Published online by Cambridge University Press: 17 February 2009
4. Human Rights Watch World Report 2000. Algeria. http://www.algeria-watch.de/mrv/mrvrap/hrw2000.htm. See also ‘Algeria: Truth and Justice obscured by the shadow of injustice’, Amnesty International, Al-Index: MDE 28/011/2000, 8 November 2000. http://www.web.amnesty.or…MDE280112000?OpenDocument&of=COUNTRIES%5CALGERI.
5. ‘Algeria braces for end of amnesty’, BBC News online. http://www.asyl.net/Magazin/Docs/Docs07/15273alg.htm.
6. Amnesty International Annual Report 2000. Algeria. http://www.web.amnesty.Org/web/a...bca62d9eb4e00866802568f2005528f9?OpenDocumen.
9. Jørgensen, loc cit. n. 2, p. 684.
11. Jørgensen, loc. cit. n. 2, p. 688.
12. See further Décret exécutif déterminant les modalitiés d'application des dispositions de l'article 40 de la loi relative au rétablissement de la concorde civile. http://www.gga.dz/elections/guidesFr/concorde.html.
13. Jørgensen, loc cit. n. 2.
15. Supra n. 4.
16. ‘Showdown in Algeria after amnesty offer expires’, Radio Netherlands, Wereldomroep, 13 January 2000. http://www.rnw.nl/hotspots/archive/afr/html/algeria000113.html.
17. Information and commentary by Dr Jose Doria, currently Legal Officer at the Office of the Prosecutor, ICTY. The views expressed herein are those of the author alone and do not necessarily represent the views of the United Nations.
18. See Diario da Republica (Orgao Oficial da Republica de Angola) I Serie — No. 53, de 15 de Dezembro de 2000. Imprensa Nacional — U.E.E. — Luanda, 2000.
19. Amnesty International has on various occasions reported that, during the conflict, UNITA rebels committed atrocities against defenseless civilians. It is interesting to note that, in 1999, the Parliament of Angola adopted a resolution branding UNITA leader Jonas Savimbi a war criminal and calling on the government and the international community to take measures to arrest him. See text of Angola National Assembly resolution adopted 27 January 1999 at http://www.angola.org. See text of Amnesty International report on war crimes by UNITA at http://www.amnesty.org.
21. As we know, thanks in part to the disclaimer of the UN Special Representative for Sierra Leone to the Lomé Peace Agreement, which stated that the amnesty did not apply to war crimes, crimes against humanity and genocide, a Special Court for Sierra Leone is in the process of being established. See UN Doc. S/1999/836, p. 2, para. 7; Report of UN Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000. UN Doc. S/2000/915, and the Sierra Leone report in this section, infra pp. 572 at 574.
22. The Constitution of Angola is online at the official website of the government of Angola: http://www.angola.org.
23. Source: Coalition for the International Criminal Court. Country-by-Country Ratification Status Report, http://www.iccnow.org/html/country/html.
24. Information and commentaries by Professor José Alejandro Consigli, Head of the Rectorate of the Austral University, Buenos Aires and Gabriel Pablo Valladares, Legal Advisor, ICRC Advisory Service Regional Delegate for Argentina, Bolivia, Chile, Paraguay and Uruguay, and former Assistant Professor of IHL at Buenos Aires University.
25. Source: supra n. 23.
28. Information and commentaries by Tim McCormack, Australian Red Cross Professor of International Humanitarian Law, University of Melbourne; member of the Board of Editors, Yearbook of International Humanitarian Law.
29. 172 CLR 501 at 669.
30. Information and commentaries by Dr Thomas Desch, Federal Ministry of Defence, Vienna, and Mag. Peter Kustor, Federal Chancellery, Vienna.
31. For subsequent Austrian practice in international fora see, for example, the Statement of the Austrian Representative at the Review Conference on the Code of Conduct on politico-military aspects of security, Vienna, 28 September 1999, published in Auβenpolitische Dokumentation 1999/5, p. 70.
32. For the respective Austrian law concerning cooperation with the Tribunal, see 1 YIHL (1998) p. 408Google Scholar.
34. Information and commentaries by Oleg Starovoitov, lecturer in public international law at the Faculty of International Relations at Belorussian State University, Minsk, Belarus.
35. See the article by W. Schabas in this volume at p. 337.
36. Information and commentaries by Eric David, Professeur ordinaire, Brussels Free University.
37. Art. 31 (1)(c) provides: ‘The person acts reasonably to defend himself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.’
38. French text: ‘En vertu de l'art. 21, § ler, b, du Statut et eu égard aux règles du droit international humanitaire auxquelles il ne peut être dérogé, le Gouvernement belge considère que l'art. 31, § ler, c, du Statut ne peut être appliqué et interprété qu'en conformité avec ces règies.’ MB, 1 12 2000, p. 40423Google Scholar.
40. French text:
‘A. Considérant que l'adoption du Statut de la CPI est une priorité en vue d'améliorer la justice internationale;
B. Considérant que l'art. 31.1.C, le Statut reprend un motif inacceptable d'exonération de la responsabilité pénale;
C. Considérant qu'en raison de l'art. 31.1.C, le Statut est en retrait par rapport aux normes de droit actuellement en vigueur;
Demande que le Gouvernement fasse, lors de la ratification du Statut de la CPI, une déclaration interprétative de la portée exacte de l'art. 31.1.c qui doit préciser à tout le Moines:
1) que l'art. 31.1.c du Statut n'est pas compatible avec le caractère intransgressible des interdits du droit humanitaire;
2) que l'adhésion de la Belgique au Statut sera sans effets sur le respect des normes auxquelles il ne peut être dérogé dans l'ordre juridique international;
3) que la compétence des juridictions belges continuera à s'exercer en fonction du respect de ces normes intransgressibles.'
41. Art. 87(1) provides: ‘(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.’
42. Art. 87(2) provides: ‘Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.’
43. French texts:
‘Se référant à l'art. 87, § ler du Statut, le Royaume de Belgique déclare que le Ministère de la Justice est l'autorité compétente pour la réception des demandes de coopération.’
‘Se référant à l'art. 87, § 2, le Royaume de Belgique déclare que les demandes de coopération de la Cour et les pièces justificatives y afférentes seront rédigées dans une langue officielle du Royaume.’
44. Published in Moniteur belge, 5 August 1993. Reprinted in English in 2 YIHL (1999) p. 541Google Scholar.
45. Published in Moniteur belge, 27 April 1996.
46. Case No. ICTR 96–18–1.
47. Published in Moniteur belge, 23 March 1996. Reprinted in English in 2 YIHL (1999) p. 539Google Scholar.
48. Source: Lawyers' Committee for Human Rights, update on the status of ICC Implementation in Africa, 6 April 2001.
49. Source: supra n. 23.
50. Information and comment by Gabriel Valladares, Legal Advisor, ICRC Advisory Service Regional Delegate for Argentina, Bolivia, Chile, Paraguay and Uruguay.
51. Information provided by Vladimir Stanisić, Office of the High Representative, Sarajevo.
52. Case No. K-118/96, unpublished.
53. Case No. Kz-498/97–1, unpublished.
54. Cf., Arts. 14 and 15 of the ICCPR; Common Art. 3(1)(d) of the Four Geneva Conventions; Arts. 84, 99–108 of the Third Geneva Convention; Art. 75(1) of AP I and Art. 6 of AP II.
56. Cf., Art. 86(2) of AP I, Art. 7(3) of the ICTY Statute and Art. 28 of the ICC Statute. The doctrine of criminal responsibility of superiors for failure to act is firmly established under customary international law: see Green, L.C., ‘Command Responsibility in International Humanitarian Law’, 5 Transnational Law and Contemporary Problems (1995) pp. 320–371 at 320–340, 341, 350Google Scholar; see also Jia, B.B., ‘The doctrine of command responsibility in international law with special emphasis on liability for failure to punish’, in 45 NILR (1998) pp. 325 at 346CrossRefGoogle Scholar and the same author in the current volume of the YIHL at p. 131.
57. Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgement, 16 November 1998, para. 395.
58. Prosecutor v. Dario Kordić and Mario Cerkez, Case No. IT-95-14/2, Judgment, 21 February 2001, paras. 445–446.
59. Čelebići Trial Judgement, supra n. 57, at para. 398.
60. ‘Police issue warrants for five alleged war criminals’, BBC Summary of World Broadcasts, 12 08 2000Google Scholar.
62. ‘Prospects for progress slim at Burundi peace summit’, The Times of India, 26 02 2001Google Scholar [http://www.timesofindia.com/260201/26afrcl.htm]. For background on the peace negotiations and current stories, see http://www.internews.org/PROJECTS/ICTRBurundi.html and http://www.hirondelle.org/.
63. Amnesty International Annual Report 1999. Burundi. http://www.amnesty-usa.org/ailib/aireport/ar99/afr16.htm.
64. Information and comments by David Boyle, solicitor and researcher in international law based in Paris.
65. The Council of Jurists is an official institution, attached to the Office of the Cambodian Council of Ministers, which disseminates knowledge of Khmer substantive law and assists nationals as well as foreign jurists in search of reliable translations.
66. Official Gazette Ref. Kram CS/RKM/1197-05, 6 November 1997.
67. UNGA Doc. A/53/850, 16 March 1999, Annex.
68. Law Outlawing the Democratic Kampuchea Clique, 7 July 1994 [Official Gazette ref. Kram No. 64]; in French at http://www.refer.fr/cbodg_ct/eco/droit/loi064.htm.
69. Source: Lawyers' Committee for Human Rights, update on the status of ICC Implementation in Africa, 6 April 2001.
70. Source: CICC Bulletin, ICC UPDATE, 16th edition, 22 December 2000.
71. Information and comments by Professor Rene Provost, Assistant Professor, Faculty of Law and Institute of Comparative Law, McGill University, Montreal, and Joseph Rikhof, Special Counsel and Policy Advisor, Modern War Crimes Section, Department of Citizenship and Immigration, Toronto.
72. See further, W. Schabas at p. 337 of this volume.
74. For the purposes of paragraph (1)(l), ‘senior members of or senior officials in the service of a government’ means persons who, by virtue of the position they hold or have held, are or were able to exert a significant influence on the exercise of government power and, without limiting its generality, includes: heads of state or government; members of the cabinet or governing council; senior advisors to persons described in paragraph (a) or (b); senior members of the public service; senior members of the military and of the intelligence and internal security apparatus; ambassadors and senior diplomatic officials; and members of the judiciary.
75. So far, seven regimes have been designated as such, namely:
–the Bosnian Serb regime between 27 March 1992 and 10 October 1996 (designated 16 June 1993 and extended on 15 August 1997);
–the Siad Barré regime in Somalia between 1969 and 1991 (designated 12 October 1993);
–the former military governments in Haiti between 1971 and 1986, and between 1991 and 1994 except the period August -December 1993 (designated 8 April 1994);
–the former Marxist regimes of Afghanistan between 1978 and 1992 (designated 21 October 1994);
–the governments of Ahmed Hassan Al-Bakr and Saddam Hussein in power since 1968 (designated 3 September 1996);
–the government of Rwanda under President Habyarimana between October 1990 and April 1994, as well as the interim government in power between April 1994 and July 1994 (designated 27 April 1998);
the governments of Federal Republic of Yugoslavia and the Republic of Serbia (Milošević) since 28 February 1998 (designated 30 June 1999).
76. Seven hundred were refused between 1 April 1999 and 31 March 2000 alone. See Canada's War Crimes Program, Annual Report 1999-2000, Appendices E and F.
http://www.cic.gc.ca/english/pub/war2000-e.html. The number of refugee claimants which have been investigated in Canada by the Department of Citizenship and Immigration is much higher, namely almost 3,000 between 1992 and 2000; not all of these cases will be pursued, only the ones where there are serious grounds to believe that the person was involved in war crimes or crimes against humanity, as was the case in 350 cases.
77. In 1998, three departments of the government of Canada were given $46.8 million over three years for its war crimes program, of which $28.2 million was allocated to the Department of Citizenship and Immigration, $16.5 million for the Department of Justice, primarily to deal with allegations of World War Two war crimes, and $2 million for the Royal Mounted Police; see Canada's War Crimes Program, Annual Report 1999–2000, p. 6.
78. Over 80 cases dealing with war crimes and crimes against humanity were decided by the Federal Court between 1992 and 2001, primarily in the context of exclusion ground 1F(a) of the 1951 Refugee Convention which prohibits persons from obtaining refugee status if involved in such atrocities. See generally on the exclusion clause van Krieken, P. J., Refugee Law in Context, The Exclusion Clause (The Hague, TMC Asser Press 1999)CrossRefGoogle Scholar.
79. While it appears that this notion of liability for membership in a brutal, limited purpose organization is a unique one in Canadian immigration and refugee law, some precedent for this view can be found in the Nuremberg Charter and Judgement and post-WWII case-law. Volume XXII of the Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, p. 500); Trial of Martin Gottfried Weiss and thirty-nine others, Law Reports of Trials of War Criminals, Volume XI, page 5). While the ICTY Appeal Chamber in the Tadić case ((Case IT-94-1, 15 July 1999, para. 205) regarded this case as an example of common purpose or conspiracy, the language of the cases is broad enough to consider the findings of the American and British military courts a further refinement of the Nuremberg Tribunal.
80. See Rikhof, J., ‘Exclusion Clauses: The First Hundred Cases in the Federal Court’, 24 Imm. Law Review, 2nd edn. (1996) pp. 137 at 152–158Google Scholar. This is similar to international case-law, especially as decided by the Appeal Chamber in the Tadić case (Ibid., para. 229 (iii)). There had been a discrepancy about this test at the Trial Chamber level where, on one hand, in the cases of Tadić (17 May 1997, paras. 730 and 738) and Čelebići (IT-96-21, 16 November 1998, paras. 325–327) the requirement of ‘direct’ had been added, while this was not considered a requirement in the Furundžija case (IT-97-17/1, 10 December 1998, para. 234); the Appeal Chamber rendered a decision on 21 July 2000 but did not address this point). See also Rutaganda (ICTR-96-3-T, 6 December 1999, para. 42), Musema (ICTR-96-13-T, 27 January 2000, para. 126) and BlaČkić (IT-95-14, 2 March 2000, paras. 283–288).
81. Canada's War Crimes Program, Annual Report 1999-2000, pp. 7-8.
82. This approach was commented upon favourably by the Committee against Torture in its consideration of the third periodic report of Canada (UNDOC CAT/C/XXV/Concl.4, para. 4(c), 22 November 2000).
83. R.S.C. 1985, c. C–46, a. 7(3.1).
85. On the advice of the Prime Minister, the Governor General, by proclamation on 22 October 2000, dissolved Parliament and gave orders for issuing writs of election. 27 November 2000 was set as polling day, and the writs of election were to be returned by 18 December 2000. Dissolution abolishes all pending legislation and quashes further committee activity. Any Bill of a previous Parliament, in order to be proceeded with, must be introduced again as a new Bill.
86. Source: supra n. 69.
87. Information and commentaries by Hernán Salinas Burgos, Professor of Public International Law at the University of Chile and the University of Los Andes, Santiago, and Member of the International Humanitarian Fact-Finding Commission, and Carlos Dettleff Beros, Professor of Public International Law at the University of Chile.
88. He will permanently lose his place in the Senate if he is found guilty of the offences with which he has been charged.
89. In the Cassation Awards of 1998 in the cases of Juan Paredes Barrientos; Jorge Ortiz Moraga; Pedro Poblete Córdova and Hugo Cardemil Valenzuela and others.
90. See the Chilean report in 2 YIHL (1999) at pp. 346–347Google Scholar. The decision in the case of Pedro Poblete Córdova is reprinted in the same volume at pp. 485 et seq.
91. Information and commentaries by Dr Rafael Prieto Sanjuán, Professor of International Law and International Humanitarian Law at External University of Colombia, Bogotá.
92. To specifically standardise the status of officers, sub-officers and civil servants, Decrees No. 1790, 1791 and 1792 were adopted on 14 September 2000 (D.O., No. 44161, pp. 31, 42, 23 respectively). On the same date, the Military Discipline Regime was adopted by Decree No. 1797 [por el cualse expide el Reglamento de Régimen Disciplinario para las Fuerzas Militares], as well as a reform on the Norms of Discipline and Ethics for the National Police, Decree No. 1798 [por el cual se modifican las normas de disciplina y ética para la Policía National]. Ibid. pp. 2 and 12. Assessment and classification shall effectuate with regard to Decrees No. 1799, for military personnel, and 1800, for police members. Ibid. pp. 55 and 20.
93. See infra US report, pp. 601 at 615.
94. Excerpts of the new penal code are reprinted in an unofficial English translation at p. 710 of this volume.
95. Arts. 135 to 141 of the New Penal Code (hereinafter, NPC), Libro 11: Parte especial, Total II: Deletes contra personas y beings protegidos por El derecho internacional humanitario [Offences against persons and objects protected by IHL] (capítulo único).
97. The penalty for helping ordinary delinquents varies from six months to four years imprisonment. But if the conduct concerns genocide, forced disappearance, torture, forced displacement, murder, extortion, unlawful enrichment, extortive kidnapping or drug trafficking, penalties are from four to 12 years (Art. 3 of Law 589/2000, amending Art. 176 OPC). Conspiracy is normally punished with three to six years imprisonment. For these crimes, and for terrorism, or the establishment, support for, arming or financing of unlawful groups, the penalty for conspiracy is increased from ten to 15 years, and shall be doubled or tripled for organisers, leaders or financial supporters (ibid., Art. 4, amending Art. 186 OPC). The penalty for abetting genocide, forced disappearance, extortive kidnapping, torture, forced displacement or murder has been increased from ten to 15 years imprisonment (ibid., Art. 5, reforming Art. 188 OPC). Jurisdiction over these crimes is vested in Special Judges of Circuits.
99. Decree No. 1513 of 11 August 2000 ‘por el cual se modifica la nomenclatura y clasificación de los empleos públicos de la Justicia Penal Militar y se dictan otras disposiciones’. Published in D.O., No. 44125 of 11 August 2000, p. 10; and Decree No. 1514 of 11 August 2000 ‘por el cual se modifican las plantas de Empleados Públicos del Ministerio de Defensa Nacional al servicio de las Fuerzas Militares y de la Policía Nacional contenidas en los Decretos 1748 de 1993 y 1260 de 1994 y se fija la planta de la Justicia Penal Militar’, Published in D.O., ibid., p. 11.
100. An exception being Decree No. 173/1998 [Decreto No. 173 de 1998 (enero 26) por el cual se adopta el Plan Nacional para la Atención Integral a la Población Desplazada por la Violencia.] Published in D.O., No. 43225 of 29 January 1998, p. 1] that partially intended to regulate Law 387/1997.
101. The Red de Solidaridad was designed as the coordination entity of the Integral Attention System for Displaced Persons by Decree No. 489 of 11 March 1999. Published in D.O. No. 43529 of 17 March 1999, p. 1. For its part, Decree No. 1547 of 19 August 1999 transferred the funds to assist this population from the Ministry of Interior to the Red. Published in D.O. No. 43676 of 24 August 1999, p. 1.
102. Currently, the main offences concerning the Colombian armed conflict are: aggravated theft; extortion; murder; aggravated and multiple homicides; homicide for terrorist ends; terrorism; rebellion; bodily harm; kidnapping; establishing, leading, financing and membership of illegal armed groups known as paramilitary groups; illegal possession of self-defence weapons and illegal use of radio communications equipment, including receivers and transmitters; and cover-up, and conspiracy and infringement of Decree No. 1194/89, Arts. 1 and 2 (membership of so-called death squads and paramilitary groups).
103. Source: supra n. 23.
104. Information and commentaries by Maja Šersić, Professor of International Law, University of Zagreb, Croatia, Suzannah Linton LL.B (Hons), LL.M (Distn.), Solicitor of the Supreme Court of England and Wales, and Jann K. Kleffner, Assistant Managing Editor, YIHL and Ph.D. candidate in International Law, University of Amsterdam.
105. It is estimated that more than a million mines were left after the war in Croatia. Most of the mines were laid along the ex-confrontation line.
106. In 1995, the Zagreb District Court released Baković and Topić (Majić was then on the run) pending trial.
107. See for example, the following extract: ‘In war, crimes can be committed by all sides and nobody can be amnestied from the responsibility of the committed crimes, just because he belongs to one or the other side. The crime is always just a crime, and has no nation, religion or ideology. There is no doubt that crimes in war are committed by the aggressor, attacker or the conqueror because the nature of each aggression is a crime. But crimes can be committed by the Armed Forces that are trying to protect themselves. Such people commit crimes when their acts are not defensive and are not in the purpose of defence and when they go below fundamental moral and ethical beliefs, committing the evil crimes and violating the rights guaranteed by international law.’ Verdict of the panel of the District Court of Zagreb, Case No. II K-192/94, unpublished.
110. Information and commentaries by Jan Hladik, Program Specialist, International Standards Section of the Division of Cultural Heritage, UNESCO, Paris. All the information contained in this contribution is valid as of the end of August 2000.
112. S/RES/1258 (6 August 1999).
113. S/RES/1273 (5 November 1999).
114. S/RES/1279 (30 November 1999).
115. 24 February 2000.
116. Information provided by Peter Otken, LL.M, Special Assistant to the Judge Advocate General, Copenhagen.
117. Information and commentaries by Suzannah Linton, LL.B (Hons), LL.M (Distn.), Solicitor of the Supreme Court of England and Wales.
118. See the Agreement between Indonesia and Portugal on the question of East Timor of 5 May 1999 and the Agreements between the United Nations, the government of Indonesia and Portugal of 5 May 1999 regarding the modalities of the popular consultation of the East Timorese through a direct ballot and regarding security arrangements, UN Doc. S/1999/513, Annexes I–III.
119. The United Nations Transitional Administration in East Timor is a peacekeeping mission, established by Security Council Resolution 1272 of 25 October 1999, UN Doc. SC/RES/1272 (1999). It is responsible for taking East Timor to independence. During the course of this transitional period, UNTAET is mandated to exercise all legislative and executive authority, including the administration of justice. It is charged with ensuring security, maintaining law and order, establishing an effective administration, supporting capacity-building for self-government and assisting in the establishment of conditions for sustainable development.
120. For a detailed examination of the establishment of a criminal justice system in East Timor, with particular emphasis on the Serious Crimes process, see Linton, S., ‘Rising from the ashes: the creation of a viable criminal justice system in East Timor’, 24 Melbourne Univ. LR (04 2001) p. 122Google Scholar.
121. See UNTAET/REG/2000/11, 6 March 2000, Official Gazette of East Timor, UNTAET/GAZ/2000/Add.1.
122. UNTAET has been very involved in promoting alternative routes to achieving reconciliation. Key among them has been a proposal whereby amnesties are offered to those who confess and show genuine remorse for their involvement in ‘minor’ crimes, such as arson and property damage. On 13 December 2000, it was reported that the Transitional Cabinet had approved a proposal for the establishment of a Truth, Reception and Reconciliation Commission. This commission will focus on facilitating the reintegration of returnees by way of amnesties in certain cases, establishing a historical record about human rights abuses, and recommending mechanisms to prevent future abuses. UNTAET Daily Briefing, 13 December 2000. http://www.un.org/peace/etimor/DB/db131200.htm.
123. See Human Rights Watch, Unfinished Business: Justice for East Timor, 08 2000Google Scholar. http://hrw.org/backgrounder/asia/timor/etimor-back0829.htm.
124. Under Indonesia's Kitab Undang-Undang Hukum Acara Pidana (Indonesian Code of Criminal Procedure) of 1981, as amended, sole responsibility for arrest, initial detention of up to 20 days and investigation in criminal cases rests with the investigators. The current version of the Indonesian Code of Criminal Procedure can be found in Bahasa Indonesia at http://www.asiamaya.com/hukum/kuhap/index.htm.
125. UNTAET's Special Representative of the Secretary General acts as Transitional Administrator of East Timor and is responsible for all aspects of the United Nations' work in East Timor and has power to enact new laws and regulations and to amend, suspend or repeal existing ones.
126. See n. 124.
127. See UNTAET/REG/2000/15, 6 June 2000, Official Gazette of East Timor, UNTAET/GAZ/2000/Add.3.
128. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, UN DOC. A/CONF. 183/9,37 ILM p. 999, Opened for signature 17 July 1998. Not yet in force.
129. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984, 1465 UNTS 85,23 ILM p. 1027 with changes at 24 ILM p. 535. Entered into force 26 June 1987.
130. The Indonesian Penal Code is based on the 1915 Dutch code ‘Wetboek van Strafrecht voor Indonesia’, and has been subjected to numerous revisions and amendments. The most recent version can be viewed in Bahasa Indonesia at http://www.asiamaya.com/hukum/kuhap/index.htm.
131. Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, Official Gazette of East Timor, UNTAET/GAZ/2000/Add.4.
132. See East Timor: Building a country based on human rights, Amnesty International, ASA 57/05/00, 29 August 2000: ‘While recognising the size and complexity of its work, Amnesty International is concerned by the slow pace at which UNTAET investigations are proceeding … A number of suspects have already spent more than ten months in detention without indictment.’ See also East Timor NCO Forum Statement presented at a meeting with the Security Council Mission to East Timor, accusing UNTAET of ‘failing to carry out its mandate to bring to justice those responsible for last year's violence’ and noting that ‘these war crimes took place over a year ago and the longer the investigations are delayed the less likely it is that there will ever be successful prosecutions’. It also complained to the Security Council delegation that the ‘Serious Crimes Unit has only been allocated the resources to investigate a very small proportion of the alleged war crimes. It is grossly understaffed, and lacks anything like sufficient basic necessities as interpreters, transport and computers’. http://etan.org/et2000c/november/12/18/13etngo.htm.
133. See ‘E. Timor: Investigators struggle with criminal lack of resources’, South China Morning Post, 14 11 2000Google Scholar; ‘UN pledges more resources to East Timor's chief investigator’, AFP, 20 November 2000: ‘The UN chief investigator for serious crimes in East Timor has agreed not to resign after last minute pledges by the body's administrators to supply his unit with desperately needed resources. … Two-thirds of the people arrested on suspicion of serious crimes in the province have been released because the Special Crimes Unit lacked the resources to continue their investigations…’. ‘Frustration grows over Timor delays’, East Timor Online, 27 May 2000. http://www.theage.com.au/news/20000527/A20309-2000May26.html.
134. See Report of the Security Council Mission to East Timor and Indonesia, UN Doc. S/2000/1105, 20 November 2000, p. 2 para. 8.
135. On 15 September 1999, following Indonesian consent to the sending of an international force to restore peace and security in East Timor, the Security Council, acting under its Chapter VII powers, authorised the creation of an international force (INTERFET), UN Doc. S/RES/1264 of 15 September 1999. INTERFET was mandated ‘to restore peace and security in East Timor, to protect and support UNAMET [the United Nations Mission to East Timor established to supervise the referendum of 30 August 1999) in carrying out its tasks and, within force capabilities, to facilitate humanitarian assistance operations’.
136. See further the article by B. Oswald in this volume at p. 347.
137. The FALINTIL is the armed wing of the Fretilin (Frente Revolucionara Do Timor Leste Independente), which was the main Timorese resistance party and a founding member of the National Council of East Timorese Resistance (CNRT). Until recently, the FALINTIL was commanded by Xanana Gusmao. The force is currently in barracks in Aileu and the process to develop it into a conventional army is underway.
138. United Nations Civilian Police. They are the law enforcement arm of UNTAET and have assumed the policing role previously performed in East Timor by the Indonesian police.
139. Reprinted in the Documents section of this volume at p. 655.
140. Sections 12a7 and 12a8 of UNTAET Regulation 2000/14 amending Regulation No. 2000/11, now replaced by Sections 20.11 and 20.12 of UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure.
141. Under Section 19 of UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure, arrest warrants are issued by an investigating judge at the request of a prosecutor where ‘there are reasonable grounds to believe that a person has committed a crime’.
142. See ‘Akhirnya Eurico Guterres Bebas’, Kopitime, 23 10 2000Google Scholar; ‘Indonesia says it won't hand over militia leader’, Reuters, 12 10 2000Google Scholar; ‘Guterres Not Yet Final’, GATRA, VI/49, 21 October 2000; ‘Jakarta MPs back ‘Hero’ Guterres’, The Australian, 13 10 2000Google Scholar, http://www.theaustralian.com.au/common/story_page/0,451l,1302746%255E8882,00.html; ‘Amien Membela Hak-Hak Guterres’, Forum Cyber News, 12 October 2000, http://www.forum.co.id/terkini/10/00/amienrais.htm.
143. See transcript of press conference given by the General Prosecutor of East Timor on 11 December 2000, UNTAET Daily Briefing 11 December 2000. http://www.un.org/peace/etimor/DB/dbO11200.htm.
144. Information and commentary by Adel Maged, Chief Prosecutor at the Criminal Division of the Egytian Court of Cassation.
145. Art. 1.
146. Art. 2.
147. Art. 3.
148. Arts. 4–5.
149. Art. 4.
150. Art. 5.
152. Information and commentaries by Tanel Kerikmäe, Associate Professor Concordia International University, Estonia and Andres Parmas, senior lawyer at the Legal Information Department of the Supreme Court of Estonia.
153. The Geneva Conventions of 1949 and API of 1977 only impose a duty on High Contracting Parties to enact national legislation to effectively penalize grave breaches of the Conventions and the Protocol, but do not prescribe the formal requirements in this respect. See G I Art. 49, G II Art. 50, G III Art. 129, G IV Art. 146, and AP I Art. 85(1). See also Green, L.C., The Contemporary Law of Armed Conflict (Manchester, Manchester University Press 2000) p. 293Google Scholar.
154. See further reference to the judgements in the list of cases from Estonia.
155. The judgements in the Loginov, Beskov, Klaassepp and Neverovski cases.
156. Charter of the Nuremberg Tribunal Art. 8; Statute of the ICTY of 25 May 1993 (as amended 13 May 1998) Art. 7(4).
157. The Geneva Conventions of 1949 and Additional Protocol I of 1977; respectively Land Art 49, Maritime Art. 50, Prisoners of War Art. 129, Civilians Art. 146, AP I Arts. 86, 88, 89.
158. Kriminaalkoodeks (Criminal Code), RTI 1999, 38, 485.
159. See e.g., E. Sarv., Õiguse vastu ei saa ükski. With English summary. No one Can Withstand the Law: Estonia's Efforts and International Law (Tartu, Okupatsioonide Repressiivpoliitika Uurimise Riiklik Komisjon 1997) p. 69Google Scholar.
160. See the Judgements of the Supreme Court of Estonia, e.g., the judgement of the J. Erm case, No. III–1/3–4 1994, http://www.nc.ee/rkis/lahendid/tekst/l/3/14/94.html; the judgement of O.Libe case, No. III–1/3–10 1994, http://www.nc.ee/rkis/lahendid/tekst/l/3-10/94.html; the judgement of the J. Linamets case, No. III–1/3–2/95, http://www.nc.ee/rkis/lahendid/tekst/l/3-2/95.html.
161. See Hague Convention IV of 1907 respecting the Laws and Customs of War on Land. Annex to the Convention, Art. I.
162. Estonia ratified the Convention on the Prevention and Punishment of the Crime of Genocide in 1994 (RT II 1994, 27, 103Google Scholar). According to its Art. II, genocide means the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. See also the Statute of the ICTY of 25 May 1993 (as amended 13 May 1998), Art. 4(2) of which defines genocide with respect of the Tribunal.
163. Estonia has acceded (26 November 1991) to the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, according to whose Art. I(b), no statutory limitation shall apply to crimes against humanity. See also the Decision on jurisdiction of the ICTY Appeals Chamber of 2 October 1995 in the Tadić case, where the Tribunal stated that the obsolescence of the nexus requirement between crimes against humanity and either crimes against peace or war crimes is evidenced by international conventions regarding genocide and apartheid, both of which prohibit particular types of crimes against humanity regardless of any connection to armed conflict. The Prosecutor v. DuŠko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. 1T-94-I, 2 October 1995, para. 140. And the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS (1951) 277Google Scholar, Art. 1 providing that genocide, ‘whether committed in time of peace or in time of war, is a crime under international law’.
164. See the draft of the Penal Code on the website of the Estonian Parliament at http://www.riigikogu.ee/ems/plsql/motions.active.
165. Statute of the ICTY of 25 May 1993 (as amended 13 May 1998), Art. 4(2). Rome Statute of the ICC of 17 July 1998, Art. 6.
166. Rome Statute, Art. 7(1). Statute of the ICTR, Art. 3.
167. Information and commentaries by Professor Dr Miodrag Starčević Professor of IHL at Military High Schools Centre, Belgrade and Jann K. Kleffner, Assistant Managing Editor, YIHL and Ph.D. candidate, University of Amsterdam.
168. ‘Kostunica allows UN war crimes tribunal to open Belgrade office’, AFP, 6 November 2000.
169. See Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, S/1999/648, 7 June 1999.
170. On the existence or not of a right of humanitarian intervention, see the article by A. Roberts in this volume at p. 3.
171. Letter dated 15 June 1999 from the Secretary-General addressed to the President of the Security Council, with Military-technical agreement between the international security force (KFOR) and the governments of the Federal Republic of Yugoslavia and the Republic of Serbia annexed. S/1999/682, 15 June 1999.
172. See Ilić, D., ‘Serb Court Sentences 143 Albanians’, AP, 22 05 2000Google Scholar; ‘Serb Court Jails 143 Kosovo Albanians’, Reuters 22 05 2000Google Scholar; ‘143 Kosovo Albanians sentenced to lengthy jail terms for “terrorism”’, AFP, 22 05 2000Google Scholar; ‘Outcome of trial of 145 Albanians seen as foregone conclusion’, BBC Summary of World Broadcasts, 24 05 2000Google Scholar.
175. ‘Serbian justice minister announces “revision” of NATO leaders' trial’, BBC Summary of World Broadcasts, 31 01 2001Google Scholar.
176. Information provided by the Humanitarian Law Centre, Belgrade.
178. ‘Court to try man accused of war crimes in Bosnia-Hercegovina’, Radio FreeB92, 4 December 2000.
179. The judgements were provided by Christer Karphammer, International Judge at the District Court of Mitrovica. They are reprinted in the documents section of this volume at pp. 666 (Simić) and 658 (Lulzim).
180. He was indicted on 26 January 2000. Interim Administration of Kosovo Document PP. No. 4/99.
181. Interim Administration of Kosovo, Document PP. No. 4/99.
182. The Public Prosecutor of the Municipality subsequently requested the trial to be held in absentia and the Court in a decision of 3 July 2000 (Interim Administration of Kosovo Document PP. No. 29/99) accepted the request. This Court ruling was certified according to the Verdict of the Supreme Court of Kosovo in Pristina on 12 July 2000 (Interim Administration of Kosovo Document AP. No. 80/2000).
183. Information and commentary by Professor Lauri Hannikainen, Director of the Northern Institute for Environmental and Minority Law, University of Lapland, Rovanimi.
184. Information and commentaries provided by Professor Paul Tavernier, Professor Paris-Sud University, Director, Centre de Recherches et d'Etudes sur les Droit de l'Homme et le Droit Humanitaire (CREDHO), with the assistance of Alexandre Balguy-Gallois, CREDHO. Additional information by Avril McDonald.
185. ‘Chirac ‘horrified’ by war claims’, CNN.com/World, 4 May 2001. http://europe.cnn.com/2001/WORLD/europe/05/04/france.algeria/index.html.
186. ‘Les aveux du général Aussareses’, Le Monde, 2 05 2001Google Scholar. http://www.lemonde.fr/article/0,5987,3230-179429-.00.html.
187. Supra n. 185.
188. The establishment of this Foundation was approved by decree of 26 December 2000. Journal officiel, 30 December 2000, p. 21028.
189. Bremner, C., ‘France accepts guilt for wartime anti-semitism’, The London Times, 17 07 2000Google Scholar.
190. See Press Release of the ICTY Press and Information Service, CC/ P.I.S/ 472–e, 25 February 2000.
191. Information and commentaries provided by Sascha Rolf Löder, Counsellor at the General Representative of the Johanniter Order to the European Union, Brussels and Gregor Schotten, Research Associate at the Institute for International Law of Peace and Armed Conflict (IFHV), Ruhr- Universität Bochum. The views expressed in these commentaries are those of the authors alone.
192. Basic Law for the Federal Republic of Germany of 23 May 1949 [Grundgesetz für die Bundesrepublik Deutschland vom 23. Mai 1949]. Published in Bundesgesetzblatt (1949) I, pp. 1 et seq.
193. See Däubler-Gmelin, H., ‘Zur Ratifikation des Römischen Status für den Internationalen Strafgerichtshof durch Deutschland’, 13 Humanitäres Völkerrecht — Infonnationsschriften (2000) pp. 84 et seqGoogle Scholar.
194. Concerning the question of how far the provisions of the Rome Statute shall be incorporated into German criminal law, see Kreß, C., Vom Nutzen eines deutschen Völkerstrafgesetzbuches (Baden-Baden: Nomos Verlagsgesellschaft 2000) pp. 5 et seq.Google Scholar; Kreß, C. and Jarasch, F., ‘The Rome Statute and the German Legal Order’, in Kreß, C. and Lattanzi, F., eds., The Rome Statute and Domestic Legal Orders (Baden-Baden/Ripa di Fagnano Alto: Nomos Verlagsgesellschaft/Editrice il Sirente 2000) pp. 5 et seq., at p. 8Google Scholar; Wirth, St. and Harder, J.C., ‘Zu Ratifizierung und Implementierung des Römischen Status des Internationalen Strafgerichtshofs: Die gemeinsame Position deutscher Nichtregierungs-organisationen’, 13 Humanitäres Völkerrecht — Infonnationsschriften (2000) pp. 11 et seqGoogle Scholar.
195. Statement of Reasons to the Rome Statute of the International Criminal Court of 17 July 1998 Draft Act [Entwurf eines Gesetzes zum Römischen Statut des Intemationalen Strafgerichtshofes vom 17. Juli 1998, Begründung zum Vertragsgesetz]. Published in Bundestags-Drucksache 14/2682, p. 7.
196. Report of the Panel on United Nations Peace Operations, A/55/305—S/2000/809, 21 August 2000. See Year in Review in this volume at p. 215.
197. Information and commentaries by Eleni Micha, Research Assistant, Academy of Athens; Attorney-at-Law, Athens Bar; Doctoral Candidate, Athens University Law School.
198. Art. l of the Ministerial Decision. On the structure and operation of these national bodies, see the ICRC'S website: http://www.icrc.org. Guiding Principles concerning the Status and Methods of Operation of National Bodies for the Implementation of IHL and Table for National Bodies for IHL.
199. Art. 3 of the Ministerial Decision.
200. The Plan of Action was drafted by the Inter-Ministerial Committee for IHL in February 2000.
201. Greece does not have a separate law concerning war crimes; the relevant provisions are incorporated either in the Criminal Military Code or in the Criminal Code.
202. Law 140/1914.
203. There is no specific legislation implementing the 1954 Convention, which Greece ratified on 9 February 1981.
204. Official Gazette A 6.
205. Information provided by Malatras, Y., ‘Epixeirisiaka metra proetoimasias kai etoimotitas ton Ellinikon Enoplon Dinameon gia tin efarmogi toy Diethnoys Anthropistikoy Dikaioy se periodo sirraksis,’ in Efarmoges toy Diethnoys Anthropistikoy Dikaioy stin Ellada [Application of IHL in Greece], Proceedings of a Conference under the aegis of the Ministry of Foreign Affairs, the Ministry of Defence and the Hellenic Red Cross (Athens, Komotini 2000) pp. 109–112Google Scholar.
206. More information is provided by the Ministry of Defence in the White Paper (1998–1999), Chapter 3.2 International Relations. See the relevant website http://www.mod.gr.
207. Both the Agreement and the Protocol have been ratified by Law 2785/2000 and have been published in the Official Gazette A 3/7–1–2000.
208. The Convention and the Additional Protocol were concluded in Basle on 16 May 1972 (ETS No. 74). See the website of the Council of Europe: http://conventions.coe.int. According to Art. 27, the Convention does not accept in its scope of application (the courts may not entertain proceedings in respect of) acts performed by the entity in the exercise of sovereign authority (acta jure imperii). But what is a state of an armed conflict if not the exercise of a state's sovereign authority? On the issue of state immunity, see the relevant analysis by Gavouneli, M. and Bantekas, I. in 95 AJIL (2001) pp. 198–204CrossRefGoogle Scholar.
209. The minority referred to the Draft Convention of 1991 of the International Law Commission (ILC) on ‘Jurisdictional Immunities of States and their Property’ (text adopted at its 43rd session) and to the clarification provided that the privilege of state immunity is retained in cases of claims deriving from situations involving armed conflicts. See ILC Yearbook 1991–11(2), Art. 12.
210. The doctrine of the shift of sovereignty had been rejected both by theory and jurisprudence since the beginning of the nineteenth century. See the analysis by Rousseau, Ch., Le droit des conflits armés (Paris, Pedone 1983) pp. 133 et seq. and especially 136–138Google Scholar. The Greek Court of Cassation, in this judgement, concurred with the rejection of the doctrine following its previous case-law, nonetheless concluding in favour of a strange peace-like situation, disregarding at the same time the existing laws of war on land. See Judgement No. 342/1950 in the Revue Hellénique de Droit International (1951) p. 93 and Judgement Greifelt and others, No. 216/1948 issued by the American Military Tribunal of Nuremberg in Ch. Rousseau, ibid.
211. The Convention was signed by Greece on 18 October 1907 but was never ratified. Nevertheless, the conventional norms are declaratory of customary international law. See Gavouneli, M., Revue Hellenique de Droit International (1999) pp. 623–629Google Scholar.
212. The theory of the ‘implied waiver’ served as the foundation of the restrictive state immunity doctrine. See Sinclair, I., ‘The Law of Sovereign Immunity. Recent Developments’, RCADI 1980–11, pp. 200–205Google Scholar.
213. The traditional definition of reprisals identifies them with coercive measures in derogation from the ordinary rules of public international law imposed by a state on another state in response to a violation of international law committed by the latter. The important distinctive element is the legitimate character of the reprisals, armed or unarmed, in time of peace. For a general view of the concept, see Ch. Rousseau, op. cit. n. 210, pp. 7–16, Dinstein, Y., War, Aggression and Self-Defence (Cambridge, Cambridge University Press 1994) pp. 215 et seq.Google Scholar, and in particular Sicilianos, L.-A., Les réactions décentralisées à l'illicite: des contre-mesures à la légitime défense (Paris, L.G.D.J. 1990)Google Scholar.
214. Such a wide interpretation was also followed by the ICRC during the Conference on the drafting of the Additional Protocols and later in the related Commentary but it was rejected, at least as far as conflicts of a non-international character are concerned. For a detailed analysis of the issue of reprisals, see Röling, B.V.A., ‘The Law of War and the National Jurisdiction since 1945’, RCADI 1960-11. especially at pp. 420–422Google Scholar, the classic work of Kalshoven, F., Belligerent Reprisals (Leiden, A.W. Sijthoff 1971)Google Scholar and Greenwood, C.J., ‘Reprisals and Reciprocity in the New Law of Armed Conflict’ in Meyer, M., ed., Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention (London, British Institute of International & Comparative Law 1989) especially at pp. 230–231Google Scholar. On the relationship between the imposition of collective punishments and the taking of hostages, an issue clearly overlooked by Areios Pagos, see Hannikainen, L., Peremptory Norms (jus cogens) in International Law (Helsinki, Finnish Lawyers' Publishing Company 1988) pp. 489–498Google Scholar.
215. See the examples mentioned by Detter, I., The Law of War, 2nd edn. (Cambridge, Cambridge University Press 2000) p. 300Google Scholar, especially as one case referring to the killings in Klissoura (Greece) is similar to this one in Distomo.
216. Art. 33 of the IV GC and Art. 51(6) of AP I. Settling the problem of the prohibition of reprisals was not a self-evident matter, as one could imagine. At that time there had been some dissenting opinions on the establishment of the prohibition in the GC of 1949. See Röling, loc. cit n. 216, p. 428. Fortunately, this has not been the majority view, a position which was finally settled with the enactment of the First Additional Protocol of 1977 to the Geneva Conventions applicable only to international armed conflicts. On the contrary, the criticism maintained by many states forced the ICRC to withdraw the relevant proposal from the Second Additional Protocol. See C. J. Greenwood, loc. cit. n. 214, pp. 234–238, and the commentary on Art. 20 entitled ‘Prohibition of Reprisals’ in Sandoz, Y., Swinarski, Ch. and Zimmermann, B., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) pp. 241–243Google Scholar.
217. Both the ILC Draft Code of Crimes against the Peace and Security of Mankind of 1991 and the ICTY in the Tadić case seem to reject the idea that crimes against humanity are necessarily the result of an armed conflict. See The Prosecutor v. Duško Tadić, Defence motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, 2 October 1995 at paras. 78, 140–141 and the dissenting opinion of Judge Sidhwa, paras. 107–108.
218. On the contrary, both the IMT Statute and relevant state practice characterised acts such as the killing of hostages and civilians and collective punishment as war crimes of a particular gravity, and which are, by now, qualified as grave breaches of humanitarian law. See Descheemaeker, J., ‘Le Tribunal militaire international des grands criminels de guerre’, tome L RGDIP 1946, p. 239–242Google Scholar and Ch. Rousseau, op. cit. n. 210, pp. 174–179.
219. See the ILC Draft Code on State Responsibility (First Report by the Special Rapporteur J. Crawford) ILC 50th session, A/53/10, Ch. VII(B), paras. 266, 278, 327; the comments by Gaja, G., ‘Obligations erga omnes, International Crimes and jus cogens: A Tentative Analysis of Three Related Concepts’ in International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility, Weiler, J., Cassese, A., Spinedi, M., eds. (New York, de Gruyter 1989) pp. 151–160Google Scholar.
220. See de Hoogh, A., Obligations Erga Omnes and International Crimes (The Hague, Kluwer Law International 1996) pp. 64–70Google Scholar.
221. According to Art. 19(2), a grave breach of the Geneva Conventions could be qualified as an international crime following the definition provided by the ILC, as: ‘…an internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognised as a crime by that community as a whole, such as those prohibiting slavery, genocide and apartheid’. See the Eight Report of the Special Rapporteur G. Arangio-Ruiz in the ILC's 48th session, p. 8 and the reference to the related Commentary in the ILC's Yearbook 1976, Vol. II (Part two, pp. 95–122).
222. Art. 9 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which provides for the establishment of state responsibility and the eventual submission of the relevant disputes to the ICJ, is an isolated case. Other cases in the international legal forum where state responsibility is directly recognised for human rights violations are scarce. The European Convention on Human Rights is the most striking example, which nevertheless covers cases occurring in time of peace, following the principles proclaimed in the Chorzów Factory case (PCIJ Rep. Ser. A, No. 17), embodied today in the Draft Code on State Responsibility.
223. See Rousseau, op. cit. n. 210, at pp. 204–208, Wolfrum, R., ‘The Decentralised Prosecution of International Offences through National Courts’, in War Crimes in International Law, Dinstein, Y. and Tabory, M., eds. (The Hague, Kluwer Law International 1996) pp. 239–248Google Scholar and De Hoogh, op. cit. n. 220, at pp. 157–161. Note that in the Gulf War, a Compensation Commission was established only after a relevant resolution had been issued by the Security Council. A treaty concluded in 1990 in order to finally settle the issue of war reparations (the 2+4 Treaty) provided, within the prescribed time of 18 months, for the submission of individual claims before the domestic courts but excluded state claims. See Roucounas, E., ‘Time Limitations for Claims and Actions under International Law’, in Liber Amicorum Mohammed Bedjaoui, Yakpo, E. and Boumedra, T., eds. (The Hague, Kluwer Law International 1999) especially at pp. 235–236Google Scholar.
224. F.2d 1419 (9th Cir. 1989) and 488 F. Suppl. 665 (DDC 1980), respectively.
225. On the current debate, see Sh. Rosenne, ‘War Crimes and State Responsibility’, in War Crimes in International Law, op. cit n. 223, pp. 85 et seq.
226. See the current Draft, where it is stated that there is no codification of prior existing norms of international law as to the subject matter of international crimes. ILC Report, 52nd Session, UNGA Official Records, Supplement No. 10 (A/55/10), paras. 347–351, 360–362, 378, 382–383. However, note that the discussion on draft Art. 19 has been currently set aside, as no consensus exists on the issue of the treatment of ‘crimes’ and ‘delicts’. See the First Report of J. Crawford, supra n. 219, para. 331.
227. The crucial questions of how and by whom customary law is being shaped are long-debated issues. As D. Fleck states: ‘Who is influencing this process? Certainly not governments that abstain from ratifying international instruments, but rather those which participate in international cooperation, as well as in political discussion and which express their national position and deposit forms of understandings in particular issues…’. See Fleck, D., ‘The Application of Customary International Law concerning Armed Conflict in the National Legal Order’ in Bothe, M., Macalister-Smith, P., Kurzidem, T., eds., National Implementation of International Humanitarian Law (Dordrecht, Martinus Nijhoff Publishers 1990) p. 44Google Scholar and Kelly, J.P., ‘The Twilight of Customary International Law’, 40 Virginia JIL (2000) pp. 450–544Google Scholar.
229. ‘Raboteau verdict in Haiti “a landmark in fight against impunity”, but case not yet finished, says independent expert’, http://www.unog.ch/news2/documents/newsen/hr00090e.html; ‘Soldiers get life for Haiti massacre’, BBC News 10 11 2000Google Scholar.
http://news.bbc.co.uk/hi/english/world/americas/newsid_1017000/1017436.stm; ‘Coup leader, officers given life in prison for 1994 Haitian massacre’, CNN.com, 16 November 2000. http://www.cnn.com/2000/WORLD/americas/ll/16/haiti/massacretrial.ap/.
230. Information provided by Judy Dacruz, Assistant, International Justice Project, Amnesty International, London.
231. Information and commentary provided by Péeter Kovács, Professor of International Law, Péter Pázmány Catholic University of Budapest and Miskolc University.
232. Source: ‘Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict’, Report of the Secretary-General, United Nations General Assembly, A/55/173, 24 July 2000, p. 4.
234. In the Big Hungarian-English Dictionary, the Hungarian ‘lefokozás’ (meaning, to nullify, to repeal all the military titles when the officer becomes a simple G.I.) is written as: degradation, reduction to lower rank, reduction to the ranks, demotion. Only the imprisonment was suspended for two years, while the degradation was executed.
235. Information and commentaries by Bikram Jeet Batra, ILS Law College, Pune, India.
236. Information and commentaries by Fadillah Agus, Secretary, The Centre Study on International Humanitarian Law, Faculty of Law at Trisakti University, Jakarta and Suzannah Linton, LL.B, LL.M, Solicitor of the Supreme Court of England and Wales.
237. The Pancasila are the five guiding principles of the modern Indonesian state; belief in God, nationalism, democracy, social justice and humanitarianism. These principles were the rallying call of Sukarno and the independence movement, and are rooted in the Indonesian Constitution.
238. With assistance from Suzannah Linton.
239. ‘In other words, the principle of retroactivity is in effect for the protection of human rights themselves based on Article 28 J clause (2) of the 1945 Constitution. Therefore, this Act also sets forth provisions governing ad hoc Human Rights Courts to hear and rule on cases of gross violations of human rights perpetrated prior to the coming into force of this Act.’ Point 2, Explanatory Notes to the Law on Human Rights Courts.
240. Information and commentary by Mehrdad Molaei, former legal advisor of the National Humanitarian Law Committee of the Islamic Republic of Iran.
241. Information and commentaries by Ray Murphy, Irish Centre for Human Rights, Faculty of Law, NUI Galway, and Colm Campbell, Professor of Law, Human Rights and Equality Centre, University of Ulster at Jordanstown, Northern Ireland.
242. For commentary, see infra under Occupied Palestinian Territories, at pp. 557 et seq.
243. Borger, J., ‘Lid lifted on torture secrets after five years’, Sydney Morning Herald, 12 02 2000Google Scholar. http://www.smh.com.au/news/0002/12/world/world12.html.
244. ‘Israel admits torture’, BBB, 9 February 2000. http://news.bbc.co.uk/hi/english/world/middle_east/newsid_637000/637293.stm. ‘Israel Admits Using Illegal Force’, AP, 9 02 2000Google Scholar.
245. See ‘Background Briefing: ‘Israel's Proposed “Imprisonment of Combatants not Entitled to Prisoner of War Status Law”, Human Rights Watch, June 2000.
http://www.hrw.org/backgrounder/mena/isr0622-back.htm; ‘Position Paper on the Proposed Law: Imprisonment of Combatants not Entitled to Prisoner of War Status’, B'Tselem — The Israeli Information Centre for Human Rights in the Occupied Territories, http://www.btselem.org.
246. Information and commentaries by Giuliano Salberini, Valentina Della Fina, Fabio Raspadori and Rosa Dinuzzi of the Institute for Legal Studies on the International Community, National Research Council (CNR), Rome.
247. Adopted by the Italian Parliament 11 March 1999 and published in Italian Official Journal of 23 April 1999, No. 94, Ordinary Supplement No. 80. The Convention entered into force in Italy on 1 October 1999. http://www.parlamento.it/parlam/leggi/99106l.htm.
249. Giuliano Salberini, is a researcher at the Institute for Legal Studies on the International Community, National Research Council (CNR), Rome.
250. Published in Italian Official Journal of 19 July 1999, No. 167, Ordinary Supplement No. 135. http://www.parlamento.it/parlam/leggi/992321.htm.
251. The Italian ratification was preceded by that of Senegal (2 February 1999), Trinidad and Tobago (6 April 1999) and San Marino (13 May 1999). By 12 February 2001, the Statute of the Court had been ratified by 29 states and signed by 139.
252. Valentina Della Fina is a consultant at the Institute for Legal Studies on the International Community, National Research Council (CNR), Rome.
253. Established by Law No. 562 of 30 December 1988.
254. See Bassiouni, M.C., Crimes against Humanity in International Criminal Law (The Hague, Kluwer Law International 1999)Google Scholar.
255. Fabio Raspadori is a researcher at the Institute for Legal Studies on the International Community, National Research Council (CNR), Rome.
256. Following well-established case-law of the Court, military activities in a strict sense carried out in Italy by NATO, to which the flights in question belong, are carried out in order to safeguard the sovereignty of the contracting states of the Atlantic Agreement and have to be qualified as activities iure imperii which lead to the inapplicability of Italian jurisdiction.
258. ‘War-crimes trial of Vancouver man to begin in Italy’, Canadian Press, 20 11 2000Google Scholar.
259. Rosa Dinuzzi is a consultant at the Institute for Legal Studies on the International Community, National Research Council (CNR), Rome.
260. 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.
261. As to recent post-war compensation cases in Japan, see Igarashi, M., ‘Post-war Compensation Cases, Japanese Courts and International Law’, 42 Japanese Annual of International Law (2000) at pp. 45—82Google Scholar.
262. Korean ex-‘comfort women’ v. Japanese Government, Yamaguchi District Court, 27 April 1998. See 2 YIHL (1999) at pp. 389–390Google Scholar.
263. Hanrei Jiho, No. 1741, pp. 40–52.
264. ‘Filipino ex-‘comfort women's appeal rejected. The Tokyo High Court denied their rights to compensation’ [Ianfu, filipin-josei no koso kikyaku. tokyo-ko-sai baisho-seikyu-ken hinin]. Asahi Shinbun, 6 December 2000, Evening edition, 4th edn., p. 14. As to the earlier Judgement of 9 October 1998 by the Tokyo District Court, see 2 YIHL (1999) pp. 389–390Google Scholar.
265. See VAWW-NET JAPAN, ‘Kakukoku no ‘Ianfu’ Higai, Nenpyo, Saiban (Each country's ‘Comfort Women’ Sufferings, Chronology, Trials) 682 SEKAI (12 2000) p. 116Google Scholar.
266. Mann, S., ‘Kalejs to be charged for war crimes’, The [Melbourne] Age, 19 06 2000Google Scholar.
267. Traynor, I., ‘Latvia accused of targeting anti-Nazi fighters’, The Guardian Unlimited. 19 02 2000Google Scholar. http://www.guardianunlimited.co.uk/international/story/0,3604,230759,00.html.
268. The Weekly Crier: News Highlights from Lithuania, Latvia and Estonia. http://www.balticsww.com/wkcrier/1129_0124_00.htm.
269. Supra n. 267.
270. ‘Vasily Kononov: Partisans fought against ‘those who were armed by the Hitlerites, were under their command, took part in punitive operations and hunted for Partisans’, Pravda (english) online, 29 01 2001Google Scholar. http://english.pravda.ru/main/2001/01/29/2225.html.
273. Y. Nedyalkova, ‘Latvia: The Difference Between Soviet and Nazi War Criminals’, 14 July 2000, Cyber-times News, http://www.cyber-times.org/.
276. Source: Judicial Diplomacy: Chronicles and Reports on International Criminal Justice. http://www.diplomatiejudiciaire.com/UK/Argentine/CavalloUK.htm.
277. Thompson, M., ‘Man Suspected in Atrocities: Argentine detained in Mexico’, Miami Herald, 27 08 2000Google Scholar.
279. Information and commentaries provided by Elies van Sliedregt, Researcher at the TMC Asser Instituut and Tilburg University and Professor em. Nico Keijzer, Professor of Criminal Law, University of Tilburg; Advocate-General at the Supreme Court of the Netherlands.
280. Reprinted in this volume at p. 677.
281. Strijards, G.A.M., ‘Neerlands dualisme en zijn strafmacht’, 75, NJ (2000) pp. 2113–2119Google Scholar.
282. The Procurator-General is the Supreme Court's advisor on legal matters.
284. Supreme Court of the Netherlands (De Hoge Raad der Nederlanden). Decision No. 13698,10 November 1989. NJ, Issue 17–24.4 (1991) No. 248 (with annotation of Professor Kooymans) and XII NYIL (1991) p.453.
285. Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reps. 1996.
286. Information and commentaries by Treasa Dunworth, Lecturer in Law, Faculty of Law, University of Auckland.
287. The Act has not yet come into force but will do so by an Order in Council when the Comprehensive Test Ban Treaty enters into force (Section 1).
289. Sections 4 and 5(2). Although note that under the 1999 Act, the consent of the Attorney-General is required for proceedings in respect of an offence committed extraterritorially.
290. ‘Nuclear explosive device’ is defined as ‘any nuclear weapon or other explosive device capable of releasing nuclear energy, irrespective of the purpose for which it could be used, whether assembled, partly assembled, or unassembled; but does not include the means of transport or delivery of such a weapon or device if separable from and not an indivisible part of it’. The 1999 Act does not provide a definition of ‘nuclear weapon test explosion’ and thus, ‘unless the context otherwise requires, [it will] have the same meaning as in the Treaty’. (Section 2(2)).
291. Section 3. New Zealand deposited its instrument of ratification on 7 September 2000.
292. Section 2(2).
293. Section 2(1).
294. Sections 14–23.
295. See Sections 9(2), 10(2) and 11(2).
296. Section 8.
297. Section 8(4)(a).
298. Section 8(4)(b).
299. Section 13(1). But see also section 13(2) which allows for arrest and remand prior to the Attorney-General's consent.
300. Sections 15–21.
301. Cf., Sections 9–11 which apply to ‘Every person who…in New Zealand or elsewhere,…’.
302. Section 22.
303. Parts 4–10 inclusive.
304. Sections 124–135.
305. Section 139.
306. Section 140.
307. The declaration formed part of its instrument of ratification.
308. Para. 86 stated that the conclusion that humanitarian law did not apply to such weapons ‘would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future’.
309. Both the French and the New Zealand interpretative declarations are reprinted in this volume at pp. 698 and 699, respectively.
310. Created by Section 4, New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987 and comprising the land, territory and inland waters within the territorial limits of New Zealand, the internal waters and territorial sea of New Zealand, and relevant airspace.
311. Clause 5.
312. Clauses 7 and 8.
313. Goff, Hon. Phil, Minister of Foreign Affairs and Trade, 585 Parliamentary Debates, p. 3512 (5 07 2000)Google Scholar.
316. Source: ‘status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict’, Report of the Secretary-General, United Nations General Assembly, A/55/173, 24 July 2000, p. 4. Supra n. 232.
317. Information and commentaries provided by Dr. Mustafa Mari, formerly Head of the Legal Department of the Palestinian Independent Commission for Citizens' Rights (PICCR), Head of the Legal Department of al-Haq, West Bank Affiliate of the Geneva-based International Commission of Jurists.
318. As a result of the further redeployment of Israeli occupation troops in the OPTs carried out so far, about ten percent of the area of the West Bank and 60 percent of the Gaza Strip are under PNA control. In these areas, 97 percent of the Palestinian population of the OPTS, excluding Jerusalem, lives. Israel however, maintains ultimate power over all West Bank and Gaza Strip territory in so far as Israelis and Israeli settlements are concerned.
319. By virtue of Military Order No. 144, (amendment No. 9) dated 22 October 1967, Art. 1.
320. For Israel's arguments in this respect, see Shamgar, M., ed., Vol. 1 Military Government in the Territories Administered by Israel, 1967 – 1980: the legal aspects (New York, William S. Hein 1986)Google Scholar; Blum, Y., ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria [West Bank]’, 3 Israel LR (1968) p. 279CrossRefGoogle Scholar. See also Bar-Yaacov, N., ‘The Applicability of the Laws of War to Judea and Samaria and to the Gaza Strip’, 24 Israel LR (1990) p. 485Google Scholar.
321. See Shehadeh, R., Occupier's Law: Israel and the West Bank (Washington, D.C., Institute for Palestine Studies 1988)Google Scholar; Quigley, John, ‘Israel's forty-five year emergency: Are there time limits to derogations from human rights obligations?’, 15 Michigan JIL (1994) p. 491Google Scholar; Roberts, A., ‘Prolonged Military Occupation’, in Playfair, E., ed., International Law and the Administration of Occupied Territories (Oxford, Clarendon Press 1992) pp. 25, at 52–53Google Scholar, and ‘Question of the violations of human rights in the Occupied Arab Territories, including Palestine: report of the human rights inquiry commission established pursuant to Commission resolution S-5/1 of 19 October 2000’, UN Doc. E/CN.4/2001/121 (16 March 2001), hereafter Inquiry Commission Report.
In 1992, the ICRC publicly called upon Israel ‘to put an immediate end to the ill-treatment inflicted during interrogation of detainees from the occupied territories’, on the grounds that those Palestinians ‘are protected persons within the terms of the Fourth Geneva Convention of 1949’. See ICRC Press Release, 21 May 1992, cited in Amnesty International, ‘Under constant medical supervision: Torture, ill-treatment and health professionals in Israel and the Occupied Territories’, AI Index: MDE 15/37/96, August 1996, at n. 13. Further, in many United Nations Security Council and General Assembly resolutions, it is reiterated that Israel's occupation of the West Bank, including Jerusalem and the Gaza Strip, is subject to the provisions of the IVth Geneva Convention, which applies de jure to this situation. See for example UN SC resolution 465 (1 March 1980).
322. For a background to the Conference, visit http://www.palestine-un.org/. See also IVth Geneva Convention and Israeli Occupation of Palestinian Territories: Theory and Practice (Gaza, Palestinian Center for Human Rights 11 1998)Google Scholar and Politicisation of International Humanitarian Law (Gaza, Palestinian Center for Human Rights, 01 2000)Google Scholar.
323. See Conference of High Contracting Parties to the Fourth Geneva Convention, Statement, Geneva, 15 July 1999, available online at http://www.palestine-un.org/tenth/contracting.html. See further ‘Israel: Fourth Geneva Convention meeting: an abdication of responsibility’, News Service 135/99, AI INDEX: MDE 15/47/99, 15 July 1999. http://www.web.amnesty.org/ai.nsf/index/MDE150471999.
324. Inquiry Commission Report, supra n. 321, at para. 115.
326. Inquiry Commission Report, supra n. 321, at paras. 35– 43.
335. Information and commentaries provided by Professor Alfonso Velázquez, Professor of International Law, Catholic University of Asunción and Fatima Andrada, Director of the Human Rights Office of the Supreme Court.
337. Information and commentaries provided by the late-Professor Igor Blishchenko, Professor of International Law, Peoples' Friendship University of Russia, and Dr Jose Doria, formerly, Professor of International Law, Peoples' Friendship University of Russia, currently, Legal Officer at the Office of the Prosecutor, ICTY. As concerns Dr Doria, the views expressed herein are those of the author alone and do not necessarily represent the views of the United Nations.
338. See Legality of the Threat or Use of Nuclear Weapons. ICJ (Advisory Opinion), 8 July 1996, 35 ILM (1996) p. 814Google Scholar.
339. See Statement of Roman Polkovich, Chairman of the Committee on Defense of the GosDuma in lzvestya No. 151, 17 August 1999 at p. 1. To understand the cause of this linguistic confusion, one must take into account that in order to end the first Chechen war, a set of agreements was formally signed between Russia and Chechnya in 1996 (the so-called ‘Khasavyurt Agreements’ of 31 August), according to which a Referendum for self-determination was to be held in Chechnya at the end of a transition period of (uncertainty) of five years running until December 2001. However, at the beginning of 1999, the Russian Parliament found those Agreements to be constitutionally illegal and annulled them.
340. See text of the Act in Sobranye Zakonodatielstva RF, No. 23, 3 June 1996, at p. 2750.
341. See Resolution of GosDuma on the situation in Dagestan in connection with the incursion into the territory of the Republic of Dagestan of illegal armed formations and measures to grant the security of the Republic of Dagestan of 16 August 1999, No. 4277-IIGD, in Viedomosti (official gazette) FS RF (Federal Assembly of Russian Federation) No 24, 21 August 1999 at p. 1522.
342. See text of the Act in Sobranye Zakonodatielstva RF, No. 31, 3 August 1999, at p. 3808.
343. See Letter of the Russian Foreign Minister Igor Yvanov of 24 June 2000 to the Council of Europe at the site: http://www.mid.ru. However, recent news shows that the conflict was ongoing, almost throughout 2000, although with a lesser intensity. See recent Report of Human Rights Watch on Chechnya at the site, “ Welcome to Hell”, Arbitrary Detention, Torture, and Extortion in Chechnya. http://www.hrw.org/reports/2000/russia_chechnya4/.
346. See Report of the Ministry of Foreign Affairs to the Council of Europe dated 24 June 2000 at the site: http://www.mid.ru.
348. The Soviet Union ratified the Geneva Conventions on 17 April 1954, and both of the Additional Protocols on 4 August 1989. Russia accepts these instruments as a matter of state succession to treaties.
349. See text of the 1993 Russian Constitution in Rossyiskaya Gazeta, No. 237, 25 December 1993.
350. Nicaragua case. ICJ Rep. (1986) p. 218.
351. See Tadić case. Appeals Chamber Jurisdiction Decision. Case No. IT–94–I–AR72, 2 October 1995, para. 117.
352. See text of the Code: Penal Code of Russian Federation, Moscow, 1996 (in Russian).
353. There are minor qualifications in the 1999 resolution on amnesty to this general waiver of responsibility (Arts. 294, 295, 296, 233 and 234 of the Russian Penal code, from which there is no waiver, seem to be directed against members of federal forces).
354. See Amnesty in Vlast No. 19, 16 May 2000, pp. 3–9.
355. For background on the case and an analysis of the charges against Budanov, see ‘Backgrounder on the Case of Kheda Kungaeva, Trial of Yuri Budanov Set for February 28 [ 2001], Human Rights Watch online: http://www.hrw.org/backgrounder/eca/chech-bck0226.htm; Filipov, D., ‘Chechnya Murder Case Tests Russian Justice’, The Boston Globe, 19 09 2000Google Scholar.
356. In 1955, the Russian Constitutional Court found that Protocol II applied during the first. Chechen conflict. Presidential Decrees and Federal Government's Resolution on the Situation in Chechnya. Constitutional Court of the Russian Federation, Moscow. Judgement of 31 July 1995. 17 HRLJ, No. 3–5, p. 133.
357. Law provided by Aloys Habimana, Project Coordinator for the Documentation and Information Center on Genocide Trials, a project of the Rwandese League for the Promotion and Defence of Human Rights (LIPRODHOR). Reprinted in this volume at p. 739.
358. Fondation Hirondelle News, 15 October 2000, ICTR/Rwanda, ‘Rwandan Parliament approves law on traditional courts’, Arusha, 13 October 2000 (FH).
359. Art. 1.
361. That category includes ‘a. [A] person, who by his criminal actions or actions of criminal complicity ranks among the planners, the organizers, the inciters, the supervisors, and the framers of the crime of genocide or crimes against humanity; b. A person, who acting in a position of authority on the national, prefecture, or commune level, within political parties, the army, religious, or militia groups committed these offences or encouraged others to commit them. c. A murderer of great renown who was distinguished in the milieu in which he lived or everywhere he went because of the zeal that characterized him in the killings or the excessive malice with which they were carried out; d. A person who committed the offense of rape.’
362. Art. 3.
363. Art. 4.
364. Arts. 69–76.
365. Arts. 69– 72.
366. Arts. 91–92.
367. Information and commentaries by Abdul Tejan Cole, Lecturer in Law at the University of Sierra Leone and Human Rights Officer Campaign for Good Governance.
369. ‘Sierra Leone Rebels Violating Peace Accord’, Human Rights Watch, 30 August 1999. hrw.org/press/1999/aug/sierra3008.htm.
370. Information and commentaries by Jan Hladik, Program Specialist, International Standards Section of the Division of Cultural Heritage, UNESCO, Paris. All the information contained in this contribution is valid as of the end of August 2000.
371. Information and commentary by Tim McCormack, Australian Red Cross Professor of International Humanitarian Law, University of Melbourne; member of the Board of Editors, Yearbook of International Humanitarian Law.
372. Information provided by Phenyo Keiseng Rakate, Researcher, Institute for Security Studies, Pretoria, South Africa.
373. Source: Department of Foreign Affairs, government of the Republic of South Africa.
374. Source: ICRC, Pretoria, South Africa.
375. Source: Department of Justice, government of the Republic of South Africa.
376. Information and commentaries by Antoni Pigrau Solé, Professor of Public International Law, Rovira i Virgili University, Tarragona, Spain.
377. LO 3/1980 of 22 April 1980. Boletín Oficial del Estado, No. 100, 25 April 1980.
378. The text of this article provides:
‘Irrelevance of official capacity’, 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
379. Art. 64 of the Spanish Constitution states: ‘1. The acts of the King will be endorsed by the President of the government and, if necessary, by the competent Ministers. The proposal and the nomination of the President of the government, and the dissolution provided for in article 99, will be endorsed by the President of Congress. 2. The people responsible for the acts of the King will be those who endorse them.’ Likewise, the first paragraph of Art. 102 states that: ‘ The criminal responsibility of the President and the other members of the government will be demandable, as the case may be, by the Criminal Section or the Supreme Court.’ In particular, in relation to this latter provision, the State Council applies the same reasoning as for ministers and senators (section 4, B, of the Opinion).
380. Despite its infra-constitutional status, the current Spanish Criminal Code (LO 10/1995 of 23 November) establishes, in Art. 74, a system for fixing terms of imprisonment. The upper limit is 20 years, which can be extended in exceptional cases to 30. It excludes, therefore, life imprisonment.
381. Boletín Oficial de las Cortes Generates. Senado. 7th legislature. Series 2: Bills, 18 September 2000, No. 1 (c); Bill for Organic Law 621/000001, which authorises Spain's ratification of the Statute of the International Criminal Court, p. 55. In the same vein is Art. 3 of the Agreement between Spain and the United Nations on the enforcement of sentences imposed by the International Criminal Tribunal for the former Yugoslavia, The Hague, 28 March 2000. The process to gain parliamentary authorisation is currently underway.
382. ‘The exercise of jurisdictional power in all sorts of proceedings, judgments and enforcement judgements corresponds exclusively to the Courts and Tribunals determined by law, in accordance with the regulations on capacity and procedure established by the same laws.’
383. Information and comment provided by Michael Cottier, LL.M., lic.iur., University of Fribourg, Switzerland. This case note is partly based on Cottier, M., ‘What Relationship Between the Exercise of Universal and Territorial Jurisdiction? The Decision of 13 December 2000 of the Spanish National Court Shelving the Proceedings Against Guatemalan Nationals Accused of Genocide’, in Fischer, H., Kress, K. and Lüder, S.R., eds., International and National Prosecution of Crimes under International Law. Current Developments (Berlin, Berlin Verlag Arno Spitz GmbH 2001)Google Scholar. The Decision is reprinted in this volume at p. 691.
384. This list of documents and decisions regarding the Spanish proceedings with respect to crimes allegedly committed in Guatemala is not exhaustive.
386. See Decision of 4 November 1998 of the Criminal Division of the National Court, Plenary Session, Appeal Record 84/98, Summary of Proceedings 19/97, Central Trial Court No. 5; Decision of 5 November 1998 of the Criminal Division of the National Court, Plenary Session, Appeal Record 173/98, Summary of Proceedings 1/98, Central Trial Court No. 6. See 2 YIHL (1999) at pp. 410 et seq. and 505 et seqGoogle Scholar.
387. Ley Orgánica del Poder Judicial 6/1985, 1 July 1985.
388. See supra n. 386.
389. The Audiencia Nacional had already held in its decisions of 4 and 5 November 1998 that Art. 6 of the Genocide Convention ‘imposes the subsidiarity of the exercise of jurisdictions different from those envisaged by the provision’, ibid.
390. Informe de la Comisión para el Esclarecimiento Histórico, Guatemala: Memoria del Silencio. http://hrdata.aaas.org/.
391. On the advantages and disadvantages of the exercise of universal jurisdiction, see e.g., Aceves, W.J., ‘Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation’, in 41 Harvard ILJ (2000) pp. 129 at 171–183Google Scholar; International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (2000) at pp. 12–13 and 16–17.
392. For examples of the still scarce national legislation and practice with regard to the subsidiarity principle, see e.g., Art. 9 of the Penal Code of El Salvador; Message of the Swiss Federal Council concerning the Convention on the Prevention and Punishment of the Crime of Genocide and on the corresponding Revision of the Criminal Law, BBL 1999 5349–5350/FF 1999 4932–4933 (available at: http://www.admin.ch); in re Bouterse, Amsterdam District Court, 20 November 2000, commented on and translated in 3 YIHL (2000) at pp. 548 and 677Google Scholar, respectively; passim: the civil litigation case-law under the US Alien Tort Claims Act and Torture Victim Protection Act (defendants may bring a forum non conveniens motion which may be successful if the remedy provided by the foreign court is adequate and public interests weigh strongly in favor of the trial in the foreign forum).
393. Information and commentaries by Jayantha Atukorale.
395. Information and commentaries provided by A.P.V. Rogers, Fellow of the Lauterpacht Research Centre for International Law, University of Cambridge. Thanks to Miss Ruma Mandal, Assistant Legal Adviser, Foreign and Commonwealth Office, London and Colonel Charles Garraway, Ministry of Defence, London.
396. The declaration included statements corresponding to those at (c), (d), (i) and (j – first part) in the declaration of ratification of Additional Protocol I of 1977, see 1 YIHL (1998) p. 640Google Scholar.
398. Both provisions define ‘anti-handling device’ in identical terms.
400. On 20 March 2001, the Bill was passed by the House of Lords and introduced in the House of Commons.
401. Information and commentaries by Burrus Carnahan, Professorial Lecturer in Law, The George Washington University, Washington, D.C.; Ronald D. Neubauer, Associate Deputy General Counsel, Department of Defense, Office of the Deputy General Counsel (International Affairs); Avril McDonald, Managing Editor, YIHL; and Debora Gerads, Thomas Jefferson School of Law, San Diego.
402. Reprinted in this volume at p. 645.
403. Reprinted in this volume at p. 653.
404. Reprinted in this volume at p. 654.
406. Reprinted in this volume at p. 629.
408. J. Gordon Meek, ‘NS Targets Human Rights Abusers: Suspected War Criminals, Torturers Face Deportation’, http://APBnews.com, 17 November 2000.
410. See In re Surrender of Ntakirutimana, 988, F. Supp. 1038, 1042 (S.D. Tex. 1997. For background on this case, see Paust, J.J., ‘The Freeing of Ntakirutimana in the United States and ‘Extradition’’ to the ICTR’, 1 YIHL (1998) p. 205CrossRefGoogle Scholar; Sluiter, G., ‘To cooperate or not to cooperate? The case of the failed transfer of Ntakirutimana to the Rwanda Tribunal’, 11 Leiden JIL (1998) p. 383CrossRefGoogle Scholar.
411. See In re Ntakirutimana, No. Civ. A.L-98–43, 1998 WL 655708, at pp. 9, 17 (S.D. Tex. August 6, 1998).
413. FSIA, 28 USCS §§ 1602 et seq.
414. Flatow v. Islamic Republic of Iran, et al, 999 F. Supp. 1 (D.D.C. 1998).
415. Cohen, R., ‘U.S. Sergeant gets life in murder of Kosovo girl’, New York Times, 2 08 2000Google Scholar. http://www.nytimes.com/library/world/europe/080200kosovo-us-soldier.html; ‘Army sergeant sentenced to life without parole for murder of girl in Kosovo’, CNN.com.law centre>news, 2 August 2000. http://asia.cnn.com/2000/LAW/08/01/kosovo.soldier.sentence.01/index.html; Collins, R.T. and Emert, R., ‘Ronghi sentenced to life in prison with no chance for parole’, Stars and Stripes, 2 08 2000Google Scholar: http:/www.pstripes.com/ed080200a.html.
416. The amended complaint filed by the plaintiffs on 25 February 2000 in United States District Court is available online at http//www.lchr.org/lac/nuns/courtdocs/amendedcomplaint22500.pdf.
419. Source: Supra n. 111.
420. Source: ‘Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict’, Report of the Secretary-General, United Nations General Assembly, A/55/173, 24 July 2000, p. 9.