The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone

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Cambridge University Press, 20 июл. 2006 г.
This book is a guide to the law that applies in the three international criminal tribunals, for the former Yugoslavia, Rwanda and Sierra Leone, set up by the UN during the period 1993 to 2002 to deal with atrocities and human rights abuses committed during conflict in those countries. Building on the work of an earlier generation of war crimes courts, these tribunals have developed a sophisticated body of law concerning the elements of the three international crimes (genocide, crimes against humanity and war crimes), and forms of participation in such crimes, as well as other general principles of international criminal law, procedural matters and sentencing. The legacy of the tribunals will be indispensable as international law moves into a more advanced stage, with the establishment of the International Criminal Court. Their judicial decisions are examined here, as well as the drafting history of their statutes and other contemporary sources.

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Содержание

Instigating
299
crime39 Unlike direct and public incitement to commit genocide which
300
Aiding and abetting
302
Joint criminal enterprise
309
it has had little in the way of concrete results
316
Defence excuse and justification
325
OYcial position and head of State immunity
327
Superior orders
329

on the importance of international law for purposes of statutory
46
2
47
Creation by resolution of the United Nations Security Council
48
Objectives of the tribunals
67
Despite the claim that the tribunals address individual rather than
71
3
74
The statutes
78
of law42 It is not without interest that the drafters
81
materials51 the reports of the SecretaryGeneral52 and submissions by
82
Treaty law
91
Customary international law
97
General principles of law
102
judicial decisions and academic writing
107
indicative of the existence of opinio iuris sive necessitatis and
111
Inherent or implied powers
112
Human rights law
116
Public policy
120
4
123
Territorial jurisdiction
129
Personal jurisdiction
138
Corporate bodies
139
Juvenile oVenders
140
Nationality
142
Seniority
145
Jurisdiction over property
148
5
151
be presumed to have fully comprehended the heinous nature of
154
On 31 May 2004 a threemember bench of the SCSL
160
6
161
Punishable acts of genocide
172
Causing serious bodily or mental harm
174
Imposing measures intended to prevent births
177
Forcibly transferring children
178
Conspiracy to commit genocide
179
Direct and public incitement to commit genocide
181
form and specifically provoke another to engage in a criminal
182
Complicity in genocide
183
7
185
Widespread or systematic attack
191
Discriminatory intent
196
Punishable acts
198
Extermination
199
killing within the context of a widespread or systematic attack
200
Enslavement
201
Deportation
203
Imprisonment
205
Rape
209
Sexual violence
211
Sexual slavery
212
Forced pregnancy
214
Persecutions
215
Other inhumane acts
222
8
226
were confirmed when the victorious allies included clauses in the
227
Existence of armed conflict
229
Nexus with armed conflict
236
Existence of an international armed conflict
243
Victim must be a protected person
246
Punishable acts
249
Torture or inhuman treatment
250
Wilfully causing great suVering or serious injury
251
Extensive destruction and appropriation of property
252
Taking civilians as hostages
254
Occupation
255
Employment of prohibited weapons
261
Attack of undefended towns
262
Plunder of property
264
Violations of common article 3 of the Geneva Conventions of
265
rules applicable to international conflicts It is logical that this
268
Violence to life and person
269
Taking of hostages
271
Outrages upon personal dignity
272
Denial of fair trial
273
Threats to violate common article 3
274
Violations of the Additional Protocols to the Geneva Conventions
275
Collective punishments
279
Pillage
280
Slavery and the slave trade
281
Other serious violations of international humanitarian law
282
Attacking humanitarian personnel or peacekeepers
284
9
289
Mental and physical elements mens rea and actus reus
292
Participation
296
Commission
298
Duress and necessity
331
Voluntary intoxication
334
Selfdefence
335
Mistake
337
Tu quoque
339
Consent
341
Reprisal
344
Military necessity
345
10
348
Identification of suspects and accused
351
Conduct of investigations
355
Rights of suspects
358
Indictment
359
Issuance of the indictment
363
Joinder of crimes
366
Joinder of accused
368
Amendment of the indictment
371
Withdrawal of the indictment
375
Arrest and provisional detention
377
Deferral
383
Surrender or transfer
386
Pretrial proceedings subsequent to arrest or surrender
388
Fitness to stand trial
395
Disclosure of evidence
398
Pretrial organisation
405
Referral to national courts
407
Grant of immunity
409
11
410
Trial
412
Presence of the accused at trial
419
Public nature of proceedings
423
The trial itself
428
Motion for dismissal Rule 98bis
430
Judgment and sentence
432
Cumulative convictions
434
Posttrial procedure
438
Appeal
439
Procedure on appeal
443
Standard of review
444
Disposition
448
Review
450
12
452
General principles concerning admissibility of evidence
453
Exclusion of evidence
459
Burden of proof
463
Compelling the production of evidence
467
Categories of evidence
470
Deposition
476
AYdavit evidence
477
Hearsay evidence
479
Expert evidence
480
Documentary evidence
482
New evidence on appeal and review
483
Judicial notice
488
Evidence in cases of sexual assault
496
Similar fact evidence
499
13
501
Rights of the suspect
503
Independent and impartial tribunal
505
Equality before the law
511
Equality of arms
513
Presumption of innocence
516
Trial without undue delay
521
Presence at trial
523
Right to silence
532
Double jeopardy
535
Redress for wrongful prosecution
537
Habeas corpus
539
Recourse to international human rights mechanisms
542
15
587
Seat of the tribunals
588
Working languages of the tribunals
590
Chambers
593
Judges of the Chambers
595
and the Commonwealth at the invitation of the SecretaryGeneral62
596
OYcers and members of the Chambers
598
Prosecutor
600
Registry
607
Detention Unit
609
Defence Counsel Unit
613
who is responsible for the assignment of counsel and the
616
Amici curiae and intervenors
619
Financing
622

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Стр. 402 - Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) "Deportation or forcible transfer of population...
Стр. 469 - ... murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity...
Стр. 280 - No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.
Стр. 333 - Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 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...
Стр. 281 - Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

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Об авторе (2006)

Professor of human rights law, National University of Ireland, Galway, and Director of the Irish Centre for Human Rights.

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