Published online by Cambridge University Press: 17 February 2009
1. Correspondents' Reports is compiled and edited by Avril McDonald and Maria Nybondas, primarily from information provided to the YIHL by its correspondents but also drawing on other sources. Dr Avril Mc Donald is Head of the Section of International Humanitarian Law and International Criminal Law, TMC Asser Institute for International Law and Managing Editor of the Yearbook of International Humanitarian Law. Maria Nybondas is Assistant Managing Editor of the Yearbook of International Humanitarian Law, a researcher at the TMC Asser Institute for International Law and a Ph.D. candidate in international law at the University of Utrecht.
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 2002 until the end of 2002 that have come to the Yearbook's attention. Developments from early 2003 that are part of a sequence of events starting in 2002 or earlier are noted in brief. Legal developments in early 2002 that were noted in volume 4 of the YIHL are not repeated here. Readers are thus advised to consult this section in conjunction with Correspondents' Reports in volume 4. We apologise for this inconvenience. Further, some 2001 humanitarian law-related developments came to our attention after volume 4 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. 649, with the exception that all cases are grouped together at the end of each report, followed by news of pending developments. Where citations, dates or other details have not been provided, they were not available or obtainable. Where not otherwise specified, comments are prepared by Avril McDonald and Maria Nybondas, mainly based on reports of NGOs and IGOs and news media, inter alia. The YIHL is actively seeking new 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.
2. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, July-December 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LVLHV/$File/irrc_849_National_Implem.pdf>.
3. For an extended analysis of the Luena Memorandum and the Angolan peace process generally, see further the article by J. Doria in this volume at pp. 25 et seq.
4. The British claim and the Argentine response are reprinted in this volume at pp. 602 et seq.
5. The text is reproduced in the Documentation section of this volume at pp. 602 et seq.
8. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
9. Information and commentaries by Tim McCormack, Australian Red Cross Professor of International Humanitarian Law, University of Melbourne and Foundation Director of the Asia-Pacific Centre for Military Law, member of the Board of Editors, Yearbook of International Humanitarian Law.
12. See the Joint Statement at <http://www.aph.gov.au/house/committee/jsct/icc/report/appendixa.pdf>.
14. See media release by the Foreign Minister at <http://www.foreignminister.gov.au/releases/2002/fa095a_02.html>.
15. See Appendix A to the JSCOT Report at <http://www.aph.gov.au/house/committee/jsct/icc/report/appendixa.pdf>.
16. See 4 YIHL (2001) at pp. 443–447Google Scholar. For a more detailed discussion of the legislation see McCormack, T.L.H., ‘Australia's Legislation for the Implementation of the Rome Statute’, in Neuner, M., ed., National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries (Berlin, Berliner Wissenschafts-Verlag 2003) pp. 65–82Google Scholar.
17. See Recommendation 9 of the JSCOT Report on p. 105 at <http://www.aph.gov.au/house/committee/jsct/icc/report/fullreport.pdf.
18. Information and commentaries by Dr Thomas Desch, Federal Ministry of Defence, Vienna, and Mag. Peter Kustor, Federal Chancellery, Vienna.
22. For Austrian Statements in the framework of the UN in general, see <http://www.un.int/austria/Statements/>.
25. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
26. Information and commentaries by Eric David, Professeur ordinaire, Brussels Free University.
30. E.g., Sassòli, M., ‘L'arrêt Yerodia: quelques remarques sur une affaire au point de collision entre les deux couches du droit international’, 106 RGDIP (2002) pp. 791–818Google Scholar; Henzelin, M., ‘La compétence universelle: une question non résolue par l'arrêt Yerodia’, 106 RGDIP (2002) pp. 819–854Google Scholar; Cassese, A., ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL (2002) pp. 853–876CrossRefGoogle Scholar; Wirth, S., ‘Immunity for Core Crimes? The ICJ's Judgement in the Congo v. Belgium Case’, 13 EJIL (2002) pp. 877–894CrossRefGoogle Scholar; Spinedi, M., ‘State Responsibility v. Individual Responsibility for International Crimes: Tertium non Datur?’, 13 EJIL (2002) pp. 895–900CrossRefGoogle Scholar; Salmon, J., ‘Libres propos sur l'arrêt de la CIJ du 14 février 2002 dans l'affaire relative au mandat d'arrêt du 11 avril 2000’, 35 RBDI (2002) pp. 512–517Google Scholar; Kamto, M., ‘Une troublante “immunite totale” du ministre des Affaires étrangères (sur un aspect de l'arrêt du 14 fevrier 2002 dans l'affaire relative au mandat d'arrêt du 11 avril 2000)’, 35 RBDI (2002) pp. 518–530Google Scholar; Verhoeven, J., ‘Quelques réflexions sur l'affaire relative au mandat d'arret du 11 avril 2000’, 35 RBDI (2002) pp. 531–536Google Scholar; Sands, P., ‘What is the ICJ for?’, 35 RBDI (2002) pp. 537–545Google Scholar; Cot, J.-P., ‘Eloge de l'indécision de la Cour et la compétence universelle’, 35 RBDI (2002) pp. 546–553Google Scholar; Shaw, M.N., ‘The Yerodia case: Remedies and judicial functions’, 35 RBDI (2002) pp. 554–559Google Scholar; J.-P. Queneudec, ‘Un arrêt de principe: L'arrêt de la C.I.J. du 14 février 2002’, <http://www.ridi.org/adi/articles/2002/>.
31. Reprinted in 2 YIHL (1999) pp. 120 et seq. Smet, L. De and Naert, F., ‘Making or breaking international law? An international law analysis of Belgium's act concerning the punishment of grave breaches of international humanitarian law’, 35 RBDI (2002) pp. 471–511Google Scholar.
32. Correspondent's translation. Original text: ‘Les juridictions beiges sont compétentes pour connaitre des infractions prévues dans la présente loi, indépendamment du lieu où celles-ci ont été commises.’
34. Commentaire J. Kirkpatrick, 21 March 2003, pp. 16–23; JT (2003), obs. P. d'Argent, pp. 243 et seqGoogle Scholar.
37. Original text: ‘L'art. 7, al. ler, de la loi du 16 juin 1993 […] doit être interprété comme s'appli-quant sans considération du lieu où l'auteur présumé du crime peut être trouvé’. Doc. parl., Sénat, 2001–2002, 2–1255/1. <http://www.senate.be/www/webdriver?MIval=index_senate&M=3&LANG=fr>. Correspondent's translation.
38. See the debate in the Belgian newspapers against the interpretative law; against the interpretative law: Haarscher, G., Mertens, P. and Ringelheim, F., ‘La compétence universelle et l'esprit des lois’, Le Soir (6 09 2002)Google Scholar; in favour of the interpretative law: David, E., Parmentier, S. and Wouters, J., Le Soir (14 and 15 11 2002)Google Scholar.
39. Moniteur belge (1 September 2001) 1st edn.
40. Doc. parl., Sénat, 2001–2002, 2–1255–4 and 5; Ann. Parl., Sénat, 2002–2003, 30 01 2003, 2–265Google Scholar.
41. Doc. parl., Senat, 2001–2002, 2–1256/1, 18 July 2002. <http://www.senate.be/www/webdriver?MIval=index_senate&M=3&LANG=fr>.
42. Current Art. 5(3) reads as follows: ‘The immunity linked to the official capacity of a person does not prevent the application of the present act’ (correspondent's translation, French text: ‘L'immunité attachée à la qualité officielle d'une personne n'empêche pas l'application de la présente loi’).
43. Draft Art. 5(3) reads as follows: ‘The international immunity linked to the official capacity of a person prevents the application of the present act only in the limits established by international law’ (correspondent's translation, French text: ‘L'immunité internationale attachée à la qualité officielle d'une personne n'empêche l'application de la présente loi que dans les limites établies par le droit international’).
44. See Rome Statute, Art. 27(2), and Yerodia Judgement, ICJ Rep. (2002) para. 61.
46. Doc. parl., Sénat, 2001–2002, 2–1256/3, 6 January 2003; <http://www.senate.be/www/webdriver?MIval=index_senate&M=3&LANG=fr>.
47. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
48. Source: CICC/The Americas: Bolivia, <http://www.iccnow.org/countryinfo/theamericas/bolivia.html>.
49. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
50. ‘New Srebrenica report condemned’, Southeast Europe Times (2 September 2002.) <http://www.balkantimes.com/html_text_only2/english/020904-SVETLA-001.htm>.
52. Source: CICC/Europe/CIS:Bosnia and Herzegovina. <http://www.iccnow.org/countryinfo/europecis/bosniaherzegovina.html>.
53. The Law on Court of Bosnia and Herzegovina of 12 November 2000 was published in the Official Gazette of Bosnia and Herzegovina of 29/00. It was subsequently adopted by the Bosnia and Herzegovina Parliamentary Assembly and published in the Official Gazette of Bosnia and Herzegovina of 16/02. The Law provided for the establishment of a Court of Bosnia and Herzegovina, in order to ensure the effective exercise of the competencies of the State of Bosnia and Herzegovina and the respect of human rights and the rule of law in the territory of the state (Art. 1).
54. The High Representative's Decision stipulated that ‘[t]he said Law shall enter into force as a law of Bosnia and Herzegovina as provided for in Article 11 thereof on an interim basis, until such time as the Parliamentary Assembly of Bosnia and Herzegovina adopts this Law in due force, without amendment and with no conditions attached.’
55. The Law entered into force on an interim basis as provided for in Art. 21 until such time as the Parliamentary Assembly of Bosnia and Herzegovina adopts it in due force, without amendment and with no conditions attached.
56. The Law entered into force on an interim basis as provided for in Art. 40 until such time as the Parliament of the Federation of Bosnia and Herzegovina adopts it in due force, without amendment and with no conditions attached.
57. The Law entered into force on an interim basis as provided for in Art. 53 until such time as the Republika Srpska National Assembly adopts it in due force, without amendment and with no conditions attached.
58. Amnesty International, ‘Bosnia-Herzegovina’ (Covering events from January-December 2002). <http://www.amnesty.org/web/wb/nsf/print/bih-summary-eng>. For more on the Rules of the Road, domestic prosecutions in Bosnia and Herzegovina and the handover of cases from the ICTY to the Bosnian courts, see the article in this volume by J. Manuell and A. Kontić in this volume at p. 331.
59. J. Pavkovic, ‘A Mini-Hague in Sarajevo’, Vecernji List, <http://www.ohr.int/ohr-dept/presso/bh-media-rep/round-ups/default.asp?content_id=5804>.
60. Amnesty International, ‘Bosnia-Herzegovina’ (Covering events from January-December 2002). <http://www.amnesty.org/web/wb/nsf/print/bih-summary-eng>.
61. Amnesty International, ‘Bosnia-Herzegovina’ (Covering events from January-December 2002). <http://www.amnesty.org/web/wb/nsfyprint/bih-summary-eng>. See also OHR BiH Media Round-up, 10 May 2002.
62. ‘Bosnian police arrested two men, one suspected of committing war crimes’, AP, 22 06 2002Google Scholar.
64. Kratovac, K., ‘Bosnia's top human rights court rules handover of Algerians illegal’, AP, 11 10 2002Google Scholar.
65. Amnesty International, ‘Bosnia-Herzegovina’ (Covering events from January-December 2002). <http://www.amnesty.org/web/wb/nsf7print/bih-summary-eng>.
66. ‘UN human rights agency condemns Algerian terror suspect handover’, Deutsche Press-Agentur, 22 01 2002Google Scholar.
67. Onstad, E., ‘Srebrenica survivors seek Dutch, UN compensation’, Reuters, 15 11 2002Google Scholar.
69. See <http://www.un.org/Depts/dpa/prev_dip/africa/burundi/fr_burundi_background_3.htm>. See also the Statement of the Secretary-General of the United Nations, Press Release SG/SM/8539. <http://www.un.org/News/Press/docs/2002/sgsm8539.doc.htm>.
70. See Press Release from the United Nations Security Council, UN Doc. SC/7586 (4 December 2002). <http://www.un.org/News/Press/docs/2002/sc7586.doc.htm>.
71. See Arusha Peace and Reconciliation Agreement for Burundi, <http://www.usip.org/library/pa/burundi/paburund%20i_08282000.html>. See also reference to draft Peace Agreement in Correspondents' Report on Burundi in 3 YIHL (1999) at p. 436Google Scholar.
72. UPRONA — Union for National Progress Party.
73. PARENA — Party for National Recovery.
74. See Report of the Secretary-General to the Security Council on the situation in Burundi, UN Doc. S/2002/1259 (18 November 2002). <http://www.hri.ca/fortherecord2002/documentation/secur-ity/s-2002-1259.htm>.
76. See Human Rights Watch, World Report 2003, covering the period between November 2001 and November 2002. <http://www.hrw.org/wr2k3/africa2.html>.
78. Information and commentaries by David Boyle, Solicitor admitted to the Bar of the New South Wales Supreme Court, Australia; instructor at the Paris Law Clinic in international criminal law, University of Paris I; Doctorate candidate, University of Paris II.
79. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
80. For a detailed analysis of the law and the work to establish Extraordinary Chambers for Cambodia, see the article by D. Boyle in this volume at p. 167.
81. Information and commentaries by Rene Provost, Associate Professor and Associate Dean, Faculty of Law and Institute of Comparative Law, McGill University, Montreal. This report was prepared with the assistance of Ms Caroline Deschênes.
82. <http://www.dfait-maeci.gc.ca/minpub/Publication.asp?FileSpec=/Min_Pub_Docs/105746.?htm&bPrint=False&Year=&ID=&Language=E> <http://www.dfait-maeci.gc.ca/minpub/Publication. asp?FileSpec=/Min_Pub_Docs/105740.htm&bPrint=False&Year=&ID=&Language=E>; <httphttp://www.dfait-maeci.gc.ca/minpub/Publication.asp?FileSpec=/Min_Pub_Docs/105375.htm&bPrint=False&Year=&ID=&Language=E>.
83. Constitution Act, 1982 (79). Enacted as Schedule B to the Canada Act 1982 (UK) 1982, c. 11, which came into force on 17 April 1982.
85. See further the Italian Report, infra in this volume p. 555.
86. See S. Thorne, ‘Judge declares mistrial in case of Canadian who fought for Serb Army’, Canadian Press, 23 January 2003. <http://cnews.canoe.ca/CNEWS/Canada/2003/01/20/13377-cp.html>.
87. Information and commentaries by Hernán Salinas Burgos, Professor of Public International Law, Catholic University of Chile and Sebastián Lopéz Escarcena, Assistant Professor of Public International Law, Catholic University of Chile.
89. 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.
90. Colombian Penal Code, Art. 367A. ‘Empleo, producción comercialización y almacenamiento de minas antipersonal. El que emplee, produzca, comercialice, ceda y almacene, directa o indirectamente, minas antipersonal o vectores especificamente concebidos como medios de lanzamiento o dispersión de minas antipersonal, incurrirá en prisión de diez (10) a quince (15) años, en multa de quinientos (500) a mil (1.000) salarios mínimos mensuales legales vigentes, y en inhabilitación para el ejercicio de derechos y funciones públicas de cinco (5) a diez (10) años.’
91. Ibid., Art. 367B. ‘Ayuda e inducción al empleo, producción y transferencia de minas antipersonal. El que promueva, ayude, facilite, estimule o induzca a otra persona a participar en cualquiera de las actividades contempladas en el articulo 367A del Código Penal, incurrirá en prisión de seis (6) a diez (10) años y en multa de doscientos (200) a quinientos (500) salarios mínimos mensuales legales vigentes.’
92. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
94. US Public Law (PL) 107–206: 2 August 2002 (signature of President George W. Bush). For the text, analysis and chronology of this law, see the site of the Washington Working Group on the International Criminal Court <http://www.wfa.org/issues/wicc/aspafinal/aspahome.html>. Reprinted in this volume at p. 619. See also the US report infra in this volume at p. 621.
95. Art. 188, §§ 2 and 6; Arts. 241 and 379 of the Colombian Constitution.
96. Documents on the implementation process may be consulted on the website of the Coalition for the ICC. See in particular <http://www.iccnow.org/espanol/colombia/col_2vuelta.pdf>.
97. Art. 93. — ‘Los tratados y convenios internacionales ratificados por el Congreso, que reconocen los derechos humanos y que prohiben su limitación en los estados de excepción, prevalecen en el orden interno Los derechos y deberes consagrados en esta Carta, se interpretarán de conformidad con los tratados internacionales sobre derechos humanos ratificados por Colombia.
Adicionado. A.L. 02/2001, art.1º. El Estado colombiano puede reconocer la jurisdicción de la Corte Penal Internacional en los términos previstos en el Estatuto de Roma adoptado el 17 de julio de 1998 por la Conferencia de plenipotenciarios de la Naciones Unidas y, consecuentemente, ratificar este tratado de conformidad con el procedimiento establecido en esta Constitución.
La admisión de un tratamiento diferente en materias sustanciales por parte del Estatuto de Roma con respecto a las garantías contenidas en la Constitución tendrá efectos exclusivamente dentro del ámbito de la materia regulada en él.’
98. In total, Colombia included six declarations with the deposit of the ratification instrument of the ICC Statute:
1. None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the International Criminal Court prevent the Colombian State from granting amnesties, reprieves or judicial pardons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia.
Colombia declares that the provisions of the Statute must be applied and interpreted in a manner consistent with the provisions of international humanitarian law and, consequently, that nothing in the Statute affects the rights and obligations embodied in the norms of international humanitarian law, especially those set forth in article 3 common to the four Geneva Conventions and in Protocols I and II Additional thereto.
Likewise, in the event that a Colombian national has to be investigated and prosecuted by the International Criminal Court, the Rome Statute must be interpreted and applied, where appropriate, in accordance with the principles and norms of international humanitarian law and international human rights law.
2. With respect to articles 61(2)(b) and 67(l)(d), Colombia declares that it will always be in the interests of justice that Colombian nationals be fully guaranteed the right of defence, especially the right to be assisted by counsel during the phases of investigation and prosecution by the International Criminal Court.
3. Concerning article 17(3), Colombia declares that the use of the word “otherwise” with respect to the determination of the State's ability to investigate or prosecute a case refers to the obvious absence of objective conditions necessary to conduct the trial.
4. Bearing in mind that the scope of the Rome Statute is limited exclusively to the exercise of complementary jurisdiction by the International Criminal Court and to the cooperation of national authorities with it, Colombia declares that none of the provisions of the Rome Statute alters the domestic law applied by the Colombian judicial authorities in exercise of their domestic jurisdiction within the territory of the Republic of Colombia.
5. Availing itself of the option provided in article 124 of the Statute and subject to the conditions established therein, the government of Colombia declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by Colombian nationals or on Colombian territory.
6. In accordance with article 87(1)(a) and the first paragraph of article 87(2), the government of Colombia declares that requests for cooperation or assistance shall be transmitted through the diplomatic channel and shall either be in or be accompanied by a translation into the Spanish language.' <http://untreaty.un.Org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp%23DecIarations>.
99. See the database of the Presidential Program on Human Rights: <http://www.derechoshuma?nos.gov.co/observatorio>.
100. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
101. ‘Accord signed towards ending Congolese conflict’, UN Chronicle, Vol. XXXIV, Issue 3, United Nations 2002Google Scholar. Online Edition: <http://www.un.org/Pubs/chronicle/2002/issue3/081902_rwanda_congo_accord.html>.
102. DRC-RWANDA: Text of the Pretoria Memorandum of Understanding, IRINnews.org, Integrated Regional Information Networks (IRIN), 31 July 2002, <http://www.irinnews.org/report.asp?ReportID=29111&SelectRegion=Great_Lakes&SelectCountry=DRC-RWANDA> and DRC-RWANDA: Kabila, Kagame sign peace pact, IRINnews.org, Integrated Regional Information Networks (IRIN), 30 July 2002, <http://www.irinnews.org/report.asp?ReportID=29092&SelectRegion=Great?_Lakes&SelectCountry=DRC-RWANDA>.
103. Source: CICC/Africa: Congo, Democratic Republic, <http://www.iccnow.org/countryinfo/africa/congodemrep.html>.
104. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
106. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
109. ‘Former Croat military police sentenced for war crimes’, Deutsche Presse-Agentur, 25 01 2002Google Scholar.
111. <http://www.diplomatiejudiciaire.com/Abdic.htm>; ‘Bosnia: Croatian Court Convicts Warlord Abdic’, 1 August 2002. <http://www.rferl.org/features/2002/08/01082002145759.asp>.
113. ‘Croatia: Two war crimes suspects arrested in eastern town’, BBC Worldwide Monitoring, 14 09 2002Google Scholar.
115. ‘Trial opens against 8 military policemen charged with wartime killings of Serbs’, AP, 10 06 2002Google Scholar.
116. Vezić, G., ‘Lora Trial Prosecutors Seek Relocation’, Institute for War and Peace Reporting. Tribunal Report No. 272, 06 24–30, 2002Google Scholar. <http://www.iwpr.net/index.p17archive/tri/tri_272_8_eng.txt>.
118. ‘Croatia court says cannot rule on war crimes cases’, Reuters, 12 11 2002Google Scholar; ‘Constitution Watch, Volume 11/12 Number 4/1, Winter 2002/Spring 2003. <http://www.law.nyu.edu/eecr/vol11_2num4_l/constitutionwatch/croatia.html>.
122. Balkan Reconstruction Report. L. Kozole, ‘Test for the government’, 5 February 2002. <http://www.tol.cz/look/BRR/article.tpl?IdLanguage=1&IdPublication=9&NrIssue=1&NrSection=1&;NrArticle=3221> ‘Croatian war crimes trial opens’, UPI, 28 01 2002Google Scholar. <http://www.upi.com/print.cfin?StoryID=28012002-113048-3145r>.
123. ‘Croat camp detainees to ask Belgrade for 300 million euros in compensation for torture’, AFP, 7 09 2002Google Scholar.
125. Amnesty International, Death Penalty News, AI Index: ACT 53/004/2002, 1 September 2002. <http://www.amnesty.org/library/engindex>.
126. Cyprus News Agency: News in English, 26 February 2002. <http://www.hri.org/news/cyprus/cna/2002/02-02-26.cna.html%2306>.
127. Christou, J., ‘Government agrees to destroy arms cache held at airport since 1972’, Cyprus Mail, 26 01 2002Google Scholar. <http://www.cyprus-mail.com/2002/January/26/newsl.htm>. See also ‘Cyprus ready to destroy weapons under UN custody since 1972’, Cyprus News Agency: News in English, 25 01 2002Google Scholar. <http://www.hri.org/news/cyprus/cna/2002/02-01-25.cna.html#5>.
128. 18 September 1997, 2056 UNTS 211.
129. ‘Cyprus government engaged in moves to remove landmines’, Cyprus News Agency: News in English, 24 01 2002Google Scholar. <http://www.hri.org/news/cyprus/cna/2002/02-01-24.cna.html%2305>.
131. Information and commentaries provided by Jan Hladik, Programme Specialist, International Standards Section, Division of Cultural Heritage, UNESCO.
132. Source: CICC/Europe/CIS: Czech Republic, <http://www.iccnow.org/countryinfo/europecis/czechrepublic.html>.
133. Information provided by Peter Otken, LL.M., Special Assistant to the Judge Advocate General, Copenhagen.
134. As quoted in Politiken, 16 April 2002.
137. Judicial System Monitoring Programme, ‘The Right to Appeal in East Timor’, JSMP Thematic Report 2, Dili, East Timor, 10 2002, p. 3Google Scholar.
138. Human Rights Watch, ‘Justice Denied for East Timor: Indonesia's Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of U.N. Action’, New York, 20 12 2000Google Scholar. <http://www.jsmp.minihub.org/Reports/Copy%20of%20Justice%20Denied%25?20for%20East%20Timor%20NB13_1_02.pdf>.
140. Address by His Excellency President Kay Rala Xanana Gusmão at the inauguration of the newly rehabilitated former Balide Prison as the National Office of the CAVR and the opening of the National Public Hearing on Political Imprisonment, Dili, 17 February 2003. <http://www.jsmp.minihub.org/Reports/XGcavrjrl%208feb03.htm>.
142. Commissão de Acolhimento, Verdade e Reconciliacao de Timor Leste (CAVR), Update December 2002–January 2003.
143. For a detailed report on the Law, see ‘The Draft Law on Amnesty and Pardon’, Judicial System Monitoring Programme, November 2002. <http://www.jsmp.minihub.org/Reports/Final%20Amnesty%20English%20050203.pdf>.
145. ICC Update, 32nd edn., January 2003, <http://www.iccnow.org/publications/update/iccupdate32Eng.pdf>.
146. Source ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>. See also CICC/Europe/CIS:Estonia. <http://www.iccnow.org/countryinfo/europecis/estonia.html>.
147. Source ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>. See also CICC/Europe/CIS:Estonia. <http://www.iccnow.org/countryinfo/europecis/estonia.html>
148. Information and commentaries by Miodrag Starcevic, Professor of International Humanitarian Law at the Military High Schools Centre, Belgrade, Avril McDonald, Managing Editor of the YIHL and Michael E. Hartmann, International Prosecutor, Kosovo. The latter can be reached at Intprosecutor @yahoo.com.
151. AFP, 4 August 2001; BBC Monitoring Europe — Political, 22 February 2002.
152. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
153. ‘Human Rights Concerns in the Federal Republic of Yugoslavia’. Human Rights Watch Briefing Paper, <http://www.hrw.org/backgrounder/eca/yugo-bck0711.htm>.
158. Information and commentaries by Michael E. Hartmann, written while Senior Fellow, United States Institute of Peace, Washington, DC, January-September 2003; currently International Prosecutor 2000–2004, Office of the Public Prosecutor of Kosovo (before the Supreme Court), Unmik, at email email@example.com. This report concerns only that small minority of war crimes cases that reached a court trial. Many more cases were under investigation by the Complex Criminal Investigative Unit of the Unmik Police, with guidance from international prosecutors, and other cases were selected by international prosecutors and judges at the judicial investigation stage and resulted in no indictment being filed.
161. UNMIK Regulation 1999/24, as amended by 2000/59, prescribes the 1989 Kosovo and FRY law as applicable, as modified by Regulations, and international human rights standards. For background, see 4 YIHL (2001) at pp. 500–506Google Scholar.
165. ‘The complexity of the case must be considered as a factor which might justify the lengthiness, as discussed supra. … The scope and complexity of this case are thus of greater magnitude than in most cases heard by Kosovo courts, and therefore the length of the proceedings cannot properly be compared to such other cases.
The most questionable time period of this proceeding which concerns the court in light of ECHR Art. 5(3) is that approximately seven months between the filing of the first indictment and the commencement of the main trial. We are aware that during this time, the local judiciary was in the process of being organised, that there was a boycott by appointed ethnic Serbian judges who refused to participate in what was a homogenous ethnic Albanian judiciary, a hunger strike by Serb prisoners charged with genocide and war crimes, violent demonstrations and clashes in Mitrovica, and the closure of the Mitrovica District Court on numerous occasions due to violence and threats to security. The UNMIK administration during this time acted diligently through both existing legal procedures, and by establishing through Regulations 2000/6 and 2000/34, to enact a special section [now division] of International Judicial Support in the Department of Judicial Affairs, to support the appointment and work of international judges and prosecutors. The first international judge sat upon the panel of the first trial in this case, and we understand that one of the reasons for the delay was the desire to have Judge Christer Karphammar to participate on that panel, [footnote omitted] Later, UNMIK increased the participation of international judiciary with the enactment of Regulation 2000/64 which is being used to re-try this case now.
We note that normally a shortage of judicial personnel is not accepted by ECHR jurisprudence as an excuse for overly long detention. However, the circumstances stated above are not normal nor taken into account by most ECHR decisions on the length of detention, since those decisions are set in states with established judicial systems unlike Kosovo. These circumstances related in Kosovo do show that the applicable state authorities, the Mitrovica District Court, UNMIK and the then Department of Judicial Affairs, took all possible efforts to expedite this case. To cite the Council of Europe Commentary on ECHR [Art.] 5(3), “in such cases [of delay] it can be particularly significant that a special unit has been created to deal with the case or that additional resources have been provided for existing ones expected to handle a case of an exceptional character…”, [footnote omitted]
Accordingly, overall, the length of delay in light of all circumstances is not so manifest as to require the Supreme Court, with our limited knowledge of the facts specific to this trial, and without any specific arguments of the parties to this effect, to order immediate release of the accused. However, we are quite concerned about the lengthiness, and must require the trial court panel to seriously consider the offered bail in light of the delay. This very long detention of the accused should properly be considered as an additional and critical factor in deciding bail, especially if there are additional elements of family situation, and of other guarantees, as well as whether the bail offered will be properly secured to allow the effective threat of levying upon any property so encumbered.'
167. The applicable Kosovo procedure, unlike US and other common law procedures where juries are involved, allows trials to be conducted on non-consecutive days, and thus there were in this case one to 12 trial days per month; given the schedules of the international judges and prosecutors and commitments to appear in other cases, this was not unusual for UNMIK.
169. The Supreme Court stated: ‘This panel of the Supreme Court has closely observed and is satisfied with the interpretation of this Regulation done in the second Opinion of the Public Prosecutor's Office of Kosovo. The [International Public Prosecutor's] Opinion states: “There is no question that our procedure here was ‘pending’ on this date. That an appeal rather than trial or investigation was pending is significant, since the Regulation's use of the phrase ‘criminal proceedings’ rather than ‘trials’ must be given meaning, which is obviously to broaden the scope of the regulation's proscription; otherwise Section 4 would have had only the entry into force date. The fact that the drafters added the phrase, ‘and shall apply also to criminal proceedings pending’ as of 12 January 2001, can only mean that the definition of ‘criminal proceedings’ includes both appeals and investigations, which are not trials, but are therefore also ‘included’. Once this Regulation is applied to an appeal the only reasonable interpretation of the protection is that the Courts cannot allow a trial verdict of guilt done in absentia to be affirmed and stand, if it has jurisdiction over such a verdict while it is on appeal and thus not final. There is no other reasonable interpretation of the Section 4 requirement that it ‘shall apply also to criminal proceedings pending’.” It should be noted that the first Opinion, by the Kosovan Public Prosecutor of Kosovo, recommended that the Court affirm the trial verdict.
171. The first verdict of the District Court in Prizren dated 14 June 2001, as a result of the appeals from both parties was overturned by the decision of the Supreme Court of 2 November 2001
172. The retrial started on 1 October 2002 and lasted through January 2003, with the last month devoted mainly to hearing the closing speeches. The verdict was handed down on 31 January 2003.
173. The Court specified:
‘16. The Prosecution during the case appeared to take for granted the existence of critical elements of a war crime, contrary to the need to prove such elements. Upon reading SFRY CC Article 142, the applicable Legal Commentary, and reviewing pertinent international humanitarian law agreements and law, it is obvious that the elements of an Article 142 war crime which must be proven are:
An act or omission, actus reus, of the perpetrator, as listed in Article 142, with the accompanying mens rea of the perpetrator; Status of the perpetrator, that is, who orders or commits; Status of the victim; Armed conflict, in particular its existence, parties and character [internal or international]; Nexus of the perpetrator's acts to the Armed Conflict; That this criminal conduct must also be a violation of international law. The Prosecution did not even argue or attempt to prove most of these elements.
17. Actus Reas, Mens Rea, and Status of the Perpetrator: These separate requirements seem to be merged by the Prosecution, which requests the Court to find the accused criminally liable for all crimes done by ‘Serb Forces’ in the area, even if the accused himself did not personally do those acts. Yet Article 142 requires the accused to either order or commit. It is also true, however, that criminal liability may also be found against the accused even ifhe has not ordered or personally committed the proscribed acts, through the principles of complicity, Art. 22 SFRY CC; Incitement, Art. 23 SFRY CC; or Aiding, Art. 24 SFRY CC. Yet these bases of liability must also be proven based on facts. The Prosecution does not prove the accused's liability under any of these theories.
18. Rather, the Prosecution simply assumes the accused's liability based on assumptions which were built upon other assumptions. The Prosecution first made the unproven assumption that the 3 groups of the military, police, and vaguely-defined paramilitary forces are all part of one group with apparently one overall plan of intimidation and goal of expulsion, also referred to as the “State's plan,” which is then classified without more evidence as “Serb forces.” Neither this plan of intimidation or goal/State plan of expulsion is proven.
19. Second, the Prosecution then assumes that the accused is part of the “Serb forces” group, without clearly identifying to which subgroup he belongs, since he is seen in uniforms, paramilitary black, and civilian clothing, these witnesses thus giving contradictory testimony. Indeed, the accused is also seen with and without a firearm.
20. Third, the Prosecution then assumes that the accused had the mens rea of intimidation of the Albanian population, apparently with the objective to expel the population from Lipjan, and thus was part of the “Serb forces” and accordingly liable for all acts of the group based on accomplice liability, although the Prosecution does not attempt to prove the mens rea andactus reas requirements of Art. 22, such as joint participation.
21. In sum, the Prosecution simply assumes that a Serb who is in proximity of the police or military or paramilitaries is automatically one of that group with the aims and mens rea of that group, whatever they may be. However, during this time, when the Serbian government called up and armed many of its civilians with past military experience, and declared war against NATO, it cannot be assumed that the mere presence near or around others in such groups, even if armed, can be in itself equated to physically and mentally joining them forpurposes of criminal liability. No attempt was made to prove more than mere proximity to such “group,” which was in itself consisting of different groups and individuals, which were not necessarily homogeneous in purpose or action.
22. Armed Conflict. The Prosecution does not even discuss the issues involved with the need to prove the existence, parties to and character of an Armed Conflict. That there was a declaration of war by Yugoslavian authorities against NATO does not automatically cause this to be an Armed Conflict as between the Kosovar-Albanians and Serb authorities, and the issue of Nexus also requires proof of an Armed Conflict involving the Kosovar-Albanian victims, at least as relating to the war effort to the advantage of the Serbs. Thus the parties to the conflict must be articulated in the proof. Yet the Prosecution did not even articulate any of the parties. Even if the Prosecution had claimed that the Kosovar-Albanian “party” is acting on behalf of or in concert with NATO, that must be proven. Otherwise, the character of the conflict concerning the Albanian-Kosovar and Serb forces may be only internal.
23. As to the existence of an armed conflict, it must be proven that it is not a situation of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as defined in Additional Protocol II, Art. 1 (2). Once there is proven a conflict exists, the issue is at what level. Art. 3 common to [the] four Geneva Conventions directly applies to non-international armed conflicts, but the level of hostilities required to “qualify” under Article 3 is lower than that defined in the Additional Protocol II, Art. 1, which is harder to prove, but accordingly provides a higher level of protection for civilians.
24. Nexus. There must be a nexus between the alleged crime and the relevant armed conflict. Where the Prosecution has not yet attempted to prove whether it was an international or internal conflict, it could then hardly have proven this nexus requirement.
25. This is also a requirement under international law. See ICTY Tadić Appeals Chamber jurisdiction decision (1995), para. 70 (‘closely related to the hostilities’); ICTY Kunarać Trial Court Judgement, paras. 402 and 407 (‘a close nexus’), ICTY Delalić Trial Court judgement, 16 Nov. 1998, para. 193 (‘an obvious link’), and ibid., para. 197 (‘a clear nexus’). The existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established ‘…that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict’. ICTY Kunarać Appeals Chamber judgement, para. 58.
26. In determining whether or not the act in question is sufficiently related to the armed conflict, the following factors, amongst others, may be relevant: the fact that the perpetrator is a combatant (or a member of the armed forces or an armed group); the fact that the victim is a civilian or a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties. See ICTY Kunarać AC judgement, para. 59.
27. This is the applicable law, but unfortunately the Prosecution did not even argue or attempt to prove the factual circumstances that would support an argument on this Nexus requirement.
28. Violation of International Law. Each act committed by the accused must be proven to be a violation of international law. For example, the scope of international law relating to non-international armed conflicts is more limited than the law relating to international armed conflicts. If the Serbian/Kosovar-Albanian conflict is characterized as an internal conflict, not all of the conduct otherwise listed in Art. 142 is prohibited by international law. If conduct referred to in Art. 142 is not prohibited in Art. 3 common to [the] four Geneva Conventions, or Additional Protocol II, it cannot be a war crime in an internal armed conflict pursuant to Art. 142.’
Cf, this comprehensive Mlladenović verdict with the equally detailed Vucković case verdict cited above; in Vucković the verdict painstakingly analysed the elements and factors discussed in this Mlladenović verdict, and the Vucković verdict explained how they were sufficiently proven.
176. On 30 May 2003, the ‘64’ Panel international-majority trial court announced the verdict of the retrial, which was not guilty on all eleven counts of war crimes. The accused was found guilty of postwar attempted murder (shooting at a Kosovar Albanian hoisting an Albanian flag at the Department of Internal Affairs in Kaminica, the accused's office). The retrial court's 2003 verdict had been foreshadowed by the International Public Prosecutor of Kosovo's lengthy Opinion on the first verdict, which called for reversal on several grounds, including a detailed analysis of the lack of evidence supporting the finding of command responsibility liability for the acts of police officers which were the basis of the war crimes counts.
177. That first trial panel stated: ‘A major reason for failure of the panel to complete the trial of the accused prior to the departure of the panel member resulted from the complexity of the case alleged against him. The amended indictment charges the accused with 26 counts, 23 of which are charged as war crimes. The factual allegations underpinning those counts are highly complex and to date the panel has heard thirty-nine witnesses, six of whom were defense witnesses, which required the panel to organize to travel to Belgrade in order to receive their evidence. Delays in being able to complete the trial prior to the departure of one of the panel members resulted from difficulties associated with collecting evidence alleged to be relevant to the defense of the accused, including documents from the Zastava factory, medical records from the Belgrade hospital, and information regarding the mobilization or otherwise of the accused from the Ministry of the Interior. To date the panel still has not received any of the requested materials and the causes of the delay are currently being investigated by the Department of Justice.’
178. Art. 305 of the 1986 Yugoslav Law of Criminal Procedure provides:
‘(1) A main trial which is adjourned shall recommence from the beginning if the membership of the panel has changed, but after the parties have been examined, the panel may decide that in such a case the witnesses and expert witnesses shall not be examined again, and that a new on-the-spot inquest will not be performed again, but that the testimony of witnesses and expert witnesses given in the previous main trial shall be read or the record of the on-the-spot inquest will be read.
(2) If a main trial which was adjourned is held before the same panel, it shall be resumed, and the presiding judge shall briefly summarize the course of the previous main trial, but even in that case the panel may order that the trial recommence from the beginning.
(3) If the adjournment has lasted longer than one month, or if the trial is being held before another presiding judge, the main trial must recommence from the beginning, and all evidence must again be presented.’
179. ‘UCK’ is the Albanian-language acronym for ‘KLA’ or Kosovo Liberation Army.
180. While there was one Serbian Forest Ranger as an injured party, all of the other victims were Kosovar Albanians. This was a case which relied upon the testimony of Kosovar Albanians.
182. 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.
183. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, July-December 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LVLHV/$File/irrc_849_National_Implem.pdf>.
184. Decree No. 2002–117 of 29 January 2002, publishing the extradition treaty between France and the United States of America (with an agreement's statement on representation), signed in Paris, 23 April 1996) [Décret No 2002–117 du 29 Janvier 2002 portant publication du traité d'extradition entre la France et les Etats-Unis d'Amérique (ensemble un procès-verbal d'accord sur la représentation), signé à Paris le 23 avril 1996]. Published in the Official Gazette of the French Republic/Journal Officiel de la République française No. 25, 30 01 2002, p. 2002Google Scholar.
185. Reprinted in the Documentation section of this volume at p. 819.
186. Russia denies bombing Pankisi, while Georgia claims two killed’, RFE/RL Newsline, 23 August 2002. <http://www.hri.org/news/balkans/rferl/2002/02–08–23.rferl.Html#20>.
187. ‘White House Deplores Russian Bombing of Georgian Villages, August 23, 2002’, 24 August 2002. <http://www.usembassy.it/frle2002_08/alia/a2082401.htm>.
188. Information and commentaries provided by Sascha Rolf Liider, Research Fellow at the Chair for Criminal Law, Criminal Procedure and Legal History, Fern Universitat Hagen, and Gregor Schot-ten, Desk Officer in the Political Department of the Federal Foreign Office, Berlin, the views expressed in these commentaries are those of the authors alone.
189. See further the article by H.-P. Gasser in this volume at p. 375.
190. See Kreicker, H., ‘Die völkerstrafrechtliche Unverjährbarkeit und die Regelung im Völker-strafgesetzbuch’, 56 Neue Justiz (2002) pp. 281 et seqGoogle Scholar.; Lüder, S.R. and Vormbaum, T., eds., Materi-alien zum Völkerstrafgesetzbuch: Dokumentation des Gesetzgebungsverfahrens (Münster, Lit 2002)Google Scholar; Satzger, H., ‘German Criminal Law and the Rome Statute: A Critical Analysis of the New German Code of Crimes against International Law’, 2 International Criminal Law Review (2002) pp. 261 et seqCrossRefGoogle Scholar.; Werle, G. and Jeßberger, F., ‘Das Völkerstrafgesetzbuch’, 19 Juristenzeitung (2002) pp. 725 et seqGoogle Scholar.
191. See Max Planck Institute for Foreign and International Criminal Law [Max Planck-Institut für ausldndisches und Internationales Strafrecht]. <http://www.iuscrim.de/info/profile.html>.
192. See MacLean, J., ‘Gesetzentwurf über die Zusammenarbeit mit dem Internationalen Strafge-richtshof’, 35 Zeitschrift für Rechtspolitik (2002) pp. 260 et seqGoogle Scholar.; Meißner, J., Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut (Munich, C.H. Beck 2003)Google Scholar; Wilkitzki, P., ‘The German Law on Co-operation with the ICC’, 2 International Criminal Law Review (2002) pp. 195 et seqCrossRefGoogle Scholar.
196. CICC/The Americas: Guatemala, <http://www.iccnow.org/countryinfo/the americas/guatema-la.html>.
197. See Guatemala Human Rights Update, Vol. 15, No. 5, 1 March 2003. <http://www.ghrc-usa.org/updates/vol15no5.pdf>; News Release Issued by the International Secretariat of Amnesty International, AMR 34/062/2002, 4 October 2002.
201. Information and commentaries by Peter Kovacs, Professor of International Law, Péter Páz-many Catholic University of Budapest and Miskolc University.
202. ‘Hungarian police confirm arrest of alleged war criminal’, Deutsche Presse-Agentur, 30 01 2002Google Scholar.
203. Information and commentaries by Major General Nilenadra Kumar, Judge Advocate General of the Indian Army.
205. Kumar, N., Courts Martial Under Scrutiny (New Delhi, Universal Law Publishing Company 2002)Google Scholar.
206. Equivalent to US $2,225.
207. Equivalent to US $2,225.
208. Order dated 21 June 2002.
209. Art. 21 — Protection of life and personal liberty — provides: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
210. Equivalent to approximately US $4,450.
211. Order dated 5 September 2002.
212. Pursuant to Law 26 of 2000 on Human Rights Courts. Reprinted in 3 YIHL (2000) at p. 717. See also 4 YIHL (2001) pp. 536–537Google Scholar.
213. Human Rights Watch, ‘Justice Denied for East Timor: Indonesia's Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of U.N. Action’, New York, 20 December 2002. <http://www.hrw.org/backgrounder/asia/timor/etimorl 202bg.htm>.
214. See ‘Indonesia: Implications of the Timor Trials’, International Crisis Group, 8 05 2002Google Scholar. <http://www.crisisweb.org/library/documents/report_archive/A400643_08052002.pdf>.
215. Human Rights Watch, supra n. 213.
222. ‘East Timor governor jailed over violence’, BBC News, 14 08 2002Google Scholar. <http://news.bbc.co.uk/2/hi/asia-pacific/2192033.stm>.
225. Judicial Systems Monitoring Program. Case Status. Suai Church Massacre. <http://www.jsmp.minihub.org/Indonesia/caseupdates/UpdSuai.pdf>.
230. Information and commentaries by Ray Murphy, Irish Centre for Human Rights, School of Law, National University of Ireland, Galway.
231. Can be purchased directly from Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2.
232. British-Irish Agreement done at Belfast on 10 April 1998. <http://www.gov.ie/iveagh/angloir ish/goodfriday/default.htm>.
234. The Irish Times, 30 May and 2 August 2002.
236. The Conventions concerned are the International Convention for the Suppression of the Financing of Terrorism, the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Prevention and Punishment of Crimes Against Internationally Protected Persons and the International Convention Against the Taking of Hostages.
238. Department of Justice, Equality and Law Reform Press Release, 18 December 2002.
240. 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. For the report on the Occupied Palestinian Territories, see infra pp. 580 et seq.
241. Security Provision (Amendment No. 84) (Judea and Samaria) (No. 1510) Order 2002, adopted on 1 August 2002 (copy with author); Security Provision (Amendment no. 87) (Gaza Strip) (No. 1155) Order 2002, adopted on 1 August 2002 (copy with author).
242. An unofficial translation of the full text of the Law is provided in the Documentation section of this volume at pp. 669 et seq.
243. Anonymous v. Minister of Defence, Crim. F.H. 7048/97, 54(1) Piskey Din [P.D.] 721.
244. An unofficial translation of the full text of the Regulations is provided in the Documentation section of this volume at pp. 672 et seq.
245. Security Provisions (Judea and Samaria) (No. 378) Order, 1971. The preexisting legislation required that detainees in security-related offences would be brought before a judge within eight days following their arrest.
246. See infra at p. 531 of this report the case of Center for the Defense of the Individual v. IDF West Bank Military Commander, which challenged the legality of the Order.
247. It is unclear whether detained persons were allowed to petition the Supreme Court in the initial 18-day period. Under Israeli administrative law such restriction could never be presumed. However, the Court often insists upon exhaustion of alternative remedies as a prerequisite for seizing its jurisdiction.
248. Art. 78C(c)(2) of Order 378 authorizes the Israeli authorities to postpone attorney-client meetings for an additional period of up to 15 days, for imperative security reasons.
249. However, the Supreme Court recently held the article to be inapplicable in many intifadah-related claims. See Benni Udah v. State of Israel, C.A. 6051/92, 56(4) P.D. 1. The case is discussed below.
250. An unofficial translation of the text of Art. 5A is provided in the Documentation section of this volume at p 799.
251. See the OTP report in this volume at p. 585
252. Law Reports or Judicial Decisions.
253. See supra p. 529 of this report.
255. Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955, UN Doc. A/ CONF/611, annex I, E.S.C. Res. 663C, 24 UN ESCOR Supp. (No. 1) at 11, UN Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 UN ESCOR Supp. (No. 1) at 35, UN Doc. E/5988 (1977).
256. See e.g., Habiba v. The IDF West Bank Military Commander, H.C.J. 8352/02, 2002(4) Takdin 235; Nabtiti v. The IDF West Bank Military Commander, H.C.J. 8488/02, 2002(4) Takdin 216; Elbu-chariv. The IDF West Bank Military Commander, H.C.J. 5829/02, 2002(3) Takdin 1106.
257. On 24 July 2002, Amendment No. 4 to the Civil Torts (State Responsibility) Law 1952 was adopted, introducing some limitations upon the bringing and conducting of intifadah-related claims. See supra at p. 530 of this report.
258. As is well known, Israel has long held that the conditions for application of the Fourth Geneva Convention to occupied territories, specified in Art. 2 of the Convention, have not been met, since the Occupied Territories did not rightfully belong prior to 1967 to any party to the Geneva Conventions. For a recent critique of this position, see Kretzmer, D., The Occupation of Justice (Albany NY, Suny Press 2002)Google Scholar.
259. Afo v. IDF West Bank Military Commander, H.C.J. 785/87, 42(2) P.D. 4.
260. Kawasme v. Minister of Defense, H.C.J. 320/80, 35(3) P.D. 113.
261. See e.g., Anonymous v. Minister of Defense, Crim. F.H. 7048/97, 54(1) P.D. 721.
262. See e.g., Gilbert, N., ‘Gov't to expel family of Emmanuel terrorist’, Jerusalem Post, 1 08 2002Google Scholar; ‘Hearings in the High Court of petitions of candidates for deportations have ended with no results’, Ma'ariv, 26 08 2002 (in Hebrew) [Hadiyun BeBagatz BeAtirrot HaMeumadim Legerush Histayem BeLo Hachra'a]Google Scholar.
264. See e.g., Second Periodic Report of the State of Israel under the International Covenant on Civil and Political Rights, para. 8, UN Doc. CCPR/C/ISR/2001/2 (2001).
265. Garadat v. The IDF West Bank Military Commander, H.C.F.H. 7206/02, 2002 Pador 362.
266. Nazal v. The IDF Military Commander in Judea and Samaria, H.C.J. 6026/94, 48(5) P.D. 338.
267. See e.g., B'Tselem, , Human Shield: Use of Palestinian Civilians as Human Shields in Violation of the High Court of Justice Order (Jerusalem, 2002)Google Scholar, also at <http://www.btselem.org/Download/2002_Human_Shield_Eng.doc>.
268. The siege ended as a result of an agreement brokered by the EU and the US. The agreement provided for the exile of 13 top militants to European destinations, for the transfer of 26 other militants to the Gaza Strip and for the release of the other 86 activists after being identified and searched by the IDF. American security personnel undertook to sweep the church compound for booby-traps and other weaponry.
269. It should be noted that several tort claims against the Palestinian Authority are currently pending before Israeli courts. The District Court of Jerusalem has recently asked the Minister of Foreign Affairs for an official certificate determining whether the Palestinian Authority enjoys sovereign immunity. Noriz v. The Palestinian Authority, C.A. (Jer.) 2538/00, 2003(1) Takdin 4968.
270. Information and commentaries provided by Clara Bosco, Rosa Dinuzzi, Valeria Eboli, Valentina Della Fina, Giovanni Carlo Bruno and Ornella Ferrajolo of the Institute for International Legal Studies, National Research Council (CNR), Rome.
271. The two Optional Protocols, which were adopted by the United Nations General Assembly on 25 May 2000, entered into force on 18 January 2002 and on 12 February 2002, respectively, three months after the deposit of the tenth instrument of ratification or accession.
272. By that time, the Italian legislation had already regulated the issues dealing with the Convention on the Rights of the Child and related Protocols through the dispositions contained in the Laws No. 166, 27 May 1991; No. 269, 3 August 1998; No. 148, 25 May 2000; and No. 2, 8 January 2001.
273. Clara Bosco is a consultant at the Institute for International Legal Studies, National Research Council (Cnr), Rome.
275. Art. 4(1) of the Law.
276. Art. 6(1) of the Law.
277. Art. 12(4) of the law.
278. Rosa Dinuzzi is a consultant at the Institute for International Legal Studies, National Research Council (Cnr), Rome.
279. The Italian Red Cross Association was founded on 15 June 1864 and recognised by Royal Decree No. 1243, 7 February 1884, when the first Statute was approved. A further Statute was approved by Royal Decree No. 111 of 21 January 1929, followed by various Acts containing special rules on specific aspects of the Association up to the Decree No. 613 of the President of the Republic of 31 July 1980, on the ‘Reorganization of the Italian Red Cross’. In the Italian legal system, the Red Cross Association is established as a public body, because a number of the duties it performs have a public character. Decree No. 613/1980 used to qualify the association as a private body of public relevance (ente privato di interesse pubblico), granting the body a private nature. This qualification could better lay emphasis on the volunteer component marking the social tissue, as remarked by Benvenuti, P., ‘Croce rossa internazionale’, in Enciclopedia giuridica Treccani (Rome, Istituto della Enciclopedia italiana 1988)Google Scholar. The importance awarded to the volunteer component is stressed, at the present time, by the dualistic structure of the Association, made up of both an institutional part and a volunteer part, ex Art. 16(2) of the new Statute. See also Cesare-Sanino, P. De, ‘Il riordinamento della Croce rossa italiana’, in Il Foro amministrativo (Milan, Giuffrè 1981) pt. 1, pp. 194–199Google Scholar; Balocchi, P., ‘Osservazioni sulla disciplina giuridica della Croce rossa italiana’, in Diritto e società (1986) pp. 31–64Google Scholar; Gargiulo, P., ‘Croce rossa internazionale’, in Digesto Discipline pubblicistiche, IV (1989) pp. 488–493, 492Google Scholar.
280. The Geneva Conventions have been executed in Italy by Law No. 1739 of 27 October 1951.
281. It was already stated in the former Statute of 1997. For instance, the use of the emblem as a distinctive sign remains the same as required of the Italian Society Statute in Art. 4(5) of the International Movement Statute.
282. Valeria Eboli is a Ph.D. Candidate in International Law at the University ‘La Sapienza’ of Rome.
283. ICRC Advisory Service, National Implementation of International Humanitarian Law —Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>. See also CICC/Europe/CIS:Estonia. <http://www.iccnow.org/countryinfo/europecis/estonia.html>.
284. As regards the Law converting Decree-Law No. 421 of 2001, including also the amendments to the Military Penal Code of War, Law No. 6 of 31 January 2002, ‘Conversion in law, with modifications, of the Decree-law No. 421 of 1 December 2001, concerning urgent dispositions for the participation of military staff to the multifunctional operation called ‘Enduring Freedom’. Amendments to the Military Penal Code of War, approved by Royal Decree No. 303 of 20 February 1941, in 4 YIHL (2001) pp. 563–565Google Scholar.
285. Valentina Della Fina is a researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.
286. The Prosecutor v. Goran Jelisić, Case No. IT–95–10–A, Appeal Judgment, 5 July 2001. For a summary of the decision, see 4 YIHL (2001) pp. 280–283Google Scholar.
288. Italian Law No. 962 of 9 October 1967.
289. Giovanni Carlo Bruno is a researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.
291. Fina, V. Delia, ‘Law No. 232 of 12 July 1999 Concerning the Statute Establishing the International Criminal Court’, 3 YIHL (2000) pp. 535 et seqGoogle Scholar.
292. This procedure is admissible in the Italian legal system; it is a task of the Presidency Offices of the Chamber of Deputies and the Senate to provide coordination at later stages, in order to avoid duplication.
293. Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002, Official Records, UN Doc. ICC-ASP/1/3, Part II, pp. 108 et seq.
294. It has to be said, however, that various draft-bills were presented in the Parliament in 2002, in order to introduce the crime of torture into the Italian Penal Code: see infra, V. Delia Fina, ‘Bill concerning the introduction of the crime of torture (Senate, No. 1608, presented on 16 July 2002)’.
295. This is why we cannot completely share the view that ‘the subject-matter jurisdiction of the ICC is already part of Italian Law, because Art. 10 of the Italian Constitution provides for automatic implementation of customary international law into domestic law’ (fact-sheet on the Statute's implementation by Italy available on the website of the International Criminal Court: <http://www.icc-cpi.int/statesparties>).
296. According to the draft-bills, judicial competence in respect of war crimes, which generally rests with military tribunals, would be attributed in the case of war crimes envisaged in the ICC Statute to the ordinary jurisdiction (‘Corte d'assise’).
297. The composition of the Court is as follows: P. Kirsch (President, Canada); A. Kuenyehia (First Vice President, Ghana); E. Odio Benito (Second Vice President, Costa Rica); R. Blattmann (Bolivia); M.H. Clark (Ireland); F.D. Diarra (Mali); A. Fulford (United Kingdom); K.T. Hudson-Phillips (Trinidad and Tobago); C. Jorda (France); H.P. Kaul (Germany); E. Kourula (Finland); G.M. Pikis (Cyprus); N. Pillay (South Africa); M. Politi (Italy); T.N. Slade (Samoa); S. Song (Republic of Korea); S. de Figueiredo Steiner (Brazil); A. Usacka (Latvia).
298. Ornella Ferrajolo is a senior researcher at the Institute for International Legal Studies, National Research Council (CNR), Rome.
299. Italy ratified the Convention with Law No. 498 of 3 November 1988.
300. Italy ratified the Covenant with Law No. 881 of 25 October 1977. It is noteworthy that Art. 5 of the 1948 Universal Declaration of Human Rights also prohibits torture.
301. Italy ratified the Statute of the Court with Law No. 232, of 12 July 1999. According to Art. 7 (2)(e), ‘Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.’
302. Italy ratified both the Conventions respectively with Laws No. 848 of 4 August 1955 and No. 7 of 2 January 1989.
303. The UN Committee against torture has made some critical observations on the Italian criminal law during the examination of the first and second Italian Reports, requesting to introduce the crime of torture in the Penal Code, see CAT/C/9/Add. 9; CAT/C/SR. 109 and 110/Add.; CAT/C/25/Add. 4 and CAT/C/SR. 214 at Add. 1.
304. Six bills were presented during this legislature (XIV). For the texts see <http://www.senato.it/app./ricerca/sddl.asp>.
305. 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.
306. Watts, J., ‘Japan guilty of germ warfare against thousands of Chinese: Tokyo judges rule that second world war atrocities did take place but reject claims for compensation’, The Guardian, 27 08 2002Google Scholar.
307. McNaught, A., ‘“Sorry is not enough”, relatives of more than 300,000 Chinese killed in secret germ warfare are taking the Japanese government to court’, The Times (London), 1 02 2002Google Scholar.
310. UN Press Release, GA/L/3208, 2 October 2002, at <http://www.un.org/News/Press/docs/2002/ga13208.doc.htm>, and ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, July-December 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LVLHV/$File/irrc_849_National_Implem.pdf>.
311. Source: CICC Website: North Africa/Middle East/Jordan, <http://www.iccnow.org/countryinfo/northafricamiddleeast/jordan.html>.
312. Source: ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, July-December 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LVLHV/$File/irrc_849_National_Implem.pdf>.
314. Information and commentaries by Dana Zhandayeva, LL.M., independent researcher, Almaty, Kazakhstan.
315. The contact information of the Commission is: Ministry of Justice, 45 Prospect Pobedy St., 473000, Astana, Kazakhstan, Tel.: 7–3172–39–12–13.
316. For more information on the ICRC's activities in Central Asia, including Kazakhstan, including the promotion of the teaching of IHL, see <http://www.icrc.org/Web/Eng/siteengO.nsf/htmlall/E38FE767BB309C16C1256D43002CD9BE/$File/icrc_ar_02_tashkent.pdf?OpenElement> and <http://www.icrc.org/web/eng/siteeng0.nsf/iwpList182/2E7CAD8419C44B8AC1256B74005C49AD>.
318. ICRC Advisory Service, National Implementation of International Humanitarian Law —Biannual update on national legislation and case-law, July-December 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LVLHV/$File/irrc_849_National_Implem.pdf>.
319. Information and commentaries by Rytis Satkauskas, Universidad de Madrid, Spain.
320. According to the information provided by the Prosecutor's General Office, more than 130 criminal proceedings relating to genocide and/or war crimes have been instituted by the public prosecutors in Lithuania since the restoration of independence in 1990. However, only 13 cases have reached the courts: five persons were sentenced, four were acquitted, while the remaining cases were discontinued because of the death or illness of the accused or due to a lack of evidence. By the end of 2002, preliminary questioning was being conducted in approximately 20 war crimes and/or genocide cases. The Prosecutor General's Office also issued on 18 September 2001 a list of 76 entries of persons whose rehabilitation for the crimes of genocide and the killings of defenseless people was cancelled by the Supreme Court.
322. Text of Art. 71 ‘Genocide’ of the former Penal Code of the Republic of Lithuania, as amended on 1998, is available in the Report of Lithuania under International Convention on the Elimination of all Forms of Racial Discrimination, UN Doc. CERD/C/369/Add.2 (13 February 2001). <http://www.?hri.ca/fortherecord2002/documentation/tbodies/cerd-c-369-add2.htm>.
324. Lietuvos Rytas, 5 June 2002.
325. Atgimimas, 24–30 January 2003.
327. 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 the Iberoamericana University.
328. Information and commentary by Dr Khadija Elmadmad, Professor of Public International Law and English at the University of Casablanca and holder of the Unesco Chair on Migration and Humanitarian Laws at the University of Casablanca and by Dr Abderrahim Kounda, a specialist in International Humanitarian Law at the University of Casablanca.
331. Information and commentaries by Professor Emeritus Nico Keijzer, Professor of Criminal Law, University of Tilburg; Advocate-General at the Supreme Court of the Netherlands.
332. The Act applies to the whole Kingdom, including the Netherlands Antilles and Aruba.
334. Information and commentaries by Treasa Dunworth, Lecturer in Law, Faculty of Law, University of Auckland.
337. ICRC Advisory Service, National Implementation of International Humanitarian Law —Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
338. ‘Politianmeldelse av folkerettsbrudd begått av russisk militært personell i Tsjetsjenia’, Oslo, 31 October 2002. <http://www.tsjetsjenia.no/anmeldelse.htm>.
339. See Høring — ny straffelov, Norwegian Ministry of Justice. <http://www.odin.dep.no/jd/norsk/aktuelt/hoeringssaker/paahoering/012101%20-080026/index-dok000-b-n-a.html>.
341. Information and commentaries by Dr Mustafa Mari, Professor of Laws, Institute of Law, Bir Zeit University, Bir Zeit, Palestine. For the report on Israel, see supra pp. 526 et seq.
342. Released by the Office of the Spokesman of the US State Department on 30 April 2003, Press Statement # 2003/451. The document was developed in 2002, but its release by the US was conditioned on the creation of the position of a Prime Minister for the PNA, and the swearing in of the first Palestinian Prime Minister.
343. The US and Israel explicitly demanded that the PNA replace its elected President, Mr Yasser Arafat. When the PNA refused, the US accepted an alternative plan, by which much of Mr Arafat's powers have been transferred to an appointed Prime Minister, a position which did not exist in the Palestinian political-constitutional system until the Palestinian Legislative Council adopted relevant amendments to the Basic Law on 18 March 2003.
344. See ‘Roadmap Fails Rights Test’, Human Rights Watch, 8 May 2003, and ‘The “Roadmap”: Repeating Oslo's Human Rights Mistakes’, Human Rights Watch, 8 May 2003. On the role of international law, and principle generally, in the Palestinian — Israeli negotiation processes, see ‘The Negotiation Process: The lack of a human rights component’, 10 Palestine-Israel Journal of Politics, Economics and Culture (2003) pp. 5–16Google Scholar.
345. See Report of the High Commissioner for Human Rights submitted pursuant to decision 2002/ 103, UN Doc. E/CN.4/2002/184 (24 April 2002) para. 48.
346. In addition to Mr Ahtisaari, the team included former United Nations High Commissioner for Refugees, Ms Sadako Ogata, and former President of the ICRC, Mr Cornelio Sommaruga. The team was supported by technical experts from various fields. See Fact-Finding Team: Letter from the Secretary-General to the President of the Security Council, UN Doc. S/2002/475 (23 April 2002). See also Jenin Refugee Camp Fact-finding Team: Letter from the Secretary-General to the President of the Security Council, UN Doc. S/2002/504 (1 May 2002).
347. Nash, W.L., ‘My team should have investigated Jenin’, Washington Post, 12 05 2002, p. B04Google Scholar.
348. Jenin Refugee Camp Fact-finding Team: Letter from the Secretary-General to the President of the Security Council, UN Doc. S/2002/504. (1 May 2002).
349. Letter from the Secretary-General to the President of the Security Council, UN Doc. S/2002/ 511 (3 May 2002). Following his failure to ensure Israeli compliance with the dictates of the international community, as they are laid down in Security Council Resolution 1405 (2002), the Secretary-General submitted to the UN General Assembly a report, based on General Assembly Resolution ES-10/10 (7 May 2002), which was based on publicly-available information, as opposed to a visit to the area where the event took place, as Resolution 1405 demands. Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/10, UN Doc. A/ES-10/186 (30 July 2002).
350. On this generally see Israeli Violations of Palestinian Citizen's Rights During 2002 (Palestinian Independent Commission for Citizens' Rights 2003). <http://www.piccr.org>; Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/10, UN Doc. A/ES-10/186 (30 July 2002); Human Rights Watch World Report 2003, pp 459–472; Amnesty International Annual Report Summaries, AI Index: POL 10/008/2003 (Public), News Service No: 114, 28 April 2003; The heavy price of Israeli incursions, Amnesty International, AI Index MDE 15/042/2002, April 2002; Jenin: IDF Military Operations, Human Rights Watch, May 2003. For more on this visit, see <http://?www.lawsociety.org>; <http://www.alhaq.org>; <http://www.piccr.org>; <http://www.hrw.org>; <http://www.amnesty.org>; and <http://www.btselem.org>.
351. On this see Erased in a Moment: Suicide Bombing Attacks Against Israeli Civilians, Human Rights Watch, October 2002.
352. Summary of Annual Report 2003, Amnesty International. <http://www.amnesty.org>, and PICCR's Annual Report 2003. <http://www.piccr.org>. PICCR, however, puts the number at 1,071 Palestinians, and provides a complete list of Palestinians killed and assassinated during the year. See above PICCR report for details.
353. See Summary of Annual Report 2003, Amnesty International, available at <http://nesty.org; Human Rights Watch Annual Report 2003, p. 461, and In a Dark Hour: The Use of Civilians During IDF Arrest Operations, Human Rights Watch, April 2002.
354. For details see, e.g., 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 April 2002. <http://www.reliefweb.int/w/Rwb.nsf/s/D8EEDA7EEB8F2EEDC1256B9C002E544E>; PICCR's Annual Report 2003, and Human Rights Watch Annual Report 2003.
355. See PICCR's Annual Report 2003.
356. Fisk, R., ‘Red Cross attacks exile of Palestinians’, The Independent, 23 05 2002Google Scholar. <http://news.independent.co.uk/world/middle_eas%20t/story.jsp?story=297948>.
357. The UN Committee Against Torture on 23 November 2001 expressed its concern that a 1999 Israeli Supreme Court decision banning certain practices employed by Israeli authorities during the interrogation of Palestinians did not definitely prohibit torture, and that Israel's policies of closure and house demolitions might, in some cases, constitute cruel, inhuman or degrading treatment or punishment. See ‘UN: Israel torture ban has loopholes’, AP, 23 November 2001. See also Human Rights Watch Annual Report 2003, p. 462.
358. 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. <http://www.btselem.org/English/Press_Releases/2003/030102.asp>. For administrative detention updates, check <http://www.btselem.org/English/Administrative_Detention/Statistics.asp>.
360. See PICCR's Annual Report 2003.
361. Ibid. See also Human Rights Watch Annual Report 2003, p. 462. For 2001 estimates see Human Rights Watch World Report 2002, p. 443. For a graphic description of the massive destruction of homes in the Jenin Refugee Camp, see Yeheskeli, T., ‘I made them a stadium in the middle of the camp’, Yediot Aharonot, 31 05 2002Google Scholar.
362. Copy of the approved amendment, in Hebrew, is available online at <http://www.knesset.gov.il/provatelaw/data/2645_3_l.rtf>. Unofficial translation of an earlier draft is available online at <http://www.btselem.org>.
363. 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. <http://www.btselem.org/english/special/020724_compensation.asp>. See also Human Rights Watch Annual Report 2003, p. 462. For an analysis of an earlier draft of the law 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)Google Scholar.
364. Civil Wrongs (State Responsibility) Law (Amendment number 4), 24 July 2002, Art. 2.
365. For more on this see Position of Human Rights Organizations on the Proposed Law to Deny Compensation to Persons Injured by Israeli Security Forces in the Occupied Territories, 26 June 2002. <http://www.btselem.org/English/Special/Compensation_Law/Position_Paper.asp>.
366. Civil Wrongs (State Liability) Law (Amendment number 4), 24 July 2002, Art. 3.
367. For an Israeli perspective on the law, see supra at p. 530.
368. Exploring Humanitarian Law to be introduced in Palestinian Schools, Palestinian Red Crescent Society, Press Release dated 16 April 2003. <http://www.palestinercs.org/pressreleases/PR160403%20WBRR.htm>.
372. ICRC Advisory Service, National Implementation of International Humanitarian Law —Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocurnent>.
382. Human Rights Watch World Report 2002. Russian Federation. <http://www.hrw.org/wr2k2/europe16.html>.
384. ‘Russian servicement, killed 18-year-old Chechen girl, stands trial’, Pravda, 28 02 2001Google Scholar. <http://newsfromrussia.com/chechnya/2001/02/28/2767.html>.
385. Source: ‘Accountability for violations of human rights and humanitarian law in Chechnya: the trial of Colonel Yuri Budanov’, BOFAX No. 231E, 9 January 2003, Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum. See also Backgrounder on the case of Kheda Kungaeva, Trial of Yuri Budanov Set for February 28. Human Rights Watch, <http://www.hrw.org/backgrounder/eca/chech-bck0226.htm>; Yurkovsky, A., ‘Mirror of a war’, World Press Review, 30 01 2002Google Scholar.
386. See Y Tumanov, ‘Chechen murder case colonel acquitted’, Caucasus Reporting Service No. 11,9 January 2003. Institute of War and Peace Reporting. <http://www.iwpr.net/index.p17archive/cau/cau_200301_161_l_eng.txt; ‘Accountability for violations of human rights and humanitarian law in Chechnya: the trial of Colonel Yuri Budanov’, BOFAX No. 231E, 9 January 2003; Badkhen, A., ‘Russian absolved in Chechen death; insanity verdict worries rights activists’, San Francisco Chronicle, 1 01 2003Google Scholar.
387. Human Rights Watch World Report 2002. Russian Federation. <http://www.hrw.org/wr2k2/europe16.html>.
388. Reprinted in this volume at p. 800.
390. ‘Special Court investigators cordon off their first crime scene’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 2 November 2002. <http://www.sc-sl.org/pressrelease-092702b.html>.
391. During a visit to Koidu Community Center. See ‘For Special Court, no one is above the law’, Barrie, I., Standard Times, 2 10 2002Google Scholar.
392. ‘Special Court Prosecutor says he will not prosecute children’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 2 November 2002. <http://www.sc-sl.org/pressrelease-110202.%20html>.
393. C. Cobb Jr., ‘Sierra Leone's Special Court: will it hinder or help?’, Interview, allAfrica.com, 21 November 2002.
394. ‘More Sierra Leoneans in Prosecutor's office than any other nationality’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 6 November 2002. <http://www.sc-sl.org/pressrelease-110602.html>.
395. ‘Remarks by Prosecutor David M. Crane for International Human Rights Day, Victoria Park, Freetown’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 2 November 2002. <http://www.sc-sl.org/pressrelease-121002.html>.
397. ‘International judges arrive in Sierra Leone for swearing-in’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 28 November 2002. <http://www.sc-sl.?org/pressrelease-112802.html>; ‘Special Court judges swom-in’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 2 November 2002. <http://www.sc-sl.org/pressrelease-120202.html>.
398. ‘Judges elect Geoffrey Robertson QC as President’, Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 2 November 2002. <http://www.sc-sl.org/pressrelease-120302.html>.
399. Special Court for Sierra Leone, Press and Public Affairs Office, Press Release, Sierra Leone, 11 October 20002. <http://www.sc-sl.org/pressrelease-101103.html>.
400. ‘Peace with Justice? The Special Court and the Truth and Reconciliation Commission (TRC)’, in Malan, M., Rakate, P. and Mclntyre, A., Peacekeeping in Sierra Leone, UNAMSIL Hits the Home Straight, Chapter 11, Monograph No. 68 (Cape Town, Institute for Social Studies)Google Scholar. <http://www.iss.co.za/Pubs/Monographs/No68/Chapll.html>.
403. ‘Statement by Rt. Rev. Dr. Joseph Humper, Chairman of the Truth and Reconciliation Commission on the Occasion of its First Weekly Briefing, on Wednesday 24th July 2002’. <http://www.?sierra-leone.org/trcbriefing072402.html>.
404. ‘Eighth Weekly Briefing of the Truth and Reconciliation Commission Chaired by Professor William Schabas, on Wednesday 11th September 2002’. <http://www.sierra-leone.org/trcbriefings091102.html>.
405. ‘Sierra Leone's Truth and Reconciliation Commission: A Fresh Start?’, International Crisis Group, 20 12 2002Google Scholar.
407. Pitman, T., ‘Once mighty ex-leader of Sierra Leone rebels hovers on verge of madness’, AP, 5 06 2002Google Scholar.
409. ICRC Advisory Service, National Implementation of International Humanitarian, Law -Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
411. ICRC Advisory Service, National Implementation of International Humanitarian Law —Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
412. Information and commentaries by Phenyo Keiseng Rakate, B.Juris, LL.B (UNW), LL.M (Stell), LL.D. Candidate (UNISA), Deputy-Director, Directorate: Research and Analysis, Department of Defence, Pretoria, Republic of South Africa.
414. Section 3(c).
416. Act 51 of 1977, Section 18(g).
417. Act 111 of 1998, Section 31 of the Act; Cf., Art. 103 of the ICC.
418. Section 3(4) of the Act.
419. Section 4(3) of the Act.
420. Section 4(2) of the Act.
421. Section 4(6) of the Act.
422. See generally Parts 2, 3 and 4 of the Act.
423. Section 228(4)(a) of the 1993 Constitution read with Section 201(3) of the 1996 Constitution.
424. Act 44 of 1957.
425. Act 108 of 1996.
426. Section 91(2)(a) of the Bill.
427. Section 58 of the Bill.
428. Section 203 of the Constitution.
429. Section 89 of the Bill.
430. Information and commentaries by Santiago Castellá, Professor of Criminal Law, and Antoni Pigrau, Professor of International Law, at the Rovira I Virgili University, Tarragona.
431. Information and commentaries by Ola Engdahl, Doctoral Candidate in International Law at Stockholm University and the Swedish National Defence College.
432. SFS 1994:569.
434. The following text is largely based on the English summary of the Report.
435. In June 2002, the youth organisation of the Swedish Social Democratic Party submitted an indictment of several highly placed commanders of the Israeli Defence Forces for alleged war crimes in the West Bank and the Gaza Strip. The facts were largely based on reports from several human rights organisations. According to the prosecutor, the request of leave of government did not in itself hinder the prosecutor from undertaking a preliminary investigation. Such a preliminary investigation did not normally commence without a prior informal contact with the government or its representative. Only when the preliminary investigation had reached the point where there were enough reasons to start a prosecution, a-formal decision in the matter of appointment for prosecution would be taken (such decision did not include any assessment of the strength or the character of the evidence presented). The prosecutor decided not to undertake a preliminary investigation of the case. The decision was based primarily on the fact that an investigation would in practice be impossible to conclude (the necessary legal assistance to conduct such investigation would in fact need the authorisation of the Israeli government) and passing of sentences would be even less likely (requiring extradition of Israeli officers). The indictment and the decision by the prosecutor appear in English on the web page of the youth organisation at <http://www.ssu.se>. See also <http://www.agera.ssu.se/dokument/anm_Sharon_eng.pdf> and <http://www.agera.ssu.se/dokument/beslutet_engelska.pdf>.
437. The decision to ratify the Optional Protocol was thereafter taken by the government in December but instruments of ratification were not deposited during 2002.
438. Information and commentary by Dr Roberta Arnold, Legal Advisor, Swiss Department of Defence, Staff Caf-Loac Section, and Peter Hostettler, Head of Section Law of Armed Conflict, Swiss Department of Defence.
440. The original states as follows: ‘Wer während Kriegszeiten eine mit Strafe bedrohte Tat begeht, handelt rechtmässig, wenn die Tat im Interesse der Landesverteidigung geboten ist und der Täter dadurch höherwertige Interessen wahrt.’
441. ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual Update on national legislation and case-law, January-June 2002. <http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLE9g?o%20pendocument >.
443. ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>.
444. 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, Assistant Legal Adviser, Mr Nick McDuff, United Nations Department, Foreign and Commonwealth Office, London, and Major Joanne Bowen, Army Legal Services.
447. Reprinted in the Documentation section of this volume at p. 726. A summary of the Judgement can be found on <http://www.lawreports.co.uk>.
448. For a discussion of these cases, see infra, the US report at pp. 626 et seq.
450. At para. 6 of the Judgement.
451. Human Rights Act 1998 (Designated Derogation) Order 2001 (2001 No. 3644), 11 November 2001. Came into force on 13 November 2001. Art. 2 reads: ‘The proposed derogation by the United Kingdom from Article 5(1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation.’
452. At para. 24 of the Judgement.
453. At para. 62 of the Judgement.
454. Information and commentaries by Burrus M. Camahan, Professorial Lecturer in Law, the George Washington University, Washington, D.C., and Dr Avril Mcdonald.
455. Reprinted in the Documentation section of this volume at pp. 662 et seq.
456. Reprinted in the Documentation section of this volume at p. 665.
457. ‘US Response to the Inter-American Commission on Human Rights, 15 April 2002’, 41 ILM (2002) at p. 1023Google Scholar.
459. Levie, H., Prisoners of War in International Armed Conflict, International Law Studies, Vol. 59 (Newport RI, US Naval War College 1978) p. 82Google Scholar.
461. ‘US Response to the Inter-American Commission on Human Rights’, supra n. 457, at p. 1023.
463. Military and Paramilitary Activities in Nicaragua (Merits) (US v. Nicaragua), paras. 218–220 (1986).
464. See H.-P. Gasser, ‘The Conflict in Western Sahara — An Unresolved Issue from the Decolonization Period’, in this volume at p. 375.
465. Reprinted in the Documentation section of this volume at p. 664.
466. 9 June Order, paras. 2–5.
467. See infra at p. 626 of this report.
468. 317 US 1 (1942); 317 US 1; 87 L Ed. 7.
469. 156 F 2d 142, 145 (9th Cir. 1946).
470. See infra at pp. 662 at 664–665 of this report.
471. Reprinted in the Documentation section of this volume at p. 658.
472. Reprinted in the Documentation section of this volume at p. 657.
473. Reprinted in the Documentation section of this volume at p. 660.
476. A national emergency was proclaimed on 14 September 2001 by Proclamation 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks.
477. Garamone, J., ‘U.S. withdraws from International Criminal Court Treaty’, American Forces Press Service, 7 05 2002Google Scholar. <http://www.defenselink.mil/news/May2002/n05072002_200205071.html>; Lobe, J., ‘Bush “unsigns” war crimes treaty’, Alternet, 6 05 2002Google Scholar. <http://www.alternet.org/story.html?StoryID=13055>.
479. See Garamone, supra n. 477.
480. Declaration by the EU on the Position of the US Towards the International Criminal Court, 13 May 2002. <http://www.wfa.org/issues/wicc/unsigning/euonunsigning.html>.
482. ‘US Bilateral Immunity or So-called “Article 98” Agreements’, Coalition for an International Criminal Court. <http://www.globalpolicy.org/intljustice/icc/2003/0606usbilaterals.htm>.
483. Amnesty International, ‘International Criminal Court: US Efforts to Obtain Impunity for Genocide, Crimes against Humanity and War Crime’ [sic], AI Index: IOR 40/025/2002, August 2002. <http://www.amnesty.org/library/Index/engIOR400252002?OpenDocument&of=THEM>; Human Rights Watch, ‘United States Efforts to Undermine the International Criminal Court: Impunity Agreements’, 4 September 2002. <http://www.hrw.org/campaigns/icc/docs/art98analysis.htm>.
485. Scheffer, D.J., ‘Original intent at the global criminal court’, Wall Street Journal Europe, 20 09 2002Google Scholar.
486. Resolution 1300 (2002) (1) on the ‘Risks for the integrity of the Statute of the International Criminal Court’ from Article 98 agreements. <http://www.pgaction.org/uploadedfiles/CoEResBIAs25June03Eng.pdf>.
487. See the Year in Review in this volume at p. 269.
488. Reprinted in the Documentation section of this volume at p. 819.
490. Reprinted in this volume at pp. 626 et seq.
491. Reprinted in this volume at p. 456.
492. Reprinted in this volume at p. 482.
493. 339 U.S. 763; 70 S.Ct. 936 (1950).
494. Lease to the United States of Lands in Cuba for Coaling and Naval Stations, February 16–23, 1903, U.S.-Cuba, T.S. N. 418; Treaty Between the United States of America and Cuba Defining Their Relations, May 29, 1934, Art. III, 48 Stat. 1682, 1683. Under Art. III of the 1903 Agreement: ‘While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand, the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.’
495. In part VI of the judgement, quoting Johnson v. Eisentrager, 339 U.S., at p. 789.
496. Rasul v. Bush, Civil Action No. 02–299 (CKK) (D.D.C. filed 19 February 2002).
497. Odah v. United States, Civil Action No. 02–828 (D.D.C. filed 1 May 2002).
498. See J. Green and P. Hoffman, ‘Litigation Update: Summary of Recent Developments in U.S. Cases Brought under the Alien Tort Claims Act and Torture Victim Protection Act’, in American Civil Liberties Union, ACLU International Civil Liberties Report 2002. <http://www.civilrightslawla.com/ICLR/ICLR_2002/ICLR2002.html>.
499. The petitioners claimed that they were in Afghanistan to offer humanitarian assistance. They claimed that at no time did they join a terrorist force or engage in belligerency against the US or support the Taliban, and if they ever took up arms it was only in the form of a levee en masse. The petititioners in Odah claimed to have been volunteers providing humanitarian assistance in Afghanistan.
500. Bird v. United States, 923 F. Supp. 338 (D. Conn. 1996); Cuban American Bar Ass ‘n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995), cert. denied, 515 U.S. 1142 (1995).
501. Johnson v. Eisentrager, supra n. 493, at p. 789, fn. 14.
502. See supra at p. 614 of this report.
504. An unredacted version of the Declaration (the ‘Sealed Mobbs Declaration’) had been provided to the Court, but the government maintained that it must remain confidential.
505. The unredacted Mobbs Declaration was the basis for the conclusions expressed in the 9 June Order.
506. 18 U.S.C. § 4001(a) (2000).
507. Quoting with approval The Prize Cases, 67 U.S. (2 Black) 635 (1862).
508. According to the judgement, Authorization for the Use of Military Force, § 2(a) ‘authorises the President to use necessary and appropriate force in order, among other things, “to prevent any future acts of international terrorism against the United States,” and thereby engages the President's full powers as Commander in Chief’.
509. Ex Parte Quirin, 317 U.S. 1 (1942).
510. Supra n. 507.
512. The Mobbs Declaration refers to an affidavit from Michael Mobbs, Special Adviser to the Under Secretary of Defence for Policy, which confirmed the material factual allegations in Hamdi's petition, namely, the circumstances in which Hamdi had been captured, his designation as an ‘enemy combatant’ by the executive, and his transfer to the Norfolk Naval Brig.
513. Quoting the judgement in Hamdi II, 296 F.3d at p. 283.
516. Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (18 September 2001).
517. 10 U.S.C. § 956(5) (2002).
518. For the complete docket in the Walker Lindh case, see <http://notablecases.vaed.uscourts.gov/1:02-cr-00037/DocketSheet.html>.
520. ‘“I plead guilty,” Taliban American says’, CNN.com, 17 July 2002. <http://www.cnn.com/2002/LAW/07/15/walker.lindh.hearing>.
521. ‘Bush gave nod to plea agreement, officials say’, CNN.com, 15 July 2002. <http://www.cnn.com/2002/LAW/07/15/bush.plea.deal/index.html>.
522. ‘John Walker Lindh sentenced to 20 years: American Taliban fighter apologizes at sentencing’, Washington Post, 5 10 2002, p. A.1Google Scholar.
524. S. Candiotti, ‘Walker Lindh sentenced to 20 years’, CNN.com. <http://www.cnn.com/2002/LAW/10/04/lindh.statement/index.html>.
525. This is not an exhaustive survey of all ATCA and TVPA cases, but a summary only of those cases concerned with IHL violations or of related interest.
526. ICRC Advisory Service, National Implementation of International Humanitarian Law — Biannual update on national legislation and case-law, January-June 2002. <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5FLE9G?OpenDocument>. See also <http://www.cja.org/cases/Mehinovic_-Docs/Mehinovic_Judgement_Summary.html>; <http://www.civilrightslawla.com/ICLR/ICLR_2002/9_sondheimer.pdf>.
527. American Civil Liberties Union, ACLU International Civil Liberties Report 2002, Chapter 9, pp. 57 at 57–58Google Scholar. <http://www.aclu.org/International/International.cfm?ID=11742&c=36>.
529. For details of a second case against the same defendants, see infra p. 639.
531. For news reports of the case, see Collier, R., ‘Florida jury convicted two Salvadorean generals of atrocities $54.6 million awarded to three torture victims’, San Francisco Chronicle, 24 07 2002, p. A12Google Scholar; Gonzalez, D., ‘Torture victims in El Salvador are awarded $54 million’, The New York Times, 24 07 2002Google Scholar; Roig-Franzia, M., ‘Torture victims win lawsuit against Salvadoran general’, Washington Post, 24 07 2002, p. A01Google Scholar; ‘El Salvadoran generals guilty of torture’, BBC News, 23 07 2002Google Scholar.
532. At p. 133 of the Judgement.
533. At pp. 117–118 of the Judgement.
534. See J. Green and P. Hoffman, ‘Litigation Update: Summary of Recent Developments in U.S. Cases Brought under the Alien Tort Claims Act and Torture Victim Protection Act’, in American Civil Liberties Union, International Civil Liberties Report 2002. <http://www.civilrightslawla.com/ICLR/ICLR_2002/ICLR2002.html>.
537. Ravindran, P., ‘Alien tort legislation in the US — why it should not be tampered with’, The Hindu Business Line, 13 08 2003Google Scholar.
538. The letter of interest is available online at <http://www.hrw.org/press/2002/08/exxon072902.pdf>.
539. See J. Green and P. Hoffman, ‘Litigation Update: Summary of Recent Developments in U.S. Cases Brought under the Alien Tort Claims Act and Torture Victim Protection Act’, in American Civil Liberties Union, International Civil Liberties Report 2002. <http://www.civilrightslawla.com/ICLR/ICLR_2002/ICLR2002.html>.
540. American Civil Liberties Union, ACLU International Civil Liberties Report 2002, ibid., Chapter 9, pp. 57 at 57–58. <http://www.aclu.org/International/International.cfm?ID=11742&c=36>.
541. Nieves, G. Epstein, ‘Honduran linked to killings: Miami lawyers says charges are false’, Miami Herald, 22 07 2002Google Scholar.
542. See J. Green and P. Hoffman, ‘Litigation Update: Summary of Recent Developments in U.S. Cases Brought under the Alien Tort Claims Act and Torture Victim Protection Act’, in American Civil Liberties Union, International Civil Liberties Report 2002. <http://www.civilrightslawla.com/ICLR/ICLR_2002/ICLR2002.html>.
545. Raphael, A., ‘Apartheid victims sue global corporations’, OneWorld US, 13 11 2002Google Scholar. See further <http://www.cmht.com/casewatch/cases/cwapartheid4.html>.
546. Source: CICC/The Americas: Uruguay. <http://www.iccnow.org/countryinfo/theamericas/uruguay.html>.