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A Guide to State Practice Concerning International Humanitarian Law1

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2. For a comprehensive index of articles on the destruction of the Buddahs of Bamiyan, go to http://www.tamu.edu/anthropology/Buddhas.html.

3. The Taleban government was never officially recognised by the UN.

4. Information provided by Dr Jose Doria, formerly Professor of International Law, Peoples' Friendship University of Russia, Moscow, currently Legal Adviser, Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia in The Hague. The views expressed are solely those of the author and do not necessarily coincide with those of the Office of the Prosecutor or the United Nations.

5. See Report on Angola of Amnesty International, 2001 at http://www.ai.org. For a detailed overview of the 2000 Amnesty Law, see 3 YIHL (2000) pp. 411412.

6. Information and commentaries by Professor José Alejandro Consigli, Head of the Rectorate of the Austral University, Buenos Aires, and Gabriel Pablo Valladares, Legal Advisor of the ICRC Office for Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay (Advisory Service on IHL of the International Committee of the Red Cross) and former Assistant Professor of IHL at Buenos Aires University.

7. See 3 YIHL (2000) p. 414.

8. See ibid., p. 413.

9. See ibid., p. 414.

10. Ibid.

11. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 13.

12. Information provided by Professor Tim McCormack, Australian Red Cross Professor of International Humanitarian Law and Foundation Director of the Asia-Pacific Centre for Military Law, University of Melbourne; member of the Board of Editors, Yearbook of International Humanitarian Law.

13. For a discussion of the work of the Review Conference, see Year in Review in this volume, p. 319 and, specifically on the question of explosive remnants of war, see Matthews in this volume at p. 406.

14. See Correspondents' Report for Australia in Vol. 3 of the Yearbook at pp. 416–419.

15. See 3 YIHL (2000), pp. 414415, for details of the extradition case history of Kalejs.

16. Prosecutor v. Duško Tadić, Case No. IT-94–1-A, Judgement, 15 July 1999.

17. At p. 25 of the magistrate's decision. Note that while the decision cited the Trial Chamber Judgment in Tadić, it was clearly referring to paras. 164–166 of the Appeals Chamber Judgment of 15 July 1999.

18. For the text of most of the written submissions see: http://www.aph.gov.au/house/committee/jsct/icc/subs.htm.

19. For a summary of the Australian domestic legal approach in the context of international criminal law see Doherty, K. L. and McCormack, T. L. H., ‘Complementarity as a Catalyst for Comprehensive Domestic Penal Legislation’, 5 University of California, Davis Journal of International Law and Policy (1999) pp. 147 at 156161. For a more detailed analysis generally of the implementation of international legal obligations into Australian law see Balkin, R., ‘International Law and Domestic Law’, in Blay, S., Piotrowicz, R. and Tsamenyi, M., eds., Public International Law: An Australian Perspective (Melbourne, Oxford University Press 1997) pp. 119145.

20. See Art. 72 of the Rome Statute.

21. Information and commentaries by Dr Thomas Desch, Federal Ministry of Defence, Vienna, and Mag. Peter Kustor, Federal Chancellery, Vienna.

22. For the original version of the agreement cf., 3 YIHL (2000) p. 422.

23. The Federal Law Gazette is also available via Internet: http://www.ris.bka.gv.at.

24. Parliamentary documents are also available via Internet: http://www.parlament.gv.at.

25. Cf., 3 YIHL (2000) p. 422.

26. For further details see: http://www.reconciliationfund.at/.

27. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 16.

29. Oleg Starovoitov is a Lecturer in Public International Law at the Faculty of International Relations of the Belarusian State University, Minsk, Belarus.

30. Information and commentaries by Eric David, Professeur ordinaire, Brussels Free University.

31. See the international press of the time. As the decisions on the merits given by the Court of assizes only consist of ‘yes’ or ‘no’ answers to questions asked to the jury by the Court, they are almost never published.

32. See 3 YIHL (2000) pp. 429430.

33. Ibid.

34. Not published at the time of writing. However, the decision should be available on the Court's website (http://www.cass.be) by the time of the publication of this Yearbook.

35. The text of the 1993 Law is reproduced in English in 2 YIHL (1999) pp. 541555; text of the amendments, ibid., pp. 539–541; for a text of the law as amended, ILM (1999) pp. 921925.

36. Le Soir, 21 March 2001.

37. Ibid., 18 June 2001.

38. Ibid., 26 June 2001.

39. Ibid., 30 June 2001.

40. Ibid., 5 October 2001.

41. Ibid., 12 October 2001.

42. De Standaard, 14 November 2001.

43. Ibid., 19 December 2001.

44. The information relating to this case has not been published, with the exception of a number of newspaper articles. Most of the following information is based on the present writer's personal knowledge of the case.

45. Law of 17 April 1878.

46. De Standaard, 29 November 2001.

47. For analysis of the case, see J. Wouters and L. DeSmet, in this volume at p. 373.

49. See in this volume at pp. 373 at 374.

50. See 3 YIHL (2000) pp. 426428.

51. Doc. Parl., Sénat, 1999–2000, Projet de loi portant assentiment au Statut de Rome de la Cour pénale internationale, 3 février 2000, n° 2–329/1, pp. 7 ff. See David, E., ‘Les conséquences du Statut de la Cour pénale internationale pour la répression en droit belge’, in Actualité du droit international humanitaire (Bruxelles, La Charte 2001) pp. 7392.

52. Not yet published.

55. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 20.

56. Ibid.

57. Information provided by the Office of the High Representative, Sarajevo. Commentaries by Jann K. Kleffner, University of Amsterdam.

58. See ‘U.S. notes Bosnian Serb Parliament's adoption of warcrimes law’, AFP, 5 October 2001; ‘RS finally passes bill on cooperation with ICTY’, AIM Banja Luka, 4 October 2001. http://www.aimpress.org/dyn/trae/archive/data/200110/11020-002-trae-sar.htm.

59. OHR media roundup, 31 October 2001.

60. War Crimes against Civilians: Art. 154

(1) Whoever in violation of rules of international law applicable in time of war, armed conflict or occupation, orders attack at civilian population, settlement, individual civilians or persons unable to fight, which results in the death, grave bodily injuries or serious damaging of people's health; an attack without selecting a target, by which civilian population gets hurt; that civilian population be subject to killings, torture, inhuman treatment, biological, medical or other scientific experiments, taking of tissue or organs for the purpose of transplantation, immense suffering or violation of bodily integrity or health; dislocation or displacement or forced conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, pronouncing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of enemy's army or in its intelligence service or administration; forced labor, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on large scale of a property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits one of the foregoing acts, shall be punished with a sentence of imprisonment for not less than five years or long term imprisonment.

(2) Punishment defined under paragraph 1 of this Article shall be pronounced also on those who in violation of rules of international law applicable in the time of war, armed conflict or occupation, order: that an attack be launched against objects specifically protected by the international law, as well as objects and facilities with dangerous power, such as dams, embankments and nuclear power stations; that civilian objects which are under specific protection of the international law, non-defended places and demilitarized zones be indiscriminately targeted; long-lasting and large-scale environment devastation which may be detrimental to the health or survival of the population, or whoever commits some of the aforementioned acts.

(3) Whoever in violation of rules of international law applicable in the time of war, armed conflict or occupation, orders or carries out as an occupier the resettlement of parts of his/her civilian population into the occupied territory, shall be punished with a sentence of imprisonment for not less than five years; or by long term imprisonment.

61. Source OHR War Crimes Chart October 2002 on file with author. http://www.ohr.int/print/?content_id=1815.

62. The 1977 Inherited Criminal Law (which is the Penal Code of the Socialist Federal Republic of Yugoslavia) predated the 1998 Bosnian Criminal Code. Therefore, Article 142 ICL is the equivalent of Art. 154 BiH CC. Art. 142 provides: War crime against the civilian population:

‘Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering or violation of bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of enemy's army or in its intelligence service or administration; forcible labour, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on large scale of a property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.’

63. Information provided by the Office of the High Representative, Sarajevo.

64. Bosnian court acquits three Bosnian Muslims of war crimes’, AFP, 23 03 2001.

65. Bosnian Muslim gets 15 years for ordering killings of aid workers’, AFP, 6 07 2001.

66. Bosnia sentences Serb for war crimes’, BBC World Europe, 24 10 2001; Helsinki Committee of Human Rights in Bosnia and Herzegovina, FaxLetter No. 123 at http://www.bhhchr.org/faxlett/1998/no123.htm.

68. Bosnian Muslims on trial for war crimes against Croats’, AFP, 23 01 2001.

69. War crime against prisoners of war: Art. 144:

‘Whoever, in violation of the rules of international law, orders murders, tortures or inhuman treatment of prisoners of war, including therein biological experiments, causing of great sufferings or serious injury to the bodily integrity or health, compulsive enlistment into the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or who commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.’

70. Supra n. 63. See also Kebo, A., ‘Regional Report: Local Justice, Bosnian-Style’, IWPR's Tribunal Update No. 220, 7–12 05 2001.

72. Source: Helsinki Committee for Human Rights in Bosnia and Herzegovina. http://www.bhhchr.org/faxlett/1998/no86.htm.

73. Source: Source OHR War Crimes Chart October 2002 on file with author. http://www.ohr.int/print/?content_id=1815.

74. Accomplices: Art. 23: ‘Several persons who have jointly committed a criminal offense by participating in the act of commission or in some other way, shall each be punished as prescribed for the act.’

75. Source OHR War Crimes Chart October 2002 on file with author. http://www.ohr.int/print/?content_id=1815.

76. Genocide: Art. 153:

‘Whoever, with the intention of destroying a national, ethnic, racial or religious group in whole or in part, orders killings or inflicting serious bodily injuries or serious disturbance of physical or mental health of the group members, or a forced dislocation of the population, or that the group be put under such living conditions which are created to bring about its physical destruction in whole or in part, or that measures be pronounced intended to prevent births within the group, or that children of the group be forcibly moved to another group, or whoever with the same intent commits one of the foregoing acts, shall be punished with a sentence of imprisonment for not less than five years or long term imprisonment.’

77. OHR War Crimes Chart October 2002 on file with author. http://www.ohr.int/print/?content_id=1815.

78. Human Rights Chamber for Bosnia and Herzegovina, Annual Report 2002. http://www.hrc.ba/ENGLISH/annual_report/2002/ANNEX/a11.htm.

79. OHR War Crimes Chart October 2002 on file with author. http://www.ohr.int/print/?content_id=1815.

80. Death Penalty News March 1997. Amnesty International: AI Index Act 53/002/1997, 1 March 1997. http://web.amnesty.org/library/Index/ENGACT530021997?open&of=ENG-PRI.

81. Izetbegovic's party attacks his indictment by Bosnian Serbs’, AFP, 7 11 2001.

82. U.N. officials fire three police officers for their wartime roles’, AP, 27 11 2001.

83. UN sacks two Bosnian Muslim policemen for serving in war-time camp’, AFP, 4 12 2001.

84. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 23.

85. Ibid.

86. Ibid., p. 25.

87. Source: ICRC Database on IHL. Implementing Laws and Regulations. http://www.icrc.org/Web/eng/siteeng0.nsf/html/57KL22?OpenDocument.

88. Ibid.

89. Sotheacheath, C., ‘Cambodia to try Khmer Rouge leaders’, AP, 2 01 2001; Sophal, C., ‘Cambodia parliament approves Khmer Rouge trial’, Reuters, 2 01 2001; UN welcomes steps to try Khmer Rouge’, South China Morning Post, 3 01 2001; Johnson, K., ‘Lawmakers approve setting up of ‘killing fields’ tribunal’, South China Morning Post, 3 01 2001; Statement by the Press Secretary/Director-General for Press and Public Relations, Ministry of Foreign Affairs, on the Passage of the ‘Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea’ in the Senate of the Kingdom of Cambodia. http://www.mofa.go.jp/announce/announce/2001/1/0115.html.

90. Further negotiations needed for Cambodian war crimes tribunal’, AFP, 28 06 2002; ‘Genocide and international crimes in domestic courts’. A survey by Prevent Genocide International, available at its website: http://www.preventgenocide.org/punish/domestic/.

91. Draft law for Khmer Rouge trial amended: No death penalty’, AP, 22 06 2001.

92. Crossette, B., ‘Pact sought on Khmer Rouge trials’, New York Times, 28 06 2001.

93. Cambodia set for Khmer Rouge trials’, BBC, 7 08 2001; Khmer Rouge tribunal talks expected to be; tough’, AP, 11 08 2001; King Norodom Sihanouk signs Khmer Rouge legislation’, AFP, 10 08 2001. Invitation sent U.N. for negotiation on Khmer Rouge trials’, UNWire, 10 10 2001.

94. Information and commentaries by René Provost, Associate Professor and Associate Dean, Faculty of Law and Institute of Comparative Law, McGill University. Thanks to Guillaume Beaupré for his excellent research assistance.

95. See ‘Canada presses U.S. on status of Afghan prisoners’, by R. Palmer, Canadian Press, 1 February 2002. http://ca.news.yahoo.com/020201/5/i90i.html.

96. See the comment of Provost, R. in 3 YIHL (2000) at pp. 440441.

97. See the comment of Provost, R. in 3 YIHL (2000) at pp. 446447.

99. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 28.

100. Information and commentaries by Hernán Salinas Burgos, Professor of Public International Law at the University of Chile and the University of Los Andes, and Carlos Dettleff Beros, Professor of Public International Law at the University of Chile.

101. Código Procesal Penal, Ley No. 19.696. Published in Diario Oficial, 12 October 2000.

102. Gallardo, E., ‘Chilean court authorizes submitting questions to Kissinger about slaying of U.S. filmmaker’, AP, 31 07 2001.

103. Harnden, T., ‘US angry as Chile asks Kissinger about death’, The Daily Telegraph (London), 1 08 2001.

104. The National Commission for the Implementation of International Humanitarian Law was created by Decree No. 1.229 of 1994, Ministry of Foreign Relations. Published in Diario Oficial, 27 October 1994.

105. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 29.

106. Ibid.

107. Information and commentaries by Professor Rafael A. Prieto Sanjuán (Paris II), Consultant and Professor of Public International Law and International Relations at Externado University of Colombia, Bogotá, D.C.

108. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 30.

109. See 3 YIHL (2000) p. 453.

110. For an overview of this problem, see the special report of the Presidential Program for Human Rights and IHL.

111. This Commission is composed by represents of the Republic's Vice-presidency, the Ministries of Foreign Affairs, Defense, Health, Interior, the Department of National Planning and the Presidential Program on Human Rights and IHL, as well as Technical Sub-Commissions or Committees.

112. See Observatory on Anti-personnel Mines, Minas antipersonal en Colombia, p. 10.

113. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 30.

114. Ibid.

115. Ibid., p.31.

116. ‘News Monitor for February 2001’. Prevent Genocide International. http://www.preventgenocide.org/prevent/news-monitor/2001feb.htm.

117. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 30.

118. Ibid., p. 33.

119. Ibid.

120. Ibid.

121. 10 years on stolen art works return to Croatian town’, AFP, 12 12 2001; Art collection of war-torn Croatian town of Vukovar returns home’, Deutsche Presse-Agentur, 12 12 2001; Croatia's precious artwork returned’, BBC News, 12 12 2001.

122. ‘Law on General Amnesty’, 20 September 1996, published in Narodne novine, no. 27/1996, Art. 3. 3. See also Seršić, M., I YIHL (1998) p. 427.

123. ‘Croatian president pardons five Serbs imprisoned for war crimes’, BBC Monitoring European — Political, 26 March 2001.

124. Stabilization Force (SFOR) Chronology of Event, January 1, 2001. http://home.wanadoo.n1/tcc/balkan/sfor_chron_2e.html.

125. Defying nationalists again, Croatia reaffirms cooperation with war crimes tribunal’, AP, 17 07 2001.

126. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 35.

127. Croatian court acquits ethnic Serb of war crimes charges’, AP, 20 12 2001.

128. Regarding the Amnesty Law, see YIHL (1998) p. 427.

129. US Department of State: ‘Croatia: Country Reports on Human Rights Practices 2002. 31 March 2003. http://www.state.gov/g/drl/rls/hrrpt/2002/18359.htm.

130. Bosnian suspected of war crimes arrested in Croatia’, AFP, 3 02 2001.

131. ‘Croatia — Country Reports on Human Rights Practices- 2001’, US Department of State: http://www.state.gov/g/drl/rls/hrrpt/2001/eur/8240.htm.

132. ‘Croatia indicts general on war crimes’, CNN.com/World. 5 March 2001. http://www.cnn.com/2001/WORLD/europe/03/05/croatia.norac/.

133. For a flavour of the pro-Gospić Five press, see Jović, J., ‘Head of John the Baptist’, Slobadna Dalmacija, 9 02 2001. http://voiceofcroatia.net/Manolic.htm. See also Traynor, I., ‘Croats turn on leaders for hunting ‘war criminals’, The Guardian, 12 02 2001, describing a demonstration of 100,000 persons in Split in support of General Norac.

134. Croatian general indicted for crimes against humanity’, Deutsche Presse-Agentur, 5 03 2001; Norac's trial adjourned after he punched other war crimes indictee’, Deutsche Presse-Agentur, 18 09 2001.

135. Croatian cops arrest war suspect’, AP, 31 03 2001.

136. Foreign Press Bureau Zagreb, Daily Bulletin — No. 122/2001, 26 June 2001.

137. Bosnian Muslim rebel leader on trial for war crimes in Croatia’, AFP, 19 07 2001; Partos, G., ‘Warlord on trial in Croatia’, BBC World Europe, 20 07 2001.

138. Croatian police arrest four war crimes suspects’, AFP, 5 09 2001.

139. Croatia authorities arrest seven on war crimes charges’, RFE/RL Newsline Vol. 5, No. 185, Part II, 1 10 2001.

140. Croatia opens war crimes trial’, AP, 15 12 2001; Foreign Press Bureau Zagreb, Daily Bulletin No. 168/2001, available at http://www.hic.hr/hrvatski/vijesti/archiv/latest/DAILY_BULLETIN_168_2001.

141. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 36.

142. Information and commentaries provided by Jan Hladik, Programme Specialist, International Standards Section, Division of Cultural Heritage, UNESCO.

143. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 37.

144. Information and commentaries provided by Peter Otken, LL.M., Special Assistant to the Judge Advocate General, Copenhagen.

145. Reprinted in this volume at p. 728.

146. Reported in 1 YIHL (1998) at p. 431.

147. The Commission was established by Executive Decree No. 131–99 of 30 March 1999. ‘Its functions include recommending measures for the national implementation of humanitarian law treaties, spreading knowledge of the law among the authorities and proposing draft implementing legislation.’ ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 39.

148. Ibid.

149. Information and commentaries by Suzannah Linton, Visiting Fellow, Center for Civil and Human Rights, Law School, University of Notre Dame. Readers seeking more detailed analysis are referred to the author's article ‘The Evolving Jurisprudence and Practice of East Timor's Special Panels For Serious Crimes on Admissions Of Guilt, Duress And Superior Orders’ at p. 169 of this volume.

150. The most senior were two local commanders of the Team Alfa Militia in Lospalos, Joni Marques and Manuel da Costa.

151. See Report of the Security Council Mission to East Timor and Indonesia, UN Doc. S/2000/1105 (2000) para. 8, and concerns voiced by the Security Council when extending UNTAET's mandate to 31 January 2002. UN Doc. S/RES/1338 (2001) and Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, UN Doc. E/CN.4/2001/37, para. 13. Also see Amnesty International, ‘East Timor: Building a New Country based on Human Rights, 2000’, http://www.amnesty.org/ailib/aipub/2000/SUM/35700500.htm, and ‘East Timor: Justice Past, Present and Future, 2001’, http://web.amnesty.org/library/Index/engASA570012001; ‘Judicial System Monitoring Programme, Justice in Practice: Human Rights in Court Administration’, November 2001, http://www.jsmp.minihub.org/Reports/JSMPI.pdf; ‘UK Groups in Solidarity with East Timor, Petition for International Tribunal on East Timor’, http://www.pcug.og.au/-wildwood/01maytribunalpetition.htm; Nobel Laureate appeals For East Timor tribunal’, AP, 23 04 2001; International court must be set up in Timor Lorosae as fast as possible’, Suara Timor Lorosae, 11 04 2001.

152. UNTAET has strenuously denied this, and the legislation specifically prohibits Serious Crimes from being dealt with by the Community Reconciliation Process.

153. See Dodd, M., ‘Timor's crime fighters in crisis’, The Age, 1 05 2001; UN in Secret Parleys with East Timor Militia Leaders’, Times of India, 18 11 2000; East Timor: UN lets Indonesian military off the hook’, Green Left Weekly, Issue 447, 9 05 2001.

154. All of the judgements and indictments mentioned in this segment are available online at http://www.jsmp.minihub.org.

155. See Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726, S/2000/59, 31 January 2000. http://193.194.138.190/huridocda/huridoca.nsf/(Symbol)/A.54.726,+S.2000.59.En?OpenDocument.

156. Report submitted by the Secretary General to the General Assembly on the Situation on Human Rights in East Timor, Doc. A/54/660 of 10 December 1999.

157. KPP-HAM, Report on the Investigation of Human Rights Violations in East Timor (2000). Only an Executive Summary of this Report has been officially released: see http://www.indonesiaottawa.org/news/Issue/HumanRights/ham-kpp-timtim-01312000.htm.

158. Materials directed cited in support of this proposition (two popular books) do not appear to have been submitted as evidence in the course of proceedings.

159. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 41.

160. Ibid.

161. Ibid.

162. Ibid.

163. That is, the 108-member body known as the Dergue Coordinating Committee of the Armed Forces, which ruled Ethiopia from 12 September 1974 until 28 May 1991, when it was overthrown in a military coup.

164. Art. 281, Genocide; Crimes against Humanity, provides: ‘Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in time of war or in time of peace: (a) killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or (b) measures to prevent the propagation or continued survival of its members or their progeny; or (c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance, is punishable with rigorous imprisonment from five years to life, or, in cases of exceptional gravity, with death.’

165. Source: ‘Genocide and international crimes in domestic courts’. Published on the website of Prevent Genocide International. http://www.preventgenocide.org/punish/domestic/.

166. Information and commentaries by Michael Hartman, International Prosecutor, Kosovo. The author can be reached at Intprosecutor@yahoo.com. Lynne Madnick, Research Assistant and American University law student, contributed to this report.

167. There are a number of sources upon which this report relied, in addition to the author's presence in Kosovo as an International Prosecutor with UNMIK from February 2000. Among others, the OSCE's Legal System Assessment Section has done an extensive evaluation of war crimes cases reflecting their views. See http://www.osce.org/kosovo/documents/human_rights/10_WarCrimesReport_eng.pdf.

168. See especially Regulations 1999/1 and 1999/24, which establish the Adminstration's competencies and the applicable law.

169. FRY CC: Genocide, Art. 141. ‘Whoever, with the intention of destroying a national, ethnic, racial or religious group in whole or in part, orders the commission of killings or the inflicting of serious bodily injuries or serious disturbance of physical or mental health of the group members, or a forcible dislocation of the population, or that the group be inflicted conditions of life calculated to bring about its physical destruction in whole or in part, or that measures be imposed intended to prevent births within the group, or that children of the group be forcibly transferred to another group, or whoever with the same intent commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.’

War crime against the civilian population, Art. 142. Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to killings, torture, inhuman treatment, biological experiments, immense suffering or violation of bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of enemy's army or in its intelligence service or administration; forcible labour, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on large scale of a property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.

War crime against the wounded and sick, Art. 143. Whoever, in violation of the rules of international law at the time of war or armed conflict, orders murders, tortures, inhuman treatment of the wounded, sick, the shipwrecked persons or medical personnel, including therein biological experiments, causing of great sufferings or serious injury to the bodily integrity or health; or whoever orders unlawful and arbitrary destruction or large-scale appropriation of material and stocks of medical facilities or units which is not justified by military needs, or whoever commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.

170. The Ibar River divides the city, and north of Mitrovica are primarily ethnic Serbian villages and towns up to the Serbian administrative boundary. Now, after the conflict, the northern section of the city is primarily ethnic Serbian, with a small enclave of ethnic Albanian and Bosniak, and the southern section of the city is almost all ethnic Albanian.

171. Regulation 6 was limited to Mitrovica. Section 1 is entitled: Appointment and Removal from Office of International Judges and International Prosecutors, and provides:

1.1 The Special Representative of the Secretary-General may appoint and remove from office international judges and international prosecutors, taking into account the criteria set forth under sections 2 and 4 of the present regulation. Such appointments shall be made to the District Court of Mitrovica, other courts within the territorial jurisdiction of the District Court of Mitrovica and offices of the prosecutor with corresponding jurisdiction.

172. The law does not allow any judge to reveal to the public or parties the results of judicial voting, including whether a decision is unanimous or had dissenting votes.

173. This also occurred in some cases where Serbs were accused of crimes committed after the war against Albanians. In addition, the Albanian-Kosovar prosecutors and judges would at times favor Albanian suspects accused of crimes against Serbs by either releasing them when Serbs in like crimes would be detained, or by under-charging their crimes or finding them guilty of lesser crimes than the evidence supported.

174. In inter-ethnic cases with Albanian-Kosovar accused, local prosecutors sometimes proposed releasing the suspects, or abandoned a case, presenting an international prosecutor with a fait accompli.

175. See the applicable law on criminal procedure, which in Kosovo was the 1989 criminal law and procedure, Art. 370, per Regulation 1999/24.

176. Where locally-tried cases were reversed by IJ majority Supreme Court, and retried by IJP and convicted of more severe war crimes offenses, the higher charges second-time around can be attributed to IJP efforts to locate and hear new witnesses, and to reexamine prior witnesses thoroughly.

177. Ironically, Regulation 2000/64 solved the first two problems but contributed to the expansion of the third. The societal, victim and political pressures upon the SRSG, and the desire to respond to public desires and minority cries for protection of an international panel, resulted in increased IJP assignments, which were now also decided by administrators, rather than by just the individual IJPs who were more familiar to their workload burdens and time needs. The administration set up meticulous scheduling processes to take judicial commitments into account as a result, with some success.

178. In the applicable civil law judicial panel system, unlike the common law jury system, the written verdict and reasons must be quite detailed and very precise, usually tens of pages, or the verdict risks reversal.

179. Under the applicable Law on Criminal Procedure, Arts. 45 and 155, the prosecutor has the authority to guide and direct all police operations. Over 4,000 UN Police, and more KPS officers, are currently in Kosovo, along with such specialized units as CCIU [Complex Criminal Investigations Unit], Kosovo Organized Crime Bureau [KOCB], Trafficking and Prostitution Investigation Unit [TPIU], and several Task Forces on such things as Terrorism, Organized Crime, Corruption, and the like. Only 12 international prosecutors are insufficient to properly supervise all such cases, so the international prosecutors try to concentrate on war crimes, terrorism, and the most important organized crime and inter-ethnic violence cases.

180. The conviction of Zvezdan Simić, and in another case the conviction of Zoran Stanojević, each for murder, were affirmed by Supreme Court international judge majority panels.

181. Lulzim Ademi was convicted of war crimes under Art. 142 of the Criminal Code of the FRY in August 2000, by a majority local panel with one international judge.

182. See FRY Law of Criminal Procedure, Arts. 158 et seq.

183. There were no specifics alleged regarding the intent of the accused juvenile other than the second paragraph of the prosecutor's recommendation:

‘During the war activities and the NATO bombing of the FR of Yugoslavia, he committed the crime of burning of houses with the intent of forcefully purging the Albanian population and with the intent of partially or completely destroying the Albanian community, and he jointly with the also accused Dragan Jovanovic burned about 100 houses in the ‘Bosniak Town’, among them houses of Redzo Karakasi, Veton Grdovci, Enver Pazari, and Maso Grudic. They had come to the said township in the evening, with fire arms, and threatening to kill and purge forced the inhabitants from their homes. The residents obeyed in fear. Following this they entered the houses and set them on fire.’

184. ‘By violating the rules of the International Law during the time of the war — armed conflict, against the civil population, by murders, inhumane behavior, forced displacement, intimidation, property looting, and by causing grave sufferings, as member — employee of the local security in Mitrovica, together with a group comprising members of the Yugoslavian Army, Ministry of Internal Affairs of Serbia, and the Serb paramilitary organizations, armed with fire weapons and other weapons, during the military intervention of the NATO air forces in Yugoslavia, …'.

185. Aka, International Public Prosecutor of Kosovo.

186. Pursuant to LCP Art. 337.

187. On 2 September 2000, 13 Serbs successfully escaped from custody at the UNMIK Detention Center in Mitrovica.

188. See LCP Arts. 61 et seq.

189. Bozur Bizevac, who escaped from custody in August 2000. With the passage of Regulation 2001/1, his case was abandoned.

190. ‘In the period from 22 March until early May 1999, in the villages of Gusavac and Gornji Suvi Do, Mitrovica Municipality, with the intention of forcefully displacing Albanian population and with the intention of completely or partially destroying the Albanian community, together with to date unidentified persons, dressed in different military, police and paramilitary uniforms out of which majority were wearing masks and all of them were armed with firearms, came to the above stated villages, shooting from firearms, with threats of murder created such an atmosphere of fear and intimidation amongst the Albanian population from these village that these inhabitants, including women, children and elderly were forced to flee into the surrounding villages and a forest following which they, by illegal and ruthless confiscation of personal property of Albanians, entered the houses and took all valuable items which they took away in tractors and other means of transportation and distributed among themselves, in order to by illegal destruction of personal property and houses achieve the goal that the inhabitants of these villages of Albanian ethnicity can no longer return to their homes, set on fire the houses of: Ismet, Jakup, Haljit, Jonuz, Miran, Ajet, Husnija, Dzevat, Hamit, Bajram, Sinan, Murselj, Sevelj, Agim, Bejtulah, Sokolj, Seljim, Adem, Ragip, Dibran, Tafilja, Sadik, Fadilj, Hetem, Fehmija, Dzeljadin, Nedzmedin, Abit, Safet, Naim and Agron Sahitim as well as houses of other villagers of the village of Gusavac and the houses of Bedri Hajra, Veselj Hasani, Ekrem Beka, Sadije Seljimi and other houses in the village of Gornji Suvi Do, and in the houses of Seljim Sahiti in the village of Gusavac an immobile, old and weak now deceased Hazire Sahiti burned to death, even though the accused were aware, when setting the house on fire, that the mentioned person was in the premises of the house.’

191. Under applicable law and judicial custom, the Presiding Judge will write the reasons after orally announcing the verdict.

192. See Verdict, para. 30 of section ‘Reasoning’.

193. See Verdict, para. 35 of section ‘Reasoning’.

194. This was the stated position of the International Prosecutor of the Office of the Public Prosecutor of Kosovo, who had presented the case on behalf of the prosecution in the Supreme Court.

195. International Judge Patrice de Charette was also the IJ for the first instance court hearing the Trajković case, discussed infra.

196. Verdict number P.nr.68/2000.

197. The Opinion of the IP, as well as the District Court and Supreme Court's judgements, can be viewed on the Internet at http://www.ridi.orgfadi/dip/des20010315.htm.

198. The case was subsequently returned to the District Court for retrial on 27 May 2002, with the trial continuing through 2002. See 5 YIHL (2002) for further details.

199. The judges cited in their decision, for example, ICTY jurisprudence as well as reports of the OSCE.

200. For commentary on Finland's position on anti-personnel landmines, see Hannikainen, L., 1 YIHL (1998) pp. 436438.

201. Information and commentaries provided by Professor Paul Tavernier, Professor Paris-Sud University, Director, Centre de Recherches et d'Etudes sur les droits de l'Homme et le droit humanitaire (Credho), with the assistance of Alexandre Balguy-Gallois, Credho and Catholic Law Faculty, Paris.

202. Tisdall, S., ‘Turkish fury over genocide claims’, The Age, 26 01 2001; Parmentier, G., ‘French-Turkish rift puts NATO at risk’, Los Angeles Times, 12 02 2001.

203. lbrahima Gueye v. France, Communication No. 196/1983, 3 April 1989, UN Doc., A/44/40 at 189.

204. See excerpts of the judgement and a commentary by Geslin, A., ‘Jurisprudence français en matière de droit international public’, 106 RGDIP (2002) pp. 207224.

205. That is, people or their heirs who were stripped of assets (goods or real estate, financial assets) as a result of anti-Semitic legislation passed during the Occupation, whether by the occupying power or the Vichy authorities.

206. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 45.

207. See also commentary by Poirat, F. and Geslin, A., 106 Revue Générale de Droit international Public (2002) pp. 459463.

208. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 46.

209. Ibid.

210. Ibid.

211. Information and commentaries provided by Sascha Rolf Lüder, Counsellor at the General Representative of the Johanniter Order to the European Union, Brussels, and Gregor Schotten, Research Associate at the Institute for International Law of Peace and Armed Conflict (IFHV), Ruhr-Universität Bochum. The views expressed in this report are those of the authors alone.

212. Kaul, H.-P., ‘Die Entwicklung des Völkerstrafrechts: Auf dem Weg zur Herrschaft des Rechts in den internationalen Beziehungen?’, 14 Humanitäres Völkerrecht — Informationsschriften (2001) pp. 251 et seq.; Kreß, C., ‘Völkerstrafrecht in Deutschland: Gedanken aus Anlaß der Ratifikation des Statuts des Internationalen Strafgerichtshofs’, 20 Neue Zeitschrift für Strafrecht (2000) pp. 617 et seq.

213. See in detail, Meißner, J., ‘Die Zusammenarbeit Deutschlands mit dem Internationalen Strafgerichtshof: Anmerkungen zum Regierungsentwurf eines IStGH-Gesetzes’, 15 Humanitäres Völkerrecht — Informationsschriften (2002) pp. 35 et seq.

214. der Justiz, Bundesministerium. ed., Arbeitsentwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches (Baden-Baden, Nomos Verlagsgesellschaft 2001).

215. Kaul, H. P., ‘The International Criminal Court’, in Riedel, E., ed., Stocktaking in German Public Law: German Reports on Public Law — Presented to the XVI. International Congress on Comparative Law, Brisbane, 14 to 20 July 2002 (Baden-Baden, Nomos Verlagsgesellschaft 2002) pp. 9 et seq. at pp. 25 et seq.; Werle, G., ‘Konturen eines deutschen Völkerstrafrechts: Zum Arbeitsentwurf eines Völkerstrafgesetzbuchs’, 18 Juristenzeitung (2001) pp. 885 et seq.; Zimmermann, A., ‘Auf dem Weg zu einem deutschen Völkerstrafgesetzbuch: Entstehung, völkerrechtlicher Rahmen und wesentliche Inhalte’, 35 Zeitschrift für Rechtspolitik (2002) pp. 97 et seq.

216. See in this respect, the Freiburg Declaration on Respecting International Law [Freiburger Juristen-Erklärung zur Achtung des Völkerrechts] in Vormbaum, Th., ed., Jahrbuch für Juristische Zeitgeschichte 3 (2001/2002) (Baden-Baden, Nomos Verlagsgesellschaft 2002) pp. 99 et seq.

217. Higher Regional Court at Düsseldorf, Judgment, 30 April 1999 [Oberlandesgericht Düsseldorf, Urteil vom 30 April 1999 — 2 StR 215/98].

218. Federal Supreme Court, Judgment, 21 February 2000 [Bundesgerichtshof Urteil vom 21. Februar 2000 — 3 StR 372/00].

219. See in particular, Kadelbach, St., ‘Anmerkung zu BVerfG, Kammerbeschluß v. 12.12.2000 — BvR 1290/99’, 56 Juristenzeitung (2001) pp. 981 et seq.

220. Bavarian Supreme Court, Judgment, 15 December 1999 [Bayerisches Oberstes Landesgericht, Urteil vom 15. Dezember 1999 — 6 St 1/99].

221. Higher Regional Court at Düsseldorf, Judgment, 29 November 1999 [Oberlandesgericht Düsseldorf, Urteil vom 29. November 1999 — 2 StE 6/97].

222. See Ambos, K., ‘Immer mehr Fragen im internationalen Strafrecht’, 21 Neue Zeitschrift für Strafrecht (2001) pp. 628 et seq.; Ambos, K. and Wirth, St., ‘Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts’, in Fischer, H., Kreß, C. and Lüder, S. R., eds., International and National Prosecution of Crimes Under International Law: Current Developments (Berlin, Berlin Verlag Arno Spitz 2001) pp. 769 et seq.

223. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 49.

224. Ibid., p. 50.

225. See http://www.justiceforgenocide.org/document1.html. The complaint against General Luca García is available at: http://www.justiceforgenocide.org/pdf/complainducas.pdf.

226. Misión de Verificación de las Naciones Unidas en Guatemala (MINUGUA), Publicaciones-Oficina del Portavoz, Crónicas de Minugua No. 26. Available at: http://www.minugua.guate.net/PUBLICACIONES/CRONIC2001/CRONICAS01.htm.

227. The Report ‘Guatemala: Nunca Más’, issued by the REMHI (Recuperación de la Memoria Histórica) is available at: http://www.odhag.org.gt/INFREMHI/Default.htm.

228. Verdict buoys Guatemala human rights activists’, Reuters, 13 06 2001; Four convicted in murder of Guatemalan bishop’, CNN Online News Report, 8 06 2001; United Nations Verification Mission in Guatemala, A/56/273, 8 August 2001.

229. The Guatemalan Historical Clarification Commission was set up after the Accord of Oslo, signed as part of the Peace Process in 1994. In September 1997, the Commission began receiving testimonies of human rights violations committed during the 36-year armed conflict.

230. See the Report of the Commission for Historical Clarification, Conclusions and Recommendations ‘Guatemala-Memory of Silence’, available at http://shr.aaas.org/guatemala/ceh/report/english/conc2.html; in May 2000 the AJR filed a complaint for the massacres committed between 1978 and 1982 against officials of the administration of General Fernando Romeo Lucas García. See Amnesty Reports ‘Guatemala-Human Rights Community Under Siege’ at http://web.amnesty.org/ai.nsf/Recent/AMR340222001!Open, and ‘Guatemala: Submission to Param Cumaraswamy, Special Rapporteur of the UN Commission on Human Rights on the independence of judges and lawyers’ at http://web.amnesty.org/ai.nsf/Recent/AMR340322001!Open.

231. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 51.

232. Information and commentaries by Professor Péter Kovaćs, Professor of International Law, Péter Pázmány Catholic University of Budapest and Miskolc University.

233. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 51.

234. Ibid., p. 52.

235. Ibid. p. 53.

236. Ibid.

237. Information and commentaries by Suzannah Linton, Visiting Fellow, Center for Civil and Human Rights, Law School, University of Notre Dame. This report is limited in its coverage of the many IHL issues in Indonesia in 2000 and 2001 by spatial demands.

238. ‘544 die despite Aceh Presidential Instruction’, Laksamana.Net, 27 10 2001.

239. The first judges were appointed in January 2002 and the first indictments were filed one month later. ‘Government unveils names of rights tribunal judges’, Jakarta Post, 15 01 2002. See http://www.jsmp.minihub.org/Indonesia/judges.htm for a list of the judges.

240. Ringkasan Eksekutif, Hasil Penyelidikan Komisi Penyelidikan Dan Pemeriksaan Pelanggaran Hak Asasi Manusia Di Tanjung Priok (KP3T), 12 June 2000.

241. ‘Indonesia's Tanjong Priok inquiry: a safe harbour for human rights abuses?’, Human Rights Feature, Asia-Pacific Human Rights Network, 20 July 2000, at http://www.hrdc.net/sahrdc/hrfeatures/hrf23.htm.

242. Ringkasan Eksekutif, Laporan Tim Tindak Lanjut Hasil Komisi Penyelidik Dan Pemeriksaan Pelanggaran Hak Asasi Manusia Di Tanjung Priok (KP3T), 11 October 2000.

243. Ringkasan Eksekutif, Komisi Penyelidikan Pelanggaran Hak Asasi Manusia (KPP-Ham) Papua/Irian Jaya, 8 May 2001.

244. Ringkasan Eksekutif, Komisi Penyelidikan Hak Asasi Manusia (KPP HAM) Papua/Irian Jaya, 8 Mei 2001.

245. The raising of the Papuan flag (the ‘Morning Star’ flag), is an act of indigenous Papuan nationalism that is perceived as particularly threatening by the Indonesian authorities.

246. ‘Polri Protes KPP HAM Abepura’, Antara, 24 04 2001.

247. ‘Abepura case returned to Komnas HAM, Attorney-General's office says: documents incomplete’, Papua Post, 28 07 2001.

248. This case would, if prosecuted, have been the first to be heard before a permanent Human Rights Court. The relevant court for Papua is meant to sit at Makassar. However, not one of the five Human Rights Courts was operational by the end of 2001.

249. ‘Communal Violene in Indonesia: lessons from Kalimantan’, International Crisis Group, Jakarta/Brussels, 27 June 2001, ICG Asia Report N° 19.

250. Human Rights Watch, Annual World Report 2001.

251. Kompas, ‘KPP HAM Sampit: Tidak Ada Pelanggaran Berat HAM di Sampit’, 28 November 2001; Kompas ‘Kontras: Tidak Sulit Buktikan Pelanggaran Berat Ham di Sampit’, 30 November 2001.

252. ‘Rekomendasi ‘Telur Busuk’ DPR dan Sikap Bisu Pemerintah’, Kompas Cyber Media, 15 05 2002 at http://www.kompas.com/utama/news/0205/15/010101.htm.

253. Kompas Online, 10 July 2001, ‘Students Protest Decision of Parliament’ at http://www.kompas.com/kompas-cetak/0107/10/ENGLISH/stud.htm; Forum Cybernews, 10 July 2001, ‘Dengarlah Jeritan Rakyat’ at http://www.forum.co.id/terkini/07-01/pansus.htm.

254. ‘Peradilan HAM Ad Hoc Trisakti/Semanggi Harus Tetap Digelar’, Radio Nederland, 18 06 2001, transcript at http://www.rnw.nl. There was an earlier trial in August 1998, where two police officers were tried by a military tribunal (the police was then part of the armed forces). Ten and four month sentences were imposed.

256. G. Corputty, ‘Kasus Pelanggaran HAM Yang Terjadi Di Maluku’, Yayasan Baileo Maluku, at http://www.infid.be/infidforum2001-corputty-maluku-ind.html.

257. ‘Indonesia: Statement by Komnas HAM on turmoil in Maluku’, 2 July 2000 at http://www.ahrchk.net/hrsolid/mainfile.php/2000vol10no09/691/.

258. Ibid.

259. See Interview with Asmara Nababan, Secretary General of Komnas HAM, Radio Nederland, PBB Dan Pasukan Internasional Harus Segera Masuk Maluku’, 17 juli 2000, at http://www.ranesi.nl.

260. Laporan Komisi Penyelidik Pelanggaran Hak Asasi Manusia Dan Mediasi Di Maluku, 18 December 2000.

261. Komnas HAM Decision No. SK 030/KOMNAS HAM/VII/2001, 12 July 2001. Komnas HAM, Laporan Kegiatan Sub Komisi Pemantauan Pelaksanaan Hak Asasi Manusia, available at http://www.komnasham.or.id/berita/subkomisipemantauan.html. See also transcript, Human rights team to visit Ambon’, ABC News/Radio Australia, 26 06 2001.

262. ‘Indonesia: The Search for Truth in Maluku’, International Crisis Group, 8 02 2002.

264. ‘Yon Gab TNI Lakukan Kekerasan Di Klinik Laskar Jihad Di Ambon’, Media Indonesia Online, 29 06 2001, at http://www.infomaluku.net/arc/01/010629mio.html. Note that war crimes are not recognized in Indonesian law as a gross violation of human rights under Law 26/2000 or an ordinary crime.

265. Komnas Ham, Laporan Kegiatan Sub Komisi Pemantauan Pelaksanaan Hak Asasi Manusia, available at http://www.komnasham.or.id/berita/subkomisipemantauan.html.

266. Ibid.

267. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 54.

268. Crimes that are committed by a combination of military and civilian actors are tried in a general court of justice by a mixed panel of civilian and military judges (koneksitas court) unless the Chief Justice of the Supreme Court decides that the case should be tried in a military court of justice (Art. 40, Law 35 of 1999).

269. ‘Human rights trial gets underway in Aceh province’, first broadcast 19 04 2000, transcript at http://www.abc.net.au/ra/asiapac/archive/2000/apr/raap-20apr2000-1.htm.

270. ‘Bantaqiah trial: an examination of the indictment by Tapol’, Tapol Report, 25 04 2000.

271. ‘Human rights trial gets underway in Aceh province’, first broadcast 19 04 2000, transcript at http://www.abc.net.au/ra/asiapac/archive/2000/apr/raap-20apr2000-1.htm.

272. See further Murdoch, L., ‘The enemy within: shoot first … Indonesian troops on the move in Aceh’, Sydney Morning Herald, 14 08 1999; Indonesian Army massacred unarmed civilians in Aceh: probe team’, AFP, 31 10 1999.

273. ‘Indonesia: Aceh trial — Amnesty International and Human Rights Watch call for full accountability’, Amnesty International and Human Rights Watch, 17 05 2000.

274. Ibid.

275. Despite confessions from the accused, the prosecution claimed that there was a lack of evidence to justify murder/manslaughter charges and sought a maximum of three years in jail.

276. Outrage at Indonesia court's Timor murder sentences’, Reuters, 4 05 2001; ‘Legal experts decry Atambua sentences’, Jakarta Post, 8 05 2001.

277. Ibid.

278. Ibid.

279. ‘Secretary-General shocked by light sentences handed down in Indonesian court case concerning killing of UNHCR staff’, UN News Update, SG/SM/7793, 7 05 2001.

280. UN refugee body blasts Timor verdicts as “mockery”’, Reuters, 4 05 2001; ‘Sentences for Timor killings deeply disturbing’, UNHCR Press Release, 4 05 2001.

281. ‘Convicted UN staff killers get heavier sentences’, Jakarta Post, 19 01 2002.

282. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 54.

283. Information and commentaries by Ray Murphy, Irish Centre for Human Rights, School of Law, National University of Ireland, Galway.

284. British-Irish Agreement done at Belfast on 10 April 1998. http://www.gov.ie/iveagh/angloirish/goodfriday/default.htm]. Belfast Agreement, Rights, Safeguards and Equality of Opportunity, para. 1. See generally Murphy, R., ‘The Incorporation of the ECHR into Irish Domestic Law’, European Human Rights Law Review, Issue 6 (2001) pp. 640656.

285. The European Convention on Human Rights Bill, 2001, sect. 2(1). The section will apply retrospectively and prospectively.

286. Information and commentaries by Dr Yuval Shany, School of Law, Academic College of Management, Israel. The reporter would like to thank the Research Foundation of the Law School of the Academic College of Management for their financial support of this research. Additional thanks are due to Ms Matat Gutterman, who assisted in the research for this report. See also the report on the Occupied Territories at p. 548 of this volume.

287. Declaration of the Conference of the Parties to the Fourth Geneva Convention, 5 December 2001. Available online at http://www.eda.admin.ch/eda/e/home/foreign/hupol/4gc/docum2.Par.0006.UpFile.pdf/mg_011205_4gcdeclarn_e.pdf. Reprinted at p. 664 of this volume.

288. Statement by the International Committee of the Red Cross, Geneva, 5 December 2001. Available at http://www.icrc.org/Web/eng/siteeng0.nsf/322bdba384116a00412566480050a932/64ef7fe0fc58b5ebc1256b660060bcf0?OpenDocument. Reprinted at p. 667 of this volume.

289. Ministry of Foreign Affairs, Israel's reaction to the convening of the High Contracting Parties to the Fourth Geneva Convention, 5 December 2001. Available online at http://www.mfa.gov.il/mfa/go.asp?MFAH0kv10. Reprinted at p. 667 of this volume.

290. Human Rights Inquiry Commission, Report on the Question of Violations of Human Rights in the Occupied Arab Territories, including Palestine, UN Doc. E/CN.4/2001/121 (2001).

291. According to Amnesty International, 32 Palestinians were targeted under this policy throughout 2001. The targeted killings also resulted in the death of 15 innocent bystanders.

292. ‘Palestinian Authority condemns acts of assassination, liquidation’, Arabic News.Com, 18 10. 2001. http://www.arabicnews.com/ansub/Daily/Day/011018/2001101810.html; Human Rights Inquiry Commission, ‘Report on the Question of Violation of Human Rights in the Occupied Arab Territories, including Palestine’, UN Doc. E/CN.4/2001/121 (2001), paras. 53–64. See also B'teselem Israel's ‘Assassination Policy: Extra-judicial Executions’(2001) URL?; Amnesty International, Israel and the Occupied Territories: ‘State assassinations and other unlawful killings’(2001).

293. Human Rights Inquiry Commission Report. Ibid., para. 62.

294. Ibid. paras. 63–64.

295. Ibid., para. 39. ‘Clearly, there is no international armed conflict in the region, as Palestine … still falls short of the accepted criteria of statehood.’

296. Prosecutor v. Tadić, Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction, Case IT-94–1-AR72, 35 ILM (1996) p. 32; Art. 8(2)(d) and (f) of the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/Conf.183/9, 37 ILM (1998) p. 999.

297. This is supported, inter alia, by the introduction of a similar requirement in Art. 13(3) of the Second Additional Protocol to the Geneva Conventions and in Arts. 8(2)(b)(1) and (8)(2)(e)(1) of the Rome Statute.

298. Pilloud, C., Sandoz, Y., Swinarski, Ch. and Zimmerman, B., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) pp. 618619, at paras. 1943–1945; Bothe, M., Partsch, K. Josef, Solf, W., New Rules for Victims of Armed Conflict (The Hague, Boston, Martinus Nijhoff 1982) pp. 302304 at paras. 2.4.2–2.4.2.2.

299. Human Rights Commission Inquiry Report, supra n. 292, paras. 36, 44.

300. This is the case of Dr Thabat, who was killed on 9 December 2000, when, according to the Commission, he could easily have been arrested by the IDF. Human Rights Commission Report, ibid., para. 64.

301. Ministry of Foreign Affairs, Israel's Comments on the Mitchell Committee Report, 15 May 2001. http://www.mfa.gov.il/mfa/go.asp?MFAH0jyg0.

302. B'teselem, ‘Excessive Force: Human Rights Violations during IDF Actions in Area A (2001)’, B'teselem, ‘Whitewash: Office of the Military Advocate General's Investigation into the Death of Khalil al-Mughrabi, age 11, on July 7, 2001 (2001)’; B'teselem, ‘Beit Rima, 24 October, 2001: Human Rights Violations during the IDF Action in Beit Rima (2001)’; B'teselem Free Rein: ‘Vigilante Settlers and Israel's Non-Enforcement of the Law’ (2001); B'teselem, ‘In Broad Daylight: Abuse of Palestinians by IDF soldiers on July 23, 2001’ (2001); B'teselem, ‘Not even a Drop: Water Crisis in Palestinian Villages’ (2001); B'teselem, ‘Torture of Palestinian Minors in the Gush Etzion Police Station’ (2001); B'teselem, ‘No Way Out: Medical Implications of Israel's Siege Policy’ (2001); B'teselem, ‘Excessive Force: Analysis of the events of 6 May 2001 in Beit Jala’ (2001); B'teselem, ‘On Human Rights in the Occupied Territories’ (2001); B'teselem, ‘Standard Routine: Beatings and Abuse of Palestinians by Israeli Security Forces during the Al Aqsa Intifadah’ (2001); B'teselem, ‘Tacit Consent: Law Enforcement towards Israeli Settlers in the West Bank’ (2001); B'teselem, ‘Civilians under Siege: Restrictions on Freedom of Movement as Collective Punishment’ (2001), B'teselem, ‘Israel's Assassination Policy: Extra-judicial Executions’ (2001). All reports are available online at http://www.btselem.org.

303. Amnesty International, Report 2002: ‘Israel and the Occupied Territories (2002); Amnesty International, ‘Israel and the Occupied Territories: State assassinations and other unlawful killings’ (2001); Amnesty International, ‘Israel and the Occupied Territories: Broken lives — a year of intifada’ (2001).

304. See e.g., Human Rights Watch, Center of the Storm: A Case Study of Human Rights Abuses in Hebron District (2001); Human Rights Watch, World Report 2002: ‘Israel, the Occupied West Bank and Gaza Strip, and Palestinian Authority Territories’ (2002).

305. See Ministry of Foreign Affairs, Second Statement of the Government of Israel submitted to the Sharm El Sheikh Fact Finding Committee, 20 March 2001, available online at http://www.mfa.gov.il/mfa/go.asp?MFAH0jrb0#e; Ministry of Foreign Affairs, Targetting Terrorists — Background Paper, 1 August 2001, available online at http://www.mfa.gov.il/mfa/go.asp?MFAH0k9d0. Reprinted in this volume at p. 663.

306. Unless noted otherwise, the cases discussed herein have not been officially published but are available at the Supreme Court's website: http://www.court.gov.il.

307. H. C. 794/98 Obeid v. Minister of Defence, 55 (5) P.D. 769. A request by family members of Ron Arad for reexamination of the decision by the Supreme Court was rejected on 23 April 2002. H.C.R. 7060/01 Arad v. Dirani (not yet published).

308. Public Committee against Torture in Israel v. Government of Israel, H.C. 5100/94, 53(4) P.D. 817.

309. 3 YIHL (2000) pp. 532533.

310. Draft Law for the Punishment of Perpetrators of Conflict-Related Crimes and Their Families (Legislative Amendments, 2001 (presented on 17 December 2001).

311. Draft Amendment of the Terror Prevention Ordinance 1948 (Deprivation of Insurance Benefits from Members in Terror Organization), 2001 (presented on 28 March 2001).

312. Information and commentaries by Professor Sergio Marchisio and the team of researchers at the Institute for Legal International Studies, National Research Council (CNR), Rome.

313. Giuliano Salberini is a researcher at the Institute for Legal International Studies, National Research Council (CNR), Rome.

314. See the Guidelines approved on July 1999 by the Italian Committee for humanitarian actions against anti-personnel landmines (Le azioni umanitarie contro le mine antipersona nell'ambito della cooperazione internazionale dell'Italia. Linee-guida, Roma, 14 luglio 1999). http://www.esteri.it/polestera/cooperaz/quadro/mina.htm.

315. In 2001, 2.5 million euros were donated to victims' assistance programs in Afghanistan.

316. Valentina Della Fina is a researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.

317. Giuliano Salberini is a researcher at the Institute for Legal International Studies, National Research Council (CNR), Rome.

318. Art. 2 of Law No. 15 of 27 February 2002 in fact provides that: ‘Article 165 of the Military Penal Code of War as replaced by Art. 2, paragraph 1 (d) of Law No. 6 of 31 January 2002, is modified by adding the two following paragraphs: “for the purpose of the Military Criminal Law of War, an armed conflict is a conflict in which at least one of the parties makes a protracted and military organised use of arms against the other party for the conduct of military operations. Awaiting the issuing of an organic regulation of this subject, the provisions of such title are to be applied to the armed military operations carried out abroad by the Italian armed forces”.’

319. Nazzarena Ferraro is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome.

320. See Pannain, R., ‘Personalità dello Stato (disposizioni comuni ai delitti contro la personalità dello Stato e delitti complementari)’, XII Novissimo Digesto Italiano (1976) pp. 1132-; Ferrari, G., ‘Stato di guerra (diritto costituzionale)’, XIX Enciclopedia giuridica (1970) pp. 816; Grasso, P. G., ‘Guerra (disciplina costituzionale della guerra)’, XV Enciclopedia Giuridica Treccani (1989) p. 1; Pinna, P., ‘Guerra (stato di)’, in Digesto delle Discipline Pubblicistiche, p. 50; Cabras, D., Il controllo parlamentare nazionale nell'impiego delle truppe impegnate in missioni di pace, in Ronzitti, N., (a cura di), Comando e controllo nelle forze armate di pace e nelle coalizioni militari (Milano, Franco Angeli 1999) p. 61.

321. Law No. 6 of 31 January 2002 concerning the Italian participation in Operation Enduring Freedom removed certain doubts regarding this subject. Art. 2(d), modified Art. 165 of the Penal Code of War by applying the rules relating to the crimes against the law and uses of war ‘in any case of armed conflict, independently from the declaration of a state of war’. See Ronzitti, N., ‘Una legge organica per l'invio di corpi all'estero?’, in Rivista di diritto internazionale (2002) p. 139.

322. See Marchisio, S., L'ONU, Il diritto delle Nazioni Unite (Bologna, Il Mulino 2000) p. 235.

323. Camera dei deputati, Atti parlamentari, Seduta n. 57 del 7/11/2001, Allegato A (Sezione I — Risoluzioni), comunicazioni del Governo sull'impiego di contingenti militari italiani all'estero in relazione alla crisi internazionale in atto, p. 7.

324. Associate Professor of European Union Law at Perugia University, Faculty of Political Sciences.

325. Operation Enduring Freedom is the military response to the 11 September 2001 terrorist attacks on the United States. The objectives of the Operation, which commenced on 7 October 2001, included the destruction of terrorist training camps and infrastructure in Afghanistan, the capture of Al-Qaeda leaders and the cessation of their terrorist activities. The Italian participation in the Operation was approved by the Parliament on 7 November 2001, after a debate at the Chamber of Deputies and at the Senate. The Security Council, in Resolution No. 1368 (2001) of 12 September 2001, affirmed that the terrorist attacks were a ‘threat to international peace and security’ and called on ‘all States to work together urgently to bring to justice the perpetrators, organisers and sponsors of these terrorist attacks’.

326. Italy ratified the 1949 Geneva Conventions by Law No. 1739 of 27 October 1951, and the Additional Protocols of 1977 by Law No. 438 of 4 June 1982.

327. Valentina Della Fina is a researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.

328. In this regard, one must remember that Italy took part in two successive missions, ‘IBIS I’ and ‘IBIS II’, in the United Nations Operations in Somalia, UNOSOM I and UNOSOM II, established, respectively, by Security Council Resolutions 751 (1992) and 814 (1993).

329. See Tribunal of Milan, Judge for the Preliminary Hearing, Order rejecting the request of dismissal and, at the same time, requesting further investigations, 28 April 2000. Not published.

330. Rosa Dinuzzi is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome.

331. See Art. 185(1) of the current Military Penal Code of War, which punishes ‘the serviceman who unnecessarily or, in any case, unjustifiably, for motives not extraneous to war, commits acts of violence against civilian enemies, who are not involved in military operations’.

332. See Legislative Decree No. 144, 21 March 1946, which laid down the regulations on the transition from the application of wartime military penal law to peacetime military penal law. In particular, Art. 6 assigned temporary jurisdiction over military crimes to peacetime military tribunals according to the military penal code of war, as well as over crimes against the rules and conventions of war committed in wartime by members of the enemy armed forces.

333. See Court of Cassation, Criminal Section I, Judgment of 10 February 1997, ‘Conflict of jurisdiction in the Priebke case’, in La Giustizia Penale (1998), Vol. III, p. 148.

334. It is an act notified by the judge to the defendant living abroad which specifies the proceeding judge, the crime which the defendant is accused of, the date when and place where it was presumably committed and the request to declare or choose domicile in the state's territory.

335. In particular, Seifert's defence alleged, as generic mitigating circumstances, the amount of time that had passed since the event without his committing new crimes and the defendant's advanced age.

336. Rosa Dinuzzi is a consultant at the Institute for International Legal Studies, National Research Council (CNR), Rome.

337. Information and commentaries provided by Professor Hideyuki Kasutani, Professor of International Law, Setsunan University, Japan, and Professor Seigo Iwamoto, Professor of International Law, Suzuka International University, Japan.

338. See 3 YIHL (2000) p. 543.

339. The plaintiffs had argued that the Japanese government is obliged to enact a law to compensate the war victims under the provisions of the Constitution, such as the preamble, Arts. 9, 13, 14, 17, 29(1), 29(3), 40 and 92(2).

340. As to the Judgment of 30 November 1998 by the Tokyo District Court, see Hanrei Taimuzu, No. 991, pp. 262–277 and 2 YIHL (1999) pp. 389390.

341. 2 YIHL (1999) pp. 543544.

342. Ibid., p. 544.

343. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 56.

344. Ibid., p. 57.

345. Ibid.

346. Information and commentaries by Kithure Kindiki, Lecturer in Law, Moi University, Kenya.

347. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 59.

348. Ibid.

349. Ibid., p. 60.

350. Ibid.

351. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 61.

352. Information and commentaries by Gediminas Mesonis, Associate Professor in Constitutional Law, Law University of Lithuania, Vilnius, Head of the Center for the Development of the Rule of the Law, and Rytis Satkauskas, First Secretary, Legal and International Treaties Department, Ministry of Foreign Affairs of the Republic of Lithuania.

353. For details about Baltic claims for the compensation of damages caused by Soviet occupation see Satkauskas, R., ‘A claim for the occupant or an issue to negotiate?’, 14 Finnish Yearbook of International Law (2003) forthcoming.

354. See Lithuanian lawmakers include revoking of Soviet Compensation bill into spring agenda’, BNS report of 20 03 2002.

355. See Deputy foreign minister says Lithuania to expand bilateral ties’, BNS report of 18 01 2001.

356. Transcript of Russian Foreign Minister Igor Ivanov Press Conference on Outcomes of Meeting with Lithuanian President Valdas Adamkus (Vilnius, 7 March 2002)’, Daily News Bulletin of Ministry of Foreign Affairs of the Russian Federation Information and Press Department, 12 03 2002. Text at the Internet site of the Russian Foreign Ministry at http://www.mid.ru.

357. Interview to Russian News Agency RIA Novosti in Relation to the Upcoming Visit of Russian Minister of Foreign Affairs Igor Ivanov to Lithuania’, Daily News Bulletin of Ministry of Foreign Affairs of the Russian Federation Information and Press Department, 6 03 2002. Text at the Internet site of the Russian Foreign Ministry at http://www.mid.ru.

358. However, this is not the first incrimination of war crimes under Lithuanian law. Criminal acts infringing humanitarian law were regulated in the old Criminal Code since 9 June 1998 (the relevant amendments came into force on 9 June 1998 by Law No. VIII–776. Published in Śin, Nr. 57 1580, 1998). In fact, most of these criminal activities were transferred to the Criminal Code with regard to international documents ratified by Lithuania. The crimes are incorporated into the national legal system of Lithuania with regard to international conventions and agreements and responsibility and definitions of crimes provided therein.

359. The crime of genocide had earlier been incorporated into the old Criminal Code by means of an amendment adopted on 21 April 1998.

360. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 62.

361. Source: ‘Genocide and international crimes in domestic courts’. A survey by Prevent Genocide International. Available at its website at http://www.preventgenocide.org/punish/domestic/.

362. Source: Ministry of Foreign Affairs Republic of Lithuania, Fact Sheets, August 2002. Online at http://www.Itembassyus.org/press/fact-sheets/August.html.

363. Dapkus, L., ‘Nazi Suspect Said Too Ill for Jail’, AP, 14 02 2001.

364. Source: ‘February 2001 News Monitor’. Prevent Genocide International. http://www.preventgenocide.org/prevent/news-monitor/2001feb.htm.

365. ‘Lithuania Asks UK to Extradite War Crimes Suspect’, Union of Council for Jews in the Former Soviet Union, 28 03 2001; ‘Wiesenthal Center Welcomes Lithuanian Extradition Request For Gecas; Urges Additional Prosecutions’, Press Information, Simon Wiesenthal Center, 27 03 2001.

366. ‘War crimes extradition begins’, The Telegraph, 28 07 2001. Online at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/07/28/nbu128.xml.

367. ‘War crime suspect ‘unfit’ to face extradition’, Basis, Archives breaking news, 4 09 2001. Online at http://archives.tcm.ie/breakingnews/2001/09/04/story22576.asp.

368. ‘Lithuania Orders Arrest of UK Genocide Suspect’, Union of Council for Jews in the Former Soviet Union, 20 02 2001.

369. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 63.

370. Ibid.

371. Ibid., p. 64.

373. Ibid.

374. Ibid.

375. Ibid.

376. Ibid.

377. Ibid.

378. Supra n. 11 at p. 440.

379. Ibid.

380. Information and commentaries by José A. Guevara, Researcher at the Human Rights Programme of the Iberoamericana University and Lecturer in International Human Rights Law at the Law Faculty of Iberoamericana University.

381. See the web page of the EZLN: http://www.ezln.org.

382. Iniciativa de Reforma Constitucional en materia indígena. Presidencia de la República. Documento: 05/12/2000 (001205). http://www.presidencia.gob.mx.

384. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 67.

385. Comisión Nacional de Derechos Humanos.

387. Informe especial sobre las quejas en materia de desapariciones forzadas ocurridas en la década de los 70 y principios de los 80. http://www.cndh.org.mx/.

388. Acuerdo por el que se Disponen Diversas Medidas para la Procuración de Justicia por Delitos Cometidos contra Personas Vinculadas con Movimientos Sociales y Polítícos del Pasado. Presidencia de la República. Documento 27/11/2001. http://www.presidencia.gob.mx/.

389. Juez Sexto de Distrito de Procesos Penales Federales en el Distrito Federal.

390. Watson, J., ‘Mexico to extradite former soldier’, AP, 3 02 2001; Trejo, A., ‘Mexico judge rules on extradition’, AP, 12 01 2001.

391. Tratado de Extradición y Asistencia Mutua en Materia Penal, de 21 de noviembre de 1978.

392. Protocolo por el que se Modifica el Tratado de Extradición y Asistencia Mutua en Materia Penal entre los Estados Unidos Mexicanos y el Reino de España.

393. Ley de Extradición Internacional. Published in the Official Gazette on 29 December 1975. http://www.cddhcu.gob.mx/leyinfo/pdf/36.pdf.

394. Secretaría de Relaciones Exteriores.

395. ‘Acuerdo que concede la extradición del reclamado RICARDO MIGUEL CAVALLO, conocido como MIGUEL ANGEL CAVALLO, solicitada por el Gobierno de España, por conducto de su Embajada en México para que sea procesado por los delitos de genocidio, terrorismo y tortura.’ File number VII/230/1324/2000 of the General Direction of Legal Affairs of the Ministry of Foreign Affairs.

396. Amparo is a legal procedure which seeks the protection of constitutional rights from the appropriate authority (judicial, executive, legislative) before the federal tribunals.

397. Judge Garcia Orozco, Amparo Tribunal 1st B.

398. Mexican NGOs: Acción de Cristianos para la Abolición de la Tortura, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Genocidio Nunca Mas and José A. Guevara. Argentinan NGOs: Centro de Estudios Legales y Sociales and Liga Argentina por los Derechos del Hombre.

400. Joint press conference of Jorge Castañeda, Head of the Ministry of Foreign Affairs and Santiago Creel, Head of the Ministry of the Interior, by means of which they communicated the proposal submitted by the Executive to reform Art. 21 of the Constitution, 6 December 2001. http://www.sre.gob.mx. See also the speech of President Vicente Fox at the Eleventh National Conference on Administration of Justice on 12 December 2001. Discurso: 07/12/2002. http://www.presidencia.gob.mx.

401. According to which punishments can exclusively be established by the judiciary, and the investigation and prosecution of crimes can only be performed by the Ministerio Publico — Attorney General — which can be assisted by the police under its command. The Article also establishes the public security responsibilities of the federation, the states and the municipalities.

402. Based on the Constitution, the Mexican Congress celebrates two ordinary periods of meetings, one from 1 September to 15 December and the other from February till the beginning of May.

403. Art. 135 of the Constitution.

405. Replacing the 1961 Penal Code.

406. Supra n. 11 at p. 440.

407. Ibid.

408. Ibid.

409. Ibid.

410. Ibid.

411. Ibid.

412. Ibid.

413. Ibid., p. 69.

414. Information and commentaries by Professor emeritus Nico Keijzer, Professor of Criminal Law, University of Tilburg; Advocate-General at the Supreme Court of the Netherlands and Elies van Sliedregt, researcher at T.M.C. Asser Institute and Tilburg University.

415. Support was found in the Headquarters Agreement and the Act implementing it, Art. 9(2) of the ICTY Statute and Art. 103 of the UN Charter.

416. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

417. Art. 41: ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and or rail, sea, air, postal telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’

418. Prosecutor v. Slobodan Milošević, Decision on Preliminary Motions, 8 November 2001.

419. Hoge Raad der Nederlanden 10 November 1989, Nederlandse Jurisprudentie 1001, p. 248 (with annotation by P. H. Kooijmans). See also XII NYIL (1991) p. 453.

420. A similar right has not been given to a requested person by the International Criminal Court Implementation Act (2002).

421. Kamerstukken I (Printed matter, Senate) 1997–1998, 24818, nr. 68b.

422. Information and commentaries by Treasa Dunworth, Lecturer in Law, Faculty of Law, University of Auckland.

423. Optional Protocol, Art. 1. See Happold, M., ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict’, 3 YIHL (2000) pp. 226244.

424. S. 37(1) Defence Act 1990.

425. S. 37(2) Defence Act 1990.

426. Report of the Foreign Affairs, Defence and Trade Committee on the United Nations Convention on the Rights of the Child Optional Protocol on the Involvement of Children in Armed Conflict, 18 October 2001.

427. S. 37 Defence Act, as amended by Defence Amendment Act 2001. The original provision referred to ‘active service outside New Zealand’ whereas the amended section simply refers to ‘active service’.

428. S. 33, Defence Act 1990, as amended by Defence Amendment Act 2001.

429. Information supplied by Colonel K. J. Riordan, Director of Legal Services, HQ NZ Defence Force, Wellington, New Zealand.

430. The purpose of the Bill was to extend the existing New Zealand Nuclear Free Zone up to 200 nautical miles and prohibit the passage within that area of nuclear-propelled ships or ships carrying radioactive waste or reprocessed nuclear fuel. See 3 YIHL (2000) pp. 555556.

431. 24 TCL, pp. 33, 14.

433. Adopted by the General Assembly of the United Nations in resolution 54/109 of 9 December 1999.

434. Information and commentaries provided by Dr Mustafa Mari, Lecturer at the School of Graduate Studies at the Bir Zeit University, Bir Zeit, Palestine, formerly, Head of the Legal Department of the Palestinian Independent Commission for Citizens' Rights (PICCR), Head of the Legal Department of al-Haq, West Bank affiliate of the Geneva-based International Commission of Jurists.

435. For details and listing of previous Israeli-Palestinian agreements, see Vols. 1 and 3 YHIL at p. 467 and p. 532, respectively. See also http://www.pna.net, http://www.mofa.gov.il.

436. Statement by Mary Robinson, United Nations High Commissioner for Human Rights to the Conference of High Contracting Parties of the Fourth Geneva Convention, Geneva, 5 December 2001. http://www.unhchr.ch/huricane/huricane.nsf/view01/2775EBBA0EF8B4AFC1256B1900312F6C?opendocument.

437. On this generally see Amnesty International's Report 2002, section on Israel and the Occupied Territories, available online at http://www.amnesty.org; Human Rights Watch World Report 2002, section on Israel, the Occupied West Bank and Gaza Strip, and Palestinian Authority Territories, pp. 440–452, available online at http://www.hrw.org; Palestinian Independent Commission for Citizens' Rights, Israeli Violations of Palestinian Citizen's Rights During 2001 (2002) (Arabic), available online at http://www.piccr.org; ‘International humanitarian law is being flouted, says Poul Nielson’, European Commission — Humanitarian Aid Office (ECHO), 16 April 2002, available online at http://wwww.reliefweb.int/w/Rwb.nsf/s/A7649925D0A8C8EBC1256B9D0040AEBE.

See also http://www.lawsociety.org, http://www.alhaq.org, http://www.piccr.org, and http://www.btselem.org.

438. On this see Amnesty International Report 2002, section on Palestinian Authority, Amnesty International, 2002, available online at http://www.amnesty.org.

439. Ibid. See also Human Rights Watch World Report 2002.

440. Amnesty International Report 2002.

441. See ‘In a Dark Hour: The Use of Civilians During IDF Arrest Operations’, Human Rights Watch, 04 2002.

442. Amnesty International Report 2002. See also Human Rights Watch World Report 2002.

443. See ‘International Committee of the Red Cross condemns Israel's inhumane measures against the Palestinian people, Palestine Media Center, 8 11 2001.

444. See ‘IDF lawyers step in with ‘conditions’ for assassination policy’, Haaretz, 4 02 2002. On the legal debate pertaining to Israeli assassinations see ‘Easier to kill, harder to judge’, Haaretz, 31 01 2002.

445. See for example ‘Easier to kill, harder to judge’, Haaretz, 31 01 2002. See also Muhammad Barakeh, MP v. Prime Minister and Minister of Defense, HCJ case number 5872/01, 29 January 2002.

446. According to B'Tselem, Israeli authorities currently hold 1,007 Palestinians under administrative detention, the largest number at any given date since 1991. See ‘For the first time since 1991 — over 1000 administrative detainees’, press statement by B'Tselem, 1 January 2003. Available online at http://www.btselem.org/English/Press_Releases/2003/030102.asp. See also Human Rights Watch World Report 2002, pp. 443–44. For administrative detention updates, check http://btselem.org/English/Administrative_Detention/Statistics.asp.

447. Human Rights Watch World Report 2002, p. 443.

448. Ibid. See also UN: Israel torture ban has loopholes’, AP, 23 11 2001.

449. Human Rights Watch World Report 2002, p. 444.

450. See, for example, Israel and the autonomous/occupied territories: House destruction in Khan Younis. ICRC assists 62 families’, ICRC News 02/01, 11 01 2002. See also ‘Israel's policy of house demolitions and destruction of agricultural land in the Gaza Strip, Jerusalem, B'Tselem, 2002.

451. Human Rights Watch World Report 2002, p. 443.

452. For details on this see, for example, ‘Multiple violations of International Humanitarian law by the Israeli Defense Forces in the Palestinian Occupied Territories and measures taken against international humanitarian workers’, Médecins du Monde, 12 04 2002. Available online at http://wwww.reliefweb.int/w/Rwb.nsf/s/D8EEDA7EEB8F2EEDC1256B9C002E544E.

453. Full text of the declaration available online at http://wwww.reliefweb.int/w/Rwb.nsf/s/E7FC889EFA54AB1EC1256B190048CDE6.

454. The Conference was boycotted by the US, Israel and Australia. See ‘Geneva parley delegates blast Israel’, Jerusalem Post, 6 12 2001.

455. PCHR and LAW condemn High Contracting Parties farce, 22 November 2001. Available online at http://www.lawsociety.org. See also Declaration of the NGO parallel meeting concerning the Fourth Geneva Convention, 4–5 December 2001, Geneva. Available online at http://wwww.reliefweb.int/w/Rwb.nsf/s/34D82A8C0B950F5B85256BIA005A76ED.

456. Copy of the approved amendment, in Hebrew, is available online at http://www.knesset.gov.il/provatelaw/data/2645_3_1.rtf. Translation of an earlier draft is available online at http://www.btselem.org.

457. See the press statement four leading Israeli human rights organizations issued following the adoption of this law entitled ‘Human rights organizations call law a black stain on Israel's Statutes’, 24 July 2002. Available online at http://www.btselem.org/english/specia1/020724_compensation.asp. See also Mari, M. and Pujara, M., ‘In Light of the Israeli Draft Law on Denying Compensation to Palestinians: Accountability of the Israeli Occupier for Violations of Palestinian Rights’, Ramallah, Al-Haq 1998.

458. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 76.

460. Ibid.

461. Ibid., p. 77.

462. The Committee's mandate is to spread knowledge of the rules contained in the 1949 Geneva Conventions and their Additional Protocols and to promote their implementation through the adoption of legislative and other administrative measures.’ Ibid.

463. Ibid.

465. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 78.

466. Ibid.

467. Ibid.

468. Ibid., p. 79.

469. Ibid.

470. ‘The Implications for Council of Europe Member States of the Ratification of the Rome Statute of the International Criminal Court’, Progress Report by Poland and Appendix, Council of Europe, Strasbourg, 7 August 2001, Consult/ICC (2001) p. 22.

471. Pasek, B., ‘Geborski accused of atrocities’, AP, 26 01 2001.

472. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 81.

473. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 83.

474. ‘Genocide and international crimes in domestic courts’. A survey undertaken by Prevent Genocide International. Available at its website: http://www.preventgenocide.org/punish/domestic.

475. Rwanda Court Sentences 8 To Death’, AP, 2 04 2000; Rwanda genocide death sentences’, BBC News, 1 04 2000. Online at http://news.bbc.co.uk/2/hi/africa/698249.stm.

476. Source: ‘News Monitor for February 2001’. Prevent Genocide International. http://www.preventgenocide.org/prevent/news-monitor/2001feb.htm.

477. Source: ‘Genocide and international crimes in domestic courts’. A survey undertaken by Prevent Genocide International. Available at its website: http://www.preventgenocide.org/punish/domestic. See also Nine sentenced to die at Rwanda genocide trial’, CNN News Online, 16 06 2001.

478. ‘Nine sentenced to death over Rwandan genocide’, The Namibian, 18 06 2001.

479. Kayigamba, J. Baptiste, ‘Rwanda elects 260,000 judges for genocide trials’, Reuters, 4 10 2001; Ngowi, R., ‘Rwandans use traditional justice’, AP, 6 10 2001.

480. Organic Law No. 40/2000 of 26/01/2001 Setting Up “Gacacca Jurisdictions” and Organizing Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed between October 1, 1990 and December 31, 1994, 26 January 2001. Reprinted in 3 YIHL (2001) pp. 739 et seq. For commentary see J. K. Kleffner, Correspondents' Reports, in the same volume at pp. 569–570.

481. Source: ‘Genocide and international crimes in domestic courts’. A survey undertaken by Prevent Genocide International. Available at its website: http://www.preventgenocide.org/punish/domestic. See also Kimani, M., ‘Community frees four Genocide suspects during pilot Gacaca Justice Process’, Internews, 20 05 2001.

483. For background to the case, see Sansani, I., ‘The Pinochet precedent in Africa: Prosecution of Hissene Habre’, 8 Human Rights Brief, Issue 2. Online at http://www.wcl.american.edu/hrbrief/08/2Pinochet.cfm; Brody, R., ‘The prosecution of Hissene Habre — An “African Pinochet”’, 35 New England Law Review (2001). Online at http://www.hrw.org/editorials/2001/habre0515.htm.

484. See 3 YIHL (2000) p. 570, and Brody, ibid.

485. Translation by Brody, ibid.

486. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 84.

487. Information and commentaries by Avril McDonald, Managing Editor of the Yearbook, and Abdul Tejan Cole, Lecturer in Law at the University of Sierra Leone.

488. See Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000 and the annexed Agreement and Statute. For commentary, see Cole, A. Tejan, Correspondents' Reports, 3 YIHL (2000) pp. 574 to 576. See also McDonald, A., ‘Sierra Leone's Shoestring Special Court’, 84 IRRC (03 2002) p. 121; Frulli, M., ‘The Special Court for Sierra Leone: Some Preliminary Comments’, 11 EJIL (2000) p. 859; Cryer, R., ‘A Special Court for Sierra Leone’, 50 ICLQ (2001) p. 443.

489. The Secretary-General's original estimates for the establishment and first year operation of the Court and for the following 24 months were $30.2 and $84.4 million, respectively, a total of $114.6 million. Letter dated 12 July 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/693/13 July 2001.

490. Ibid.

491. Information provided by Jan Hladik, Programme Specialist, International Standards Section, Division of Cultural Heritage, UNESCO.

492. Information provided by Phenyo Keiseng Rakate, Senior Researcher, South African Human Rights Commission, Johannesburg, South Africa.

493. S. 3(a)&(b) of the Bill.

494. The Criminal Procedure Act 51 of 1977 (18) (g)(as amended).

495. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 90.

496. Information and commentaries by Antoni Pigrau, Professor of International Law, Rovira i Virgili University, Tarragona.

497. ICTY Doc. IT/32/REV.24, 5 August 2002.

498. Published in BOE, issue 131, 2 June 1994.

499. See the Comment to the Spanish State Council Consultative Opinion on the Rome Statute of the International Criminal Court of 22 July 1999 (No. 1374/99), in 3 YIHL (2000) pp. 581586.

500. Information and commentaries by Ola Engdahl, Doctoral Candidate in International Law at the Stockholm University and the Swedish National Defence College.

501. Convention on the Prohibition or Restriction on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980) 19 ILM (1980) p. 1523.

502. A/RES/56/28.

503. Convention drawn up on the basis of Article K.3 of the Treaty on European Union, relating to extradition between the Member States of the European Union, Official Journal C 313, 23/10/1996. Not yet in force.

504. A/RES/52/164. In force 23 May 2001.

505. Government Bill 2000/01:122.

506. Committee terms of references (2000:76).

507. Government Bill 2001/02:60.

508. Reprinted in the documents section of this volume at p. 732.

510. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 92.

511. Prosecutors had initially tried to charge him with the crime of genocide but the judge refused to entertain this charge because at the time the crime of genocide had not been incorporate into Swiss law.

512. Source: ‘Genocide and international crimes in domestic courts’. A survey by Prevent Genocide International. Available at its website at http://www.preventgenocide.org/punish/domestic/.

513. For commentary on the case, see Reydams, L., ‘Niyonteze v. Public Prosecutor’, 96 AJIL (2002) p. 231.

514. ‘14-year sentence confirmed for former Rwandan mayor’, Hirondelle, 27 April 2001.

515. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 93.

516. ICRC Advisory Service, supra n. 11, at p. 440.

517. Ibid., p. 96.

518. Information and commentaries by Emmanuel Kasimbazi, Lecturer, Faculty of Law, Makerere University, Uganda.

519. S. 2 of the Amnesty Act 2000.

520. 26 January 1986 is when the National Resistance Movement (NRM) took power in Uganda.

521. S. 3(1).

522. S. 4.

523. Ibid.

524. Ibid.

525. S. 7.

526. S. 8.

527. S. 9.

528. Ibid.

529. S. 17.

530. ICRC Advisory Service, supra n. 11, at p. 440.

531. Ibid.

532. Council of Europe, Parliamentary Assembly, Resolution 1262 (2001).

533. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 97.

534. Las Vegas Sun, 21 May 2000. Available online at http://www.againstdp.org/ukraine.html.

535. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 97.

536. Council of Europe, Parliamentary Assembly, Resolution 1262 (2001). http://www.hri.ca/fortherecord2001/euro2001/documentation/parassembly/pa12622001.htm.

537. Information and commentaries provided by A.P.V. Rogers, Fellow of the Lauterpacht Research Centre for International Law, University of Cambridge. Thanks to Ms Helen Upton and Mr Gavin Watson, Assistant Legal Advisers, Foreign and Commonwealth Office, London.

538. For the text of the declaration, see 1 YIHL (1998) p. 640.

539. See 3 YIHL (2000) p. 597, n. 396. For completeness it should be noted that the UK also made a declaration on ratification of the Convention of 1980 that: ‘The terms “civilian” and “ civilian population” have the same meaning as in Article 50 of the lst Additional Protocol of 1977 to the 1949 Geneva Conventions. Civilians shall enjoy the protection afforded by this Convention unless and for such time as they take a direct part in hostilities.’ In relation to Protocol III, Art. 2, the UK declared that: ‘The United Kingdom accepts the provisions of Article 2(2) and (3) on the understanding that the terms of those paragraphs of that Article do not imply that air-delivery of incendiary weapons, or of any other weapons, projectiles or munitions, is less accurate or less capable of being carried out discriminately than all or any other means of delivery.’

540. For the text of the declaration, see 3 YIHL (2000) p. 597.

541. For the text of the declaration, see ibid.

542. For the text of the declaration, see 1 YIHL (1998) p. 516.

543. Art. 8(2)(b) and (e) lists offences, other than grave breaches, that amount to war crimes being other serious violations of the laws and customs of war ‘within the established framework of international law’.

544. House of Lords-House of Commons Joint Committee on Human Rights, ‘Continuance in force of sections 21 to 23 of the Anti-Terrorism, Crime and Security Act 2001’, Fifth Report of Session 2002–2003. HL Paper 59, HC 462, para. 1.

545. Anti-terror bill clears first hurdle. Blunkett: “Proposals could have been more Draconian”’, BBC News UK Online, 19 11 2001; Young, H., ‘The terror threat is being used to attack civil rights here and in the US’, The Guardian, 11 12 2001.

546. Explanatory notes to the Act.

547. Reprinted in this volume at p. 723.

548. Information and commentaries by Burrus M. Carnahan, Professarial Lecturer in Law, the George Washingon University, Washington D.C.

549. Reprinted in this volume at p. 650.

550. See Specht, W., ‘New law closes civilians' legal loophole on crimes committed abroad’, Stars and Stripes, 25 06 2001. For the House Committee debates on the law see http://commdocs.house.gov/committees/judiciary/hju64399.000/hju64399_0.HTM. For an analysis of the law see Perlak, J.R., ‘The Military Extraterritorial Jurisdiction Act of 2000: Implications for contractor personnel’, 169 Military Law Review (2001) p. 92.

551. Reprinted in this volume at p. 654.

552. 4 Wall. 2 (1866).

553. 317 U.S. 1 (1942).

554. See Hirota v. MacArthur, 338 U.S. 197 (1948); In re Yamashita, 327 U.S. 1 (1947).

555. Nuclear Posture Review Report, Forward.

556. Ibid., p. 7.

557. Ibid., pp. 12–13.

558. Ibid., pp. 46 et seq.

559. Congress may act on “blood diamonds” next week’, Reuters, 8 11 2001.

560. Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).

561. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass 1995).

562. Forti v. Suarez-Mason, No. 87–2058–DLJ (N.D.Cal. Apr. 25, 1990).

563. The imposition of Indonesian law upon occupied East Timor was probably in violation of Article 64 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War which prohibits the replacement of local law with the law of the Occupying Power unless such law constitutes a threat to its security or to implementation of the convention. However, the reality is that for 24 years, Indonesian law applied and was enforced in occupied East Timor. It continues to apply in East Timor through UNTAET Regulation 1999/1, which preserves the applicable laws of East Timor (Indonesian law) unless amended by later UNTAET regulations and to the extent consistent with international standards. This is evidenced, for example, by the continued use of the Indonesian Penal Code in East Timor. Portuguese law has not been applied in East Timor under UN administration, and was not applied during the 24-years of Indonesian occupation.

564. ‘Johny denies responsibility over mayhem in East Timor’, The Jakarta Post, 6 10 2001.

565. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 99.

566. Ibid.

567. ICRC Advisory Service, National Implementation of International Humanitarian Law: Biennial report 2000–2001 (Geneva, ICRC 2002) p. 100.

568. Ibid., p. 104.

1 Correspondents' Reports is compiled and edited by Avril McDonald, Managing Editor of the YIHL, primarily from information provided to the YIHL by its correspondents but also drawing on other sources. The assistance of Maria Nybondas, Anna Danieli and Jann Kleffner is very gratefully acknowledged. The section does not purport to be a fully inclusive compilation of all international humanitarian law-related developments in every state, reporting in this volume mainly developments since the beginning of 2000 until the end of 2001 that have come to the Yearbook's attention. Developments from early-2002 that are part of a sequence of events starting in 2001 or earlier are noted in brief. Readers are thus advised to consult this section in conjunction with Correspondents' Reports in volume 3. Some pre-2000 humanitarian law-related developments came to our attention after volume 3 went to press and could not be noted there. For the sake of completeness we have included them here. Reference is also included to a number of legal developments which are not strictly-speaking related to IHL but which are nonetheless interesting and relevant for our readers, in particular, relating to justice issues, jurisdictional questions, jus ad bellum, state security, human rights, refugee law and terrorism. Presentation of subject matter roughly follows the sequence in the Classification of Documents at pp. 645–648, with the exception that all cases are grouped together at the end of each report, followed by news of pending developments. Where citations or dates have not been provided, they were not available or obtainable. Where not otherwise specified, comments are prepared by Avril McDonald, Maria Nybondas and Anna Danieli, mainly based on reports of NGOs and IGOs and news media, inter alia. The YIHL is actively seeking correspondents, particularly in Africa, Asia and Latin America. Interested persons and anyone who is willing to contribute information should contact the Managing Editor at A.McDonald@asser.nl.

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