Abstract
In the previous chapter I argued that the role of the judge is to apply the law, with restricted possibilities to develop the law in relation to new factual circumstance. Judges are, however, not allowed to create law when merely “determining” customary international criminal law. When the applicable law consists of unwritten norms, the question is whether judges should have an obligation to disclose the method used to determine a customary international criminal norm. When the ICRC published its customary international humanitarian law study it chose to disclose the method used to identify customary law, listing what it considers to be relevant State practice and opinio iuris. The ICRC itself simultaneously claimed that the separation of State practice and opinio iuris is “very difficult and largely theoretical.” Although the ICRC Custom Study has been subject to critique, the disclosure of method is to be welcomed in that it allows the ascertainment of customary international law to be comprehensible. However, one could argue that the role of international criminal tribunals is to deliver judgments and that—to draw on Pellet’s comments on the ICJ—they are only judicial bodies and not teachers or scholars in relation to the underlying methodology. Nevertheless, it is maintained here that the issue is different with regard to criminal proceedings. An accused is entitled to know the exact underlying jurisdictional legal basis of the charges against him, whether they form part of conventional or customary international criminal law, and similarly a convicted criminal is entitled to comprehend the legal basis of his conviction. A part of the fair trial guarantee is that the rationale of a trial judgment shall be explained, accompanied by a reasoned opinion. This obligation on the part of the trial chambers safeguards the accused’s right of appeal, and that the Appeals Chamber can evaluate the Trial Chambers findings. In practice Appeal Chambers have rebuked Trial Chambers for their evaluation of factual evidence. While overturning certain customary law findings of the Trial Chambers, such as the result, the Appeal Chambers have rarely criticized the applied methodology of the Trial Chambers. Since the rationale or legal reasoning of a judgment must clearly be explained, the underlying legal basis of the criminal conviction must have already been clearly set out as a prerequisite. In relation to “ordinary” domestic statutory criminal norms this problem does not generally arise. As established above in the domestic context, the nullum crimen sine lege certa requirement as an “imperative for improvement” is addressed to the legislator to define ex ante the underlying criminal norms with adequate precision. Ideally, everyone who can read should be able to comprehend the underlying legal basis as long as the criminal norms are drafted in a clear and comprehensible manner. For customary international criminal law the matter is far more complex. Here the disclosure of how the respective chamber arrived at a customary international criminal norm is a necessary element therewith an individual can comprehend the legal reason and normative basis of his conviction, and as such be able to challenge possible methodological shortcomings on part of the judges. However, judges are often reluctant to disclose the applied method(s). Like magicians, the judges are not willing to reveal how they pull the rabbit—customary international criminal law—out of the hat. The opportunity to quantify the way customary law is determined by international criminal tribunals begins with a duty to disclose the method used. On the basis of the disclosed method one would be in a position to verify or challenge a judgment or decision, that is to say, if it had been delivered on sound methodological grounds. Regrettably, this proposed duty of a methodological disclosure is far from being a political and legal reality.
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Notes
- 1.
J.-M. Henckaerts, Customary International Humanitarian Law (2005) (ICRC Custom Study).
- 2.
ICRC Custom Study, id, xxxvii ff (Assessment of customary international law).
- 3.
ICRC Custom Study, id, Vol. I: Rules, xlvi.
- 4.
See the critique of Bellinger and Haynes on the non-traditional methodology used by the ICRC, J. B. Bellinger and W. J. Haynes, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law, 89 Review of the Red Cross (2007). See also the critique on the ICRC Custom Study by R. Cryer, Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study, 11 Journal of Conflict & Security Law (2006), 239ff, and H. Krieger, A Conflict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study, 11 Journal of Conflict & Security Law (2006), 265ff.
- 5.
A. Pellet, Article 38, in Zimmerman et al (eds.), The Statute of the International Court of Justice – A Commentary (2012), 761, MN 236.
- 6.
See e.g. ICTY, Strugar Appeals Chamber Decision, para 13.
- 7.
See Art. 23 (2) ICTY Statute; see in this regard ICTY, Prosecutor v. Furundžija, IT-95-17/1, Appeals Chamber, Judgment, 21 July 2000, para 69; Prosecutor v. Kunarac et al, IT-96-23 & IT-96-23/1, Appeals Chamber, Judgment, 12 June 2002, para 42; see also Art. 23 (2) ICTR Statute, Art; 74 (5) Rome Statute; Art. 18 SCSL Statute; Rule 101 Extraordinary Chambers in the Court of Cambodia, Internal Rules (Rev. 8) (2011).
- 8.
See in that regard, M. D. Öberg, Processing Evidence and Drafting Judgments in International Criminal Trial Chamber, 24 Criminal Law Forum (2013), 120ff with further references to case law.
- 9.
See e.g. the critique of the ICTY, Stakić Appeals Judgment, para 62, stating that the liability of co-perpetration as established by the Stakić Trial Chamber “does not have support in customary international law”.
- 10.
See ICTY, Kunarac Appeals Judgment, para 42.
- 11.
P. Hauck, The Challenge of Customary International Crimes to the Principle of Nullum Crimen Sine Lege, 21 Humanitäres Völkerrecht – Informationsschriften (Journal of International Law of Peace and Armed Conflict) (2008), 61.
- 12.
See Sect. 3.10.6.2, The certa Requirement as an Imperative for Improvement.
- 13.
Similar G. Mettraux, International Crimes and the ad hoc Tribunals (2005), 14–5, argues that a “court must carefully reason and explain its conclusion as to the customary or non-customary status of a norm [as it is] an element of the fair trial guarantee and the rationale of a judgment must therefore be ‘clearly explained’.”
- 14.
L. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (2005), 275.
- 15.
See for the ICTY: Prosecutor v. Hadžihasanović, IT-01-47-T, Trial Chamber, Judgment, 15 March 2006, para 254: “To prove the existence of a customary rule, the two constituent elements of the custom must be established, namely, the existence of sufficiently consistent practices (material element), and the conviction of States that they are bound by this uncodified practice, as they are by a rule of positive law (mental element)”; Hadžihasanović Appeals Chamber Decision, para 12: “to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on basis of supporting opinio juris”; Furundžija Appeals Judgment), Declaration of Judge Patrick Robinson, para 281: “in seeking to ascertain international custom […] what one is looking for is a sufficiently widespread practice of states accompanied by opinio juris.” See for the SCSL: Norman Appeals Chamber Decision, para 17: “The formation of custom requires both state practice and a sense of pre-existing obligation (opinio juris).” For the ECCC see Trial Chamber Decision on Armed Conflict Nexus Requirement, para 12 (footnote 40): “The content of customary international law derives from the actual practice of states and opinio juris”; see also Pre-Trial Chamber JCE Appeals Decision, para 53: “The Pre-Trial Chamber recalls that, when determining the state of customary international law in relation to the existence of a crime or a form of individual responsibility, a court shall assess existence of common, consistent and concordant state practice, or opinio juris, meaning that what States do and say represents the law. A wealth of state practice does not usually carry with it a presumption that opinio juris exists”.
- 16.
The ICTY Trial Chamber Judgment Prosecutor v. Prlić, IT-04-74-T, 28 Mai 2013, has been omitted from the analysis as it is only available in French on the ICTY homepage.
- 17.
The 11 ICTY Trial Chamber judgments are the following: Delalić Trial Judgment; Furundžija Trial Judgment; Prosecutor v. Jelisić, IT-95-10-T, Trial Chamber, Judgment, 14 December 1999; Kupreškić Trial Judgment; Kunarac Trial Judgment; Krstić Trial Judgment; Vasiljević Trial Judgment; Prosecutor v. Simić, IT-95-9-T, Trial Chamber, Judgment, 17 October 2003; Galić Trial Judgment; Hadžihasanović Trial Judgment; Boškoski Trial Judgment.
- 18.
The search terms included “State practice”, “national practice”, “practice”, “opinio juris” and “opinio iuris”. Instances when trial chambers merely used quotations of previous judgments that contained these phrases have not been counted.
- 19.
When elaborating on the crime of genocide the ICTY Jelisić Trial Chamber has identified State practice in the form of national case law, see Prosecutor v. Jelisić, IT-95-10-T, Trial Chamber, Judgment, 14 December 1999, paras 51ff; see in that regard also ICTY, Krstić Trial Judgment, para 541, treating national legislation and judicial practice as State practice and referring in the subsequent paragraphs to French legislation (para 571) and German case law (para 579); when elaborating on a possible obligation to prosecute international crimes under customary law, the Hadžihasanović Trial Chamber treated national case law as an instance of State practice, Hadžihasanović Trial Judgment, paras 254, 257; Boškoski Trial Judgment, para 191 treating statements by States as possible evidence for State practice and opinio iuris when distinguishing NIACs from “merely” terroristic acts not rising to the level of armed conflict. See also the references in infra note 39.
- 20.
In that regard the Rome Statute of the International Criminal Court has been used 7 times to evince opinio iuris: ICTY, Furundžija Trial Judgment, para 227, in relation to the mode of liability of aiding and abetting; ICTY, Kupreškić Trial Judgment, para 580, stated that the Rome Statute may be indicative of the opinio iuris of many States but with regard to the crime of persecution (Art. 7 (1) (h) Rome Statute) it is not consonant with customary international law, as it requires a nexus between persecution and “any act referred to in this paragraph or any crime within the jurisdiction of the Court”; Kunarac Trial Judgment, para 495 when elaborating on the crime of torture, footnote 1225 elaborating on the crime of outrages upon personal dignity, footnote 1333 when elaborating on the crime of enslavement; ICTY, Krstić Trial Judgment, para 541 when elaborating on the crime of genocide; Prosecutor v. Simić, IT-95-9-T, Trial Chamber, Judgment, 17 October 2003, footnote 212 elaborating on the law on deportation; furthermore UN General Assembly Resolution where used as indicative for opinio iuris, when dealing with reprisals (ICTY, Kupreškić Trial Judgment, para 532) and the protection of the civilian population from the dangers arising from hostilities (Galić Trial Judgment, footnote 78); the number of ratification of the Geneva Conventions or the AP I have been used to evince opinio iuris, see Simić Trial Judgment, para 1153 and ICTY, Kupreškić Trial Judgment, para 532. And as stated before the Boškoski Trial Judgment treated statements by States as possible evidence for State practice and opinio iuris when distinguishing NIACs from “merely” terroristic acts not rising to the level of armed conflict.
- 21.
Those 7 ICTY Appeal Chamber judgments are the following: Tadić Appeals Judgment; Delalić Appeals Judgment; Aleksovski Appeals Judgment; Blaškić Appeals Judgment; Krnojelac Appeals Judgment; Kordić Appeals Judgment; Prosecutor v. Đorđević, IT-05-87/1-A, Appeals Chamber, Judgment, 27 January 2014.
- 22.
The analysis only counted the references in the judgments themselves, whereas references to State practice and/or opinio iuris in separate or dissenting opinions were not included in the analysis.
- 23.
ICTY, Tadić Appeals Chamber Judgment, paras 124ff, stated that the “effective control” test of the ICJ Nicaragua Case was “at variance with international judicial and State practice”. After elaborating on international judicial practice, the Appeals Chamber referred to State practice in the form of national judicial practice (at footnotes 155–6 referring to the German Jorgić Case and footnote 167) and statements of States in SC Res debates (at footnotes 157 and 167) and by “judging from international case law and State practice” the Tadić Appeals Judgment came to the conclusion that the appropriate test to attribute acts of military or paramilitary groups to a State is “overall control”. Furthermore, the Tadić Appeals Judgment determined that crimes against humanity under customary international law do not require the proof of a discriminatory intent (apart of the crime of persecution) referring to State practice in the form of national legislation and national jurisprudence, ICTY, Tadić Appeals Chamber Judgment, para 190. Furthermore the ICTY, Kordić Appeals Judgment, para 66, elaborated on State practice in the form of national legislation and case law and determined that State practice was not settled on the question of a result requirement for unlawful attacks on civilians. It is not clear when referring to the “controversial negotiations” of the Rome Statute how the Appeals Chamber treated it as “evidence of the unsettled nature of State opinio juris and practice”. Krnojelac Appeals Judgment, para 221 referred to the Rome Statute as an evidence of State practice in order to evince that forcible displacement can constitute the crime of persecution under customary international law. ICTY, Galić Appeal Judgment, para 92ff, referred to State practice in the form of statements, national legislation and domestic court decisions when elaborating on the crime of terror under customary international law.
- 24.
The ICTY, Tadić Appeals Chamber Judgment, paras 222–223, referred to the Rome Statute as opinio iuris when elaborating on Joint Criminal Enterprise; in that regard the Đorđević Appeals Chamber, para 35 defended the ICTY Tadić Appeals Chamber’s reference to the Rome Statute; ICTY, Delalić Appeals Judgment, footnote 255 relied on the Rome Statute as opinio iuris when establishing the necessary element of “effective control” for command responsibility under customary international law; Blaškić Appeals Judgment, para 158 referred to UN GA Resolutions when elaborating on the prohibition of attacking the civilian population under customary international law.
- 25.
These SCSL judgments are: Fofana Trial Judgment; Sesay Trial Judgment; Fofana Appeals Judgment; SCSL, Taylor Appeals Judgment.
- 26.
With regard to the crime of intentionally directing attacks against personnel involved in a peacekeeping mission, SCSL, Sesay Trial Judgment, paras 213ff referred to official pronouncements of States before the UN Security Council as State practice and the Rome Statute has been treated as evidence of State practice and opinio iuris; SCSL, Fofana Appeals Judgment, paras 391ff with regard to the distinction of the prohibition against pillage and the prohibition against destruction not justified by military necessity treated military manuals as evidence of State practice. SCSL, Taylor Appeals Judgment when establishing the mens rea standard of knowledge for aiding and abetting under customary international law, referred to national legislation as State practice (para 430) and the Rome Statute as not evincing contrary State practice (para 436); furthermore a standard of specific direction was considered to be contrary to State practice (para 474) as evinced by domestic legislation, the Arms Trade Treaty and the creation of international criminal tribunals as established by States.
- 27.
The Rome Statue and the Arms Trade Treaty have been used to evidence opinio iuris, see for the Rome Statute SCSL, Sesay Trial Judgment, para 218 and SCSL, Fofana Appeals Judgment, para 403 and for the Arms Trade Treaty, SCSL, Taylor Appeals Judgment, para 461.
- 28.
ECCC, Duch Trial Judgment, para 589 referring to “Cambodian practice” as contained in the penal code; Prosecutor v. Nuon, Case File No. 002/19-09-2007/ECCC/TC, Trial Chamber, Judgment, 7 August 2014, para 719 (in conjunction with footnote 2241) referring to US case law as an instance of State practice.
- 29.
ECCC, Duch Appeals Judgment, para 225 referring to State practice with regard to post World War II convictions by “hybrid military NMTs [Nuremberg Military Tribunals]” and national courts and para 109 referring to General Assembly Resolution 95 (I) as evincing opinio iuris.
- 30.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, paras 128–134.
- 31.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 99.
- 32.
See W. Heintschel von Heinegg, Criminal International Law and Customary International Law, in Zimmermann (ed.), International Criminal Law and the Current Development of Public International Law (2003), 35; see also R. Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda (2007), 299.
- 33.
T. Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 American Journal of International Law (1996), 239.
- 34.
T. Meron, The Geneva Conventions as Customary Law, 81 American Journal of International Law (1987), 361; “because of the difficulty of ascertaining significant state practice in periods of hostilities, manuals of military law and legislation of states providing for the implementation of humanitarian law norms as internal law should be considered as among the best types of evidence of such practice and, sometimes perhaps, as a statement of opinio juris as well.”
- 35.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 99.
- 36.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 100 with regard to the Spanish Civil War and para 102 with regard to the instructions of Mao Tse-Tung to the Peoples’ Liberation Army, para 105 with regard to a public statement of the Prime Minister of Congo.
- 37.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 125 with regard to a case before the Supreme Court of Nigeria.
- 38.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, 133.
- 39.
See ICTY, Galić Appeal Judgment, para 92; Prosecutor v. Strugar, IT-01-42-T, Trial Chamber, Judgment, 31 January 2005, footnote 754; Prosecutor v. Boškoski, IT-04-82-T, Trial Chamber, Judgment, 10 July 2008, footnote 1273; Prosecutor v. Đorđević, IT-05-87/1-T, Trial Chamber, Judgment, 23 February 2011, footnote 5779. Prosecutor v. Stanišić and Župljanin, IT-08-91-T, Trial Chamber, Judgment, 27 March 2013, footnote 86.
- 40.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 99. See also J. Wouters, C. Ryngaert, The Impact on the Process of the Formation of customary International Law, in Kamminga, Scheinin (eds.), The Impact of Human Rights Law on General International Law (2009), 116.
- 41.
A term coined by B. Simma and A.L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, in 93 American Journal of International Law (1999), 306ff.
- 42.
C. Kress, War Crimes Committed in Non-international Armed Conflict and the Emerging System of International Criminal Justice, 30 Israel Yearbook on Human Rights (2001), 108.
- 43.
See Sect. 4.3.2, The Procedural Aspect of Modern Customary International Law.
- 44.
The ICTY Tadić Appeals Chamber appeared not to be overconfident in its proof: the military manuals of the US and Great Britain only “lend themselves to the interpretation” that war crimes included NIAC situations and also the norms of the Criminal Code of the FRY only “seem[ed] to imply that they also apply to internal armed conflicts.” See, ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 131–132; see also the critique by Heintschel von Heinegg (supra note 32), 35ff.
- 45.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, paras 128–132.
- 46.
See ICJ, North Sea Continental Shelf Cases, para 74.
- 47.
Heintschel von Heinegg (supra note 32), 35ff; Kress (supra note 42), 107; Meron (supra note 33), 240. Cassese himself in that regard admitted that “we came up with a lot of evidence … well some evidence [laughter].” See Editorial, Nino – In His Own Words, 22 European Journal of International Law (2011), 942.
- 48.
See e.g. for the ICTY: Tadić Trial Judgment, para 614; ICTY, Delalić Appeals Judgment, paras 153ff; see for the ICTR: Akayesu Trial Judgment, para 613; Prosecutor v. Rutaganda, ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, para 87; see for the SCSL: Prosecutor v. Fofana, SCSL-2004-14-AR72(E), Appeals Chamber, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of Armed Conflict, 25 May 2004, para 24: “Any argument that these norms [CA 3 and Art. 4 (2) AP II] do not entail individual criminal responsibility has been put to rest in ICTY and ICTR jurisprudence.”
- 49.
In the Delalić Case it has been stated that the Tadić Appeals Chamber “illustrate[d] that there are many instances of penal provisions for violations of the laws applicable in internal armed conflicts”, see ICTY, Delalić Trial Judgment, para 307; ICTY, Delalić Appeals Judgment, paras 175ff.
- 50.
SCSL, Norman Appeals Chamber Decision, para 17.
- 51.
As annexed to the Amicus Curiae Brief of the United Nations Children’s fund (UNICEF).
- 52.
See Art. 4 (3e) Additional Protocol II and Art. 38 (3) Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.
- 53.
See SCSL, Norman Appeals Chamber Decision, paras 30ff. The issue of individual criminal responsibility has already been raised by the Secretary General in his report on the SCSL, at para 17, where he stated “while the prohibition on child recruitment has by now acquired a customary international law status, it is far less clear whether it is customarily recognized as a war crime entailing the individual criminal responsibility of the accused.” Indeed the Secretary General in a previous draft of the SCSL Statute prepared by him “only” criminalized “abduction and forced recruitment” while voluntary enlistment was not included.
- 54.
SCSL, Norman Appeals Chamber Decision, para 33.
- 55.
It seems that more States than just the US shared this position – c.f. H. von Hebel and D. Robinson, Crimes within the Jurisdiction of the Court, in Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), 117. See also M. Happold, International Humanitarian Law, War Criminality and Child Recruitment: The Special Court for Sierra Leone’s Decision in Prosecutor v. Samuel Hinga Norman, 18 Leiden Journal of International Law (2005), 290.
- 56.
1999 ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, the Optional Protocol II to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (signed in 2000, entry into force 2002). These instruments are questionable since they strictly speaking do not criminalize the conduct themselves, but merely oblige State parties to take immediate and effective measures (in the case of the ILO convention) or to adopt legal measures necessary to prohibit and criminalize such practices (in the case of the CRC Optional Protocol) or in the case of the CRC, referred to in para 41 to take all feasible measures.
- 57.
SCSL, Norman Appeals Chamber Decision, para, 45. The Appeals Chamber refers to the UNICEF Amicus Brief that lists 5 national legislations that explicitly criminalized the recruitment of children (Colombia’s national law, the Code of Military Justice of Argentina, Spain’s Penal Code, Ireland’s Geneva Conventions Act and Norway’s Military Penal Code).
- 58.
SCSL, Norman Appeals Chamber Decision, para 49, referring to M. Akehurst, Custom as a Source of International Law, 47 British Yearbook of International Law (1977).
- 59.
SCSL, Norman Appeals Chamber Decision, para 53.
- 60.
SCSL, Norman Appeals Chamber Decision, Dissenting opinion of Justice Robertson, para 60: “what had emerged, in customary international law, by the end of 1996 was a humanitarian rule that obliged states, and armed factions within states, to avoid enlisting under fifteens or involving them in hostilities, whether arising from international or internal armed conflict. What had not, however, evolved was an offence cognisable by international criminal law which permitted the trial and punishment of individuals accused of enlisting (i.e. accepting for military service) volunteers under the age of fifteen. It may be that in some states this would have constituted an offence against national law, but this cannot be determinative of the existence of an international law crime.” Judge Robertson refers to the difference of forcible recruitment and enlistment in paras 8–10.
- 61.
SCSL, Fofana Trial Judgment, para 184; Brima Trial Judgment, para 728; Sesay Trial Judgment, para 184.
- 62.
ICC, Trial Chamber I, ICC-01/04-01/06, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo, Judgment, 14 March 2012, para 603: “The SCSL’s case law therefore potentially assist in the interpretation of the relevant provisions of the Rome Statute.”
- 63.
ECCC, Duch Appeals Judgment, para 93.
- 64.
See Sect. 4.3.3, The Substantive Aspect of Modern Customary International Law.
- 65.
ICTY, Delalić Trial Judgment, paras 245, analyzing the requirement “in the hands of a party to the conflict or occupying power of which they are not nationals” as stipulated in Art. 4 Geneva Convention IV.
- 66.
ICTY, Delalić Trial Judgment, paras 255–6, analyzed on basis of the ILC Draft Articles on Nationality in Relation to the Succession of States and the Declaration on the Consequences of State Succession for the Nationality of Natural Person of the European Commission for Democracy through Law (Venice Commission).
- 67.
ICTY, Delalić Trial Judgment, at footnote 283 referring to P. Weis, Nationality and Statelessness in International Law (1979).
- 68.
ICTY, Delalić Appeals Judgment, para 266.
- 69.
ICTY, Kupreškić Trial Judgment, para 516, listing for its conclusion only one post World War II case. Furthermore the Trial Chamber stated that the tu quoque is a “flawed in principle” as IHL is not based on reciprocity.
- 70.
ICTY, Vasiljević Trial Judgment, para 194, furthermore stating that the “residual character of a criminal prohibition such as Article 3 of the Statute does not by itself provide for the criminalisation by analogy to any act which is even vaguely or potentially criminal.” In para 199 the Trial Chamber refers to the possibilities of determining that a given act is criminal under customary international law stating that “a vast number of national jurisdictions have criminalized it, or a treaty provision which provides for its criminal punishment has come to represent customary international law.” A critical position to this judgment was taken by A. Cassese, Black Letter Lawyering v. Constructive Interpretation, 2 Journal of International Criminal Justice (2004), 271ff.
- 71.
ICTR, Kayishema Trial Judgment, para 147.
- 72.
ICTY, Vasiljević Trial Judgment, para 227. In a footnote the Trial Chamber determines that due to the lack of an adequate analysis of the elements of customary international law the ICTR, Kayishema Trial Judgment cannot be considered to have precedential value. In the same vein it denounces the Rome Statute as it blindly followed the ICTR precedent.
- 73.
Federal Constitutional Court of Germany, 2 BvR 1290/99, 12 December 2000, para (III) (4) (a) (aa).
- 74.
ICTY, Krstić Trial Judgment, para 580. The Trial Chamber treats national judicial decisions as instances of State practice, see para 541.
- 75.
ICTY, Aleksovski Appeals Judgment, para 23.
- 76.
ICTY, Prosecutor v. Milutinović et al, IT-05-87-PT, Trial Chamber, Decision on Ojdanić’s Motion Challenging Jurisdiction: Indirect Co-perpetration, 22 March 2006, para 39; Compare also ICTY, Stakić Appeals Judgment, para 62, stating that it “does not have support in customary international law or in the settled jurisprudence of this Tribunal which is binding on the Trial Chambers” and sees that in contrast Joint Criminal Enterprise (JCE) is “firmly established in customary international law”, which it considered to be settled jurisprudence.
- 77.
ICTY, Erdemović Appeals Judgment, para 19.
- 78.
ICTY, Erdemović Appeals Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah, paras 46–55, explicitly referring to the authoritative statement of the ICJ in the North Sea Continental Shelf Cases.
- 79.
ICTY, Erdemović Appeals Judgment, Separate and Dissenting Opinion of Judge Cassese, para 40.
- 80.
SCSL, Fofana Appeals Judgment, paras 389ff, 405.
- 81.
SCSL, Taylor Appeals Judgment, para 484. The Appeals Chamber was not willing to accept an alternate purpose or specific direction under customary international law.
- 82.
ICTY, Kordić Appeals Judgment, paras 62–66. The Appeals Chamber highlighted the fact that even under the grave breaches regime of AP I in relation to unlawful attacks against civilians, it would be required that these cause “death or serious injury to body or health”, see Art. 85 (3) AP I.
- 83.
ICTY, Kordić Appeals Judgment, para 67.
- 84.
ICTY, Ojdanić Appeals Decision on JCE, para 29 (emphasis added).
- 85.
International Convention for the Suppression of Terrorist Bombing (adopted by consensus by the General Assembly Resolution 52/164 (15 December 1997), Art. 2 (3) (c)); Art. 25 of the ICC Rome Statute (viewing it as an expression of opinio iuris).
- 86.
Although the Appeals Chamber demonstrated that common purpose is “rooted” in the domestic legal system of many States, it seems as if it did not factor those laws and decisions in its assessment of applicable law. They did not constitue general principles of law due to the small number of examples. Furthermore the domestic laws did not incorporate customary international humanitarian law and thus could not be considered for the formation of customary international law. See ICTY, Tadić Appeals Chamber Judgment, para 225.
- 87.
ICTY, Tadić Appeals Chamber Judgment, para 226. Also the Đorđević Appeals Chamber misconstrues the methodological approach of the Tadić Appeals Chamber. It quotes para 226 of the Tadić Appeals Judgment referring to the “consistency and cogency of case law and the treaties referred to […] as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation” but omits the essential conclusion of para 226 that the “case law reflects customary rules of international criminal law”. Đorđević Appeals Judgment, paras 41 and 35.
- 88.
- 89.
See the scarce use of the terminology of State practice and opinio iuris by international criminal tribunals under Sect. 6.3.1.1, Preliminary Remarks.
- 90.
See also B. Schlütter, Developments in Customary International law (2010), 187, naming such an approach to customary international law the “sources based approach”.
- 91.
In order to make the identification of customary international criminal law a tangible venture this thesis will try to identify the legal value of these different instances under Chap. 7, Relevant Material for Proving the Existence of Customary International Criminal Law.
- 92.
ICTY, Tadić Trial Judgment, paras 618–659.
- 93.
ICTY, Jelisić Trial Judgment, paras 59ff, that excepting national case law does not allocate evidence to specific instances of State practice or opinio iuris; see also ICTY, Krstić Trial Judgment, paras 541ff referring to several sources in its analysis of customary international law, inter alia the 1948 Genocide Convention, ILC Draft Codes, the reports of the sub-commission on prevention of discrimination and protection of minorities of the UN but which allocated only the Rome Statute and national legislation and jurisprudence as specific evidence for State practice or opinio iuris. Prosecutor v. Popović, IT-05-88-T, Trial Chamber, Judgment, 10 June 2010, paras 807ff.
- 94.
ICTY, Kordić Trial Judgment, paras 295ff
- 95.
ICTY, Vasiljević Trial Judgment, paras 216ff; Prosecutor v. Blagojević & Jokić, IT-02-60-T, Trial Chamber, Judgment, 17 January 2005, paras 570ff; Krstić Trial Judgment, paras 490ff.
- 96.
ICTY, Tadić Trial Judgment, paras 694ff; Prosecutor v. Blaškić, IT-95-14-T, Trial Chamber, Judgment, 3 March 2000, paras 219ff; Prosecutor v. Krajišnik, IT-00-39-T, Trial Chamber, Judgment, 27 September 2006, paras 733ff.
- 97.
ICTY, Blaškić Trial Judgment, paras 237ff.
- 98.
ICTY, Kunarac Trial Judgment, paras 518ff.
- 99.
ICTY, Stakić Appeals Judgment, paras 274ff establishing that deportation requires that individuals are transferred across a State border or de facto border, referring to post World War II jurisprudence, international conventions, the ILC Draft code, the ICRC Custom Study and ICTY jurisprudence, but not explicitly referring to State practice or opinio iuris.
- 100.
E.g. the ICTY Kupreškić Trial Chamber in its Judgment at para 577 determined that under customary international law the nexus requirement between crimes against humanity and war crimes vanished, referring to Control Council Law No. 10, national legislation and case law, international conventions and prior ICTY jurisprudence without indicating their value for the establishment of State practice and/or opinio iuris. The Martić Appeals Chamber determined that the chapeau of crimes against humanity does not require that the individual victim has civilian status but determined that persons hors de combat can also be victims of crimes against humanity. It came to this conclusion by a consideration of various international instruments without allocating them to instances of State practice or opinio iuris; see Appeals Chamber, Prosecutor v. Martić, IT-95-11-A, Appeals Chamber, Judgment, 8 October 2008, paras 303ff. See also ICTY, Kunarac Appeals Judgment, para 98 (footnote 114), that the existence of a State plan or policy is not a requirement for crimes against humanity under customary international law.
- 101.
ICTY, Prosecutor v. Aleksovski, IT-95-14/1, Trial Chamber, Judgment, 25 June 1999, paras 66ff; ICTY, Delalić Trial Judgment, paras 333ff; ICTY, Delalić Appeals Judgment, paras 228ff; Prosecutor v. Halilović, IT-01-48-T, Trial Chamber, Judgment, 16 November 2005, paras 38ff.
- 102.
See Sect. 6.2, A Word of Caution.
- 103.
SCSL, Brima Trial Judgment, paras 660ff inter alia referring to AP II, ICTY case law, the report of the United nations War Crimes Commission, domestic military manuals.
- 104.
SCSL, Brima Trial Judgment, paras 750ff; Sesay Trial Judgment, paras 204ff.
- 105.
SCSL, Fofana Trial Judgment, paras 182ff inter alia referring to AP I and AP II, the 1989 Convention on the Rights of the Child, the Rome Statute.
- 106.
SCSL, Brima Trial Judgment, paras 697ff referring to ICTY case law, the IMT Nuremberg Charter, Control Council Law No. 10, the Rome Statute and national case law.
- 107.
SCSL, Brima Trial Judgment, paras 739ff.
- 108.
See Chap. 7, Relevant Material for Proving the Existence of Customary International Criminal Law.
- 109.
On the inductive and deductive method in relation to the determination of customary international law, see generally, W. T. Worster, The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches, Georgetown Journal of International Law (2014), 445ff. Worster suggests that in relation to customary international law induction and deduction are not opposing but intertwined methods.
- 110.
ICJ Corfu Channel Case, 22, claiming that a notification obligation of the existence of a minefield in Albanian territorial waters in order to warn approaching ships stems from “elementary considerations of humanity”. The ICJ in the Nicaragua Case, para 218, applied these “elementary considerations of humanity” with regard to Common Article 3. The ICJ in Legality of the Threat of Nuclear, para 29, held that rules being based on “elementary considerations of humanity” constitute “intransgressible principles of international customary law”.
- 111.
ICTY, Prosecutor v. Mrkšić, IT-95-13/1, Appeals Chamber, Judgment, 5 May 2009, para 70; Krajišnik Trial Judgment, para 706; Prosecutor v. Naletilić, IT-98-34-T, Trial Chamber, Judgment, 31 March 2003, para 228; Delalić Trial Judgment, para 303; Delalić Appeals Judgment, para 140; Prosecutor v. Aleksovski, IT-95-14/1, Trial Chamber, Judgment, 25 June 1999, para 50; ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 102; Tadić Trial Judgment, para 609.
- 112.
See Sect. 6.3.1.2, ICTY Tadić Appeals Chamber Jurisdiction Decision.
- 113.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, paras 96ff. See also Schlütter (supra note 90), 225 determining that the Appeals Chamber “combines the traditional two-element approach with deductive reasoning”.
- 114.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 97.
- 115.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 119 (emphasis added).
- 116.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, paras 128–129 (emphasis added).
- 117.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, 133.
- 118.
ICTY, Tadić Appeals Chamber Jurisdiction Decision, para 134 (emphasis added).
- 119.
See generally T. Meron, The Humanization of International Law (2006); on the role of Judge Cassese in this development, see T. Hoffmann, The Gentle Civilizer of Humanitarian Law, in Stahn/van den Herik (eds.), Future Perspectives on International Criminal Justice (2010), 58ff. Other writers see that “the proclamation of a new substantive universal (and common good) signifies a ‘turn to ethics’, a potential moralization of law, which leads actors unconsciously down the path of a deformalization of international law itself. Common juridical values, such as democracy or human rights, become fundamental, and guaranteeing them is sometimes understood as necessary due, in effect, to their own intrinsic value, and not due to the fact that they are inscribed in the texts of positive law”, see E. Jouannet, Universalism and Imperialism (2007), 389.
- 120.
ICTY, Delalić Appeals Judgment, para 143.
- 121.
ICTY, Delalić Appeals Judgment, para 172 (emphasis added).
- 122.
ICTY, Delalić Appeals Judgment, para 173.
- 123.
See e.g. ICTY, Furundžija Trial Judgment, para 162, when elaborating and defining torture under Art. 3 ICTY Statute; ICTY, Aleksovski Trial Judgment, elaborating and defining “outrages upon personal dignity” under Art. 3 ICTY Statute, paras 49ff; Delalić Trial Judgment, para 263 eliminating a strict nationality requirement in order to determine a broad category of protected persons under the grave breaches regime based on ethnicity; ICTY, Jelisić Trial Judgment, para 83 determining that “international custom admits the characterization of genocide even when the exterminatory intent only extends to a limited geographic zone” based on the object and purpose of the Genocide Convention; Blaškić Trial Judgment, para 167ff stating that Common Article 3 expresses the fundamental principle underlying the Geneva Conventions, humane treatment, and that it covers acts of AP I relating to unlawful attacks upon civilian targets. The Aleksovski Appeals Judgment, para 146 defended the “overall control” test against the “effective control” test of the ICJ as the former “provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure protection of civilians to the maximum extent possible.” At the ICTR the Akayesu Appeals Chamber determined that the “purpose of common Article 3 [is] to ensure respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances” and determined that protection of victims is at the core of Common Article 3. The Akayesu Appeals Chamber on basis of this purpose determined that individual responsibility on that basis could not be restricted to specific perpetrators merely belonging to the members of armed forces but chose a wide application; see ICTR, Prosecutor v. Akayesu, ICTR-96-4-A, Appeals Chamber, Judgment, 1 June 2001, paras 439ff.
- 124.
ICTY, Tadić Trial Judgment, para 618 referring to the Martens Clause to determine that crimes against humanity was not a “novel concept” of the IMT Charter; ICTY, Furundžija Trial Judgment inter alia referring to the Martens Clause to determine that “a general prohibition against torture has evolved in customary international law” (para 137) and that “the prohibition of rape and serious sexual assault has also evolved in customary international law” (para 168); Kupreškić Trial Judgment, para525ff elaborating on the customary rules of precaution in attacks on military objectives causing damage to civilians; Hadžihasanović Trial Chamber Decision, para 64 referring to the Martens Clause as containing fundamental principles of international humanitarian law and, in the very next paragraph on the principle of criminal responsibility, establishing the principle of responsible command and the principle of command responsibility. The Appeals Chamber did not refer to the Martens Clause in its decision on interlocutory appeal, but adhered to another deductive reasoning, see supra note 154 and accompanying text.
- 125.
The original Martens Clause was contained in the preamble to the 1899 Hague Convention concerning the laws or customs of war on land: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” A modern version of the Martens Clause is found in Art. 1 (2) AP I and the preamble of AP II referring to “the principles of humanity” and “the dictates of public conscience”.
- 126.
With regard to the Martens Clause it has been argued that it could be used as an interpretative guideline to international humanitarian rules, see e.g. A. Cassese, The Martens Clause: Half a Loaf or Simply Pie in the Sky?, 11 European Journal of International Law (2000), 212–3.
- 127.
E.g. Schlütter (supra note 90), 254ff.
- 128.
ICTY, Kupreškić Trial Judgment, para 525.
- 129.
ICTY, Prosecutor v. Krnojelac, IT-97-25-T, Trial Chamber, Judgment, 15 March 2002, para 186.
- 130.
ICTY, Kupreškić Trial Judgment, para 525. See also the positions of the UK with regard to the ICJ’s Nuclear Weapons Advisory Opinion, as quoted in T. Meron, The Martens Clause, Principles of Humanity, and the Dictates of Public Conscience, 94 American Journal of International Law (2000), 85: “While the Martens Clause makes clear that the absence of a specific treaty provision on the use of nuclear weapons is not, in itself, sufficient to establish that such weapons are capable of lawful use, the Clause does not, on its own, establish their illegality.” This conclusion is drawn despite the clause’s loose wording that seems that seems to elevate “the principles of humanity” and “the dictates of public conscience” to the same level as “usages established between civilized nations”; see in that regard T. Rensmann, die Humanisierung des Völkerrechts durch das ius in bello – Von der Martens’schen Klausel zu “Responsibility to Protect”, 68 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2008), 114; Cassese (supra note 126), 188, 193ff.
- 131.
On the role of treaties for the determination of customary international law see Sect. 7.5, International Conventions.
- 132.
ICTY, Kupreškić Trial Judgment, para 527.
- 133.
ICTY, Kupreškić Trial Judgment, para 532
- 134.
Meron (supra note 130), 88; in a similar vein Rensmann (supra note 130), 114.
- 135.
See Sect. 4.3.2, The Procedural Aspect of Modern Customary International Law.
- 136.
ICTY, Kupreškić Trial Judgment, para 531.
- 137.
On opinio iuris sive necessitatis see Sect. 4.2.2, Opinio Iuris Under a Traditional Interpretation. See also Cassese, presiding judge in the Kupreškić Trial Chamber, in his scholarly writing Cassese (supra note 126), at 214: “Put differently, the requirement of opinio iuris or opinio necessitatis may take on a special prominence. As a result, the expression of legal views by a number of states and other international subjects concerning the binding value of a principle or a rule, or the social and moral need for its observance by states, may be held to be conductive to the formation of a principle or a customary rule, even when those legal views are not backed up by widespread and consistent state practice, or even by no practice at all.” (emphasis added).
- 138.
ICTY, Kupreškić Trial Judgment, paras 532–533.
- 139.
See further Sect. 7.6.2, UN General Assembly Resolutions.
- 140.
Cassese (supra note 126), 189.
- 141.
See also R. Cryer, The Philosophy of International Criminal Law, in Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law (2011), 250, stating in regard to the ICTY Kupreškić Trial Chamber reasoning that “the argumentation is notionally, or presentationally, positivist. The argument of the Chamber was that custom accepted the position, and, again some State practice was (mis)quoted. It is clear, though, that the underlying ideal of the opinion is naturalist.”
- 142.
See also T. Hoffmann, The Gentle Civilizer of Humanitarian Law, in Stahn/van den Herik (eds.), Future Perspectives on International Criminal Justice (2010), 76.
- 143.
See e.g. F. Kalshoven, Reprisals and the Protection of Civilians, in Vohrah et al (eds.), Man’s Inhumanity to Man: Essays in Honour of Antonio Cassese (2003), 481ff.
- 144.
See ICTY, Prosecutor v. Martić, IT-95-11-T, Trial Chamber, Judgment, 12 June 2007, paras 465ff arguing that reprisals can be considered lawful under international humanitarian law subject to strict conditions. That finding has been accepted by the Appeals Chamber, Prosecutor v. Martić, IT-95-11-A, Appeals Chamber, Judgment, 8 October 2008, paras 263ff. Concerning State practice see for example the explanatory note regarding the German draft law for the German Code of Crimes against International Law, Bundesratsdrucksache 29/02 of 15 January 2002, 33, considering that reprisals subject to strict conditions may constitute a justification for the commission of international crimes. The UK Joint Service Manual of the Law of Armed Conflict (2004), JSP 383, 423 explicitly criticizes the ICTY Kupreškić Trial Chamber stating that “the court’s reasoning is unconvincing and the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists. The UK does not accept the position as stated in this judgment.” Available at: https://www.gov.uk/government/publications/jsp-383-the-joint-service-manual-of-the-law-of-armed-conflict-2004-edition (last visited: 16 June 2017).
- 145.
ECCC, Duch Appeals Judgment, para 93. Note, however, that in that regard the ECCC Supreme Court Chambers referred to Cassese’s legal writing and not to the ICTY Kupreškić Trial Chamber over which he presided.
- 146.
See also A. E. Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 American Journal of International Law (2001), 758.
- 147.
ICTY, Hadžihasanović Trial Chamber Decision, paras 68ff, 151, 165.
- 148.
ICTY Hadžihasanović Trial Chamber Decision, para 65.
- 149.
ICTY Hadžihasanović Trial Chamber Decision, para 165.
- 150.
ICTY Hadžihasanović Trial Chamber Decision, paras 163ff.
- 151.
ICTY Hadžihasanović Trial Chamber Decision, para 87.
- 152.
ICTY, Hadžihasanović Appeals Chamber Decision.
- 153.
ICTY, Hadžihasanović Appeals Chamber Decision, para 12.
- 154.
ICTY, Hadžihasanović Appeals Chamber Decision, para 17. See also at para 22: “the elements of command responsibility are derived from the elements of responsible command.” Compare also Partially Dissenting Opinion and Declaration of Judge Liu to Prosecutor v. Orić, IT-03-68-A, Appeals Chamber, Judgment, 3 July 2008, para 31.
- 155.
ICTY, Halilović Trial Judgment, para 39f.
- 156.
ICTY, Hadžihasanović Appeals Chamber Decision, para 45.
- 157.
For the issue of command responsibility before the commander’s assumption of command see ICTY, Hadžihasanović Appeals Chamber Decision, para 45 and the dissenting opinions thereto.
- 158.
Worster (supra note 109), 445ff.
- 159.
R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 British Yearbook of International Law (1965–66), 286 (emphasis added).
- 160.
Spieker (supra note 88), 59
- 161.
Separate and Partially Dissenting Opinion of Judge Schomburg to the ICTY, Galić Appeal Judgment, para 17.
- 162.
See already Sect. 3.10.5, The praevia Requirement and the Sources of International Law.
- 163.
See G. Schwarzenberger, The Inductive Approach to International Law (1965), 5; G. Schwarzenberger, International Law as Applied by International Courts and Tribunals (1957), Vol. 1, 28ff.
- 164.
ICTY, Kupreškić Trial Judgment, para 537; See also ICTY, Furundžija Trial Judgment, para 193: “Little light is shed on the definition of aiding and abetting by the international instruments providing for major war trials: the London Agreement, the Charter of the International Military Tribunal for the Far East, establishing the Tokyo Tribunal, and Control Council Law No. 10. It therefore becomes necessary to examine the case law.”
- 165.
See also I. Bantekas, Reflections on Some Sources and Methods of International Criminal and Humanitarian Law, 6 International Criminal Law Review (2006), 131–2; A. Cassese, The Influence of the European Court on Human Rights on International Criminal Tribunals – Some Methodological Remarks, in Bergsmo (ed.), Human Rights and Criminal Justice For the Downtrodden: Essays in Honour of Asbjorn Eide (2003), 21; A. Z. Borda, The Use of Precedent as Subsidiary Means and Sources of International Criminal Law, 18 Tilburg Law Review (2013), 73.
- 166.
See Sect. 7.7, Jurisprudence.
- 167.
On that issue see X. Tracol, The Precedent of Appeals Chambers Decisions in the International Criminal Tribunals, 17 Leiden Journal of International Law (2004), 67ff.
- 168.
See the leading case at the ICTY for the role of precedent within the ICTY, Aleksovski Appeals Judgment, paras 89–115.
- 169.
G. Schwarzenberger, The Inductive Approach to International Law (1965), 5.
- 170.
See e.g. ICTY, Aleksovski Appeals Judgment, paras 89–115.
- 171.
E.g. the ICTY Delalić Appeals Chamber stated that “there is no hierarchical relationship” between the ICTY and the ICJ and that it is not bound by ICJ precedents, see ICTY, Delalić Appeals Judgment, paras 21, 24. In relation to international criminal case law both the SCSL chambers and ECCC chambers rejected any form of binding precedents of ICTY and ICTR case law. See for the SCSL W.A. Schabas, The UN International Criminal Tribunals (2006), 108 referring to the SCSL case law in Prosecutor v. Sesay, SCSL-03-05-PT, Trial Chamber, Decision, 23 May 2003, para 11; Prosecutor v. Gbao, SCSL-03-09-PT), Decision, 10 October 2003, para 31; Prosecutor v. Norman et al., SCSL-04-14-AR73, Decision on Amendment of the Consolidated Indictment, 17 May 2005, para 46; see also Prosecutor v. Kamara, SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, paras 22–25. See for the ECCC: Duch Appeals Judgment, para 97.
- 172.
M. Shahabuddeen, Precedent in the World Court (1996), 237.
- 173.
On this understanding of judicial decisions as a subsidiary source of law, see K. Doehring, Die Rechtsprechung als Rechtsquelle des Völkerrechts. Zur Auslegung des Art. 38 Abs. 1 Ziff. d des Statuts des Internationalen Gerichtshofs, in Reinhart (ed.), Richterliche Rechtsfortbildung – Erscheinungsformen, Auftrag und Grenzen, FS Heidelberg (1986), 546.
- 174.
Heinsch (supra note 32), 346–352 with further references.
- 175.
ICTY, Erdemović Appeals Judgment.
- 176.
Separate and dissenting opinion Judge Li to the ICTY, Erdemović Appeals Judgment, para 2–4.
- 177.
Ibid, para 5.
- 178.
See also Borda (supra note 165), 75–76 referring to B.B. Jing, Judicial Decisions as a Source of International Law and the Defence of Duress in Murder or Other Cases Arising from Armed Conflict, in Yee and Wand (eds.), International Law in the Post-Cold War World (2001), 77ff. See also A. Nollkaemper, Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY, in Boas/Schabas (eds.), International Criminal law Developments in the Case Law of the ICTY (2003), 290
- 179.
ECCC, Duch Appeals Judgment, paras 285ff. The Trial Chamber in its Judgment, paras 559ff applied the Čelebići test as established in ICTY, Delalić Appeals Judgment, paras 412ff, but did not indicate its authoritative value. According to the Čelebići test “multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other” which also includes chapeau requirements.
- 180.
ECCC, Duch Appeals Judgment, para 290 (emphasis added).
- 181.
ECCC, Duch Appeals Judgment, paras 291–295.
- 182.
ECCC, Duch Appeals Judgment, para 300.
- 183.
ECCC, Duch Appeals Judgment, para 97.
- 184.
See also Borda (supra note 165), 74.
- 185.
See e.g. ICTY Kupreškić Trial Judgment, para 540.
- 186.
See G. Schwarzenberger, The Inductive Approach to International Law (1965), 5.
- 187.
Pellet (supra note 5), 854, MN 305.
- 188.
See for the ICTY Kupreškić Trial Judgment, para 605 when elaborating on the customary law status of the crime of persecution as a crime against humanity; see also ICTY Tadić Trial Judgment, para 674 determining that “[t]he most relevant sources for such a determination [participation as a basis of liability] are the Nürnberg war crimes trials”; ICTY, Tadić Appeals Chamber Judgment, para 255ff referring to case-law as the sole evidence of customary international law to determine that purely personal motives are irrelevant for establishing crimes against humanity; for the customary law status of the mode of liability of Joint Criminal Enterprise being based on case law see for example ICTY, Tadić Appeals Chamber Judgment, para 226, and ICTY, Prosecutor v. Brđanin, IT-99-36-A, Appeals Chamber, Judgment, 3 April 2007, para 410. See for the ECCC, Case No 002 Pre-Trial Chamber Public Decision on the JCE Appeals, para 53 in conjunction with para 60.
- 189.
See e.g. ICTR, Prosecutor v. Rwamakuba, ICTR-98-44-AR72.4, Appeals Chamber, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004, para 14.
- 190.
See for example Mettraux (supra note 13), 15, with regard to a possible precedential value of judicial pronouncements: “A statement that a norm is customary is therefore only ever as good as the explanation referred to by the court in support of its finding to that effect.”
- 191.
See for instance the ICTY Vasiljević Trial Chamber in its Judgment rebuking the trial chambers of both the ICTY and ICTR for not conducting an adequate analysis of State practice and opinio iuris to substantiate their customary law findings, see further supra note 70 and 72.
- 192.
Cryer (supra note 4), 246–7, with references to H. Lauterpacht, The Development of International Law by the International Court (1958), 18, and Schwarzenberger (supra note 163), 30; Mettraux (supra note 13), 15.
- 193.
See in that regard the two leading cases on the “authoritative value” of external case law at the ICTY: the Kupreškić Trial Judgment, paras 541–2, and the Furundžija Trial Judgment, para 194.
- 194.
The ICTY considered itself to be an “international court” for the following reasons: It corresponds to the Security Council’s intent when establishing the ICTY, the tribunal’s structure and function, and the applicable law being international law; see ICTY Kupreškić Trial Judgment, para, 539. There is, however, no discussion in relation other “international” courts detectable in the jurisprudence.
- 195.
Most prominently Pellet (supra note 5), MN 321, in his commentary on Art. 38 ICJ Statute argued that domestic decisions “should better be treated as elements of State practice in the customary process, or, maybe, as being at the crossroads between evidence of practice and opinio juris.” Other authors argue, however, that domestic judicial decisions can be used as subsidiary means for the determination of a rule of law, see e.g. A. Nollkaemper, National Courts and the International rule of Law (2011), 270. Nollkaemper sees such a possibility under the conditions that the court is independent, based the decision on what the court believed is international law, and reasoned to a high standard.
- 196.
ECCC, Case No 002 Pre-Trial Chamber Public Decision on the JCE Appeals, para 82. Similar ICTY Kupreškić Trial Judgment, para 541: “depending upon the circumstances of each case, generally speaking decisions of national courts on war crimes or crimes against humanity delivered on basis of national legislation would carry relatively less weight.” See also ICTY, Furundžija Trial Judgment, para 194: “one should constantly be mindful of the need for great caution in using national case law for the purpose of determining whether customary rules of international criminal law have evolved in a particular matter.”
- 197.
ICTY, Kupreškić Trial Judgment, para 542 (emphasis added).
- 198.
Israeli Supreme Court, Eichmann Case, 304.
- 199.
See H. Lauterpacht, Decisions of Municipal Courts as a Source of International Law, 10 British Yearbook of International Law (1929), 77.
- 200.
See also P. M. Moremen, National Court Decisions as State Practice: A Transnational Judicial Dialogue?, in 32 North Carolina Journal of international Law & Commercial Regulation (2006), 291, pointing to the problem that domestic “courts considering customary international law issues may be restricted to considering domestic law transpositions of international law, such as implementing statutes or prior judicial decisions. National court decisions, therefore, may reflect not international law but a national interpretation of international law. The result could be a court decision significantly out of step with current international law, which would limit its relevance.”
- 201.
Nollkaemper (supra note 178), 281–283. Pellet (supra note 5), MN 321; see further Sect. 7.7.4, Domestic Case Law.
- 202.
ICTY, Kupreškić Trial Judgment, para 541.
- 203.
ICTY, Kupreškić Trial Judgment, para 542 (emphasis added).
- 204.
J.C. Gardner, Judicial Precedent in the Making of International Public Law, 17 Journal of Comparative Legislation and International Law (1935), 256.
- 205.
See W. Blackstone, Commentaries on the Laws of England, Vol. 1 (1756), 69.
- 206.
There are, however, critical voices in the legal literature concerning the transposition of domestic concepts to the international legal order. See for instance J.S. Watson, Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law, 3 University of Illinois Law Forum (1979), 621, stating that the “transference of the domestic law philosophy is seen in its most elementary form in the unrelenting use of decisions of the International Court as though they were legally binding precedents. These opinions are analyzed by some writers in much the same fashion as one would analyze the opinions of a national supreme court in a common law jurisdiction, inducing from what is said in relation to various sets of facts the existence of rules or principles sufficiently broad in scope to state the law in other unrelated cases. This use of the decisions of the International Court ignores the unique socio-political context of that organ and the fact that each decision is presented in a blend of highly political factors which makes any such an analysis of the opinions entirely speculative.”
- 207.
Blackstone (supra note 205), 68.
- 208.
Gardner (supra note 204), 256.
- 209.
See Dissenting Opinion Judge Robertson to the SCSL, Norman Appeals Chamber Decision, para 13.
- 210.
Bantekas (supra note 165), 129f.
- 211.
ICTY, Kupreškić Trial Judgment, para 537; See also ICTY, Furundžija Trial Judgment, para 193: “Little light is shed on the definition of aiding and abetting by the international instruments providing for major war trials: the London Agreement, the Charter of the International Military Tribunal for the Far East, establishing the Tokyo Tribunal, and Control Council Law No. 10. It therefore becomes necessary to examine the case law.”
- 212.
It needs to be highlighted that there are fundamental differences between different categories of post World War II trials, such as the IMT Nuremberg and IMTFE Tokyo, the “zone trials” operating under the “authority” of Control Council Law No. 10, or other domestic courts operating outside the occupied zones, including The Australian Military Court, the Canadian Military Court, the Chinese War Crimes Court, USSR Military Courts, the Netherlands Special Courts, Norwegian Courts, the Supreme National Tribunal of Poland or Danish Military Courts. These differences need to be taken into account for establishing their authoritative value for the determination of customary international criminal law. See further Sect. 7.7, Jurisprudence.
- 213.
ICTY, Kupreškić Trial Judgment, para 577, referring to US Military Tribunal, Altstötter and Others Case, 974; US Military Tribunal, Ohlendorf and Others Case (“Einsatzgruppen Case”), in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV, 49; see also ECCC, Duch Trial Judgment, para 291; however, the analysis is flawed since not all related cases have been evaluated by the chambers. Heller rightly points out the fact that the tribunals forget to mention (the Pohl and Ministries Case) or rightly evaluate (Flick Case) other Control Council Law No. 10 Cases before the US Military Tribunals that uphold the necessity to demonstrate a nexus requirement, such as the Flick Case; Pohl and Others Case, in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. V, 193ff; Von Weizsaecker and Others (“Ministries Case), in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XII, 1ff; see K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011), 383. Schabas considers that “Eichmann stands as the first conviction for crimes against humanity committed without a formal link to armed conflict.” See W. Schabas, The Contribution of the Eichmann Trial to International Law, 26 Leiden Journal of International Law (2013), 679.
- 214.
For the ICTY see Kunarac Appeals Judgment, para 98 (see footnote 114); followed by Blaškić Appeals Judgment, para 120; this result is astonishing since the Kunarac Trial Judgment, para 432, previously claimed that the case law is divergent on the question of whether a policy element is a necessary contextual element to crimes against humanity under customary international law; see also the critique of W. A. Schabas, State Policy as an Element of International Crimes, 98 Journal of Criminal Law & Criminology (2008), 959ff: “the result reached – that a State plan or policy is not a required element – appears to be a results-oriented political decision rather than a profound analysis.”
- 215.
ICTY, Martić Appeals Judgment, para 309 referring to US Military Tribunal, Leeb and Others Case (“High Command Case”), Law Reports of the Trials of War Criminals, Vol. XII, 1; Von Weizsaecker and Others; as well as 3 cases before the Supreme Court in the British Occupied Zone, OGHSt 1, 217–229, OGHSt 2, 231–246, OGHSt 1, 45–49; see also Blaškić Trial Judgment, para 210 (footnote 405).
- 216.
ICTY, Tadić Appeals Chamber Judgment, para 255, referring i.a. to the denunciation cases before the Supreme Court for the British Zone and German national courts.
- 217.
ICTY, Naletilić Trial Judgment, paras 612ff referring to US Military Tribunal, Flick Case, 1; US Military Tribunal, Krupp Case, Krauch Case; French Military Tribunal, in re Roechling and others, 15 Annual Digest and Reports of Public International Law Cases (1948), 408; Austrian Supreme Court, Austrian Treasury v. Auer, 14 Annual Digest and Reports of Public International Law Cases (1947), 276; Italian Court of Appeals of Bologna, Maltoni v. Companini, 71 Foro Italiano (1948), Vol. I, 1090, Norway Court of Appeal, Johansen v. Gross, 16 Annual Digest and Reports of Public International Law Cases (1949), 481; French Court of Cassation, Soubrouillard contre Kilbourg, Gazette du Palais (1948), Vol. II, 163; see also ICTY, Kordić Trial Judgment, para 351 also referring to the US Military Tribunal, Krauch Case.
- 218.
ICTY, the Krstić Trial Judgment, para 492, determined that extermination is widely recognized despite that the case law did not provide for a specific definition of the crime, referring to the US Military Tribunal, Altstötter and Others Case, Supreme National Tribunal of Poland, Trial of Hauptsturmführer Amon Leopold Goeth, Law Reports of the Trials of War Criminals, Vol. VII, 1ff, US Military Tribunal, Krauch Case, US Military Tribunal, Krupp Case, US Military Tribunal, Leeb Case; US Military Tribunal, Greifelt and Others Case (“the RuSHA Case”), Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV, 597ff, Supreme National Tribunal of Poland, Trial of Gauleiter Greiser, Law Reports of the Trials of War Criminals, Vol. XIII, 70f; ICTY, Vasiljević Trial Judgment, para 222, referring to US Military Tribunal, Altstötter and Others Case, US Military Tribunal, Ohlendorf Case, 49; and US Military Tribunal, Brandt and Others Case (“Medical Case”), in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. I, 1ff;
- 219.
ICTY, Blagojević Trial Judgment, para 624 referring to US Military Tribunal, Brandt and Others Case; US Military Tribunal, Leeb Case; US Military Tribunal, Von Weizsaecker and Others and US Military Tribunal, Altstötter and Others Case; see also ICTY, Stakić Appeals Judgment, para 315.
- 220.
ICTY, Kupreškić Trial Judgment, para 598ff, referring to US Military Tribunal, Leeb Case, US Military Tribunal, Von Weizsaecker and Others, US Military Tribunal, Greifelt and Others Case; Supreme National Tribunal of Poland, Greiser Case; Netherlands Special Court in Amsterdam and Netherlands Special Court of Cassation, Trial of Willy Zuehlke, Law Reports of the Trials of War Criminals, Vol. XIV, 139ff, and also referring to Israeli Supreme Court, Eichmann Case, 277ff, French Court de Cassation, Barbie Case, 125; see also Krajišnik Trial Judgment, paras 736ff further referring to Netherlands Special Court of Cassation, Trial of Hans Albin Rauter, Law Reports of the Trials of War Criminals, Vol. XIV, 89ff, and Supreme National Tribunal of Poland, Trial of Dr. Joseph Buhler, Law Reports of the Trials of War Criminals, Vol. XIV, 23ff; ICTY, Stakić Trial Judgment, para 773 also referring to the US Military Tribunal, Altstötter and Others Case; ICTY, Blaškić Appeals Judgment, para 149 with reference to the US Military Tribunal, Flick Case, that stated that compulsory taking of industrial property would not constitute a crime against humanity. However, the Appeals Chamber determining that plunder depending on its extent and nature may constitute a crime of persecution; furthermore in para 150 with reference to the Blaškić Trial Judgment, para 223–4 referring to cases before the Supreme National Tribunal of Poland, the Netherlands Special Court in Amsterdam and the Eichmann Case.
- 221.
ICTY, Kupreškić Trial Judgment, para 605.
- 222.
ICTY, Kupreškić Trial Judgment, para 516, referring to US Military Tribunal, Leeb Case; see however S. Yee, The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment, 3 Chinese Journal of International Law (2004), 87ff, who argues that the IMT Nuremberg allowed the tu quoque defence in relation to Admirals Dönitz and Raeder for “unrestricted submarine warfare” as a defence against punishment since the British and US Navies had behaved similarly, id., 103.
- 223.
Whereas in ICTY, Erdemović Sentencing Judgment, para 17ff, the Trial Chamber accepted that duress can constitute a complete defence on basis of post World War II case law, the Erdemović Appeals Judgment, para 19, rejected duress as a valid defence. The Appeals Judgment makes reference to the Joint Separate Opinion of Judge McDonald and Judge Vohrah, paras 43–5, who consider that the “only express affirmation of the availability of duress as a defence” is given in the US Military Tribunal Ohlendorf Case. Furthermore, the judges question the authoritative value of these cases before the military tribunals and concluding in para 55: “We do not think that the decisions of these tribunals or those of other national courts and military tribunals constitute consistent and uniform state practice underpinned by opinio juris sive necessitates.” For a contrary view, see Separate and Dissenting Opinion of Judge Cassese, para 27; compare also V. Epps, The Soldier’s Obligation to Die When Ordered to Shoot Civilians or Face Death Himself, 37 New England Law Review (2003), 987ff.
- 224.
ICTY, Galić Trial Judgment, para 44 referring to US Military Tribunal, List Case, 757ff: “Military necessity permits (…) the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable (…) There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”; see also ICTY, Prosecutor v. Orić, IT-03-68, Trial Chamber, Judgment, 30 June 2006, para 588, also referring to the British Military Court, Trial of Kapitänleutnant Eck and Others (“Peleus Trial”), Law Reports of the Trials of War Criminals, Vol. I, 1ff.
- 225.
ICTY, Furundžija Trial Judgment, paras 193ff, referring to British Military Court, Trial of Franz Schonfeld and Others, Law Reports of the Trials of War Criminals, Vol. XI, 64ff, British Military Court, Trial of Werner Rohde and Others, Law Reports of the Trials of War Criminals, Vol. V, 54ff, British Military Court, Trial of Otto Sandrock and Others (“Almelo Trial”), Law Reports of the Trials of War Criminals, Vol. I, 35ff; British Military Court, Trial of Max Wielen and Others (“Stalag Luft III Case”), Law Reports of the Trials of War Criminals, Vol. XI, 33ff; German Supreme Court in the British Occupied Zone, K. und A., StS 18/48, Entscheidungen des Obersten Gerichtshofs für die Britische Zone. Entscheidungen in Strafsachen, Vol. I (1949).
- 226.
ICTY, Delalić Trial Judgment, paras 338 referring to US Supreme Court, Yamashita Case, US Military Tribunal, Brandt Case, US Military Tribunal, List Case, US Military Tribunal, Leeb Case; for the responsibility of non-military superiors see id., para 359–362 with reference to US Military Tribunal, Flick Case and French Military Tribunal, in re Roechling and others; ICTY, Delalić Appeals Chamber in its Judgment, para 228ff also referring to US Military Tribunal, Pohl Case; ICTY, Strugar Trial Judgment, paras 363–364; ICTY, Prosecutor v. Delić, IT-04-83-T, Trial Chamber, Judgment, para 59; ICTY, Blaškić Trial Judgment, paras 317f; ICTY, Appeals Chamber Hadžihasanović Decision, para 50.
- 227.
ICTY, Tadić Appeals Chamber Judgment, para 226.
- 228.
ICTY, Brđanin Appeals Judgment, para 410.
- 229.
ICTY, Erdemović Appeals Judgment.
- 230.
ICTY, Erdemović Appeals Judgment, Separate and Dissenting Opinion of Judge Cassese, para 27.
- 231.
ICTY, Erdemović Appeals Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 54.
- 232.
See. for the ICTY references to previous ICTY case law when establishing the chapeau requirements of Art. 3 ICTY Statute under customary international law Blagojević Trial Judgment, paras 535ff; Galić Appeal Judgment, paras 111ff; Prosecutor v. Kvočka, IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, paras 123ff; Prosecutor v. Brđanin, IT-99-36-T, Trial Chamber, Judgment, 1 September 2004, paras 126ff; references to previous ICTY case law when establishing the chapeau requirements of crimes against humanity under customary international law Galić Trial Judgment, paras 139ff; Simić Trial Judgment, paras 34ff; Prosecutor v. Limaj et al, IT-03-66-T, Trial Chamber, Judgment, 30 November 2005, paras 180ff; references to previous ICTY case law when establishing command responsibility under customary international law Krnojelac Trial Judgment, paras 91ff; Galić Trial Judgment, paras 173ff; Naletilić Trial Judgment, paras 64ff; Prosecutor v. Mrkšić, IT-95-13/1-T, Trial Chamber, Judgment, 27 September 2007, paras 557ff.
- 233.
See for example the references to the jurisprudence of different international criminal tribunals for establishing the chapeau requirements of crimes against humanity under customary international law, the ICTY, Krnojelac Trial Judgment, paras 53ff; Naletilić Trial Judgment, paras 232ff; SCSL, Fofana Trial Judgment, paras 110ff; Sesay Trial Judgment, paras 75ff; ECCC, Duch Trial Judgment, paras 297ff.
- 234.
See Sect. 6.3.4.2, Case Law as a Genuine “Subsidiary” Source of Law.
- 235.
See Art. 20 (3) SCSL Statute providing that “[t]he judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda.” The SCSL chambers refer to the jurisprudence of the other UN ad hoc tribunals “solely” for their “persuasive value”, see SCSL, Sesay Trial Judgment, para 48; Fofana Trial Judgment, para 88; Brima Trial Judgment, para 639.
- 236.
ICTY, Aleksovski Trial Judgment, para 60.
- 237.
There are different views on the existence or non-existence of customary international law detectable among international criminal tribunals: for example the ICTY, Prosecutor v. Perišić, Appeals Chamber, Judgment, 28 February 2013, paras 25ff, determined that specific direction was a component of the actus reus of aiding and abetting liability under customary international law, while the Prosecutor v. Taylor, Case No. SCSL-03-01-A, Appeals Chamber, Judgment, 26 September 2013 at para 486 stated “ that ‘specific direction’ is not an element of the actus reus of aiding and abetting liability […] under customary international law.” The ICTY Appeals Chamber, Prosecutor v. Šainović, IT-05-87-A, Appeals Chamber, Judgment, 23 January 2014, paras 1617ff followed the conception of the SCSL Appeals Chamber. The ECCC Trial Chamber also adhered to that conception, see Prosecutor v. Nuon, Case File No. 002/19-09-2007/ECCC/TC, Trial Chamber, Judgment, 7 August 2014, paras 707ff. Another example concerns the JCE doctrine, where the ECCC Pre-Trial Chamber openly challenged the customary law finding of the ICTY Appeals Chamber in its Tadić Judgment concerning the third form or “extended form” of joint criminal enterprise, as it did not deliver consistent and widespread State practice and opinio iuris at the time relevant to the temporal jurisdiction of the ECCC. See ECCC, Case No 002 Pre-Trial Chamber Public Decision on the JCE Appeals, para 77. Consequently, the third form of JCE has found no application in ECCC jurisprudence.
- 238.
Tracol (supra note 167), 67ff; P. M. Wald, Tribunal Discourse and Intercourse: How the International Courts Speak to One Another, 30 Boston College International and Comparative Law Review (2007), 15ff; Schabas (supra note 171), 107ff.
- 239.
See, ICTY, Aleksovski Trial Judgment, para 60.
- 240.
See ICTY, Aleksovski Appeals Judgment, paras 89–115. The Appeals Chamber found reasons for binding precedents in the hierarchical structure of the ICTY Statute, the assurance of certainty and predictability and the right of the accused to have like cases treated alike. The Aleksovski jurisprudence was expressly endorsed by other chambers of the ICTY, see Galić Appeal Judgment, para 117; Kordić Appeals Judgment, para 1040; Blaškić Appeals Judgment, para 62; and by the ICTR, see e.g. Prosecutor v. Semanza, ICTR-97-20-A, Appeals Chamber, Decision, 31 May 2000, para 92.
- 241.
Concerning the situation for Appeals Chambers the ICTY Aleksovski Appeals Chamber stated that “in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.” ICTY, Aleksovski Appeals Judgment, para 107.
- 242.
Trial Chambers are bound by the ratio decidendi of their Appeals Chambers, which can be understood as a “the statement of legal principle (express or implied)”, see ICTY, Separate Opinion Judge Hunt, Appeals Chamber Decision in Ojdanić’s Motion Challenging Jurisdiction, para 43, positioning himself contrary to the rather “fluid concept” of ratio decidendi adopted by Judge Shahabuddeen in his Separate Opinion to the same decision. As such these binding precedents cover only “issues of law, but not issues of fact” Schabas (supra note 171), 107, referring to the ICTY case law, Prosecutor v. Krnojelac, IT-97-25-PT, Decision on the Defence preliminary Motion on the Form of the Indictment, para 43, Prosecutor v. Simić et al, IT-95-9-PT, Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina.
- 243.
ICTY, Blaškić Appeals Judgment, para 62 holding a commander responsible “only if information was available to him which would have put him on notice” of crimes committed by the subordinates..
- 244.
ICTY, Stakić Trial Judgment, para 438 stating that JCE was only one of various possibilities to interpret the term of “commission” under Art. 7 (1) ICTY Statute arguing that “a more direct reference to ‘commission’ in its traditional sense should be given priority before considering responsibility under the judicial term ‘joint criminal enterprise’.” The Trial Chamber was presided by Judge Schomburg who was the most prominent advocate for an alternative to the JCE doctrine at the ICTY: see also his partially dissenting and separate opinion and declaration to the Limaj Appeals Judgment.
- 245.
ICTY, Stakić Appeals Judgment, paras 58–63.
- 246.
See e.g. ICTY, Stakić Appeals Judgment, para 62.
- 247.
The Orić Trial Chamber expressed its wish to establish a superior’s responsibility for their failure to punish crimes that occurred before taking effective control of the relevant subordinates, but considered itself bound by Appeals Chamber precedents contrary to that effect. ICTY, Orić Trial Judgment, para 335, stating that “a superior’s duty to punish is not derived from a failure to prevent the crime, but rather is a subsidiary duty of its own.” However, the Appeals Chamber in the Hadžihasanović Decision, para 45 prevented this possibility: “In this particular case, no practice can be found, nor is there any evidence of opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinate.” The Orić Appeals Chamber declined to overrule the ratio decidendi of the Hadžihasanović Appeals Chamber Decision on Jurisdiction: ICTY, Orić Appeals Judgment, para 167. In contrast at the SCSL, the Sesay Trial Chamber considered that the principle of command responsibility would be broad enough under customary international law to cover situations in which a superior has taken command only after the crime has been committed and knew or had reason to know that his subordinates had committed such a crime, but failed to punish the subordinates from the time he assumes effective control, SCSL, Sesay Trial Judgment, paras 295ff.
- 248.
ILC Report on the Work of its 65th Session to the General Assembly, 6 May – 7 June and 8 July – 9 August 2013, Supplement No. 10 (A/68/10), para 102. Special Rapporteur M. Wood, Second Report on Identification of Customary International Law, International Law Commission, 66th Session, 5 May-6 June and 7 July-8 August 2014, Official Records of the General Assembly, UN Doc. A/CN.4/672., para 28.
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Rauter, T. (2017). Methodological Approaches to Customary International Law by International Criminal Tribunals. In: Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege. Springer, Cham. https://doi.org/10.1007/978-3-319-64477-6_6
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