 227 of the 1919 Versailles Treaty provided a special tribunal for the Emperor William II. But the Netherlands, where the Emperor had sought asylum at the end of the conflict, never agreed to extradite him. Similarly, Germany never handed over for trial by the Allies German nationals as provided by the Versailles Treaty. War crimes trials occurred before Nuremberg, but on a national basis, either in the captor State or in the national country of the accused (Leipzig trials), above n 3, 14–15.

⁷ While today the existence of international criminal law is generally accepted, doubts arose just after the Nuremberg trials. One author argued that: ‘In the present state of world society, international criminal law in any true sense does not exist.’ See Schwarzenberger, G, ‘The Problem of an International Criminal Law’, Current Legal Problems, vol 3 (1950), 295CrossRefGoogle Scholar. However, we share the more practical view of Quincy Wright: ‘Since the concept of crimes against international law is well-established, and since liability for those criminal acts is also well-founded, it is only logical to conclude that international criminal law does in fact exist.’ See Wright, Q, ‘The Scope of International Criminal Law: A Conceptual Framework’, Vanderbilt Journal of Transnational Law, vol 15 (1975), 561.Google Scholar

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¹⁰ Milošević is the first Head of State to be indicted by an international tribunal whist still in office.

¹¹ As long as Franjo Tudjman, the leader of the Croatian nationalist party HDZ, was President of Croatia, his country did not cooperate with ICTY by handing over evidence for the trials of Croat nationalist leaders as Dario Kordi and Tihomir Blaškić or by arresting other indictees residing in Croatia.

¹² US v Wilhelm List and others (Hostages Case), judgment of 19 Feb 1948, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, Vol VIII (Washington, US Government Printing Office, 1949), 49.Google Scholar

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¹⁴ Prosecutor v Zoran Kupreškić and Others, Case No IT-95–16-T, Trial Chamber II, judgment of 14 Jan 2000, paras 537–42.

¹⁵ See Prosecutor v Tihomir Blaškić, decision on the objection of the Republic of Croatia on the issuance of subpoena duces tecum, Case IT-95–14, Trial Chamber I, 18 July 1997.

¹⁶ Montesquieu, , The Spirit of the Laws (Cambridge: Cambridge University Press, 2000), Book 11, ch VI, 163Google Scholar. See also Montesquieu, De l'esprit de lois in Oeuvres Completes, ed Gallimard.

¹⁷ See, inter alia, with regard to ICTY, Prosecutor v Goran Jelisić, Case No IT-95–10-T, Trial Chamber I, judgment of 14 Dec 1999, para 114, and with regard to ICTR, See Prosecutor v Omar Serushago, Case No ICTR-98–39-A, Appeals Chamber, reasons for judgment of 6 Apr 200, para 30.

¹⁸ Para 1225.

¹⁹ Hirsch, A von, ‘Guidance by Numbers or Words Numerical versus Narrative Guidelines Sentencing’, Sentencing Reform: Guidance or Guidelines? (Manchester: Manchester University Press, 1987), 46–67.Google Scholar

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²² See Swedish Criminal Code, Ch 29, and Italian Criminal Code, Art 133.

²³ The ICTY was set up by Security Council Resolutions 808 and 827 of 22 Feb and 25 May 1993. The ICTR was set up by Security Council Resolution 955 of 8 Nov 1994.

²⁴ Above n 20, para 185.

²⁵ Above n 21 and below n 26.

²⁶ Ashworth, A and Player, E, ‘Sentencing, Equal Treatment and the Impact of Sanctions’, in Fundamentals of Sentencing Theory (ed. Ashworth, A and Wasik, M) (Oxford: Clarendon Press, 1998), 251–3.Google Scholar

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²⁸ Prosecutor v. Drazen Erdemović, Appeals Chamber, Case No.IT-96–22-A, judgment of 7 Oct 1997, para 20.

²⁹ Above n 28, joint separate opinion of Judges GK McDonald and LC Vohrah, paras 20–7.

³⁰ For instance, see Arts 54 of the German Criminal Code, 68 of the Swiss Criminal Code, 46 of the Yugoslav Criminal Code, and 81 of the Italian Criminal Code.

³¹ The Trial Chamber in Jelisić noted that that ‘the notions of cruel treatment within the meaning of Art 3 and of inhumane treatment set out in Article 5 of the ICTY Statute have the same legal meaning’. Above n 15, para 52.

³² The Trial Chamber in the Akayesu case found that ‘causing serious bodily harm to members of the group’ under Art 2(2) (b) of the ICTR Statute and Art 4(b) of the ICTY Statute, amounted to ‘acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution’. Regarding the crime of rape, it was held that it could constitute a ‘measure to prevent births within the group’ and, thus, fall into the category of genocide established in Art 2(2)(d) of the ICTR Statute and in Art 4(d) of the ICTY Statute. Prosecutor v Jean Paul Akayesu, Case No ICTR-96–4-T, Trial Chamber I, judgment of 2 Sept 1998, paras 504 and 507.

³³ The fifteen defendants were: Göring, Von Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Funk, Raeder, Sauckel, Jodl, Bormann, Seyss-Inquart, Speer, and von Neurath.

³⁴ Above n 5, 254.

³⁵ See Art 6 (c) of the IMT Charter.

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³⁸ Ibid, 527.

³⁹ Ibid, 525.

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⁴³ Below n 95.

⁴⁴ This Decree allowed the secret arrest of opponents of the Nazi Regime in the occupied countries.

⁴⁵ US v Josef Alstotter and Others, Law Reports of Trials of War Criminals, United Nations War Crimes Commission, Vol III (London: His Majesty's Stationery Office, 1948), 1128.Google Scholar

⁴⁶ Ibid, 972–3.

⁴⁷ US v Rudolf Brandt (Medical Case), judgment of 19 and 20 Aug 1947, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10 (Washington: US Government Printing Office, 1949), vol II, 171.Google Scholar

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⁴⁹ Ibid.

⁵⁰ This was said in respect of the defendant Becker-Freyseng, at 285, Beiglboeck, at 292, Hoven, at 290, and Rose, at 271,

⁵¹ Ibid, 181.

⁵² US v Erhard Milch (Milch Case), judgment of 16 Apr 1947, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, (Washington: US Government Printing Office, 1949), vol II, 791.Google Scholar

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⁵⁶ In the Akayesu case, the defendant was also charged with war crimes under Article 4 of the ICTR Statute; but these rules proved to be inapplicable to the case, as the necessary nexus with the armed conflict had not been adequately proved by the Prosecutor. See judgment, para 643.

⁵⁷ The following defendants were sentenced to life imprisonment for genocide: Akayesu, Kambanda and Kayshema. Two defendants, Musema and Ruzindana, were sentenced to 25 years. The lightest punishments were inflicted on Serushago (15 years) and Ruggiu (12 years).

⁵⁸ Prosecutor v Jean Kambanda, Case No ICTR-97–23-S, Trial Chamber I, judgment and sentence of 4 Sept 1998, para 13.

⁵⁹ Ibid, para 14.

⁶⁰ Ibid, para 16.

⁶¹ Ibid, para 17.

⁶² Prosecutor v Jean Paul Akayesu, Case No ICTR-96–4-T, Trial Chamber I, sentence of 2 Oct 1998, 2.

⁶³ Ibid, 3.

⁶⁴ Prosecutor v Clement Kayishema and Obed Ruzindana, Case No ICTR-95–1-T, Trial Chamber II, sentence of 21 May 1999, para 9.

⁶⁵ Prosecutor v Omar Serushago, Case No ICTR-98–39-S, Trial Chamber I, sentence of 5 Feb 1999, para 3.

⁶⁶ Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No ICTR-96–3-T, Trial Chamber I, judgment and sentence of 6 Dec 1999, para 487.

⁶⁷ As stated by the Trial Chamber in the Akayesu judgment, dolus specialis is not required to find an individual guilty of complicity in genocide. See judgment, para 485.

⁶⁸ Above n 17, para 79.

⁶⁹ The importance of the concept of discrimination in today's international community appears evident when one reviews the quantity of the international instruments dedicated to it. The following may be recalled: the 1948 Universal Declaration of Human Rights, the 1958 Convention Concerning Discrimination in Respect of Employment and Occupation, the 1963 United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenants and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.

⁷⁰ Radovan Karadžić and Ratko Mladić are accused of acts of genocide in relation to the policy of ‘ethnic cleansing’ perpetrated, specifically, at Srebrenica in July 1995, but they are still at large. See Prosecutor v Karadžić and Mladić, Case No IT-95–18, indictment of 24 July 1995. In Jelisić, the count of genocide was dismissed, Above n 16, para 98.

⁷¹ Joint separate opinion of Judges McDonald and Vohrah, above n 27, para 20.

⁷² Ibid, para 21.

⁷³ The two Judges quoted passages of the Albrecht, Stalag Luft III and the Einsatzgruppen cases, Ibid., paras 23–4.

⁷⁴ Separate and dissenting opinion of judge Li, above n 28, para 19.

⁷⁵ Prosecutor v Delalić, Mucić, Delić and Landžo, Case No IT-96–21-T, Trial Chamber II, judgment of 16 Nov 1998, para 1226.

⁷⁶ Ibid, para 1227.

⁷⁷ See separate opinion of judge Robinson, Prosecutor v Duško Tadić, Case No IT-94–1-T and IT-94bis-R117, sentencing judgment of 11 Nov 1999, para 4.

⁷⁸ Prosecutor v Duško Tadić, Case No IT-94–1-T and IT-94–1Abis, Appeals Chamber, judgment in sentencing appeals of 26 Jan 2000, para 69.

⁷⁹ Separate opinion of judge Shahabuddeen, Ibid, 38.

⁸⁰ Separate opinion of judge Cassese, above n 77, para 14.

⁸¹ Ibid.

⁸² Ibid, para 15.

⁸³ Prosecutor v Anto Furundžija, Case IT-95–17/1-T, Appeals Chamber, judgment of 21 July 2000, para 243.

⁸⁴ Ibid, Declaration of Judge Vohrah, 88–9.

⁸⁵ Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No IT-96–23-T&IT-96–23/1-T, Trial Chamber II, judgment of 22 Feb, paras 851 and 860.

⁸⁶ Prosecutor v Dario Kordić and Mario Cerkez, Case IT-95- 14/2-T, Trial Chamber III, judgment of 26 Feb 2001, para 847 and n 1793.

⁸⁷ Prosecutor v Radislav Krstić, Case IT-98–33-T, Trial Chamber I, judgment of 2 Aug 2001, para 700.

⁸⁸ Ibid, para 700.

⁸⁹ Ibid, para 701.