Yearbook of International Humanitarian Law
TIMOTHY L.H. MCCORMACK General Editor
JANNK. KLEFFNER Managing Editor
Published by T . M . C . A S S E R P R E S S , P.O. Box I6 163,2500 BD The Hague, The Netherlands www.asserpress.nl
T . M . C . A S S E R PRESS
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Cover photograph: Israeli tank firing, 2006 O Eran Amiran Shlomo
ISBN 978-90-6704-269-7 ISSN 1389-1359
O 2008, T.M.C. Asser Instituut, The Hague, The Netherlands, and the authors T.M.C. Asser Instituut - Institute for Private and Public International Law, International Commercial Arbitration and European Law Institute Address: R.J. Schimmelpennincklaan 20-22, 2517 JN The Hague, The Netherlands; P.O. Box 30461, 2500 GL The Hague, The Netherlands; Tel.: (31-70)3420300; Fax: (31-70) 3420359;
[email protected], www.asser.nl; www.yihl.nl. Over forty years, the T.M.C. Asser Institute has developed into a leading scientific research institute in the field of international law. It covers private international law, public international law, including international humanitarian law, the law of the European Union, the law of international commercial arbitration and increasingly, also, international economic law, the law of international commerce and international sports law. Conducting scientific research either fundamental or applied, in the aforementioned domains, is the main activity of the Institute. In addition, the Institute organizes congresses and postgraduate courses, undertakes contract-research and operates its own publishing house. Because of its inter-university background, the Institute often cooperates with Dutch law faculties as well as with various national and foreign institutions. The Institute organizes Asser College Europe, a project in cooperation with East and Central European countries whereby research and educational projects are organized and implemented. This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the copyright owners.
BOARD OF EDITORS Professor Tim McCormack, University of Melbourne (General Editor) Assistant Professor Jann K. Klefner, University of Amsterdam (Managing Editor) Professor Eric David, Brussels Free University Professor Louise Doswald-Beck, Graduate Institute of International and Development Studies, Geneva Professor John Dugard, University of Leiden Mr Bill Fenrick, Dalhousie University Professor Horst Fischer, University of Leiden and Ruhr-Universitat Bochum H.E. Judge Abdul Koroma, International Court of Justice, The Hague Professor Chris Maina Peter, University of Dar es Salaam Dr Avril McDonald, T.M.C. Asser Instituut, The Hague H.E. Judge Theodore Meron, International Criminal Tribunal for the Former Yugoslavia, The Hague Professor Djamchid Momtaz, Teheran University Bacre Waly Ndiaye, United Nations High Commissioner for Human Rights, New York H. E. Judge Elizabeth Odio-Benito, International Criminal Court, The Hague Mr W Hays Parks, USA H. E. President Fausto Pocar, International Criminal Tribunal for the Former Yugoslavia, The Hague Professor Michael N. Schmitt, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen
BOARD OF RECOMMENDATION Her Royal Highness Princess Margriet of the Netherlands, Vice-Chair, Netherlands Red Cross Society Professor Emeritus George Aldrich, University of Leiden, Iran-US Claims Tribunal Professor Emeritus Florentino I? Feliciano, Member Appelate Board, WTO; Senoir Associate Justice, Supreme Court of the Philippines (retired) Professor Emeritus Dr Frits Kalshoven, University of Leiden H.E. Judge C.G. Weeramantry, International Court of Justice (retired)
EDITORIAL OFFICE Dr Jann K. Kleffner, Managing Editor, T.M.C. Asser Instituut Ms Amna Guellali, Assistant Managing Editor, T.M.C. Asser Instituut Ms Michelle Lesh, Correspondents' Reports Editor, Melbourne Law School Ms Karin Peters, Editorial Assistant, T.M.C. Asser Instituut T.M.C. Asser Instituut, P.O. Box 30461, 2500 GL Hague, The Netherlands
[email protected]; www.asser.nl; www.wihl.nl
VI
Table of Contents
CORRESPONDENTS The Yearbook of International Humanitarian Law extends its sincere thanks and appreciation to its correspondents, without whose assistance the compilation of this volume would not have been possible: AFRICA Professor Kamel Filali, Algeria Mr Adel Maged, Egypt Mr Emmanuel Kasimbazi, Uganda ASIA-PACIFIC Ms Amy Barry-Macaulay, Australia Ms Anita Coles, Australia Ms Purnika Dharmadasa, Australia Ms Alison Duxbury, Australia Ms Jessica Latimer, Australia Mr James May, Australia General Nilendra Kumar, India Ms Treasa Dunworth, New Zealand Mr Soliman M. Santos Jr., The Philippines Ms Emily Bell, Timor-Leste EUROPE Professor Eric David, Belgium Ms Lejla VujinoviC, Bosnia and Herzegovina Dr Andreas Laursen, Denmark Mr Peter Otken, Denmark Professor Paul Tavernier, France Dr Eszter Kirs, Hungary
Mr Ray Murphy, Ireland Dr Valentina Della Fina, Italy Dr Omella Ferrajola, Italy Ms Silvana Moscatelli, Italy Dr Valeria Eboli, Italy Mr Rytis Satkauskas, Lithuania Professor Nico Keijzer, The Netherlands Dr Elies van Sliedregt, The Netherlands Professor Antoni Pigrau, Spain Dr Ola Engdahl, Sweden Dr Roberta Arnold, Switzerland Professor Peter Rowe, United Kingdom
MIDDLE EAST Dr Yael Ronen, Israel Dr Mustafa Mari, Occupied Palestinian Territories
NORTH AMERICA Mr Joseph Rikhof, Canada Mr B u m s M. Carnahan, USA
CENTRAL AND SOUTH AMERICA Professor Rafael Prieto Sanjdn, Colombia
VII
TABLE OF CONTENTS
Abbreviations
ARTICLES The obligation of a state under international law to protect members of its own armed forces during armed conflict or occupation P. Rowe
3
The targeting of civilian contractors in armed conflict D. Stephens and A. Lewis Learning the lessons of the MiloSevid Trial G. Boas and T.L.H. McCormack Targeted killing or less harmful means? - Israel's High Court judgment on targeted killing and the restrictive function of military necessity N. Melzer
Implementing international law: a qualified defense of the A1 Dujail trial M.A. Newton
87
117
The execution of Saddam Hussein - A legal analysis E.H. Blinderman The case of Taha Yaseen Ramadan before the Iraqi High Tribunal: An insider's perspective W.H. Wiley
CURRENT DEVELOPMENTS
The year in review A. McDonald International criminal courts round up E.Carnero Rojo and M. Nybondas Israel, Hizbollah, and the second Lebanon war Y. Ronen
181
VIII
Table of Contents
International humanitarian law from a field perspective - case study Nepal P.J.C. Schimmelpenninckvan der Oije
CORRESPONDENTS' REPORTS
A guide to state practice concerning International Humanitarian Law With commentaries by: Roberta Arnold, Amy Barry-Macaulay, Emily Bell, B u m s M. Carnahan, Anita Coles, Eric David, Valentina Della Fina, Pumika Dharmadasa, Treasa Dunworth, Alison Duxbury, Valeria Eboli, Ola Engdahl, Omella Ferrajola, Kame1 Filali, Emmanuel Kasimbazi, Nico Keijzer, Eszter Kirs, Nilendra Kumar, Jessica Latimer, Andreas Laursen, Adel Maged, Mustafa Mari, James May, Silvana Moscatelli, Ray Murphy, Peter Otken, Antoni Pigrau, Rafael Prieto Sanjuan, Joseph Rikhof, Yael Ronen, Peter Rowe, Rytis Satkauskas, Elies van Sliedregt, Soliman M. Santos Jr., Paul Tavernier, Lejla VujinoviC
DOCUMENTATION Classification scheme Bibliography 2005-2006
TABLE OF CASES
INDEX
Abbreviations
IX
ABBREVIATIONS
Abl. AC ACTR AD
Amtsblatt Appeal Cases Australian Capital Territory Reports Annual Digest of Public International Law Cases
Adelaide LR
Adelaide Law Review
ADF AFDI African HRLJ African JI & CL African YIHL Air Force LR Air LR Airpower J Air Univ. Rev. AJIL Albany LR All ER ALR Amer. Univ. JIL & Pol. Amer. Univ. ILJ Amer. Univ. ILR AP AP APL(s) ARABSAT Arizona JI & CL Army Law. ASEAN ASIL Proc ATCA Australian YIL Austrian JPIL Austrian Rev. Int. & Eur. L AVM
Australian Defence Force Annuaire frangais de droit international Afncan Human Rights Law Journal African Journal of International and Comparative Law African Yearbook on International Humanitarian Law Air Force Law Review Air Law Review Airpower Journal Air University Review American Journal of International Law Albany Law Review All England Law Reports Australian Law Reports American University Journal of International Law and Policy American University International Law Journal American University International Law Review Additional Protocol Associated Press Anti-personnel landmine(s) Arab Satellite Communications Organization Arizona Journal of International and Comparative Law The Army Lawyer Association of South East Asian Nations American Society of International Law Proceedings Alien Tort Claims Act (USA) Australian Yearbook of International Law Austrian Journal for Public International Law Austrian Revue of International and European Law Anti-vehicle landmine
Berkeley JIL B.O. BGBl BGH Boston Univ. ILJ Boston College Int. & Comp. LR Brooklyn JIL BTF BverfGE
Berkeley Journal of International Law Boletin Oficial de la Republics Argentina Bundesgesetzblatt Bundesgerichtshof Boston University International Law Journal Boston College International and Comparative Law Review Brooklyn Journal of International Law Balkans Task Force Bundesverfassungsgericht
BYIL
British Yearbook of International Law
California LR Calif. Western ILJ Can. JL & Jur. Canadian YIL Case Western Reserve JIL Catholic Univ. LR CCW CD CENTCOM Chicago JIL Chinese JIL CHR (UN) CIA CICC CICR CID CIS CIVPOL CLA CLJ CLR CMAC Cmnd. Columbia HRLR Columbia JTL Columbia LR Cornell ILJ Cr. App. R CRC Criminal LF Criminal LR CSP CTBT CTS CWC
California Law Review California Western International Law Journal Canadian Journal of Law and Jurisprudence Canadian Yearbook of Intemational Law Case Western Reserve Journal of International Law Catholic University Law Review Convention on Certain Conventional Weapons Conference on Disarmament Central Command Chicago Journal of International Law Chinese Journal of Intemational Law Centre for Human Rights Central Intelligence Agency Coalition for the International Criminal Court Comite International de la Croix Rouge Criminal Investigation Division Commonwealth of Independent States Civilian Police Chief Legal Advisor Criminal Law Journal Commonwealth Law Reports Court Martial Appeal Court Command Paper Columbia Human Rights Law Review Columbia Journal of Transnational Law Columbia Law Review Cornell International Law Journal Criminal Appeals Reports Convention on the Rights of the Child Criminal Law Forum Criminal Law Review Conference of States Parties Comprehensive Test Ban Treaty Commonwealth Treaty Series Chemical Weapons Convention
Dalhousie LJ Denver JIL & Pol. DLR DMU DoD Duke JCIL
Dalhousie Law Joumal Denver Journal of International Law and Policy Dominian Law Reports Detainee Management Unit Department of Defense (USA) Duke Journal of Comparative and International Law
ECCAS ECHR Rep. ECHR
Economic Community of Central African States European Convention on Human Rights Reports European Convention on Human Rights
Abbreviations
ECOSOC ECOWAS EECC EHRR Emory ILR EJIL
ECOMOG
ECOWAS Monitoring Group United Nations Economic and Social Council Economic Community of West African States Eritrea-Ethiopia Claims Commission European Human Rights Reports Emory International Law Review European Journal of International Law
ERW
Explosive Remnants of War
XI
EU European Union European Court of Human Rights Eur. Ct. HR European Commission of Human Rights Eur. Comm. HR Eur. J. Crime, Crim. L & Crim. Jus. European Journal of Crime, Criminal Law and Criminal Justice Exchequer Digest F F Supp. FCJ FCR FDC FDTL Fed. Reg. Fed. Rep. Finnish YIL Fordham ILJ Fordham LR FRETILIN FRY
Federal Federal Supplement Federal Court of Justice (Canada) Federal Court Reports Force Detention Centre East Timorese Defence Force Federal Register (United States) Federal Reporter Finnish Yearbook of International Law Fordham International Law Journal Fordham Law Review Frente Revolucionaria Timor Lest Independence Federal Republic of Yugoslavia
GA GAOR (United Nations) GA Res. GC Georgetown Int. Environ. LR Georgetown JIL Georgia JI & Comp. L German LJ GW ILR GW JIL and Econ. GU GYIL
General Assembly (United Nations) General Assembly Official Records General Assembly Resolution (United Nations) Geneva Conventions Georgetown International Environmental Law Review Georgetown Journal of International Law Georgia Journal of International and Comparative Law German Law Journal The George Washington International Law Review The George Washington Journal of International Law and Economics Gazzetta Ufficiale (Italian Official Gazette) German Yearbook of International Law
Hague YIL Harvard ILJ HCJ HRLJ HRQ
Hague Yearbook of International Law Harvard International Law Journal High Court of Justice Human Rights Law Journal Human Rights Quarterly
IIA Court HR
Inter-American Court of Human Rights
ICJ ICJ Rep. ICLR ICLQ ICOM ICOMOS ICRC ICTR ICTY IDR IFLA IFOR IHL IJLM IJRL ILAS JI & Comp. L ILC Yearbook ILM ILR IMT IMTFE Indian JIL Indiana I & Comp. LR INTELSAT Int. LF INTERFET IRA Iran US CTR IRRC ISAF Israel LR Israel YB Israel YB HR
Inter-American Commission on Human Rights Inter-American Yearbook on Human Rights International Council on Archives International Campaign to Ban Landmines International Committee of the Blue Shield International Criminal Court International Covenant on Civil and Political Rights International Centre for the Study of the Preservation and Restoration of Cultural Property International Court of Justice International Court of Justice Reports International Criminal Law Review International and Comparative Law Quarterly International Council of Museums International Council on Monuments and Sites International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Defense Review International Federation of Library Association and Institutions Implementation Force International Humanitarian Law International Journal of Legal Medicine International Journal of Refugee Law ILAS Journal of International and Comparative Law Yearbook of the International Law Commission International Legal Materials International Law Reports International Military Tribunal (in Nuremberg) International Military Tribunal for the Far East (in Tokyo) Indian Journal of International Law Indiana International & Comparative Law Review International Telecommunications Satellite Organization International Law Forum International Force in East Timor Irish Republican Army Iran-United States Claims Tribunal Reports International Review of the Red Cross International Security Assistance Force Israel Law Review Israel Yearbook Israel Yearbook on Human Rights
JAMA J Amed Conflict L JCSL JICL JIL & Prac.
Journal of the American Medical Association Journal of Armed Conflict Law Journal of Conflict and Security Law Journal of International and Comparative Law Journal of International Law and Practice
IIA Comm. HR IIA YBHR ICA ICBL ICBS ICC ICCPR ICCROM
Abbreviations
XI11
J Int. Criminal Justice JPI J Trans. L & Pol. J Trauma
Journal of International Criminal Justice Judicial Police Inspectors Journal of Transnational Law & policy The Journal of Trauma
KFOR
Kosovo Force
LAS Leiden JIL LNTS LOAC Loy. LA I & CLJ
LQR
League of Arab States Leiden Journal of International Law League of Nations Treaty Series Law of Armed Conflicts Loyola of Los Angeles International and Comparative Law Journal Loyola International and Comparative Law Journal Law Quarterly Review
Maryland JIL & T MCC Melbourne JIL Melbourne Univ. LR Mich. JIL Mich. LR Mil. LR MLR MNF Monash LR Moscow JIL MPYBUNL MPYIL MRT
Maryland Journal of International Law and Trade Military Criminal Code Melbourne Journal of International Law Melbourne University Law Review Michigan Journal of International Law Michigan Law Review Military Law Review Modem Law Review Multinational Force Monash Law Review Moscow Journal of International Law Max Planck Yearbook of United Nations Law Max Planck Yearbook of International Law Militair Rechtelijk Tijdschrift
NATO Naval LR NCOs New England LR NGO NILR NJ NLR Nordic JIL North Carolina LR Northwestern JIHR Northwestern Univ. LR Notre Dame JL Notre Dame LR NPC NQHR NYIL NY Univ. JIL & Pol.
North Atlantic Treaty Organisation Naval Law Review Non-Commissioned Officers New England Law Review Non-Governmental Organisation Netherlands International Law Review Nederlandse Jurisprudentie Naval Law Review Nordic Journal of International Law North Carolina Law Review Northwestern Journal of International Human Rights Northwestern University law Review Notre Dame Journal of Law Notre Dame Law Review New Penal Code Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law New York University Journal of International Law and Politics
Loyola I & CLJ
XIV NY Univ. LR NZLR
New York University Law Review New Zealand Law Review
OAD OAS OECS ONU ONUC OPCW OSA OTP
Osterreichische Auljenpolitische Dokumentation Organization of American States Organization of Eastern Caribbean States Organisation des Nations Unies United Nations Force in the Congo Organisation for the Prohibition of Chemical Weapons Operational Support Arrangement Office of the Prosecutor (of the ICTR andlor ICTY)
Palestine YIL PD Penn. State ILR PKF PMG POW Proc. ASIL
Palestine Yearbook of International Law Probate Division, English Law Reports Pennsylvania State International Law Review Peace Keeping Force Peace Monitoring Group Prisoner of War Proceedings of the American Society of International Law Queen's Bench
RBDI RDI RDPC Recueil des Cours RGDIP RIAA RICR RQDI RSC RSCDPC RSDIE
Revue Belge de droit international Rivista di diritto intemazionale Revue de droit penal et de criminologie Collected Courses of the Hague Academy of International Law Revue genkrale de droit international public Reports of International Arbitral Awards Revue Intemational de la Croix Rouge Revue Quebkcoise de Droit International Rules of the Supreme Court Revue de science criminelle et de droit penal compare Revue Suisse de droit international et de droit europken
SADC SASC Saskatchewan LR SC SCOR SC Res. SCR S. Ct. SCU SFOR SFRY SG SIPRI SOFA South Texas LR
South African Development Community South African Security Council Saskatchewan Law Review Security Council Security Council Official Records Security Council Resolution Supreme Court Reports Supreme Court Reporter (United States) Serious Crimes Unit Stabilization Force Socialist Federal Republic of Yugoslavia Secretary-General Stockholm International Peace Research Institute Status of Force Agreement South Texas Law Review
Abbreviations
XV
Stanford JIL
Stanford Journal of International Law
Stanford LR
Stanford Law Review
Syracuse JIL & Com. SZIER
Syracuse Journal of International Law & Commerce Schweizerische Zeitschrift f i r internationales und europaisches Recht
Tennessee LR Texas ILJ Texas LR Tilburg For. LR TLPS Transn. L & Contemp. Probs TRC Report (South African) Tulsa J Comp. & IL
Tennessee Law Review Texas International Law Journal
UN UNAMA UNAMET UNAMIR UNAMSIL UNCHR UNCHS UNCIVPOL UNCTAD UN Doc. UNDP UNEF UNEP UNESCO
United Nations United Nations Assistance Mission in Afghanistan United Nations Mission in East Timor United Nations Assistance Mission for Rwanda United Nations Mission in Sierra Leone United Nations Commission on Human Rights United Nations Centre for Human Settlements United Nations Civilian Police United Nations Conference on Trade and Development United Nations Documents Series United Nations Development Programme United Nations Emergency Force (in the Sinai) United Nations Environment Programme United Nations Educational, Scientific and Cultural Organisation United Nations Force in Cyprus United Nations Guards Contingent in Iraq United Nations High Commissioner for Refugees United Nations Human Righ.ts Field Office in Rwanda United Nations (International) Children's (Emergency) Fund United Nations Institute for Disarmament Research United Nations Interim Force in Lebanon United Nations IraniIraq Military Observer Group United Nations IraqIKuwait Observer Mission United Nations Unified Task Force United Nations Task Force (in Somalia) United Nations Mission in Nepal United Nations Mission in Sudan United Nations Observer Mission in Georgia United Nations Observer Mission in Sierra Leone United Nations Operation in Somalia United Nations Peacekeeping Force United Nations Protection Force (in Bosnia and Herzegovina) United Nations Transitional Authority in Cambodia
UNFICYP UNGCI UNHCR UNHFOR UNICEF UNIDIR UNIFIL UNIIMOG UNIKOM UNITAF UNITAF UNMIN UNMIS UNOMIG UNOMSIL UNOSOM UNPF UNPROFOR UNTAC
Texas Law Review Tilburg Foreign Law Review Timorese Police Force Transnational Law and Contemporary Problems Truth and Reconciliation Commission Report Tulsa Journal of Comparative and International Law
XVI UNTAET UNTS UNWCC Univ. Calif. Davis LR USAFA JLS
United Nations Transitional Authority in East Timor United Nations Treaty Series United Nations War Crimes Commission University of California Davis Law Review USAFA Journal of Legal Studies
Vanderbilt JTL Virginia JIL Virginia LR
Vanderbilt Journal of Transnational Law Virginia Journal of International Law Virginia Law Review
Wake Forest LR WBR WCR WHO Whittier LR Wisconsin ILJ WLR
Wake Forest Law Review Wound Ballistics Review War Crimes Reports World Health Organisation Whittier Law Review Wisconsin International Law Journal Weekly Law Reports
Yale HR & Dev. LJ Yale JIL Yale LJ Yb Eur. Conv. HR Yb ILC YIHL Yug. Rev. IL
Yale Human Rights & Development Law Journal Yale Journal of International Law Yale Law Journal Yearbook of the European Convention of Human Rights Yearbook of the International Law Commission Yearbook of International Humanitarian Law Yugoslav Review of International Law
ZaoRV
Zeitschrift f i r ausl5ndisches offentliches Recht und Volkerrecht Zeitschrift f i r offentliches Recht
ZoR
ARTICLES
THE OBLIGATION OF A STATE UNDER INTERNATIONAL LAW TO PROTECT MEMBERS OF ITS OWN ARMED FORCES DURING ARMED CONFLICT OR OCCUPATION'
Peter
owe*
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
How can a state be the cause of the death of its own soldiers killed in combat? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The state as a cause of the deaths of members of its own armed forces . . . 6 Special cases: conscript and reserve soldiers. . . . . . . . . . . . . . . . . . . . . . . . 9 Is the state responsible for these deaths?. . . . . . . . . . . . . . . . . . . . . . . . . . International human rights law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International humanitarian law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 11
16
The impact of international humanitarian law on international human rightslaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 .
1.
INTRODUCTION
It might be thought that the development of international humanitarian law shows an intention on the part of states to offer protection by the various treaties applicable during an international armed conflict or an occupation of territory to individuals who are not their nationals. Thus, under the Geneva Conventions 1949 and their two Additional Protocols of 1977 'protected persons' are expected to be civil-
1. O P. Rowe, 2008. 2. Professor of Law at Lancaster University Law School. I am very grateful to A.P.V. Rogers and to Sigrun Skogly for commenting on an earlier version of this article. The views expressed in it are those of the author and any errors remaining are his sole responsibility. Yearbook oflnternational Humanitarian Law
Volume 9 - 2006 - pp. 3-24
4
I? Rowe
ians or members of the armed forces of the enemy state.3 The system of protecting powers was designed to provide a mechanism to offer some protection to nonnationals during international armed conflick4 This was, however, not the case in relation to non-international armed conflicts where all those involved are likely to be nationals of the same state. Common Article 3 to the Geneva Conventions 1949, Additional Protocol I (Art. l(4)) and Additional Protocol I1 impose obligations on a State in respect of its own 'national~'.~ It has to be accepted, however, that some of the treaty obligations and the customary international humanitarian law rules apply only to specific categories of individual. Thus, references to 'civilians' cannot be taken as references to the armed forces of any state involved in the armed conflict. Another way of looking at the purposes of international humanitarian law is to argue that 'the Geneva Conventions exist not to embolden our enemies but to protect our own soldiers from harm should they be captured or detained'.6 This element of reciprocity, as a reason for a state becoming a party to the relevant conventions, might well explain at least one of the reasons for the universal nature of acceptance by states of the Geneva Conventions.' It seems clear (see section 5.1 below) that international human rights law can also apply during a non-international armed conflict and, in certain circumstances, during an international armed conflict. Human rights treaties generally protect the
3. Whilst the enemy is likely to be of a different nationality this factor may not be decisive, see Prosecutor v. TadiC, case No. IT-94-1, Appeals Chamber, Judgement of 15 July 1999, para. 166. The crimes of genocide, crimes against humanity are, however, blind to the status of the perpetrator and of the victim. 4. Strictly, such individuals will not be of the same nationality as (or owe allegiance to) the state in whose hands they are or be of a nationality of another state with which the detaining state maintains diplomatic relations. 5. Protection offered to individuals under these instruments is not based upon their nationality as such. In practice, however, most individuals affected by the activities of the armed forces of a state will be of the same nationality as that state. See generally, K. Rubinstein, 'Rethinking Nationality in International Humanitarian Law', in U. Dolgopol and J. Gardam, eds., The Challenge of Conflict: International Law Responds (Leiden, Brill 2006) p. 89. 6. Congresswoman A. Eshoo, Congressional Record, Proceedings and Debates of the 109th Congress, Second Session, 27 September 2006. The state can also expect its captured armed forces to be repatriated at the close of active hostilities, Third Geneva Convention 1949, Art. 118. 7. With the accession of the Republic of Montenegro on 2 August 2006, see ICRC Press Release 61 96, 21 August 2006. Reciprocity cannot, by itself, relieve a state of its obligations under the Geneva Conventions. It is not the purpose of this article to investigate the reasons why states become parties to international treaties which come within the broad description of being of a humanitarian character in the absence of any clear state interest in doing so. States have, however, assumed an obligation to 'ensure respect [for the Geneva Conventions 19491 in all circumstances' by Art. 1 of the Conventions; see Y. Sandoz, C. Swinarski, B. Zimmerman, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of I2 August 1949 (Dordrecht, ICRC, Nijhoff 1987) para. 45; L. Boisson de Chazoumes and L. Condorelli, 'Common Article I of the Geneva Conventions Revisited: Protecting Collective Interests', 82 IRRC (2000) p. 67. Cf., F. Kalshoven, 'The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit', 2 YZHL (1999) p. 3.
The obligation of a state
5
right to life. In this body of law there is no distinction drawn between the right to life of different categories of individuals or on the basis of nationality. This article will consider whether, under human rights law and under international humanitarian law, a state has an international obligation to protect its own armed forces and, if so, the nature of such an obligation. It has been shown that it can be no answer to say that nationality (foreign or own) holds the key to whether protection is offered to the recipients of one of these intemational obligations. Both under international humanitarian law and intemational human rights law a state will owe some legal obligations to its own nationals and to foreign nationals. For the sake of convenience only the term 'soldier' will be used to refer to members of the armed forces and it will be used in the masculine gender.
2.
HOW CAN A STATE BE THE CAUSE OF THE DEATH OF ITS OWN SOLDIERS KILLED IN COMBAT?
It is likely that in all legal systems recognition is given to the fact that a consequence can have primary and secondary causes and that the actor, whose acts can be considered no higher than a secondary cause of an event, is not merely because of this relieved of all liability for it. This secondary cause may also be described as a 'material' cause or one which should not be ignored as de minimis. It is not surprising to see this principle operating in intemational law also.' An extreme example might be a state (State A) which deliberately sends its soldiers into battle having provided them with no training and no weapons with which to defend themselves. The soldiers are killed by enemy armed forces belonging to State B. Clearly, the armed forces of State B are the primary cause of the deaths of the soldiers. State A may be considered to be a secondary cause if its acts or omissions are a cause of the death in the sense that death would not have occurred had they been given training or had they been supplied with weapons by which they could have defended themselves9 If we concentrate on the responsibility of State A for the deaths of its own soldiers in these circumstances we can see that that state enforces its will on its own soldiers through its military law. It will almost certainly be a military offence for soldiers to refuse to obey a lawful order of a superior officer and, during time of armed conflict, a refusal to obey a superior often attracts a penalty harsher than such an act committed during peacetime. Each soldier of State A can hardly be considered to be agreeing to placing himself in such danger or consenting to run
8. See e.g., The Queen on the Application of Gentle and Others v. The Prime Ministe~The Secretary of State for Defence, The Attorney General [2006] EWCA Civ 1078, para. 17; ibid, [2006] EWCA Civ 1690, paras. 79-80; Osman v. United Kingdom (1999) 29 EHRR 245 both of which are discussed below. International criminal law recognises the concept of a secondary party to an international crime, see the Rome Statute of the International Criminal Court 1998, Art. 25. 9. It may be difficult, in some cases, to show that a particular soldier would not have been killed had he been properly trained or had he been supplied with effective weapons to defend himself.
6
l? Rowe
the (enormous) risk of being killed. Nor can he, realistically, be thought of as being 'willing to sacrifice his life for his country'.'0 Let us suppose he refuses the order to go into battle in the circumstances posed above. In some states he may suffer a more severe penalty than in others. In some, it is foreseeable that he will be sentenced by a military court to be executed. In others, he may be sentenced to a long term of imprisonment. In relation to a soldier executed by his own state that state is, of course, the sole cause of his death." But if we accept that a consequence can have one or more separate causes it should be possible to accept that a soldier of State A killed by the armed forces of State B is a victim of both states where the conduct of State A is as given in the example above. The causal potency of the acts of State A in the death of its own soldiers cannot always be disregarded as being only of a de minimis nature. For the sake of clarity it is worth noting that the fact a state has taken a decision to engage in an armed conflict is not considered, by itself, to be a cause of the death of those members of its armed forces killed during that armed conflict. The issue of the responsibility of the state for their acts or omissions is considered below.
3.
THE STATE AS A CAUSE OF THE DEATHS OF MEMBERS OF ITS OWN ARMED FORCES
The argument has been made above that a state may be a cause of the death of members of its own armed forces. It is likely that in most cases there will be no causal connection between the acts or omissions of the state and the death of individuals belonging to its armed forces. In other cases, however, the argument can be made that its acts or omissions may be a cause. Both Lord Tennyson with his poem, 'The Charge of the Light Brigade' and Wilfred Owen with his 'Duke Et Decorum Est' recognised the great risks which soldiers ran by following their orders.12 The following actions (or omissions) on the part of the state may give rise to a suggestion that the state is a cause of the death of one of its soldiers. Most of them have actually arisen in recent armed
10. This statement may not have universal application since it assumes that soldiers wish to survive combat. See S. Chubin, 'Iran and the War: from Stalemate to Ceasefire', in H. Maul1 and 0 . Pick, eds., The Gulf War (London, Pinter Publishers 1989) who comments that 'the [Iran-Iraq] war ... came to represent a test of the revolution, its capacity for commitment and sacrifice ... it came gradually to epitomize all the themes of suffering and martyrdom that the leadership seemed determined to cultivate', p. 7. 11. Subsequently, he may be considered to be a victim of the armed conflict. In the Armed Forces Act 2006 (UK), s. 359, British soldiers executed for a range of military offences were pardoned 'in recognition [that they were] victims of [the] First World War'. This would be the position, afortiori, had a soldier been shot and killed by his commander on the spot (an act unlawful under national law) for an incidence of disobedience during an armed conflict. 12. Lord Tennyson wrote about an incident during the Crimean War and Wilfred Owen about World War I.
The obligation of a state
7
conflict^.'^ This section concentrates only on issues of causation and not of responsibility. A soldier is ordered by his superior officer to give his body armour to another soldier since supplies are inadequate for all soldiers to be issued with such protective equipment.I4 Further examples might include soldiers being transported through territory in which attacks on them are taking place in vehicles which offer little protection to thernl5 or soldiers being left by their officers in forward positions with no adequate equipment to protect them~elves.'~ Again, soldiers might not be adequately supplied with food or water while in forward positions or evacuated as quickly as possible when wounded." They may be provided with inadequate medical attention if wounded or be transported in vehicles not suitably marked with the protective emblem, which are then attacked by the enemy. Examples of so-called 'fhendly-fire' are not uncommon in armed conflicts. Relevant causes of the deaths of one soldier by soldiers of an allied force may include inadequate identification of their friendly status or through lack of communication of their presence in a particular location by the armed forces of the victim.18 Sol13. Establishing the facts is often difficult when members of the armed forces are killed during an armed conflict and immediate press coverage may not present an accurate account of events. See e.g., The Minister of State (Ministry of Defence) in House of Commons Debates, Hansard, Vol. 417, col. 18 (26 January 2004). 14. See the discussion of the shooting of Sergeant Roberts in Iraq after being 'ordered to hand over his [enhanced body armour] to another soldier', House of Lords Debates, Hansard, 27 April 2006, col. 268, Lord Thomas of Gresford; Board of Inquiry Into the Death of Sergeant Roberts which concluded that 'had [he] been wearing correctly fitted [enhanced body combat armour] (as originally issued to him and withdrawn on 20 March 2003) ... he would not have been fatally injured by the rounds that struck him', (para. 88). The report states that the enhanced body armour was 're-distributed to those considered to be in greater need (dismounting infantry and echelon support staff in unarmoured vehicles)'. The coroner is reported to have commented in this case that 'to send soldiers into a combat zone without the appropriate basic equipment is, in my view, unforgivable and inexcusable and represents a breach of trust that the soldiers have in those in government', The Times, 19 December 2006. The New York Times reported (6 January 2006) that 'Extra a m o r could have saved lives, study shows' referring to a 'secret Pentagon report'. See also the complaints raised by Australian soldiers about their webbing, House Hansard, 17 August 2006, p. 129 (Mrs King). The lack of adequate clothing in a cold environment has figured in a number of conflicts as a cause of deaths of soldiers. 15. See e.g., the use of 'Snatch Land Rovers' by UK forces in Iraq and the issue of transport aircraft (C-130 Hercules) not fitted with explosion suppressant foam, House of Commons Defence Committee, UK Operations in Iraq, 13th Report of Session 2005-06, H.C. 1241 and Government Response, H.C. 1603 (19 October 2006). Compare with this the Australian soldier who is reported to have 'expressed his gratitude that our Australian equipment was better than the American Humvee which in similar circumstances would have seen him killed', House Hansard, 9 August 2006, p. 178. 16. For an account of the leaving of Iraqi soldiers by their officers during the fighting in Iraq in 2003 see The Times, 22 March 2003. 17. See 'Israeli Troops Criticize War Handling', CBSNews World, 18 August 2006. 18. See e.g., The Tarnak Farm Board oflnquiry, Final Report, 19 June 2002 (Canada) which was concerned with the deaths of four Canadian soldiers who were part of a battalion conducting a live ammunition firing exercise in Afghanistan mistakenly attacked by a US Air Force F-16 fighter aircraft. The pilot concerned was found guilty of dereliction of duty in a non-judicial hearing by a senior Air Force officer. He was fined and received a reprimand, see
8
I? Rowe
diers may be killed by their own colleagues engaged in air attacks, artillery fire or during fire-fights. Soldiers may be ordered to take part in particular military operations where it is clearly foreseeable that the risks of being killed or wounded are extremely high, if not virtually certain.20Where the armed forces seek volunteers for such an operation the issue will revolve around whether the fact that a soldier 'volunteers' is sufficient to relieve his state of any obligation towards him.21 A further category would include acts by the armed forces which place its soldiers at risk of not being treated as prisoners of war or of being prosecuted if they are captured by the enemy armed forces. They may, for instance, be sent by their own commanders to carry out military operations by way of espionage or in prohibited ways such as by wearing the uniform of the enemy or civilian clothes during attacks or by using prohibited weapons.22They may be subjected to circumstances of duress by their military superiors and have to pay the consequences afterwards of acting illegally.23The obligation on states in the Geneva Conventions and its Protocols to ensure that the armed forces are trained in the principles of this
''
friendlyfireb (6 June 2005) and for other incidents of friendly fire caused by US forces on their own and on coalition forces see ~http:iiwww.cbc.cdnewslbackgroundlfriendlyfireifriendlyfire-2006.h~1~ 19. See the cases of Sergeant Roberts (supra n. 14) and Fusilier Tunington (infra n. 28). See also the Boards of Inquiry Into the Circumstances of the Death of Corporal Allbutt and Trooper Clarke; Into the Death of Lance Corporal Hull; Into the Death of Marine Maddison. All were killed by fnendly fire in Iraq. 20. An example might be an order to aircrew to attack ground targets from low altitude, thereby making them susceptible to anti-aircraft fire. This was an issue in the Gulf War 1990-1991, see House of Commons Debates, Hansard, Vol. 190, cols. 458,521,2 May 1991. In the Kosovo campaign 1999 NATO aircraft flew at a height greater than 5,000 metres to protect them from anti-aircraft fire. The fact that, by doing so, they might have placed civilians at a greater risk of being killed or injured by mistake is not relevant to the arguments presented in this paper. See generally, however, A.P.V. Rogers, 'Zero Casualty Warfare', 82 IRRC (2000) p. 165. 21. For an application of this principle see the Third Geneva Convention 1949, Art. 52 which permits a detaining power to employ a prisoner of war on labour of an unhealthy or dangerous nature if he volunteers. 22. A state which does not align its rules of engagement with its obligations under international law may well cause its soldiers to be in breach of that law, for which they will be personally liable. These rules of engagement will need to be altered when the nature of the military operation changes, for example, from war-fighting to maintaining order during a military occupation if soldiers are not to be confused. On the general point compare McCann v. United Kingdom (1995) 21 EHRR 97 with Nachova v. Bulgaria 42 EHRR (2006) p. 43. Where soldiers commit war crimes in defiance of their orders and training the state will not be a cause of the consequences suffered by the soldier. They will remain responsible, however, for all acts of their armed forces, Additional Protocol I, 1977, Art.91; F. Kalshoven, 'State Responsibility for Warlike Acts of the Armed Forces', 40 ICLQ (1991) p. 827, who limits the subjects of this duty to pay compensation to individuals of a different nationality from the state against whom compensation is sought; J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (Cambridge, Cambridge University Press 2005) Rule 149 (who do not address the subjects of this duty). 23. See e.g., Prosecutor v. Erdemovic, case No. IT-96-22-A; A. Klip and G. Sluiter, Annotated Leading Cases oflnternational Criminal Tribunals, Vol. 1 (Antwerp, Intersentia 1999) p. 537.
The obligation of a state
9
law can have serious consequences for a soldier where this obligation is not carried
4.
SPECIAL CASES: CONSCRIPT AND RESERVE SOLDIERS
The pattern of conscription adopted by states varies considerably as do the tasks to which conscripts are put. In some states they may be expected to take part in an armed conflict in the same way as volunteer soldiers of that army. The major significant difference between these two groups, of course, is that the latter have volunteered to take the risks of being killed or wounded whilst conscripts, generally, have been placed in a position which they would not have chosen. If it is assumed that the conscripts have received adequate training for the role they are expected to play and have been issued with suitable weapons for the purpose they run no greater risk of being killed or wounded than the volunteer soldier. The volunteer soldier may have more experience as a soldier and, to this extent, the risk of him becoming a casualty may be less than that of the conscript but this fact of life will apply also as between or among different volunteer soldiers. The conscript may, however, be at greater risk than the volunteer soldier if his commanders take the view that conscripts are more 'expendable' than volunteer soldiers since the process of conscription can provide a continuous supply of soldiers to replace those killed or wounded.25They are also likely to predominate in the lower, less skilled cadre of the soldier population and can be trained relatively quickly. The reservist may be a volunteer or a conscript who, following active service under conscription is required to remain in the reserve for a fixed period. In either case the greatest risk to him is that his training or the equipment made available to him may be inadequate for the task and inferior to that of his volunteer colleagues.26
24. To this obligation can be added that of ensuring that legal advisers are available to commanders, Additional Protocol I, Art. 82. Command responsibility can have a further advantage in trying to ensure that the most junior soldiers are not led by their military superiors into committing acts which are contrary to international humanitarian law, thus exposing them to criminal liability. 25. N. Dixon, On the Psychology ofMilitary Incompetence (London, Futura 1976) comments, 'the third and most costly type of manpower wastage is that resulting from a deliberate policy of attrition adopted by commanders who regarded soldiers as wholly expendable', p. 154. This is unlikely, however, to be a factor where conscription did not exist. 26. One Israeli reservist is reported as commenting that, 'I personally haven't thrown a grenade in 15 years, and I thought I'd get a chance to do so before going north,' [to take part in the armed conflict within the temtory of the Lebanon in 20061 'Israeli Troops Criticize War Handling', CBS News World, 18 August 2006.
10
f? Rowe IS THE STATE RESPONSIBLE FOR THESE DEATHS?
It is likely that, in a democracy, the relevant government minister will be required to explain to parliament the performance of the armed forces and the likely causes of (at least) some casualties. The national press and broadcast media will be drawn into the debate. Legal action may even be brought in the courts of the state concerned seeking to hold the government responsible to some extent and, possibly, in an attempt to secure compensation.27Inquests into the deaths of soldiers may also ascribe some degree of responsibility to the government or to the armed forces.28 Boards of inquiry (or something similar) are likely to be convened to investigate the circumstances leading to the deaths of servicemen. Political and media comment from other states as to the manner in which a particular state treats its soldiers is not uncommon.29 It seems clear that a state may be thought of as bearing some degree of responsibility, whether this can be given a legal label or not, for its acts or omissions even though the most significant cause of the killing, wounding or illness of its soldiers follow from the acts of the armed forces of another state. This article seeks, however, to concentrate on a state's international responsibility where its soldiers have been killed or wounded by the acts of another state's armed forces. It does not seek to explore any remedies which a soldier might claim
27. The Queen on the Application of Gentle and Others v. The Prime Minister; The Secretary of State for Defence, The Attorney General [2006] EWCA Civ 1690. The argument of the applicants was based on the 'implied obligation to hold an inquiry into the circumstances which led to the invasion [of Iraq] under Article 2 of the European Convention on Human Rights', para. 7. The Court of Appeal in England held that the United Kingdom was not required by Art. 2 to conduct an investigation into the invasion of Iraq since the Convention 'respects the general principle of the separation of powers between the executive and the courts, including the principle that there remain some areas which are essentially matters for the executive and not the courts', para. 75. Legal action in some form may also be brought for compensation for injuries sustained allegedly through the acts of a soldier's own armed forces. See in particular, the claims brought in the USA and the UK by soldiers against their respective govemmcnts in respect of the consequences of the so-called 'Gulf War syndrome' and compare this with issues of 'combat immunity'. See also the reports of the Ombudsman for the Department of National Defense and Canadian Forces, 'Heroism Exposed: An Investigation into the Treatment of 1 Combat Engineer Regiment Kuwait Veterans (1991)', October 2006; 'Systemic Treatment of Canadian Force Members with PTSD [post traumatic stress disorder]', February 2002. 28. See the report of the Oxfordshire deputy coroner who concluded that a British soldier, Fusilier Tumngton, had been 'killed by a machinegun mounted on a British tank' in Iraq, The Independent, 20 October 2006. For the progress of coroners' inquests into the deaths of British soldiers on active service in Iraq and Afghanistan see Hansard, H.L. Vol. 685, WS 59 (12 October 2006). The difficulties of obtaining the presence before a coroner's inquest of members of allied armed forces who are alleged to have committed friendly fire incidents cannot be overlooked, see The Times, 20 November 2006. 29. See e.g., Parliamentary Assembly of the Council of Europe Resolution 1166 (1998), para. 8. There has been significant media coverage of the alleged ill-treatment of conscripts in the Russian armed forces and of servicemen in South Korea, see as to the latter, The Emes, 1 July 2005. The issue of the recruitment and treatment of child soldiers is one of strong international concern. See generally, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, (infra n. 63).
The obligation of a state
11
under national law since there will be considerable variation amongst individual states as to their applicability in the circumstances. For the breach of an international obligation individuals may not be provided with any mechanism to bring any claim or seek reparation against their own state.30That is not, however, the same as saying that the state does not owe them that international obligation. This position may be distinguished from that where individuals have obligations i m p o s e d o n t h e m b y i n t e m a t i o n a l l a w f o r w h i c h t h e y m a y be p e r s o n a l l y liable. In this context the best example of this principle is where a treaty (or customary international law) imposes obligations on individuals not to commit genocide, crimes against humanity or war crimes. It is proposed now to consider two types of intemational obligations which a state will owe to other states (as parties to relevant treaties or under customary international law) or to individuals during an armed conflict. These are obligations arising from international human rights law and from international humanitarian law 5.1
International human rights law
This body of law can apply during an international armed conflict3' and it will apply during a non-international armed conflict. The right to life is given by the most significant international human rights instruments. Under the European Convention on Human Rights 1950 a person may be deprived lawfully of his life if this is absolutely necessary in defence of any person from unlawful violence or in order to quell a riot or i n s u r r e c t i ~ nWhilst . ~ ~ the state will be required to justify the kill-
30. In the absence of a treaty right of enforcement by an individual before an international tribunal this will often depend upon the relationship between intemational law and the national law of a particular state. In many common law states an individual will not be able to enforce an obligation established under international law and owed to him as a 'right' unless the national law so provides. See e. g., the limited range of obligations contained within the Geneva Conventions and their Additional Protocols forming part of the law of the UK, Geneva Conventions Act 1957 (as amended in 1995). The obligation owed to him may, in practice, only be enforced through a prosecution being brought by the relevant authorities against those who are alleged to have broken the national law. Apart from this the position may well be as described by R. Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon 1994) that 'the individual is left with no direct access to a forum, no legal right that he can call his own, no redress against his own state,' (p. 95). Compare the position under human rights law where the individual may be given the right under a human rights instrument to bring an individual petition or to raise the issue within his own legal system. A purported 'crossover' between international humanitarian law and human rights can be seen in the Preamble to Additional Protocol I1 (1977) which refers to 'the need to ensure a better protection for the victims of those armed conflicts'. 3 1. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. (1996) p. 66, para. 25; Advisory Opinion on the Legal Consequences of a Wall in the Occupied Territory, ICJ Rep. (2004) paras. 108-111; Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Rep., (2005) para. 2 16. 32. Art. 2. This is seen as part of a state's law enforcement obligations even during what appears to be a non-international armed conflict, see Isayeva v. Russia (2005) 4 1 EHRR p. 38 at para. 19 1.
12
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ing, during a non-international armed conflict, of an individual by its armed forces on one of the grounds provided by the Convention the position is likely to be the same during an international armed conflict for a person killed on foreign territory but only if the applicant's relatives can show that the individual had been brought within the jurisdiction of another state.33 A member of the armed forces of a state operating outside its own territory will, however, always be within his own state's jurisdiction in terms of that state's obligations owed to him.34The position will be the same during a non-international armed conflict. The nature of that obligation, in terms of the right to life, will now be considered. It has been shown above that the state may be a cause of the death of one of its soldiers when killed in the course of military operations by enemy forces. The issue to be explored is whether the soldier's own state could be said to have deprived him of his life even though the main cause of doing so was the act of enemy forces. It is clear from the jurisprudence of the Convention that the acts of state agents need not amount to an intentional killing." It is sufficient if state agents are aware of the risk of death.36They may be required to take action to avoid the real risk of another state causing a breach of at least the most important Convention rights.37The acts (or omissions) of the state need not be the sole cause of the death.
33. Bankovic et al. v. Belgium [and other NATO StatesjApplication No.52207199; [2002] 41 ILM 5 17; Issa v. Turkey, Application No. 3 1821196, Judgment; Ocalan v. Turkey, Application No. 462211 99, Judgment (2005). See generally, R. Wilde, 'The "Legal Space" or "Espace Juridique" of the European Convention on Human Rights: Is it Relevant to Extra-Territorial State Action?', [2005] EHRLR p. 115; P. Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge, Cambridge University Press 2005) Chapter 5 where further sources are given. 34. This may well remain the case where the soldier is taken as a prisoner of war, although from a practical point of view the scope for actions affecting him by his own state are likely to be rare. Despite captivity by another state both the soldier and his own armed forces remain under some form of duty to each other. The soldier is usually under a duty to try to escape and an obligation to remain under the command (for limited purposes) of a member of his own armed forces whilst a prisoner of war. His state is required to appoint a protecting power (or substitute) to consult with the detaining state over the terms of his confinement. It is, however, foreseeable that a state's actions in killing prisoners of war may lead to its own soldiers, as prisoners of war, being killed by way of an illegal reprisal. The detaining state may also be under an obligation by a human rights instrument to protect those who are under its jurisdiction, such as prisoners of war. 35. Isayeva, Yusopova, Bazayeva v. Russia, 41 EHRR (2005) p. 39, para. 169. The right to life may be infringed even though death is not actually caused, ibid., para. 171; Makaratzis v. Greece, 41 EHRR (2005) p. 49, para. 49. 36. LCB v. United Kingdom, 27 EHRR (1998) p. 212, para. 36. It would seem to follow from this case that, had there been a causal connection between the state's action and the leukaemia suffered by the daughter of a serviceman, the risk of death occurring immediately upon the materialising of the risk is not essential. The risk of 'life endangering illness' is referred to in Makaratzis v. Greece (supra n. 35) para. 50. 37. See Chahal v. United Kingdom, 23 EHRR (1996) p. 413, para. 107.
The obligation of a state
13
In Osrnan v. United ~ i n ~ d o r nthe ~ 'applicant's husband was shot and killed by a private citizen. The European Court of Human Rights (hereinafter ECtHR) decided that the state bore responsibility 'not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its juri~diction'.~~ In explaining the latter obligation the Court confirmed that Article 2 implied 'in certain well-defined circumstances a positive obligation on the part of the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual'.40 This will occur when 'the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk'.41 Once this principle is accepted it then becomes necessary to concentrate upon the degree of fault required of the state to render its causative potency to be sufficiently great as to lead to the conclusion that it bears responsibility for the deprivation of life. The applicant is not required to show that the state authorities were guilty of 'gross negligence or wilful disregard of the duty to protect life', but merely that they 'did not do all that could be reasonably expected of them of them to avoid a real and immediate risk to life of which they have or ought to have knowledge'. The ECtHR concluded that, 'this is a question which can only be answered in the light of all the circumstances of a particular case'.42 The circumstances under consideration involve a killing during an armed conflict. In Osman the particular case involved the criminal acts of a private citizen and the formulation by the Court of the principles of state responsibility under Article 2 were based on the facts before it. The killing of a soldier during the course of military operations may or may not be a criminal act. It is relatively easy to conclude that during a non-international armed conflict those who take up arms against their own government and kill its soldiers commit criminal offences under the law of their state by doing so. In the course of an international armed conflict enemy soldiers are unlikely to be breaking the criminal law of the state to which their enemy soldiers belong43 and, indeed, unless they breach international hu-
38. See supra n. 8. There was no remedy on the grounds of negligence under English law since public policy prevented a duty of care from arising on grounds of public policy. See the concurring opinion of Sir John Freeland. For (selected) subsequent applications of the Osman principle see Akkoc v. Turkey, Application No. 22948193, Judgment, 10 October 2000, paras. 78, 81-83; E and others v. United Kingdom, 36 EHRR (2003) p. 3 1; Makaratzis v. Greece (supra n. 3 3 , para. 50; Nesibe Haran v. Turkey, Judgment of 6 October 2005, para. 71; Erikan Bulut v. Turkey, Application No. 51480199, Judgment, 2 March 2006, para. 3 1. 39. Osman, supra n. 8 , para. 115. 40. Ibid. 4 1. Ibid., para. 116. 42. Ibid., para. 116. 43. See Public Prosecutor Appellant v. Oie Hee Koi [I9681 AC 829, p. 860 and compare Lord Guest and Sir Garfield Barwick at p. 867.
14
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manitarian law in the conduct of operations their acts could not be described as unlawfil at all. It is, however, difficult to accept that the formulation by the Court of State responsibility under Article 2 is dependent upon the principal actor having committed a criminal offence. The result would have been the same had the Court indicated that the act of the private citizen was the cause of the death of the applicant's husband since the state was not aware of the real and immediate risk to the victims from the private citizen.44 The ECtHR has shown its willingness to take into account the military context when considering the compatibility of military courts with the requirements of Article 6 and there is no reason to think that it would not do so when considering Article 2, despite the fact that it considers this Article to be one of the two most fundamental guarantees under the onv vent ion.^^ If we now consider the acts of a state in sending its soldiers to take part in an armed conflict with no training and with no weapons to defend themselves it is possible to conclude that the state, on the basis of Osman, could foresee (in this, perhaps, extreme example) an 'immediate risk to the life of identified ... individuals from the ... acts of a third party'. In these circumstances the state authorities (the armed forces) would be expected to 'take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk'. The fact that these events occur during an armed conflict46and therefore within a military context (the manner in which a state deals with its own soldiers) will be an important factor in weighing the reasonableness of any measures which the state might be expected to take to protect the lives of its soldiers. Greater risks of death or serious injury to its own soldiers may reasonably be taken during an armed conflict compared with similar risks incurred during training. Other factors which the ECtHR may consider to be relevant are likely to include the nature of the armed conflict,47the steps actually taken by the state to guard against losses of its own soldiers48and the 'option choices which must be made in terms of priorities
44. See also Bromily v. United Kingdom, Application No. 33747196. Cf., E and Others v. United Kingdom (supra n. 38); Koku v. Turkey, Application No. 27305195, Judgment, 31 May 2005. There was no causal connection between the state's act of testing nuclear weapons and the occurrence of leukaemia many years later in the daughter of a serviceman, who had been present at the tests, LCB v. United Kingdom, 27 EHRR (1998) p. 212. 45. See e.g., Engel v. The Netherlands, 1 EHRR (1976) p. 647, para. 59; Cooper v. United Kingdom, 39 EHRR (2004) p. 8. 46. The situation in Chechnya faced by the ECtHR in Isayeva, Yusopova and Bazayeva v. Russia, supra n. 35; Isayeva v. Russia, supra n. 32; Khashiyev v. Russia, 42 EHRR (2006) p. 20 involved an armed conflict (although there was no requirement on the ECtHR to declare it as such). 47. See e.g., the importance of 'the vaccination scheme whose sole purpose is to protect the health of society,' even though, in its implementation, 'a small number of fatalities occur', Association X v. United Kingdom, 7 154175, DR 14, p. 3 1. Cf., Isayeva v. Russia, supra n. 32, para. 191. 48. See Mrs Wv. United Kingdom (1983), 9348181, DR 32, p. 190, para. 16.
The obligation of a state
15
and resources'.49 The burden upon a state should not be such as would be considered to be 'impossible or disproportionate'.50 The course of events during an armed conflict is often unpredictable and any post hoc inquiry into the responsibility of a state for the deaths of its own soldiers can reasonably expect a court to take this into a c ~ o u n t . Military ~' operations will vary from full-scale attacks against the armed forces of an enemy state to trying to establish civil order on the streets during a period of occupation. In the latter type of military activity a state may have the opportunity to consider more fully how it will protect its soldiers from low-level but fatal attacks on them. It may be able, for instance, to provide back-up to their soldiers on foot patrol in case they run into difficulties. It was expected to do this in order to protect suspected IRA members apprehended in Gibraltar when it was foreseen that they might detonate a car bomb by remote control.52 The reason given for a lack of equipment to protect its own soldiers will be important in judging the reasonableness (or otherwise) of the state's acts or omissions. There must be a considerable difference in position between a state which does not possess items of protective equipment and one which does but fails to take reasonable steps available to it in the circumstances (of an armed conflict) to provide it in sufficient quantities for the use of those who will be expected to engage in the armed conflict. Whilst all states would be expected to provide their soldiers with helmets they might not all be expected to provide a sufficient number of fully-armoured personnel carriers.53 In judging the measures reasonably required to avoid the death of their soldiers the ECtHR is likely to consider this from a subjective state point of view and to look at the reasons proffered by the state for not providing essential protective equipment.54 The provision of identification systems on vehicles to differentiate friend from foe may well prevent some friendly fire incidents. It may be, however, that the cost of doing so, in some circumstance (but not in others) is an unreasonable financial burden for the state to bear to reduce a clearly foreseeable risk in virtually all types of military operation. A breach of the right to life of a soldier is therefore a theoretical possibility but one which, except in the most extreme case, is unlikely to occur. To argue that the right to life has no application at all to the soldiers of a state during an armed conflict or an occupation, in the absence of any permitted derogation, is not con-
49. Koku v. Turkey, supra n. 44, para. 127. 50. Osman v. United Kingdom, supra n. 8, para. 116; Akkoc v. Turkey s u p r a n. 38) para. 78. 51. The importance of an independent investigation into the circumstances of a killing by state agents has been stressed in a number of cases before the ECtHR. See generally, McKerr v. United Kingdom, 34 EHRR (2002) p. 20; McShane v. United Kingdom, 35 EHRR (2002) p. 23, para. 95. 52. McCann v. United Kingdom, supra n. 22. 53. Certain forms of equipment may not be available to be purchased 'off the shelf'. 54. In assessing reasonableness of action or inaction on the part of the state factors such as availability of equipment within timescales, battlefield losses, uncertainty as to the enemy's equipment and distribution difficulties may all be relevant factors.
16
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sistent with the logics5nor with the current jurisprudence of relevant human rights bodies. Nor is it satisfying to argue that a volunteer soldier, as a person who has joined a profession in which he may be expected to risk his life, has taken the risk of his own state depriving him of the right to life under any circumstances. To accept this principle would be to argue that conscript soldiers, but not volunteer soldiers, should be owed the right to life. To reach the view that there exists a theoretical possibility of a breach of a soldier's right to life by his own state seems a reasonable conclusion to draw whilst accepting that it could only materialise into a real possibility in the most extreme cases for (at least) two reasons. First, the soldier's own state would have to be, at least, a sufficient cause of his death so as to accept that his death was caused by the acts of the enemy and his own state. Secondly, in the course of an armed conflict with the (often) unpredictability of the actions of an enemy it will be very difficult to show that the armed forces have acted, in the circumstances, in breach of the principles set out in Osman v. United ~ i n ~ d .56 om
5.2
International humanitarian law
During a non-international armed conflict a state will clearly owe international obligations to certain categories of individuals (although most are likely to be its own citizens), as well as to other states, on a treaty or customary international law basis." Once an international armed conflict begins a state will owe obligations to certain individuals of, and to, the enemy state itself. In limited cases it will owe duties to anyone in its territory (which could include its own nationa~s).~~ The
55. During a non-international armed conflict the right to life would be owed to the rebels against whom government soldiers were fighting. The position would be the same during an international armed conflict or an occupation subject to the application of a human rights instrument to enemy individuals (soldiers or civilians). 56. Were there to be a breach of the Osman principles the state would be required to provide a remedy in national law. Any restriction on liability on such grounds as 'battlefield immunity' would be inconsistent with Art. 13 of the European Convention on Human Rights. 57. Common Art. 3 to the Geneva Conventions 1949; Additional Protocol I, Art. l(4); Additional Protocol 11, 1977; Amendment (2001) to Art. 1 of the Conventional Weapons Convention 1980 and, generally, Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997. For its obligations under customary intemational law see generally, Henckaerts and Doswald-Beck, supra n. 22. 58. See the fourth Geneva Convention 1949, Art. 13, which directs that Arts. 13-26 are 'intended to alleviate the sufferings caused by war' and are to 'cover the whole of the populations, without any adverse distinctions'; Sandoz et al., supra n. 7, para. 50; J. Pictet, ed., Commentary on Geneva Convention IC: (ICRC, 1958) p. 118. A state will owe specific duties to civilians on its territory (most of whom will be its nationals) to take 'precautions against the effects of attacks', Additional Protocol I, Art. 58. Although some may argue that obligations under international humanitarian law are owed by states to other states parties to the relevant treaties it is clear that the Geneva Conventions 1949 refer to some 'rights' which protected persons may not renounce. See generally, Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, Cambridge University Press 2004) p. 20; R. Provost, International Human Rights and Humanitarian Law (Cambridge, Cambridge University Press 2002) p. 32.
The obligation of a state
17
manner in which a state treats its own soldiers will be the standard which, for instance, those whom it has captured as prisoners of war can expect.59 In each type of armed conflict members of the armed forces of the state to which they belong may be excluded from the protection of the relevant treaties simply because they do not come within the definition of those protected by them. The international obligations owed by states under the four Geneva Conventions of 1949 apply to those protected by each of the Conventions. Each Convention defines who these individuals are. Members of the armed forces cannot, vis-ri-vis their own state be protected wounded, sick, shipwrecked, prisoners of war,60combatants or civilians. Nor will they be anyone within any of these groups, such as journalists or displaced persons. Nor will they be persons no longer taking a part in hostilities during- a non-international armed ~onflict.~' It seems clear that international humanitarian law encompasses more than the obligations set out in the Geneva Conventions and their Additional Protocols. The definition of international humanitarian law accepted by the International Committee of the Red Cross (ICRC) in its commentary on the Additional Protocols does not refer to a state's obligations arising under treaty or by customary international humanitarian law being restricted to non-nationals or to victims of the armed conflict belonging to the opposing force.62It would seem, therefore, that there may be some international obligations which a state may owe to its own citizens (or those residing in its territory) in addition to a much broader set of obligations owed to other states and to their nationals. One clear example of such an obligation is the prohibition of recruitment or of enlisting children under the age of fifteen into the national armed forces or using them to participate actively in h ~ s t i l i t i e s The . ~ ~ purposes behind this proscription include not only the protection of those whom child soldiers could attack but, perhaps more importantly, the protection of those who may be recruited as child sol-
59. See Arts. 25,82,85 of the Third Geneva Convention 1949. 60. A national of, or a person owing allegiance to, the detaining power captured after joining the armed forces of an enemy state is not entitled to be treated as a prisoner of war, Public Prosecutor Appellant v. Oie Hee Koi,supra n. 43, at pp. 829, 858. This is consistent with the view of the Appeals Chamber Judgment of 15 July 1999 in Prosecutor v. TadiC, which stresses the importance of allegiance to a state, para.166. 61. Members of the armed forces of one state will clearly not be 'individuals belonging to the hostile nation or army,' the Rome Statute 1998, Art. 8(2)(b)(xi) (emphasis added). 62. Sandoz et al., supa n. 7, p. xxvii. 63. The Rome Statute 1998 of the Intemational Criminal Court, Art. 8(2)(b)(xxvi). See the proceedings against Thomas Dyilo before the Intemational Criminal Court, Foreign and Commonwealth Office, Human Rights Report Annual Report (2006) Cm 6916, p. 220 (UK). See also the Optional Protocol to the Convention on the Protection of the Child on the Involvement of Children in Armed Conflict, GA Res. ARES1541263 (2000) to which there are 108 states party (last accessed 1 November 2006). Some states have also made declarations (under Art. 3(2) of the Optional Protocol) about the their restrictions on children under 18 years of age taking a direct part in hostilities, see those of Belgium, Lithuania, UK, USA and Viet Nam.
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diem Here then is an international obligation64 (although limited in scope) imposed on a state prohibiting it from recruiting or enlisting child soldiers into its armed forces. The obligation is owed by the state in order to protect children (although not only those who are recruited). On a similar principle a state is prohibited from compelling a prisoner of war or a protected civilian from serving in its armed forces.b5 Although Article 8(2)(b) of the Rome Statute introduces a condition that the violations which are specified must be 'within the established fi-amework of international law'66 it is not considered that this would prevent an international obligation being owed by a state to its own nationals since, as shown above, international obligations can be owed to a state's own citizens. The principles underlying international humanitarian law are commonly thought of as being encompassed by the Marten's clause. This was designed to cover situations not set out in international agreements and it referred to the 'usages established among civilized peoples ... the laws of humanity, and the dictates of the public con~cience'.'~Whilst the Marten's clause may see those whom it protects as 'inhabitants and belligerents' or 'civilians and combatants' it does draw attention in particular to humanity and the public conscience as underlying principles. Both 'humanity' and the 'public conscience' may demand that a state owe obligations under international humanitarian law to its own soldiers. It is recognised, however, that it is dificult to forge a positive obligation upon a state by virtue solely of the Marten's Clause but its probative value is by way of supporting other bases of an obligation. If the door of international humanitarian law may be opened to nationals of the state concerned through customary intemational law it is now necessary to consider, apart from the proscription on the recruitment of children and protected persons into a state's armed forces, whether the state owes obligations under intemational humanitarian law to its own soldiers. Does it require a state to act in a way as to
64. For the position under customary international law see Prosecutor v. Norman, case NO. SCSL2004-14-AR72(E), paras. 33, 5 I. Provost draws attention to the fact that Art. 38 of the Optional Protocol on the Rights of the Child does 'not refer to any "right" of the child to such protection', supra n. 58, p. 34. 65. Third and Fourth Geneva Conventions 1949, Art. 130; Art. 147 respectively; Rome Statute 1998, Art. 8(2)(b)(xv). These obligations are designed for the protection of prisoners of war and of civilians respectively but they do, in addition, impose international obligations on a state in respect of the composition of its own armed forces. States have also been concerned about the treatment of conscientious objectors in other states. See Council of Europe Resolution 1166 (1998, para. 9; Doc. 1086 1, para. 9.7 (24 March 2006)). 66. See A. Cassese, 'The Statute of the International Criminal Court: Some Preliminary Reflections', 10 EJIL (1999) pp. 144, 152; generally, A. Cassese, P. Gaeta, J. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford, Oxford University Press 2002) p. 459. Cassese's interpretation that the phrase 'within the established framework of intemational law' requires that a principle must be 'declaratory of customary international law' may be too restrictive since the requirements of proof of the latter phrase are more stringent than the former. 67. The Hague Convention (IV) 1907, preamble; Additional Protocol 1, 1977, Art. l(2). See also Advisory Opinion of the ICJ on the Legality oj'the Threat or Use ofNuclear Weapons (1996) para. 87.
The obligation of a state
19
avoid it being a cause of the death or wounding of a member of its armed forces? It might be argued that the state can be expected to take greater care in this regard over its own armed forces since it has more control over them that it could have over enemy armed forces until they become prisoners of war. A state cannot, however, be expected to owe international obligations towards its own armed forces greater in extent than owed to those against whom it is engaged in an armed con-
flict. The degree of fault required of a state before it will be in breach of its obligations in Additional Protocol I towards civilians where it is carrying out attacks against a military objective is pitched at a high level. Thus, it will only be responsible where it can be expected that the 'incidental loss of civilian life, or injury to civilians, damage to civilian objects or a combination thereof would be excessive in relation to the concrete and direct military advantage anticipated.'68 Again, states are required to do everything feasible, take all feasible precautions, act to the maximum extent feasible69 to protect civilians. It would seem logical (at least) to assert that towards its own soldiers a state should be expected to be liable only for the same degree of fault where it can be shown to be a cause of the death of its own soldier. Towards both civilians and its own armed forces death or injury is clearly foreseeable to a high degree of probability during an armed conflict but this fact alone will not be sufficient to ground international liability on the part of the state when these events There may, however, be circumstances where it might not be able to show that the state had done everything feasible to prevent such an outcome. On the understanding of the term 'feasible' given by the United Kingdom on ratification as 'that which is practical or practicably possible, taking into account all circumstances ruling at the time, including humanitarian and military consideration^'^' it will be a question of fact whether everything feasible was done to prevent the death or wounding. It is likely that other states will also adopt this understanding although they have not stated so at the time of ratifi~ation.'~
68. Art. 51(5)(b). 69. Arts. 57, 58 Additional Protocol 1. 70. 'No one ... wants to see our young men and women in uniform killed or wounded. But if the lack of casualties were the benchmark for Canadian participation then we'd never go anywhere,' Lt. Gen. Jeffrey (former Chief Land Staff), Standing Committee on National Defence, 39th Parliament, l st Session, No. 01 3, 1535,27 September 2006 (Canada). 71. See A. Roberts and R. Guelff, Documents on the Laws of War, 3rd edn. (Oxford, Oxford University Press 2000) p. 510; Geneva Conventions Act (First Protocol) Order 1998 S.I. 199811754 (Schedule (b)). 72. See Henckaerts and Doswald-Beck, supra n. 22, at p. 70; its adoption by the USA upon ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 2000. In adopting it, states were not addressing their minds to its possible applicability in relation to any obligations which they might owe to their own forces under intemational humanitarian law. For the meaning of the term, 'everything feasible' see Sandoz et al., supra n. 7, para. 2198 and the difference between that phrase and 'take all reasonable steps', p. 681, n. 6.
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It has been argued above that events during armed conflict are often difficult to predict. In the planning of military operations the response of the enemy forces can only be made the subject of an intelligent assessment based on incomplete information available as to their positioning, strength, equipment and further supplies. Inclusion of the phrase 'the circumstances ruling at the time' is a key element of the test of feasibility since these 'circumstances' are likely to look quite different when the full facts become known.73It does not follow, therefore, that the mere fact of a large number of casualties being incurred during a military operation will show that the state to whom they belong has failed to take all feasible measures to avoid such a result.74 It might be argued that it may be feasible for a state to provide sufficient quantities of equipment which it has available to it and which is designed to offer some protection to the members of its armed forces. Examples would include body armour, sufficiently protected vehicles and equipment to distinguish friend from foe. Where it is not provided or where practical steps could have been taken to prevent 'needless death^"^ such as by ordering supplies in time it might be argued that all feasible steps have not been taken and that the state is a cause of the death or wounding of members of its own armed forces. It is difficult to accept that international humanitarian law in the form of treaty law currently provides such a wide form of protection for a state's own armed forces. From the discussion above it can be argued, however, that a customary international law may crystallise to the effect that under international humanitarian law a state should take all feasible steps, in the circumstances ruling at the time, to prevent it from being a cause of the death or wounding of members of its armed forces. Positive statements to this effect will be difficult to find at the present time in, for example, military manuals or official statements of one or more states. This is unlikely to be because states have considered the emergence of such a norm under customary law and have rejected it. Should the question be put: 'do you accept that states have a legal obligation emanating from customary international law to do everything feasible [as understood in the form set out by the UK in its declaration made upon ratification of Additional Protocol I] to prevent a state being a cause of the death, wounding or injury of members of its armed forces during an armed conflict or occupation' the answer may be given in the aff~rmative. The fact that good commanders seek to take such steps as they can to safe-
73. It is not uncommon for inquiries (whether judicial or otherwise) to show that honest mistakes of fact have been made by those carrying out military operations, sometimes spoken of as 'the fog of war'. See e.g., Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the FRY, 39 ILM(2000) p. 1257. 74. For an account of British 'military mishaps' see Dixon, supra n. 25, Chapters 2-12. His explanations of them are discussed in Chapter 13. The armed forces of some states may, in fact, be very efficient in learning lessons from the causes of individual casualties. 75. This term was used by Human Rights Watch in their Needless Deaths in the G u y War: Civilian Casualties During the Air Campaign and Violations of the Laws of War (New York, HRW 1991) available at
The obligation of a state
21
guard those under their command during armed conflict is likely to match the desire of the state for the same method and outcome. It is but a short step for a state to argue that all states should act in the same way towards their armed forces. Some states may, however, argue that it is undesirable for international humanitarian law to come to this conclusion. They may fear legal action by relatives of those killed in action (assuming there to be a legal route open to them) or that state officials may be charged with 'war crimes'. Legal action may be brought in national courts in some states at the present time and, where relevant, before t h e
ECtHR. The risk of state officials being prosecuted for a war crime, based upon any international humanitarian law obligation owed to that state's own soldiers, before the courts of another state is likely to be remote while the crimes set out in the Rome Statute 1998 do not cover such activity. Acts which are clearly unlawful, such as wearing civilian clothes whilst carrying out an attack and failing to carry arms openly,76which may place the soldier in a difficult position if captured, give rise to less difficulty. On the assumption that members of the armed forces superior in command order the soldier to act in this way both the state and the individual soldier will be in breach of international humanitarian law. The soldier may, in consequence, find himself on trial under the national law of the capturing state for this prohibited means of conducting armed conflict.77The fact that he has been ordered to act in this way will not relieve him of his liability. Indeed, weighed against the responsibility of the soldier for the commission of unlawful acts where he has been ordered to carry them out, the responsibility of the state is that much greater. It is argued that the soldier's state owes him a customary international obligation not to order him to carry out such unlawful activities. This is hardly an onerous burden since the state will owe such an obligation in any event to other states through treaty or through customary international law. It has been stated by at least one international organisation that conscript soldiers should not be deployed in armed conflict^.^^ It is difficult to accept that the conscript soldier has such a right recognised by international law unless his deployment is in circumstances quite different from those applied to its volunteer soldiers. This might occur if conscripts are placed, 'by an unreasonable commander' at much greater risk of being killed or wounded by enemy action simply because they are conscripts. Any such obligation would arise only through the per-
76. Other examples might be the ordering of a soldier to engage in espionage or to wear the uniform of the enemy while engaged in attacks. 77. In Osman Bin Mohamed Ali v. Public Prosecutor Respondent [I9691 1 AC 430, the appellant claimed that 'he had not been allowed by his commander to wear his identity disk', p. 445. He had been convicted under the law of the Malay Federation and was sentenced to death. The Judicial Committee of the Privy Council in London held that he was not entitled to prisoner of war status, notwithstanding that he was a member of the Indonesian armed forces, because he was wearing civilian clothes when carrying out a military operation. 78. The deployment of 'young conscripts in the military campaign in the Chechen Republic' was 'deplored' by the Council of Europe Parliamentary Assembly, Recommendation 1456 (2000) para. 9 (v).
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ceived need to protect conscripts. For such a principle to develop as a norm of customary international law, it would be necessary to show that states treat their conscript soldiers as they would their volunteer soldiers when engaged in armed conflict and do so because they feel this is required by international law (as well as by their own law or through public policy imperatives).
6.
THE IMPACT OF INTERNATIONAL HUMANITARIAN LAW ON INTERNATIONAL HUMAN RIGHTS LAW
Where both branches of international law apply during an armed conflict they are usually kept within their own boundaries in much the same way as they would be if the other branch did not also apply to the particular circumstances. There are, however, two situations where international human rights law needs to rely on international humanitarian law as the lex specialis. Where the right to life is given by the International Covenant on Civil and Political Rights 1966 (hereinafter ICCPR) that instrument provides that 'no one shall be arbitrarily deprived of his life'.79 The term 'arbitrary' is, in effect, defined by international humanitarian law should a person be deprived of his life during an armed conflict. The killing of one combatant by another within the permitted ambit of international humanitarian law will not result in a deprivation of life within the terms of the ICCPR. The second case is where a state issues a derogation notice from the right to life under the ECHR. If this action is taken there will be no deprivation of the right to life if the death is caused by 'lawfkl acts of war.'" Should a state owe an international humanitarian law obligation in the future to its own soldiers in the circumstances discussed above this will be relevant to judge whether a state's own soldier has been deprived of his life 'arbitrarily' under the ICCPR. On the assumption that his state is a cause of his death, has breached a relevant international humanitarian law norm applicable to him and the death might have been prevented there will also be a breach of his right to life." It is very unlikely that a state would derogate from the right to life in respect of its own soldiers. Should it do so under the ECHR the result would be the same as if no such derogation had been made. A breach of an international humanitarian law obligation to a state's own soldier would show that the death was not caused through the lawfd conduct of war.
79. Art. 6. See Advisory Opinion on the Threat or Use ofNuclear Weapons (n. 30) at para. 25. 80. Art. 15. This phrase is treated as referring to international humanitarian law. No such derogation has been made. 81. The breach of international humanitarian law may not match any human rights obligation owed by the state to its own soldiers. Thus, an order to carry out an attack wearing civilian clothes would render the soldier on capture liable to be treated in accordance with the national law of the detaining state. It would be difficult to argue that his own state is in breach of a specific human rights obligation to him.
The obligation of a state
23
The current position shows, however, that, apart from the recruitment of child soldiers, there are no international humanitarian law obligations owed by a state to its own soldiers. Any involvement in the death of those soldiers will not be in breach of that law and the resultant death will not be 'arbitrary'. There will be no breach of the right to life under the ICCPR. Any derogation from the right to life under the ECHR will be effective since if international humanitarian law obligations are not owed by a state to its own soldiers any death for which the state is responsible will not be contrary to the laws of war, so far as that state is concerned." The effect in both cases is that a state will owe no rights under either international humanitarian law and in consequence none under human rights law to protect the lives of its own soldiers. It has been argued above that the state may owe the right to life under the ECHR to members of its own armed forces where there has been no derogation notice and quite independently of international humanitarian law, although this is shown to be a theoretical liability only. A fixther consequence of the current position is that those who take up arms on behalf of a rebel group are owed no obligations of protection under international law by their 'superiors'. Should customary international law develop so as to impose obligations under international humanitarian law by a state towards its own armed forces in the circumstances discussed above this will apply also to those who control rebel groups in the same way as they may now be responsible for breaches of that law.
7.
CONCLUSION
Within a democracy the accountability of government ministers for the deployment of its armed forces and the welfare of its individual membersg3 is usually well established. Some states may permit legal action to be brought against the government in which the lawfulness or conduct of an armed conflict take centre stage. Any argument that a state is under international law obligations to protect members of its own armed forces can only be on the basis that both international humanitarian law and international human rights law are designed to protect individuals from state action.84 In practice, any international obligation towards a state's own armed forces will occur only rarely since most battlefield casualties will be the sole cause of enemy action. Even where the state can be shown to be a
82. Since it is difficult to find positive duties under international humanitarian law owed by a state to its own soldiers the acts of the state will not be contrary to the lawful conduct of war to which Art. 15 may also be said to apply. 83. In relation to the UK see the House of Commons Defence Committee, Duty ofcare, 3rd Report of Session 2004-05, H.C.63-I; its report on UK Operations in Iraq, 13th Report of Session 2005-06, H.C. 1241, particularly paras. 59, 62, 74. 84. Reinisch draws attention to 'the basic conceptual premise that human rights ... protect the (weak) individual against the (strong) state', in Alston, ed., Non-State Actors and Human Rights (Oxford, Oxford University Press 2005) p. 38.
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cause of the death it has been argued above that a finding of a breach of the right to life sounds more in theory (in the absence of extreme circumstances) than in reality. A recognition by states that they may have to consider obligations under international law owed to their own soldiers will be more likely to lead to their protection than an assumption that any protection can only be granted by national law or by parliamentary procedures. The development of international humanitarian law, in particular, has shown the concern which states have expressed in the form of international law to safeguard as far as possible those who may become victims of armed conflict. Concern may also be expressed by a state as to the way in which another state treats its own soldiers since, on capture, enemy soldiers can expect to be treated in the same way. Members of the armed forces are, perhaps, the last group of state actors who take part in an armed conflict to be recognised as individuals who should be owed at least some obligations of protection by their own state under international law."
85. A 'postmodem' change in the nature of armed forces sees 'increasing permeability between civil and military structures and the erosion of martial values (which traditionally have been seen as masculine)', C. Moskos, J. Williams, D. Segal, eds., The Postmodern Military (Oxford, Oxford University Press 2000) p. 6. This change, it is suggested, justifies an approach to members of armed forces different from that prevailing at the time of the Geneva Conventions 1949 and Additional Protocol I of 1977.
THE TARGETING OF CIVILIAN CONTRACTORS IN ARMED CONFLICT'
Dale stephens2 and Angeline Lewis3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Classifying civilians and combatants: the prevailing law . . . . . . . . . . . . . Acquiring combatant status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Combatant character assigned by identity or associative identity: armed forces of a state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Combatant character assigned by identity or associative identity: agencies incorporated into the armed forces . . . . . . . . . . . . . . . . . . . . . . . Combatant character assigned by identity or associative identity: other groups 'belonging to a state's armed forces'. . . . . . . . . . . . . . . . . . . . . . . Combatant privileges extended to accompanying persons based on military support function. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary - combatant status and contractors . . . . . . . . . . . . . . . . . . . . . .
28 28
Direct participation in hostilities and loss of civilian protection. . . . . . . . The meaning of direct participation in hostilities . . . . . . . . . . . . . . . . . . . Direct participation in hostilities the debate as to its limits . . . . . . . . . . The argument for a third category of 'fighter' under the Direct Participation formula. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36 36 39
-
The principle of distinction and direct participation in hostilities the case of contractors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roles of contractors in contemporary armed conflict . . . . . . . . . . . . . . . . The targeting of contractors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Targeting alternatives - the principle of proportionality . . . . . . . . . . . . . . Direct participation in hostilities and contractors the contemporary views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30 30 32 33 36
41 44 46 47 48 49
1. O D. Stephens and A. Lewis, 2008. 2. BA (Flinders), LL.B(Hons) (Adelaide), GDLP (South Australian Institute of Technology), LL.M (Melbourne), LL.M (Harvard), Captain, Royal Australian Navy. 3. LL.B(Hons) (ANU), BA(Hons) (UNSW), Grad Dip Asian Studies (ANU), Lieutenant, Royal Australian Navy. The Authors would like to thank Lieutenant Colonel Paul Muggleton for his review of an earlier draft of this article. The views expressed in this article are solely those of the authors and do not necessarily represent those of any Governmental Body. Yearbook oflnternational Humanitarian Law Volume 9 - 2006 - pp. 25-64
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D. Stephens and A. Lewis
4.2.3 4.2.4 4.2.5
'Unless and for such time'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1 Membership of the group approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 1 Contractors as members of a group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.
Responsibility of the contracting state . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.
Conclusion: privatising a quintessentially public act . . . . . . . . . . . . . . . . 62
1.
INTRODUCTION
The modem Law of International Armed conflict4 is principally framed upon a linear notion of warfare. It classically anticipates massed armies engaging one another upon the battlefield where victory is achieved by way of decisive military defeat of one side by the other.5 The targeting philosophy underpinning this paradigm is that civilians are to be spared to the greatest extent possible during the course of the conflict. Concomitantly, military force is to be applied in a surgical and economic manner mainly against the sovereign forces of the enemy as well as defined 'military objectives': with the law being relatively comprehensive as to the character of each of these categories. Under the prevailing philosophy, the law nonetheless acknowledges that where civilians vitiate their protected status and elect to participate directly in hostilities, then they might also be targeted. The paucity of legal prescription in this area strongly suggests, however, that this is regarded as a somewhat exceptional phenomenon.
4. The terms Law of Armed Conflict, International Humanitarian Law and Jus In Bello will be used interchangeably through this article. The bedrock treaties which underpin the modem Law of Armed Conflict are collectively referred to as the 1949 'Geneva Conventions' and are as follows: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field ofAugust 12, 1949, ('GC 1') opened for signature 12 August 1949,75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members ofArmed Forces at Sea ofAugust 12, 1949, ('GC 11') opened for signature 12 August 1949,75 UNTS 85 (entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War ofAugust 12, 1949, (GC 111') opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention relative to the Protection of Civilian Persons in Time o f War of August 12, 1949, (GC IV') opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). 5. M. Schmitt, 'Targeting and Humanitarian Law - Current Issues', 34 Israel YB HR (2004) pp. 59, 64. 6. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of lnternationnl Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) ('AP 1') Art. 52(2) which states: (2). Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military of advantage.
Civilian contractors in armed conjlict
27
This twentieth century model of the parameters of armed conflict is under considerable challenge in the twenty-first century. The previously exceptional nature of civilian participation in conflict has become commonplace and the asymmetric nature of contemporary warfare has led to considerable confusion about the nature and extent of the permissible options available to an opposing military force, including the targeting of specific classes of civilian participants. Through the neces-
sity of ensuring proper protection of its armed forces as well as better protecting 'pure' civilians, state practice has diverged from the more narrow conceptions of what 'direct participation in hostilities' means7 as contemplated by the two 1977 Additional Protocols ('AP 11' and 'AP II').* The increasing presence of civilian participation in the conduct of hostilities has recently prompted serious review of the prevailing law. The International Committee of the Red Cross (ICRC), in conjunction with the TMC Asser Institute, has, since 2003, engaged upon a four-year study of the 'direct participation in hostilities' concept and through this process has made a valuable contribution to the ongoing debate with its successive yearly release of reports of proceedings (hereinafter referred to as the 'DPH study').9 Notably, the DPH study has paid particular attention to the role of contractors in the conduct of armed conflict. Given that contractor support in the conduct of armed conflict is likely to be a permanent feature of modem warfare, it is timely that the DPH study did address this topic. The purpose of this article is to review the effectiveness of the contemporary law in grappling with the role of contractor support with particular reference to the issue of targeting. It will be argued that while international law is adjusting its interpretative method to accommodate contractors in both international and noninternational armed conflicts, there is an emerging view, recently bolstered by academic opinion, domestic legal jurisprudence and developing state practice, that the confines of 'direct participation in hostilities' are expanding to more liberally encompass a number of civilians hitherto not included. Within this expansion is consideration of a wider array of contractors who support and indeed conduct military
7. The ICRC 'Direct participation in hostilities' project outline contained at <www.icrc.org/web/ englsiteeng0.nsfihtmllparticipation-hostilities-ihl-3 11205>, notes the divergence from the existing Additional Protocol I commentary with the growing consensus among legal experts as well as state practice which accepts a broader notion of the concept, observing that 'the Commentary on AP I asserts that the behaviour of civilians must constitute a direct and immediate military threat to the adversary to be deemed 'direct participation in hostilities'. This criterion has, however, been challenged by some scholars and - to a certain extent - by state practice, which has tried to enlarge the notion'. 8. AP I supra n. 6; Protocol Additional to the Geneva Conventions of12 August 1949, and relating to the Protection of Mctims of Non-International Armed Conjlicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) ('AP 11'). 9. The ICRC has published the yearly summary reports as follows 'Direct Participation in Hostilities under International Humanitarian Law' Geneva, September 2003 ('2003 ICRC Direct Participation Report'); 'Second Expert Meeting Direct Participation in Hostilities under International Humanitarian Law', The Hague, 25-26 October 2004 ('2004 ICRC Direct Participation Report'); 'Third Expert Meeting on the Notion of Direct Participation in Hostilities Summary Report', Geneva, 2325 October 2005 ('2005 ICRC Direct Participation Report') all found at : <www.icrc.orglweblengl siteengO.nsfihtmllparticipation-hostilities-ihl-3 11205>. -
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operations. Somewhat counter intuitively perhaps,'0 it will be argued that this expansion does better serve humanitarian goals by more clearly differentiating those who might be directly targeted thus providing greater clarity and incentive for civilians to make informed choices regarding their role in armed conflict. This article has five Parts. The second Part reviews the traditional classification of individuals as either combatants or civilians under the prevailing law and summarizes the general consequences arising from the distinction with particular reference to determining whether civilian contractors can meaningfully be said to be combatants under existing law. It will be concluded that contractors, as such, usually do not come within any test relevant to establishing combatant status and that they are therefore civilians for the purposes of the prevailing law. The third Part then undertakes a more general examination of the circumstances when civilians lose their protection on the basis of taking a 'direct part in hostilities'. This is an area of significant academic and judicial debate at the present time. It will be concluded that traditionally narrow views of the circumstances where protections are lost are eroding and broader conceptions of when a civilian takes a direct part in hostilities are becoming accepted in academic and judicial reviews and also in the context of growing state practice. Establishing this foundation, the fourth Part of this article then specifically considers the question of the circumstances and extent to which contractor participation in military operations exposes such individuals to deliberate targeting under the rubric of 'taking a direct part in hostilities'. The fifth and final Part assesses aspects of State Responsibility enlivened by the use of contractors in conflict situations.
2.
CLASSIFYING CIVILIANS AND COMBATANTS: THE PREVAILING LAW
2.1
Acquiring combatant status
The increasing use of civilian contractors and private enterprise to support and even conduct military operations represents a re-emergence of older mercantilist approaches to combat than the more recent history of warfare has tolerated and thus is difficult to conceptualise in the wording of the present laws. Historically though, the privatisation of warfare was not exceptional. In the Thirty Years War, warfighting, particularly at senior levels, was the realm of professionals selling their services to disputing parties: 'When it came to war, a wise government at once hired a professional general.'" In the eighteenth century, British colonization
10. M. Schmitt, 'Direct Participation in Hostilities and 21st Century Armed Conflict', in H. Fischer et al., eds., Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck (Berlin, BWV 2004) pp. 505,509. 11. C.V. Wedgwood, The Thirty Years War (Middlesex, Penguin 1957), (first published Jonathan Cape, 1938) p. 81.
Civilian contractors in armed conflict
29
of India and suppression of rebellion was founded on the success of the East India Company - the British government there not only privatised the very act of colonisation but went so far as to contract units of the British army to 'the honourable Company', as it was known. In Iraq today, the US depends on civilian contractors to perform an unprecedented range of functions. Indeed, according to former USAF JAG officer turned legal academic, Michael Schmitt, they are 'central' to the logistic system that keeps the coalition forces in the field.I2 An indication of the scale of civilian contractor involvement in the Iraq war can be found in the socalled Logistics Civilian Augmentation Program, a contract worth nearly US $15 billion in support services to the US military awarded to Halliburton subsidiary, Kellogg, Brown and Root. Australian companies too have been involved in the en masse corporate support capability of the US and coalition military forces.I3 Indeed, Gerson and Colletta see the privatisation of military support functions in all theatres, not just Iraq, as part of the 'zeitgeist of gl~balisation'.'~ The 'back to the future' phenomenon of significant civilian contractor involvement in warfare is in contrast to the state centred regime developed to regulate armed conflict from the mid to late nineteenth century.15 In the early twentieth century especially, the law began to conceive of only two categories of persons involved in war, namely (1) combatants, who are privileged to participate in acts of violence, which would ordinarily constitute crimes and are entitled to Prisoner of War status upon capture, and (2) civilians, who are protected so far as possible from the effects of that violence. Civilians, comprising all those who are not combatants,16 specifically 'enjoy general protection against dangers arising from military operations' and are not to be targeted in themselves." However, under Article 5 l(3) of AP I, 'Civilians shall enjoy the protection afforded by this Section [Pro-
12. M. Schmitt, 'Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees', 5 Chicago JIL (2005) pp. 5 11, 5 12. 13. For example, Queensland's Monis Corporation won a $100 million catering sub-contract in conjunction with a Kuwaiti company from US conglomerate Halliburton, although the relationship is now before the courts: M. Wilkinson, 'Corruption stench as company loses Iraq contract', Sydney Morning Herald (21 May 2004) at ~www.smh.com.aularticlesl2004/05/20/1085028468241.html? from=top5>, viewed on 29 January 2007. 14. A. Gerson and N. Colletta, Privatizing Peace: From Conflict to Security (Ardsley NY, Transnational Publishers 2002) p. xi. 15. Marked by the adoption of the 1856 Paris Declaration Respecting Maritime Law, LXI UKPP (1 856) 153, which outlawed privateering viz. Article I: 'Privateering is, and remains, abolished'. 16. AP I, supra n. 6 Art. 50(1) AP I which states: 'A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (I), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.' 17. AP I, supra n. 6, Arts. 48 and 51, which state: Article 48.-Basic rule: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. Article 51.-Protection of the civilian population: 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations ...
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tection of the civilian population], unless and for such time as they take a direct part in hostilities' [emphasis added].18A similar provision applies in the context of non-international armed conflict, where Article 13(3) of AP I1 essentially repeats the word formula of Article 5 l(3) of AP I. Civilians who therefore do take a direct part in hostilities lose their protection from targeting and do not attract formal Prisoner of War status upon capture. While the term 'civilian' is defined negatively and broadly, the category of 'combatants' is quite conglomerate in nature. It includes several sub-groups of persons who attract the title and its accompanying rights and obligations for different reasons. Further, these various sub-groups demonstrate the application of two distinct concepts - on the one hand, combatant character (or in some circumstances, the granting of certain combatant privileges such as Prisoner of War status) is assigned to some on the basis of identity as the armed forces of a state or as an associated group; on the other hand, combatant privileges can be assigned as a result of an individual or group's military function, notwithstanding that they are not prima facie identified as part of the state military force. The conceptual differentiation relates directly to the classification of contractors under IHL. The following sub-paragraphs consider these sub-groups in turn. 2.1.1
Combatant character assigned by identity or associative identity: armed forces of a state
Consistent with the state centred orientation of the modern law, Article 43(2) of AP I is clear as to the status of members of a State's armed forces in an international armed conflict: 'Members of the armed forces of a Party to the conflict (other than medical personnel and chaplains) are combatants, that is to say, they have the right to participate directly in hostilities.' The ICRC has found no contrary state practice for the rule.19 Thus it is that mere identity as a member of the armed forces of a state is sufficient to attract the character of a combatant. 2.1.2
Combatant character assigned by identity or associative identity: agencies incorporated into the armed forces
In addition to its formally established armed forces, Article 43(3) AP I permits states to 'incorporate' paramilitary units or armed law enforcement agencies into
18. Note that common Article 3 to the four 1949 Geneva Conventions, supra n. 6, is expressed in similar terms and makes reference to those not taking an 'active' part in hostilities. While the 2003 ICRC Direct Participation study, supra n. 9, at 2, has identified the Commentary to the Rome Statute as recognizing some potential substantive difference between the terms, this article will adopt the position taken in the 2003 ICRC Direct Participation study that the terms are essentially synonymous. 19. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume 1, Rules, (Cambridge, Cambridge University Press 2005) p. 8, citing the fact that no reservations have been entered to AP I, Art. 50, the absence of conflicting state practice from non-Parties, and the judgment of the ICTY in BlaskiC (ICTY Trial Chamber, 3 March 2000).
Civilian contractors in armed conflict
31
its armed forces on condition it notifies other Parties that it has done so. Such agencies, not necessarily of a military tradition, may therefore derive combatant status through associative identification and incorporation with the armed forces of a state. If a private military firm, or other military or police style contractor, were to be engaged and to accept control over its actions by the contracting State, it might concei~ablymeet the incorporation test. For example, according to their website, Texas-based 'DynCorp International' market 'comprehensive security solutions' and a database of 3000 'law enforcement and security' personnel ready for deployment across the world 'at virtually a moment's n~tice.'~'Since 1994, they have assisted US and other state authorities in civil police training in Bosnia, Kosovo, East Timor, Afghanistan and Iraq; demobilized the Liberian army of 2005 and trained a new force; and have also deployed what they call 'civilian peacekeepers' ' avowed law enforcement function is in accord with the in Bosnia and ~ a i t i . *Their State's capacity to incorporate such into their armed forces - the extent of the incorporation would depend on the terms of the contract. However, to do so would in practice likely defeat the state purpose in engaging contractors, which, controversially, may well include a desire to dissociate direct governmental responsibility, as has been the case with 'Sandline' in Papua New Guinea and 'Executive Outcomes' in Sierra Leone. It also makes little economic sense to the contractor to abdicate control over its personnel and resources. Schmitt concludes that the fact that contractors are not enlisted into armed forces is itself 'dispositive evidence of a state's understanding that the civilian in question does not enjoy [associative combatant status]'.22Further, the notification requirements for police and paramilitary forces to render them lawful combatants suggests that equal requirements would be necessary to render a contractor a part of the armed forces.23 Interestingly, during the second ICRC co-sponsored DPH meeting, Professor Doswald-Beck sought to interpret the definition of 'armed forces' broadly as outlined in Articles 4A(1) andlor (2) of GC I11 and Article 43 of AP I to generally include all contractors, noting that 'the need for formal uniforms is less important today and contractors are still sufficiently distinguishable by their equipment and outfits. As all other criteria are fulfilled, they can be attacked. In terms of AP I, contractors are fulfilling governmental functions and therefore clearly fall within the scope of the notion of 'armed forces' according to Article 43 AP I ' . ~This ~ line
20. DynCorp International LLC (2006), <www.dyn-intl.com/subpage.aspx?id=36>,viewed on 17 October 2007. 21. Ibid., <www.dyn-intl.com/subpage.aspx?id=42>. 22. Schmitt, supra n. 9, p. 524. 23. Ibid., p. 527. 24. 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 12.
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of reasoning was strongly resisted by at least one other expert25and was not ultimately accepted as a viable approach to determining of contractor status. 2.1.3
Combatant character assigned by identity or associative identity: other groups 'belonging to a state 5 armed forces'
Article 4A(1), GC 111, allows that militias or volunteer corps may 'form part' of the armed forces. Additionally, Article 4A(2) allows for other militias and members of other volunteer corps 'belonging to a party to the conflict' to be characterised as Prisoners of War and thus, in accordance with Article 50(1) of AP I, not have civilian status. This provides a window in the existing law that prima facie may seem to allow contractors to 'belong' to the armed forces of a state in some circumstances. 'Belonging' to an armed force and thus attracting combatant status is clearly a looser test than those of identity or incorporation outlined above. In addressing this issue of associative identity, Shaw summarises the comments of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its TadiC decision that: 'States have in practice accepted that belligerents may use paramilitary units and other irregulars only on the condition that those belligerents are prepared to take responsibility for any infringements committed by such forces.'26 The Tribunal in that instance felt that control 'and thus a relationship of dependence and allegiance' was the critical test, and that therefore the term 'belonging to a party to the conflict' used in Article 4A(2) implicitly refers to 'a test of control ... by co-ordinating or helping in the general planning of [the associated group's] military activity'.27 The complicating factor for this group is that the test of associative identity with the armed forces of a state derives first from a functional assessment of the group's core similarity with the military by way of being commanded by a person responsible for his subordinates, having a fixed distinctive sign, carrying arms openly and conducting operations in accordance with the laws and customs of war. Only then does the assessment move to associative identity with the state (not the armed forces of a state as has applied to the two previous sub-groups). This group is conceptually confusing because it mixes separate bases for deriving combatant character and privileges. Applied to contractors exercising military support functions, such as Dyncorp International, besides the question of command and control, distinctive signs etc.,
25. Ibid., p. 14 where it is recorded :'one expert asked why other experts tried so hard to fit private contractors and civilian employees into one of the categories described in Articles 4A[1] or [2] GC 111. While this would have the benefit of making them targetable, it would also give them an actual right to engage in hostilities themselves, a consequence the desirability of which was far from certain'. 26. M. Shaw, International Law, 5th edn. (Cambridge, Cambridge University Press 2003) p. 1071, considering the decision of the ICTY Appeals Chamber in Tad2 (15 July 1999, paras. 94-95). 27. Ibid.
Civilian contractors in armed conflict
33
it is the question of responsibility which poses the more significant practical problem in many circumstances, or rather the governmental desire to dissociate direct responsibility through the engagement of contractors. This may be for a variety of reasons, including economic efficiency, but will disrupt the association of the contractor with the state at the level the Tadid test requires. Accordingly, it is difficult to comprehend that contractor support would, in the ordinary course, be sufficiently integrated in the command and control context to warrant a conclusion that contractor forces 'belong' to the state for the purposes of establishing combatant status. 2.1.4
Combatant privileges extended to accompanying persons based on military support function
In the course of discussion during the AP I negotiations, functionalism as a test for lawful combatancy was specifically considered, and decisively rejected, at least in terms of the original Hague Regulations, and it was determined that 'Whether [members of the armed forces] actually engage in firing weapons is not important. They are entitled to do so, which does not apply to . .. civilians, as they are not members of the armed forces.'28 Notwithstanding this emphatic division between military identity and civilian identity, it was nonetheless acknowledged that civilians, i.e., non combatants, who 'accompany' armed forces were also entitled to a number of combatant-like privileges. Article 4A(4) of GC I11 provides that certain non-enlisted personnel who 'accompany the armed forces ... such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces,' shall be entitled to prisoner of war ('POW') status if captured.29So too are merchant mariners and civil aircraft crews not entitled to better treatment under other provisions.30These people are explicitly identified as civilian^,^' but are to be treated on the same footing as combatants if captured, including detention for the duration of ho~tilities.~~ It is important to observe, however, that while these classes of civilians may be entitled to POW status, it does not equate to having privileged combatant status. They are two separate concepts and a different question altogether.33 According to Pictet's authoritative commentary on GC 111, these provisions were introduced as an 'up-to-date version of Article 8 1 of the 1929 Convention which in
28. Y. Sandoz et al., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of12 August 1949 (Geneva, ICRC 1987) p. 5 15. 29. GC 111, supra n. 4, (emphasis added). 30. Ibid., Art. 4A(5). 3 1. AP I, supra n. 6, Art. 50. 32. GC 111, supra n. 4, Arts. 2 1 and 118. 33. A point reinforced by Professor Louise Doswald-Beck during the second expert meeting on the 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, 12.
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turn was based in Article 13 of the Hague Regulations. '34 Article 13 of the Hague Regulations provides 'Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they were accompanying.'35 Pictet's commentary goes on to state that 'The Conference of Government Experts considered that the text of Article 8 1 of the 1929 Convention had become obsolete (in particular the word 'sutlers' is no longer appropriate) and should include reference to certain other classes of person who were more or less part of the armed forces and whose position when captured had given rise to difficulties during the Second World Notably, the list of the types of accompanying persons is 'indicative' and there is some scope for expansion to accommodate changing circumstances. Interestingly, this provision was not updated in 1977, when the Additional Protocols were developed, although AP I, Article 79, was included, designating those journalists who accompany military forces as civilians and not combatants. The terms of Article 4A(4) GC I11 require that such accompanying civilians receive express authorization from the armed forces they accompany and that they are issued with an identity card for that purpose. The Pictet commentary recounts the debate about the requirement to carry identification cards, noting that 'the application of the provision is ... dependent on the authorization to accompany the armed forces, and the identity card merely serves as proof.'38This lends support to the notion that international law permits the selective application of some combatant privileges to be assigned by a state to a person's specific support function to the armed force in the field, and not merely their group status or identification, as say, a contractor. What kind of contractors might merit such treatment? The term 'supply contractors' is broad and no guidance is given, beyond the conclusion that the original term, 'sutlers', was obsolete. As 'sutlers' usually dealt in clothing and food, it is probable that employees of groups such as Eurest Support Services, which provided its catering services to the Australian Defence Force ('ADF') deployed in East ~ i m o rwould , ~ ~ be covered. However, companies contracted to provide sup-
34. J. Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary, Convention III (Geneva, ICRC 1960) p. 64. 35. 1907 Hague Convention IV Respecting the Laws and Customs of War on Land: Regulations, UKTS 9 (1910), Cd, 5030. 36. Pictet, supra n. 34. 37. Ibid. 38. Ibid., 65. 39. Eurest Support Services, ~www.eurest.com.aulSecond/defence.html~,viewed 18 October 2005. Since 2005, Eurest has been renamed ESS, and its present website advertises 'We are well placed to react to any opportunities arising from a sudden change in the current geopolitical situation.
Civilian contractors in armed conjlict
35
port functions often provide a range of services. Serco Sodexho Defence Services, also contracted to the ADF for catering services, supplies garrison support, base security and maintenance, fire-fighting, maintenance on military vehicles and some significant logistic support such as weapons range management.40Kellogg, Brown and Root, a Halliburton subsidiary, is reported to have 48 000 people supporting US forces in Iraq as a consequence of the $ 15 billion dollar Logistics Civilian Augmentation Program, employed as caterers, drivers, laundry workers, cleaners, construction workers and the like.41 Some support hnctions performed by 'supply contractors' may cross the line of 'direct participation in hostilities' and make the contractor an unlawful combatant (on which see further below), for example the resupply of ammunition by helicopter in the course of a battle.42 Although Article 4A(4) GC 111 is not exhaustive, it is potentially contradictory as far as contractors are concerned. Supply contractors are accompanying civilians who are not combatants but are entitled to POW status. Unprivileged combatants who take a direct part in hostilities, are not entitled to POW status.43Some contracting functions are protected (supply functions), others not - performed by the same company and potentially the same personnel even purely within the notion of 'supply contracting.' Thus, if it is established that the supply contractor is actually taking a direct part in hostilities contrary to Article 5 l(3) of AP I when rendering his or her particular contracting task then such persons may be directly targeted and, if captured, may be detained but not with POW status.44However, Article 4A (4) GC I11 is not cast in such terms. If the contractor function does come within the scope of Article 4A(4) GC 111 activities and is not assessed as constituting direct participation in hostilities then the individual contractor who accompanies the force may not be directly targeted and is entitled to POW status upon capture. Finally, the somewhat arbitrary and potentially outdated list of civilian personnel and functions that qualify for POW status under Article 4A(4) GC I11 is problematic given the wide range of activities now undertaken by contractors in modem warfare. -
The increasing costs of modem weapon systems and the desire to reduce conscription, is leading many countries to actively consider outsourcing their logistic and support services within their military organisations. Defence forces also look to private sector companies to provide a range of facilities management support services to their military on peace-keeping and similar deployments. As this trend grows and Coalition Forces are required to operate in an increasing number of countries, many of which are in the CAMEA region. Compass Group Central Asia, Middle East and Afnca can offer their considerable expertise in providing such services.' Compass Group PLC (2007) <www.essglobal.com/Default. aspx?id=90e> viewed 17 October 2007. 40. See further, Serco Sodexho Defence Services Pty Ltd (2004), <www.ssds.com.au>, viewed 29 January 2007. 41. See further D. Phinney, 'Blood, Sweat and Tears: Asia's Poor Build US Bases in Iraq,' CorpWatch, 3rd October 2005 <ww.corpwatch.org/article.php?id=12675>viewed on 29 January 2007. 42. Schmitt, supra n. 12, p. 544. 43. Y. Dinstein, The Conduct ofHostilities under the Law o f International Armed Conjlict (Cambridge, Cambridge University Press 2004) p. 114. 44. Ibid., pp. 29-30.
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2.1.5
Summary - combatant status and contractors
The analysis undertaken above results in our conclusion that contractors, as such, do not enjoy formal combatant status under the prevailing law. The categories discussed make clear that the current legal framework seeks to reinforce the schism between sovereign armed forces and civilians. While the law does accommodate a number of derivative and associative examples of a State's armed forces, no formula currently existing extends to incorporating contractors within the definition of 'combatant', notwithstanding that certain categories of contractor might enjoy POW status upon capture in specific circumstances. Accordingly, it is clear that given the normal 'arms length' economic relationship States have with contractors, their status remains that of a civilian for the purpose of the Law of Armed Conflict. While prima facie enjoying civilian protections during the course of an armed conflict, such protections can be lost and contractors may thus be deliberately targeted. The following Part will examine the circumstances where this loss occurs.
3.
DIRECT PARTICIPATION IN HOSTILITIES AND LOSS OF CIVILIAN PROTECTION
As previously highlighted, Articles 5 l(3) of AP I and 13(3) of AP I1 establish that protection afforded to persons identified as civilians ends when 'they take a direct part in ho~tilities'.~~ Significantly, there is a temporal aspect to this criterion and civilian protection revives when a civilian ceases to directly act with hostility, encapsulated in the phrase 'unless and for such time as they take a direct part'.46 This Part addresses the general legal framework for when civilian protection is lost under the aegis of 'taking a direct part in hostilities'. Part 4 of this article will then address the specific context of contractor actions and activities within the modern battle space in relation to the 'direct participation' criteria established to guide targeting decisions. 3.1
The meaning of direct participation in hostilities
As to the question of the meaning of 'direct participation,' there has been considerable debate as to what this term means and it has proven to be a 'highly ambigu0 ~ s term ' ~ to~ define. The commentary to this provision in AP I indicates that a narrow interpretation was envisaged. Hence, the commentary notes that there must be a direct causal relationship between the activity engaged in and 'the harm done to the enemy at the time and place where the activity takes Similarly, with
AP I , supra n. 9, Art. 5 l(3). Ibid. Schmitt, supra n. 12, pp. 531-532. Sandoz, AP Commentary supra n. 25, p. 516.
Civilian contractors in armed conjlict
37
respect to AP 11, the commentary observes that 'the notion of direct participation in hostilities implies the there is a sufficient causal relationship between the act of participation and its immediate consequen~es'.~~ Both references indicate a very specific scope of operation based upon temporal and practical immediacy. Such narrowness in the commentary is presumably grounded on a humanitarian ideal of limiting the level of civilian casualty by being restrictive as to the circumstances in
which protection from direct targeting may be lost. Such initial narrowness as reflected in the commentaries has given way to a more fluid reading of the terms that has been based more reliably upon contemporary battlefield experience, though such a reading is not without its opaque difficulties. In its Tadid decision, the ICTY held that 'direct participation in hostilities' was to be decided on a case-by-case basis: 'It is unnecessary to define exactly the line dividing those taking an active part in the hostilities, and those who are not so involved.'50 This conclusion, while taking a pragmatic line, is unsatisfying in its lack of guidance but does at least acknowledge a level of judicial flexibility as to the contextualisation of 'direct participation' in the modem battlespace. According to Henckaerts and Doswald-Beck, a 'clear and uniform definition of direct participation in hostilities has not been developed in state practice',51 hence the initiation in 2003 of the ICRC co-sponsored DPH study. The more general 2005 ICRC study of the state of customary international humanitarian law found that much (written) state practice is vague, and seems deliberately so - military manuals generally repeat the formula unelaborated, deciding with the ICTY that it is preferable to rely upon a 'case-by-case' level of analysis.52However, the study did observe that some official publications did venture a view on the extent of what constitutes 'direct participation' by citing both the Ecuadorian and United States Military Manuals which do give examples of what is considered to be direct participation, 'such as guards, intelligence agents or look-outs on behalf of military force^'.'^ The study also noted the Report on the Practice of the Philippines which similarly considered that civilians acting as spies, couriers or look-outs lose their protection under the aegis of taking a direct part in hosti~ities.~~ It is evident therefore, that what is committed to writing in official state sponsored publications does seek to extend the concept beyond the parameters anticipated in the 1970s during the AP I and AP I1 negotiations. On the other hand, it was noted in the ICRC Customary Law study that the Inter-American Commission on Human Rights decided that the phrase required 'acts of violence which pose an immediate threat
49. Ibid., p. 1453. 50. Prosecutor v. Tadii., Case No. IT-94- 1-T, p. 6 16 (ICTY 1997), available at <www.un.org/ictyl tadic/trialc2/judgernent/inde~.htm>. 5 1. Henckaerts and Doswald-Beck, supra n. 19, p. 23. 52. J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume 2(1): Practice (Geneva, ICRC 2005) pp. 107-1 13. 53. Henckarts and Doswald-Beck, supra n. 19, p. 22 [footnotes omitted]. 54. Ibid.
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of actual harm'.55 The causative test, in which proximity to the use of force is a determinative factor, does not easily match the position of the US, Philippines or Ecuador. Look-outs or intelligence agents rarely engage in actual violence. The ICRC co-sponsored DPH study has wrestled with the many nuances of how to interpret 'direct participation' and 'hostilities' over the life of the project. Issues such as 'intent', 'nexus', 'directness' and 'causal proximity' among others have been thoroughly debated by the experts participating in the study with decidedly stark views expressed as to the content and place of these concepts.56The discussions in the 2005 report, in particular, focussed upon many context specific examples of when DPH might be manifested though without reaching a complete consensus on the outcomes.57This is not to say that the DPH study did not accept that there were boundaries in their interpretative approach. Indeed, there did seem to be general agreement on the point that civilians who were active 'fighters' were axiomatically taking a direct part in hostilities, whereas the civilian munitions factory worker was universally agreed to be outside the boundary. Significantly, it was acknowledged within the study that in this latter case, the factory worker was exempted not because of a strict application of prevailing legal logic, rather it was consistent with a policy preference that such civilians should be outside the realm of 'direct participation'.58Between these two examples, the experts offered numerous competing views on when a civilian could lawfully be taken to be directly participating in hostilities. In grappling with this conundrum of settling a definitive standard, Schmitt applies a welcome level of legal vigour to the analysis by suggesting that the addition of a 'mens rea of intent' element on the part of the civilian taking a direct part in hostilities provides a more reliable guide to the determination. Thus, expanding the concept of proximity to force to include acts that prepared or rendered the force possible as well as acts in e x e ~ u t i o n Schmitt's ,~~ preference is to interpret direct participation 'liberally, in other words, in favour of finding direct participation,' in order better to protect the civilian population'.60 This is a very utilitarian approach that reflects the growing consensus that the test of direct participation is broader Ironically, it than what the commentaries to AP I and AP I1 seem to ~ontemplate.~' also demonstrates the changing policy view, tempered by modem experience, of what is perceived to better optimise humanitarian goals. This view and those expressed by other commentators will be assessed in the following subsection.
55. Third Report on Human Rights in Colombia, cited in Henckaerts and Doswald-Beck, supra n. 19, p. 22. 56. 2005 ICRC Co-sponsored Direct Participation Report, supra n. 9, pp. 17-36. 57. Ibid. 58. Ibid., pp. 35-36, 38; and 2003 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 2. 59. Schmitt, supra n. 12, p. 533. 60. Ibid., p. 534. 61. See n. 7.
Civilian contractors in avmed conjlict
39
Direct participation in hostilities - the debate as to its limits
3.2
Notwithstanding the ostensibly narrow view of the comrnentarics to AP I and AP I1 as to the limits of the concept of direct participation in hostilities, it is plainly evident that the preponderance of contemporary academic opinion favours a broader conception of the principle. This academic perspective is generally bolstered by the thread of argument contained within the more formal studies sponsored by the ICRC and, as will be subsequently submitted in this article, also by state practice. This section will examine the current academic debate on the breadth of the concept and advance a view that, notwithstanding nuances of disagreement with some prevailing opinions, a broader test of what constitutes direct participation in hostilities is indeed the correct one. The contemporary environment is one characterised by the conduct of asymmetric warfare involving insurgent forces. It is an environment where the exceptionalism anticipated in AP I and I1 as to the participation of civilians in warfare has largely become the norm. Prominent US international lawyer W. Hays Parks, has weighed up the variety of foreseeable support roles of civilians and divides the broad continuum of warfare into three categories positing a personal view that protections progressively differ under both customary law and AP I with respect to these categories, hence he concludes: War effort - protected under both customary law and AP I; Military effort, such as intelligence collection by civilians - not protected under customary law but protected under AP I; and (iii) Military operations - unprotected.62
(i) (ii)
This abstraction requires elaboration. In assessing the framework advanced by Hays Parks, Schmitt correctly acknowledges that distance from the battlefield has no bearing on causal proximity to the use of force.63Instead, it is 'the mens rea of the civilian involved [that] is the seminal factor in assessing whether an attack against military personnel or military objects is direct participation.'64 Schmitt seems to use intent in a simple sense of intending to do the act which amounts to participation. As previously highlighted, Schmitt proposes a 'but for' test in conjunction with a causal proximity factor. Thus he states that the 'but for' causation test requires an assessment of whether 'the consequences would not have occurred but for the act' and connects this with the requirement that there be 'causal proximity' to the foreseeable consequences of the act.65The focus is very much on the tactical environ-
62. W. Hays Parks, 'Air Law and the Law of War', 32 Air Force Law Review (1990) pp. 1, 133. Argument summarized and supported in Schmitt, supra n. 10, p. 533. 63. Schmitt, supra n. 12, p. 537. 64. Ibid., p. 538. 65. Schmitt, supra n. 10, p. 508.
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ment. On this basis, Schmitt decides, for example, that strategic intelligence collection by civilians is not direct participation, but tactical collection and relay to the 'shooter' would be so. Contracted interrogators may therefore directly participate if the purpose of their interrogation is to elicit 'time-sensitive and tactical and operational level intelligen~e'.~~ While providing a much needed level of pragmatic focus, the challenge raised in Schmitt's approach is that determining causal proximity to force depends on one's understanding of what facilitates the tactical application of such force. Providing tactical intelligence to identifjr a target facilitates its destruction. According to Schmitt, direct logistic functions generally do not, unless they are 'immediate battlefield logistics functions', such as, for example, the midbattle helicopter resupply of ammunition by contractors to US forces fighting in the Iraqi city of Najaf, which 'may well determine the ~ictor'.~' This suggests that causal proximity to a hostile act can be insuficient if it is not significant enough to affect a tactical outcome (the 'but for' element) - though in adding this heightened element Schmitt seems to be wavering between the directness of the facilitation, and the impact on outcome. The reliance placed by Schmitt on proximity to tactical outcome can be disingenuous. Napoleon famously declared that an 'army marches on its stomach,' and as a corollary to this metaphor it can equally be said that a soldier cannot fire a defective weapon. Both are intimately related to the maintenance of armed forces deployed in the field and yet would not seem to come within the heightened 'but for' nature of Schmitt's test of what constitutes direct participation. It is difficult logically to exclude more general support functions such as in-country depot maintenance of military equipment, which Schmitt considers remote and 'clearly not direct participation,' and refbelling and loading weapons before tactical deployment which would be.6RDinstein too considers the supply of foodstuffs 'a mere contribution to the general war effort,'69 which may be a satisfactory result but does not lend consistency to the test of causal proximity as a facilitation of the use of force. Another way Schmitt proposes to assess proximity, though not in so many words, is deciding what activities are 'widely deemed' to be military activities, such as search and rescue operations for missing military personnel.70 He concludes, by contrast, that since taking civilians as hostage amounts to a war crime, their rescue by non-military personnel cannot amount to direct participation, but is rather a 'law enforcement' fun~tion.~' And again: voluntarily using oneself as a shield amounts to direct participation because it is 'deliberately attempting to preserve a valid military objective for use by the enemy."' If so, it seems that 'direct
Schmitt, supra n. 12, p. 544. Ibid. Ibid., pp. 544-545. Dinstein, supra n. 43, p. 28. Schmitt, supra n. 12, pp. 539-540. Ibid. 72. Ibid., p. 541.
66. 67. 68. 69. 70. 71.
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participation' can be passive, an important caveat to his general test of requiring 'but for' and proximate causality. Such a position seems to actually introduce the concept of 'indirect' involvement. Is there in fact a distinction between direct and indirect participation? The test of causal proximity, accepted in theory, seems capable of practical application largely intuitively, largely based upon nebulous notions of who, by their acts, ought no longer to be protected as a civilian because they have become more akin to a military operator, thus having a more credible stake in influencing military outcomes. Schmitt's acceptance of a 'widely deemed' set of circumstances to determine direct participation for targeting speaks to this intuitive aspect. Such a standard can, however, produce unreliable results. During the ICRC co-sponsored DPH study it was originally suggested, for example, that a hypothetical Somali woman providing tactical targeting intelligence during a conflict should be allowed one chance to do this before crossing the line and taking a direct part in hostilities which would only occur where she persisted in providing such intelligence.73Such an assessment is replete with moral judgement and is plainly incapable of application by a soldier in the heat of battle. Few writers acknowledge an intuitive character to be applied to the test. Indeed, expert opinion reflected in the 2005 ICRC co-sponsored DPH report was generally agreed 'that loss of civilian immunity from direct attack due to direct participation in hostilities was not a 'sanction for bad b e h a ~ i o u r ' .The ~ ~ difficulty with importing subjective elements such as mens rea or moral culpability for the purposes of targeting is that such subjectivity is a slippery guide and causal proximity not always apparent to the opposing forces, who therefore lack certainty about the extent of their privileges and responsibilities in the conduct of their operations. Beyond moment by moment battlefield targeting, the insistence on intuitive judgment as determinative of the conduct of armed conflict may leach into broader notions of just and unjust wars, and just and unjust causes, which IHL has gone to some lengths to eviscerate through the application of objective legal standards. It is submitted that a more firm objectively reliable line must be drawn in deciding when conduct constitutes 'direct participation'. 3.3
The argument for a third category of 'fighter' under the Direct Participation formula
In grappling with the emergence of the increasing civilianisation of the battle space, there is a growing academic debate as to whether there is, or should be, a formal third category of persons who in fact alternate between combatants and protected civilians, and who warrant their own permanently established criteria for targeting and status upon capture.
73. 2004 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 6. 74. 2005 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 44.
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Cassese accepts the existence of a third category as valid only 'for descriptive purposes .. . It cannot be admitted as an intermediate category between combatants and civilians. In particular, it would be contrary to international humanitarian law to hold that this category embraces persons who may be considered neither as legitimate belligerents nor as civilians (or at any rate 'protected persons') and are therefore deprived of any rights.'75 The existence of a third category of persons who are both and neither civilians and combatants has been strongly rejected by a number of experts.76Dinstein, in particular, is emphatic in his rejection of a possible third category of persons, stating simply 'a person cannot (and is not allowed to) be both a combatant and a civilian at the same time'.77 In the 2005 Israeli Supreme Court case of The Public Committee against Torture in Israel et al. v. The Government of Israel et the Court was invited to recognize the formal existence of a permanent third category of civilians who may be deemed active and continuous fighters within the frame of international armed conflict that were neither fully civilian nor combatant, but rather had a permanent quality of constituting 'unlawful combatant^'.'^ After careful analysis of prevailing customary international law, the President of the Court, His Honour A. Barak, did not accede to such recognition. In declining to make such a finding, President Barak noted that '[wle shall take no stance regarding the question whether it is desirable to recognize this third category. The question before us is not one of desirable law, rather one of existing law. In our opinion as far as existing law goes, the data before us are not sufficient to recognize this third category."O The interpretative approach adopted by the Israeli Supreme Court is entirely consistent with the existing textual framework of the two Additional Protocols. The 'Basic Rule' of distinction as outlined by Article 48 of AP I, for example, makes plain that there are only two relevant categories of person involved in an international armed conflict, namely civilian and combatant." While a civilian taking a direct part in hostilities does not commit a 'war crime' per se under the law of armed conflict for such participation,'2 helshe nonetheless remains a civilian who loses the normal protections bestowed upon civilians in armed conflict for such time as helshe is directly participating in hostilities. Importantly however, at the same time helshe does not acquire combatant rights. As concluded by the Israeli Supreme Court, such persons do not exist as a separate group with separable rights and protections under IHL. Rather the term 'unprivileged combatant' is sometimes used as a descriptor for persons subject to particular treatment, who
75. A. Cassese, International Law, 2nd edn.(Oxford, Oxford University Press 2005) p. 409. 76. 2003 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 5. 77. Dinstein, supra n. 43, p. 28. 78. The Public Committee against Torture in Israel et al. v. The Government of Israel et al. HCJ 769102 (The Supreme Court of Israel) (1 1 December 2005). 79. Ibid., at para. 27. 80. Ibid., at para. 28. 81. AP I, supra n. 6, Art. 48. 82. 2004 ICRC Co-sponsored Direct Participation Report, supra n. 9, p. 14.
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have abrogated their protection as civilians although they do not quai@ themselves as combatants. Importantly, whatever the descriptive term used, persons captured always retain fundamental rights to humane treatment.83 While the Israeli Supreme Court in The Public Committee against Torture in Israel et al. v. The Government of Israel et al. case, did not recognize a discrete and permanent third category of 'unlawful combatant', the Court did provide an intriguing analysis of the circumstances under which a civilian does lose normal protections. The Court focused upon a functional interpretation of loss of status. Hence once a civilian performs the 'fimction' of a combatant, then helshe 'ceases to enjoy the protection' granted to a ~ivilian.'~ In applying this functional test, the Court determined that civilians taking a direct part in hostilities could extend beyond those actually operating weapons, and include those who directly support the conduct of hostilities by transporting others, by providing intelligence and by 'supervising' or 'providing a service' to those employing weapons.85Indeed, the Court arrived at an expansive view of 'direct participation' by including within the 'direct participation' paradigm those in the chain of command who sent an individual fighter to commit hostile acts as well as those who decided upon and planned the a ~ t i o n . 'The ~ Court did draw a line at those who merely provided financial support or general logistical support but, nonetheless, clearly anticipated a broad level of activity that was included within their reading of international law's boundaries of what 'direct part in hostilities' means. Significantly, in looking at the associated criterion of the 'for such time' aspect of the test the Court appeared to accept that while single or sporadic hostile acts by civilians entitled the resumption of protection when they were 'detached' from such hostilities, active members of terrorist organizations who were committed to a 'chain of hostilities' were more generally susceptible to a loss of protection 'while committing the chain of acts'.87 Such an interpretation is a faithfid adherence to the existing 'Basic Rule' dichotomy of the combatant/civilian distinction, but in its explicit reference to active membership of a hostile group, does provide a more expansive definitional and temporal basis for determining when civilians lose protection. The Israeli Supreme Court decision provides a usehl frame of analysis for determining the scope of the 'direct participation' and 'for such time' criteria. The conclusion that international customary law does not yet concede the formal existence of a third category of person in armed conflict is surely correct. That said, the Court's preparedness to conceive of a broad 'membership' approach to civilians who regularly and systematically involve themselves in acts of hostility is an accurate measure for targetability determinations in the contemporary armed conflict era. It also underpins the central theme of this article that the concept of 'direct
83. AP I, supra n. 6 , Art. 75 which we contend is reflective of customary international law. 84. The Public Committee against Torture in Israel et al. v. The Government of Israel et al., at p. 76, para. 3 1. 85. Ibid., at para. 35. 86. Ibid., at para. 37. 87. Ibid., at para. 39.
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participation' does need to be reviewed and more broadly based upon a functional assessment of the activities performed. Moreover, it also supports the point advanced in this article that a 'membership' approach can similarly apply to contractor activities, thus rendering many contractor functions susceptible to lawful targeting under the aegis of the 'direct participation' formula. The issue of membership has also been a focus of the ICRC co-sponsored DPH study. The proceedings do reflect an emerging consensus that membership of an organized armed group can equate to an individual member having continuous 'direct participation' in hostilities. That said, opinion of the experts is split on whether this is to be regarded as a permanent status, or whether it is a presumptive factor in determining whether in the specific circumstances the individual loses hislher protection under IHL. Moreover, there was an extra divide in opinion expressed by the experts whether all members of the organised armed group would be susceptible to loss of protection or only those actively engaged in combat or combat related activities, thus excluding those who are cooks or maintainers etc. Importantly, while there is a growing consensus as to the membership approach to contextualizing 'direct participation', there is a concomitant narrowing of opinion regarding criteria for the individual civilian, not part of any group who nonetheless becomes involved in sporadic acts of violence.88 The point of distinction expressed between recognizing membership as either constituting permanent loss or being, rather, a presumptive factor in that determination is not likely to have a great significance in practice. Intelligence will always inform such targeting decisions, irrespective of which category is preferred, hence there should always be a level of definitional acuity applied to such targeting decisions. Given the thrust of this emerging acceptance of the 'membership' approach to the question of 'direct participation' the following Part will squarely address the question of contractor participation and targeting issues under prevailing views.
4.
THE PRINCIPLE OF DISTINCTION AND DIRECT PARTICIPATION IN HOSTILITIES - THE CASE OF CONTRACTORS
The International Court of Justice has squarely determined that the principle of distinction, as reflected in Article 48 of AP I, is a cardinal principle of the Law of Armed This principle demands that military forces do not intentionally direct attacks against civilians as such or against civilians not taking a direct part in hostilities. Article 85(3)(a) of AP I makes targeting civilians or the civilian population a grave breach. In its general customary law study, the ICRC found that there
88. See generally 2005 ICRC Co-sponsored Direct Participation Report, supra n. 9, pp. 41-58. 89. Legality of the Threat or Use of Nuclear Weapons ICJ Rep ( 1 996) p. 226, para. 78 of Advisory Opinion (8 July 1996): The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack ...'
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was 'no contrary state practice' to the principle, accepting however that civilians would no longer be protected if they 'take a direct part in hostilitie~'.~~ This fundamental proscription against launching attacks against civilians found further expression in the 1998 International Criminal Court ~ t a t u t e ,namely, ~' within the definition of 'war crimes'. It also necessarily finds expression in the domestic legislation of States who ratified the Rome Statute. The Australian implementing legislation, for example, provides a penalty of life imprisonment for members of the armed forces who violate this central tenet of the Law of Armed Given the sanctity of the principle of distinction and the serious criminal consequences accompanying its violation, it is reasonable to insist there be a requisite level of certainty for decisions made in the field by soldiers, sailors and airmen when engaging civilians taking a direct part in hostilities. To this end, the expansive role of contractors in modem armed conflict and the quixotic 'case by case' tests proposed by many authorities when determining 'direct participation' criteria for targeting represent considerable challenges to military planners who must always comply with the principle of distinction, to the point where a broader re-
90. Henckaerts and Doswald-Beck, supra n. 19, p. 6, [footnotes omitted; exception contained in Art. 44, AP I]. 9 1. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2 187 UNTS 3 (entered force 1 July 2002) ('Rome Statute'): Art. 8 -War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, 'war crimes' means: (a). .. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. 92. Australian Criminal Code Act 1995 sections 268.24 and 268.70 state as follows: 268.24 War crime-wilful killing (I) A person (theperpetrator) commits an offence if: (a) the perpetrator causes the death of one or more persons; and (b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and (d) the perpetrator's conduct takes place in the context of, and is associated with, an international armed conflict. Penalty: Imprisonment for life. (2) Strict liability applies to paragraph (l)(b). 268.70 War crime-murder (1) A person (the perpetrator) commits an offence if: (a) the perpetrator causes the death of one or more persons; and (b) the person or persons are not taking an active part in the hostilities; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and (d) the perpetrator's conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment for life. -
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vised test should be adopted. It is our contention that such a test is emerging and is being developed through a combination of academic and judicial interpretation as well as accompanying state practice. The following sections detail the contours of this crystallising view and situate it in the context of assessing the targeting of contractors in a time of armed conflict. 4.1
Roles of contractors in contemporary armed conflict
The range of traditional military activities now undertaken by contractors is virtually unlimited. As a result of shrinking defence budgets, the increasing technical complexity of weapons systems, and in some instances, the ideol~gicaldrive of a number of governments, contractors directly support and actually undertake numerous critical military activities that result in the direct application of violence against the enemy. In his extensive analysis of the hture of modern warfare and the role of contractor support, Heaton notes that 'civilians play an indispensable role in the ability of many states to use military force'93and he details the numerous current and advanced technologies that employ highly sophisticated operating systems thus requiring specialist civilian contractor support that are changing the nature of waging warfare.94These are far more extensive than the narrowly conceived supply roles discussed above in the context of GC 111, Article 4A (4). In Heaton's words, contractors can be employed to 'to perform almost any service a state requires. Contractors can train, feed, equip, and house m army. During a conflict, contractors can maintain weapons, gather intelligence, provide security at forward locations, and even fight.'95 Indeed, in the context of the sophisticated weaponry currently within military inventories or planned to be introduced, Heaton notes that 'some of the equipment militaries use is so complicated that militaries rely on contractors to maintain it even during a conflict. Examples of weapons in the United States inventory dependent on contractor naintenance include the F- 1 17 Stealth fighter, the M 1-A 1 tank, the Patriot missile, the B-2 stealth bomber, the Apache helicopter, and many naval surface warfare ships. For some systems, there may not even be military members capable of providing maintenance. The result of this dependence on contractor support is that contractors will need to go where their services are needed, even if that brings them in close proximity to the battlefield ... Contractors even operate some military systems. Contractors flew on targeting and surveillance aircraft and operated Global Hawk and Predator UAVs in Afghanistan and Iraq. This type of participation does not appear anomalous as new systems, such as a Marine truck and an Army surveillance aircraft, are designed to be operated by contractor^.'^^
93. J. Ricou Heaton, 'Civilians at War: Reexamining The Status of Civilians Accompanying The Armed Forces', 57 Air Force LR (2005) pp. 155, 158. 94. Ibid., p. 163. 95. Ibid., p.186. 96. Ibid., pp. 189-190.
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The ubiquitous nature of contractor support is chorused by numerous other reviewers9' and it necessarily undermines the narrow view that civilians participating in conflict are somewhat exceptional in that role. The breadth and scope of civilian participation generally, and contractor participation specifically, necessarily undermines the efficacy of the existing interpretative methods that seek to narrow the targetability of such participants. It would be an absurd result to permit the increasing civilianization of warfare and yet provide almost blanket immunity for civilians in undertaking those roles. It is particularly pernicious to expose military members to potential grave criminal consequences for getting this increasingly illusory standard and framework 'wrong'. Law must keep pace with operational reality and this must include a more liberal interpretation of what 'direct participation in hostilities' means in the context of contemporary contractor support. This need not amount to a change in conventional terms, but rather recognition of the manner in which the practicalities of asymmetric warfare shape customary interpretations.
4.2
The targeting of contractors
The principal test proposed by Schmitt concerning the targeting of contractors certainly provides a more liberal basis for determining direct participation in hostilities and is an impressive start for analysing contemporary standards. As discussed in the previous Part, it is, however, subject to the vagaries of deciding whether the action undertaken by the civilianicontractor comes within the 'but for' causal proximity requirements he proposes. The tactical focus of the test in terms of assessing whether the more generalised support activities will affect the outcome of a particular operation seems a particularly exacting requirement for a soldier in the heat of battle, especially when the consequence is potential life imprisonment in the event of getting the mens realtactical proximity requirements wrong. Thus determining whether a particular re-supply is part of an imminent engagement or whether the intelligence being gathered in any particular instance has some tactical and temporal application capable of effecting an immediate military outcome is hardly capable of definitive assessment by the soldier on the ground. Similarly the suggestion of Doswald-Beck mentioned in Part 2 of this article, that there is a case for contractors to generally come within the definition of a force 'belonging' to a state seems unduly open ended,98notwithstanding the tendency of some States to permit contractors to wear clothing virtually indistinguish-
97. See for example, Schmitt supra n. 12, p. 512. J.D. Michaels, 'Accountability: The Constitutional, Democratic, And Strategic Problems With Privatizing War', 82 Washington Univ. LQ (2004) p. 1001; S.V. Jones, 'Has Conduct In Iraq Confirmed The Moral Inadequacy Of International Humanitarian Law? Examining The Confluence Between Contract Theory And The Scope Of Civilian Immunity During Armed Conflict', 16 Duke JCIL (2006) p. 249; J.T. Mlinarcik, 'Private Military Contractors & Justice: A Look At The Industry, Blackwater, & The Fallujah Incident', 4 Regent Journal of International Law (2006) p. 129; P.W. Singer, 'Outsourcing War', 84 Foreign Afair~s(2005) p. 119. 98. See n. 24.
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able to military uniforms and to permit such civilians to be armed.99Such a test plainly would include those contractors who are universally agreed to be not participating in an armed conflict and, accordingly, it has been subject to serious academic critique. loo 4.2.1
Targeting alternatives - the principle ofproportionality
In practical terms, the issue of determining direct participation has been one that can sometimes be deftly avoided on the battlefield in favour of other targeting tests. Thus, in practice, the principle of proportionality often provides a reliable alternative method of analysis for decision makers when planning and launching attacks. The principle 'seeks to limit damage caused by military operations by requiring that the effect of the means and methods of warfare used must not be disproportionate to the military advantage sought'.'01 In relation to Articles 51 and 57 of AP I this principle is given specific application by prohibiting attacks causing civilian casualties and damage to civilian objects which may be expected to cause incidental loss of civilian life or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. Hence the law accepts that while direct targeting of civilians is prohibited, indirect incidental loss of civilians is tolerable provided it is viewed as a proportionate loss. Rogers considers it 'perfectly logical', for example, that if a civilian drives an ammunition truck, the truck may lawfully be targeted and the driver incidentally killed but if the driver himself is attacked, that would amount to a grave breach of AP 1.'02 This view is strongly debated by others who actually see the driver as taking a direct part in hostilities and who may be directly targeted.lo3It does nonetheless illustrate the blurring of the civilian/combatant distinction. Rogers finds that discriminating between military objectives and civilian objects is 'perhaps more important now',lo4 as a means of maintaining IHL's concern with protection of innocent civilians. Targeting contractors indirectly, that is accepting their loss as incidental injury to attacks on lawhl military objectives, provides a practical solution to the problem of determining who is a combatant and therefore who may be targeted and when. However, it requires a judgment on the part of the commander, justifiable in itself,
99. Schmitt, supra n. 10, p. 515 where he notes '...Army regulations, for example, allow deployed civilians to be issued BDUs (battle dress uniforms), NBC (nuclear, biological, chemical) equipment, Kevlar helmets, and load bearing personal equipment .. . Perhaps more telling is the fact that the combatant commander may authorize the issue of sidearms to civilians for personal protection'. 100. Schmitt supra n. 12, pp. 523-53 1. 101. Pietro Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC 1992) p. 90. 102. A.P.V. Rogers, Law on the Battlefield (Manchester, Manchester University Press 1996) p. 9. 103. The Rogers view is strongly contended by other experts who opine that the driver may be directly targeted i.e., Dinstein, supra n. 43, p. 27 and Schmitt (when the driver is at the 'front'), supra n. 10, p. 508. 104. Rogers, supra n. 102, p. 10.
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49
that the elements of the proportionality equation are satisfied, such as weighing the anticipated civilian loss against the concrete and direct military advantage anticipated.''' The test for proportionality is wider than that for determining 'direct participation in hostilities' and it is here that the conundrum of an unduly narrow definition of direct participation becomes problematic and potentially undermining of humanitarian goals. Such circumstances would arise where there is a mix of those taking a direct part with others who may or may not be (depending on which test is applied) along with 'pure' civilians nearby. Under the proportionality test more civilian loss is accepted and the principle may be resorted to so as to neutralise a 'military objective"06 if direct targeting options are limited due to the vagaries of determining which test for 'direct participation applies'. 4.2.2
Direct participation in hostilities and contractors - the contemporaly views
In seeking to better protect civilians in a time of armed conflict, it is thus timely to conceive of a broader test for 'direct participation'. It is this decision making calculus that Schmitt referred to when advocating that a more liberal definition of 'direct participation' lends itself to better ensuring that civilians are protected by permitting civilians to more reliably choose whether they are crossing the demarcation line between involving themselves merely in the general war effort or more significantly in combat.Io7 Ironically, the domestic law of self-defence found within most jurisdictions is based upon a reasonableness standard.''' What is reasonable in confronting insurgent non-state forces under domestic law conceptions of 'self defence' and perceived threat would likely allow a broad scope of defence for the accused soldier, sailor or airman that exceeds the existing narrow AP I and I1 test of 'direct participation in hostilities'. It seems, therefore, a vacuous exercise to insist upon a narrowly defined 'direct participation' test for targeting when other lawhl principles might be exercised that result in a greater number of civilians being killed. Given the broadness of additional cognate legal tests to justify appropriate military action, it is timely that the ICRC has initiated its co-sponsored DPH study. It is also significant that the project reflects a growing realisation that the policy goals of the framers of AP I in limiting the definition of 'direct participation' is having a contrary effect by causing confusion for both military planners and civilians and endangering 'pure' civilians to a greater degree. The analysis undertaken by Schmitt in his contribution to the ICRC DPH study provides a reliable and useful basis for re-examining the criteria for determining what conduct or activity constitutes 'direct participation in hostilities' under customary law. It is evident from the
105. 106. 107. 108.
AP I, supra n. 6, Art. 51(2). AP I, supra n. 6, Art. 52(2). Schmitt, supra n. 10, p. 508. Zecevic v. Director of Public Prosecutions (Rctoria) [I9871 H C A 26 (1 July 1987)
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views of experts such as Doswald-Beck, Hays Parks and the (mostly unnamed) experts contributing to the ICRC co-sponsored DPH study itself, that professional sentiment is more accepting of a broad test. This sentiment is matched by a developing state practice that will be examined more fully below. Acknowledging this move towards a liberal interpretation of the parameters of 'direct participation', the test proposed by Schmitt provides a ready starting point for assessing the central focus of this article, namely the status and targetability of contractors. In a telling insight, Schmitt states that in his view: 'the approach which best comports with the purposes of humanitarian law is one which assesses the criticality of the act to the direct application of violence against the enemy. For example, working in a munitions factory is distant from the direct application of force, whereas providing tactical intelligence is essential and immediate. Gray areas should be interpreted liberally, i.e., in favour of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distinct fiom the conflict as possib1e.7109 It is here that a substantive argument can be advanced that contractors might more generally be assessed as taking a direct part in hostilities based upon the 'criticality' of their function to the application of force, though we would suggest without the requirement of the probable tactical outcome and causal proximity conditions also asserted by Schmitt. Given the recognition by Schmitt of a capability of 'passive' direct participation and his acknowledgement of the broad 'grey area' nature of contractor activities, it is open to conceive of a broad test that is less onerous on the soldier, sailor or airman in assessing battlefield contractor activity. Such a revised test permits an a priovi determination to be made as to the direct participation activities undertaken by contractors and factored into targeting decisions. Unlike the hapless local civilian who usually finds hirnlherself propelled into conflict through circumstance, the directly employed contractor knows precisely what helshe is getting into and is able to make an informed decision as to the personal risks involved when embarking upon that activity or function. To this end, it is contended that the implications of Schmitt's grey area category ought to be given h l l import. Thus, with the policy based exception of certain recognised activities that have been universally acknowledged as not meeting the standard of 'direct participation' (i.e., civilians working in canteens providing food and clothing for the armed forces or in factories producing munition^),"^ a presumption might be drawn that all other contractor activities that form part of and perpetuate an armed force's 'military effort"" (as contrasted to the more general 'war effort')
109. Schmitt, supra n. 10, p. 509. 110. 2003 ICRC Co-sponsored Direct Participation report, supra n. 9, p. 2. 111. Seen.63.
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and which facilitate the direct application of force should reasonably be regarded as coming within the umbrella of taking a direct part in hostilities. 4.2.3
'Unless and for such time'
Article 5 l(3) stipulates that a civilian loses hisher protection only for such time as they take a direct part in hostilities. The definition of hostilities was thoroughly canvassed at the 2005 ICRC co-sponsored DPH meeting and it was generally agreed that there was a hierarchy of terms relating to conflict that did assist in understanding the scope of the provision. Hence it was agreed that the broadest concept was 'Armed Conflict', followed by 'Hostilities' then 'Military Operations' and finally, 'Attacks'. Within this matrix it was determined that 'Hostilities' did not include 'war sustaining' activity but, rather, was associated with the actual prosecution of the armed conflict, not being restricted however to actual fighting.'I2 It is a definition that draws obvious parallels with that made by the Israeli Supreme Court in the The Public Committee against Torture in Israel et al. v. The Government of Israel et al. case, discussed above, having regard to the Court's reference to including those who 'supervise' or provide a direct 'service' to those employing weapons. Accepting that the term 'hostilities' might be given a broad compass, what then of the temporal requirement of 'for such time'. This is an issue that has been much discussed in the literature and introduces the 'revolving door' concept of farmer by day and guerrilla by night. Indeed, Schmitt asks '[clan it possibly be that those who directly participate in hostilities regain their civilian immunity whenever they successfully return from an operation even though they fully intend to subsequently recommence hostile action? This scenario is particularly ill-fitting in the case of civilian employees and private contractors. For instance, is the requirement simply to return to duties that do not amount to direct participation? Or does the end of the duty day mark return from h~stilities?'"~The answer according to Schmitt is that a civilian remains a valid target 'until unambiguously opting out through extended non-participation or an affirmative act of ~ i t h d r a w a l ' . "This ~ view also accords with a growing state practice concerning the targeting of civilians taking a direct part in hostilities where identification factors criteria relate more to 'membership of the group' criteria than assessing the specificity of actual battlefield behaviour. 4.2.4
Membership of the group approach
In the 2005 ICRC study on general customary law applicable to IHL, Henckaerts and Doswald-Beck found that practice within international armed conflict was not
112. 2005 ICRC Direct Participation Report, supra n. 9, pp. 18 24. 113. Schmitt, supra n. 12, pp. 535-536. 114. Ibid. -
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'clear' on whether members of armed opposition groups are civilians subject to temporal protection under the 'direct participation' criterion, or whether 'members of such groups are liable to attack as such"'5 thus dispensing with the need to calibrate the 'for such time' aspect of the direct participation test. The Israeli Supreme Court in the case of The Public Committee against Torture in Israel et al. v. The Government of Israel et al. was not ready to accede to such a finding for a third category of persons, but did nonetheless frame the test of direct participation broadly in the case of membership of a group whose function it is to engage in ongoing hostilities. The Court in that instance did allow for a more general and ongoing presumption of direct participation of members who are participating in a 'chain of acts'. It is our view that state practice as evidenced in the progress of conflict in Iraq, Afghanistan and, indirectly, in the Israeli invasion of Lebanon in 2006, reflects, at least, the Israeli Supreme Court reasoning of assessing membership of groups actively engaged in a chain of hostile acts as coming within the temporal criteria of the 'for such time' aspect of the direct participation test. Thus, it is open to conclude that direct targetability is becoming associated with membership of the group whose function it is to engage in hostile acts, although it seems accepted and reasonable that an individual may disavow his or her membership with a clear and unambiguous act.'16 It is a means of reconciling the 'criticality of function' test proposed by Schmitt with state practice, because it allows the general function of a class of persons (the group) to be assessed as direct participation, while minimising the practical difficulties and abuses of the revolving door concept of targetability. Direct targetability of contractors is difficult to assess in state practice. Iraq would be an ideal situation, given the overwhelming contractor presence there, but it is difficult to argue conclusively either way that the targeting of US contractors by insurgent forces represents a particular view of the law regarding civilian participation in direct acts of hostility (noting of course the general unlawfulness of such attacks by insurgent forces in any event). Indeed, it is likely that it is of no matter to the insurgents whether they are civilians or not. However, the targeting policies of armed forces participating in contemporary conflict against insurgent forces in other theatres can be extrapolated to illuminate the position of contractors. Recent practice in Afghanistan on the part of the International Security Assistance Force (ISAF) composed of NATO troops suggests that participating nations consider the period of active participation to continue even when the individual is not actually engaged in hostile action, and to continue for the duration of the person's membership of the hostile group. For example, seventy 'militants' were reported killed by Danish and Afghan troops in an operation in Musa Qala, in Helmand Province in December, 2006. The NATO spokesman reportedly 'said that
115 . ICRC 2005 Customary Law study, n. 9, p. 19. 116. Schmitt, supra n. 12, p. 536.
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position^'."^ The Taliban is not recognised as a legitimate government and are therefore said by ISAF to be civilians taking a direct part in hostilities - although in these circumstances it is a noninternational armed conflict. The Musa Qala operation was not reported to have been in response to a hostile act, or specific intelligence of an imminent hostile act. Rather the NATO forces intended to 'seek out insurgents where they might otherwise seek safe haven', according to their spokesperson - Afghan police had told them where to find the Taliban mernbers.ll8 An earlier operation in September 2006 in Panjwayi and neighbouring Zhari district near Kandahar, conducted this time by Canadian NATO forces, reportedly killed up to 200 insurgents. Significantly, 'an Associated Press reporter who travelled to Pashmul saw warplanes drop five bombs within about 20 minutes on orchards where militants were believed to be hiding."I9 Although not perfectly clear, it appears that this is another instance of NATO's view that targeting of Taliban members is permissible outside a literalist time and functionlactivity interpretation of 'direct participation'. Rather, it is membership of the group 'the Taliban' which legitimises direct targeting. In neighbouring Pakistan, the Pakistani govemment bombed an Islamic school, a madrasa, in Peshawar, which the government said had Taliban links and was the present location of a Taliban leader, notwithstanding that there was no reported evidence of contemporary hostile acts emanating from the madrasa. Local people objected to the attack, saying that the school had no links to the Taliban or al-Qaeda, but there does not appear to have been international objection to the capacity of Pakistan to target the school if it was in fact associated with the ~aliban. lZ0 In Iraq, the situation is less clear because there is not a distinctive group, of the character of the Taliban, against which to direct attacks. Rather there are 'the insurgents'. Press releases from US Central Command refer only to operations in response to immediate hostile action, such as small arms fire or the emplacementin-progress of roadside bombs, or to arrests after searches that revealed weaponry or 'bomb-making equipment'. There is not the broader assertion of a right to target insurgents as members of the insurgency that there is in Afghanistan. Further, most current operations are described in law enforcement rather than in armed conflict terms - for example, persons are arrested or soldiers respond in self-defence. This
NATO forces are going out and attacking Taliban
117. J. Straziuso (Associated Press), 'Militants Killed in Afghanistan Fighting: Oficial Says 70 to 8- Taliban Militants Were Killed by NATO Soldiers in Afghanistan Fighting', 4 December 2006, ~abcnews.go.com~Intemational/wireStory?id=2698195&page=3>, viewed on 29 January 2007. 118. Ibid. 119. CBS NewslAssociated Press, '200 Taliban Killed in Fighting', 3 September 2006, iwww. cbsnews.comistories/2006109103/terror/main1962990.shtml>, viewed on 29 January 2007. 120. D.Walsh, 'Growing anger as US accused of being behind madrasa attacks', 1 November 2006,<www.guardian.co.uWpakistan/Story/0,,l936306,OO.html, viewed on 29 January 2007.
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is particularly the case where actions are described as being taken against 'suspected insurgents. ' I 2 ' The situation highlights the greatest practical problem of a 'membership of the group' approach to combatancy and therefore to targeting - identifying the group. In Iraq, the number of militant groups and splinter groups make it difficult to refine a targeting policy beyond the broad stroke of 'insurgents' and also make the identification of group members otherwise than when carrying arms or engaged in hostile actions near impossible. In this way, the practicalities of the particular conflict have made the question of group membership academic, because there is little way to establish it otherwise than with the immediate evidence of hostile action a literal reading of what AP I sets out. By way of further and more refined example, Israeli strikes in Lebanon in the course of the short-lived but destructive war of July-August 2006, were, according to the lsraeli Defence Force (IDF), always directed against Hezbollah members or infrastructure. This is unremarkable and does not expand state practice beyond the traditional targeting principles set out in the words of the Conventions. However, IDF press releases also refer to the targeting of 'houses belonging to Hezbollah terrorist^'.'^^ The literalist interpretation would have this as unlawful, because, without further evidence and while at home, members of Hezbollah would not be actively engaged in hostile action. The press release does not seek to justify the action and on its face seems a confident expression of the legality of the targeting action. Nor does there seem to have been international objection to this targeting principle, rather to problems in fact with identifi~ati0n.l~~ The factual problem in these circumstances is not unfamiliar - it is the longstanding difficulty of dual-use facilities in the form of a group. Where groups such as the Taliban, Hamas, Fatah or the IRA have both armed wings and political, religious or social welfare enterprises, the extent of the group for targeting purposes must be limited to the parts of the group taking part in hostilities. This would mean that potential targets would have to be identifiable as members of the armed group, and can conceivably only be demonstrated by participation in a hostile act - noting causative concerns with the meaning of 'direct part'. To the extent that that is difficult or impossible to distinguish between armed and other elements of the group, then the attacking force must presume civilian status and, further, even when sure of who comes within the armed element, must thereafter consider
121. For example, Multi-National Forces Iraq Release, 'Iraqi Army catches Baqubah insurgents', 15 December 2006. 122. IDF Press Release, 'Expanding Operations in Lebanon; Fifty Terrorists Killed', 13 August 2006. 123. For example, Amnesty International Press Release, 'Israel I Lebanon: End immediately attacks against civilians' 13 July 2006. As a particular example, the disputed raid on Baal-Bek hospital was said by Israel to be on a Hezbollah intelligence gathering centre and by Lebanon to be against civilian women and children: compare IDF Press Release, 'Special Forces Raid in Baal-bek', 3 August 2006 at 13:03h, and 'List of collective massacres perpetrated by Israeli Army in its attack against Lebanon in summer 2006', <www.lebanonembassyus.orgiIsraeliMassacres.html,viewed on 29 January 2007.
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55
the issues of proportionality and distinction from civilians in making any target selection. Finally and significantly, Israeli domestic law concerning imprisonment overtly provides for a membership approach to direct participation. The Incarceration of Unlawful Combatants Law (5762-2002) is intended to 'regulate the incarceration of unlawfid combatants' defined as 'a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel' (emphasis added) and the person is not entitled to POW status under GC 111.l~~ The cumulative practice of Afghanistan, Pakistan, Lebanon, Israel and, to a lesser extent, Iraq indicates that there is growing state practice over the last two or three years at least among armed forces participating in those areas of conflict that targeting of unprivileged combatants is not limited to actual, physical participation in hostilities (that is, targeting that may become lawful or unlawful from time to time as persons move from activity to activity) but may be based on membership of a group which is participating in hostilities, such as the Taliban. This kind of purposive interpretation is consistent with the Israeli Supreme Court views as to 'membership' criteria, as well as growing consensus of experts participating in the ICRC co-sponsored DPH study, and provides a foundation for assessing the role of contractors under this rubric of interpretation. 4.2.5
Contractors as members of a group
Given growing state practice, what then of targeting contractors as members of a particular group? Time-critical, functional targeting which requires individual assessment as at the moment of any strike 'seems to take little account of the confusion that it would cause', as Rogers helpfully recognizes.'25US contracted interrogators in Iraqi prisons, for example (against whom charges of torture and other grave breaches of the GCs have been alleged), collect intelligence, some of which may be tactical, some strategic, and some of little or no value. We have concluded above that collection of tactical intelligence is causally proximate to hostilities and therefore direct participation at the very least under the test proposed by Schmitt. Collection of other intelligence, according to Schmitt, is not. AP I provides that, in case of doubt as to civilian status, persons are to be treated as ~ivi1ians.l~~ A literalist interpretation of Article 51 would mean that interrogators could be targeted only for so long as they seek tactical intelligence which may well be intermittent even in a single session and prove an impossible test for military planners. Henckaerts and Doswald-Beck seek to resolve this confusion with respect to armed opposition groups, at least in the context of internal conflicts, by suggesting that they should either be considered to 'be continuously taking a direct part in -
124. Art. 1 (Object) and Art. 2 (Definitions). 125. Rogers, supra n. 102, p. 9. 126. AP I, supra n. 9, Art. 50(1).
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hostilities or not considered to be civilians'.12' state practice is combining these views, albeit with a certain lack of clarity. This is in some ways inevitable - it is difficult to conceive of a situation where States would publish the detail of their targeting policies, for reasons of operational security, while news reports do not always disclose the reasoning behind target selection. Written materials such as manuals emanating from a very wide variety of States are often not of great assistance as they simply reiterate the formula of direct participation found in Article 5 1 in terms of distinction between civilians and combatants.128 Applying the view to civilian contractors, the difficulty of assessing the primary functions that attract combatant, civilian or unprivileged combatant status remains extant. What the practice with respect to 'membership of the group' entails is a relaxation of the situation where, for example, a supply contractor moves in and out of targetable status as they move on and off duty. Thus, the co-efficient of a purposive interpretation of Article 5 1, which permits practicable targeting while maintaining the principle of distinction and underlying posture that those who voluntarily engage in armed conflict lose their right to be protected as civilians, is increased vulnerability to legitimate and direct attack of civilian contractors especially among armed forces. This is a natural consequence of a liberal interpretation but one that draws the line very decisively, thus allowing civilians real informed choice as to the risks they assume when undertaking contractor activity. As described here, the membership approach being fostered in practice reflects the membership of the 'fighting activities' of an 'organised armed group', supported by a group of experts in the ICRC DPH discussions of 2 0 0 5 . ' ~However, ~ it is broader than some of the qualifications posited at the 2005 meeting - for example, rather than a 'policy preference', it is better seen as a purposive interpretative method and it is not limited to 'the non-state equivalent' of state armed forces, because it contemplates transnational groups of greater or lesser organisation motivated by religious and other ideology, such as the Taliban or Iraqi insurgent groups such as the Mahdi Army (although there are difficulties of identification).I3O It is our contention that the membership approach acknowledges actual practice and defines appropriate and lawhl behaviour in response to the existing participation of a wide variety of contractors. Given the central role of many contractors in directly supporting the conduct of contemporary operations, our assessment is that such contractors stand exposed to being lawhlly targeted for undertaking their functional responsibilities. Such a view is entirely consistent with the 'criticality' perspective advanced by Schmitt previously mentioned. It is an inevitable outcome of the trend towards the 'corporatization' of warfare that should have been foreseeable from the outset of the current international rush to economic rationalism in all things, even sovereign sponsored warfare. It does, though, set a definitive line of
127. Henckaerts and Doswald-Beck, supra n. 19, p. 2 1. 128. Henckaerts and Doswald-Beck, supra n. 5 1 , pp. 107- 113. 129. 2005 ICRC Co-sponsored Direct Participation Report, supra n. 6, p. 48. 130. Ibid., pp. 48-49.
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discretion for those seeking to undertake such contractor activity. Choices may be made as to participation in such activities in the full knowledge of the consequences. This does, in our view, serve to actually bolster the humanitarian concerns expressed in the commentaries to the Additional Protocols by establishing clear boundaries for targeting and allowing informed decision making for those civilians concerning which side of the line they will stand.
5.
RESPONSIBILITY OF THE CONTRACTING STATE
The corollary of emerging clarity for individuals on their situation as a contractor, is an increasing greyness in the law relating to the contracting state's responsibility for acts performed by persons contracted to them. There are two potential aspects of state responsibility raised by the usage of civilian contractors in conflict situations. The first is liability for misuse of contractors themselves, the second responsibility for unlawful acts committed by the contractors. The targeting principles themselves leave scope for abuse of civilian protection by conflicting states. It is prohibited to use civilians as shields to protect areas of military operations.13' Yet the extensive use of civilians for supply and logistic purposes, as in Iraq, may have the effect of shielding the armed forces' lines of supply, critical to the ability to hnction effectively in the field. While the acceptance of 'incidental injury/collateral damage' permits the indirect targeting of such personnel, the mere usage of such contractors may amount to a breach, on the part of the contracting state, of Article 5 l(7). Even a purposive interpretation of targeting of unprivileged combatants based on association rather than function does not relieve a state of its responsibility not to use civilians to protect military areas. This is an aspect of the contracting State's primary responsibility for breach of international law. However, when an individual contractor commits some offence in the course of their activities, both prosecution of the individual contractor or company and/or attribution of the act to the contracting state are problematic. Firstly, the purpose of unprivileged combatancy as a descriptive concept, where contractor activities amount to such, is to leave those personnel open to domestic prosecution for acts committed in the course of their hostile participation, such as murder, assault or damage to property. That is, international law 'refrains from stigmatising the act as criminal. It merely takes off a mantle of immunity' which belongs to lawful comb a t a n t ~ . In ' ~ ~some cases, it may also, along with other offences, be specifically Schmitt, howidentified in national laws as a criminal act, for example in 1srae1.l~~
13 l . AP I , supra n. 9 , Art. 5 l(6). 132. Dinstein, supra n. 43, p. 31. 133. Incarceration of Unlawful Combatants Law (5762-2002). This legislation is intended to 'regulate the incarceration of unlawful combatants' (Art. I), defined as 'a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpe-
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ever, disagrees and labels mere participation, 'without more', as 'contentious' support for its criminalisation is 'dated'. He concludes that only the underlying acts which constitute the participation are potentially ~rimina1.l~~ They are two sides of the same coin - a person must commit some hostile act, proximate to violence or resulting in it, in order to become an unprivileged combatant. The act of participation must be unlawful, to attract unprivileged combatancy. The labelling of the offence is a domestic matter. As for any other person faced with danger, a civilian contractor may act in selfdefence, raising it as a defence if charged with the commission of some violent or otherwise hostile act. Depending on domestic law, the contractor may also be able to argue as an excuse that hisher actions were taken in defence of others. Therefore, the situation of security personnel employed to assure the safety of military personnel or objectives is not so clear-cut as Schmitt suggests, when he concludes that their 'actions are indistinguishable from the quintessential duties of combat p e r ~ o n n e l ' .It' ~is~ a matter that would have to be determined before local law. Therein lies a significant problem in modem practice. In 2004, revelations of abuse of Iraqi detainees at Abu Ghraib prison sparked worldwide condemnation, and six junior ranking US military personnel were subsequently convicted. The Guardian claimed that a contractor had also been charged by the US military with raping a teenage detainee, but had been released because the military had no jurisdiction to prosecute the charges. The militay claimed it was the responsibility of the contractor to deal with the alleged offender.136The scandal implicated two contractors, Titan Corporation and CACI International Inc, which provided interpreting services to the military. Human Rights Watch argued that the 'virtual impunity' of contractors arose from their exemption under 'their terms of engagement' with the US military from Iraqi domestic jurisdiction, and their immunity from prosecution under military law.'37 Such international agreements can deliberately prejudice the rights of the 'host State' (in which contractors are to operate) embodied in its nationals to the protections of humanitarian law, by placing the perpetrators outside the reach of both domestic and possibly international law. That is, the contracting state may rely on the limitations of domestic law or negotiate a Memorandum of Understanding with the domestic regime, as the US has reportedly done in Iraq, so that government
trating hostile acts against the State of Israel' and the person is not entitled to POW status under GC 111 (Art. 2). 134. Schmitt, supra n. 12, p. 520. 135. Ibid., p. 538. 136. J. Borger, 'US Military in Torture Scandal', The Guardian, 30 April 2004,available at iwww. guardian.co.ukiIraqiStoryi0,2763,1206725,00.html>,viewed on 29 January 2007.Note the correction published in The Guardian on 30 April 2004,that Titan Corporation had stated that it provided interpreters and not interrogators, contrary to the original report. 137. Human Rights Watch, 'Iraq: US Prisoner Abuse Sparks Concern Over War Crimes', New York, 30 April 2004,at ~www.hnv.org/englisWdocs/2004/0413O/iraq852l.htm>., viewed on 29 January
2007.
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contractors are not subject to local san~tion."~ Thus, for example security firm Blackwater USA who were investigated by the US State Department in September 2007, following a shooting incident in Iraq in which ten civilians were reported to have been killed,'39were also investigated by the US Justice Department after an Iraqi guard was killed 'by a Blackwater contractor who was drunk'. After the killing, Blackwater flew the contractor out of Iraq, angering the Iraqi government. That killing is now under investigation by the United States Justice Department, but it remains unclear what laws may be applied in the case, because it occurred overseas. ' 140 Notwithstanding the inability to prosecute the contractors under Iraqi law, or apparently under US domestic law, Human Rights Watch insisted that ultimately, the responsibility for prison abuses committed by contractors at Abu Ghraib could be sheeted home to the United States, who was responsible under the Geneva Conventions for the running of detention facilities.14'That the state is liable for its own actions in the contracting process, for example, in the fair employment of cheap labour from third States, is ~ n ~ u e s t i o n a b l eThat . ' ~ ~it is liable for grave breaches of international humanitarian law committed by its armed forces is also ~ 1 e a r .Since I~~ those described as unprivileged combatants, potentially including some contractors, are not associated with the State's armed forces by identity or function, they are apparently responsible for their own actions and the responsibility of the contracting state is only to ensure that its own activities meet its international responsibilities. Thus an individual's classification is significant not only for the conduct of hostile acts such as targeting, but also in the identification of liability for breaches of law. We have already seen that domestic laws are ill-equipped in fact to deal with this aspect of contractor activities, demonstrated in Iraq. However, where a breach of a State's primary obligation under international law cannot be identified, there is a possibility of attributing a contractor's act to the contracting State, albeit problematically. Unfortunately, existing law and practice
138. Coalition Provisional Authority Order 17 (27 June 2004) at paras. 4.3 and 5.2. Civilians of the Multi-National Force and international consultants of the Transitional Government are immune from Iraqi jurisdiction for 'acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto'. 139. AFP, 'Blackwater case deepens as investigations multiply', 29 September 2007, available at
, viewed on 2 October 2007. 141. Human Rights Watch, 'Iraq: US Prisoner Abuse Sparks Concern Over War Crimes', New .htm>, viewed on 29 JanuYork, 30 April 2004, at <www.hnv.org/englishldocs/2004104130/iraq852I ary 2007. 142. Cf., Art. 4 of the ILC Articles on Responsibility of States for Internationally Wronghl Acts (2001) UNGA 3 1 May 2001. For a critical factual review of the conditions of third state labourers in Iraq, see Phinney, supra n. 41.Phinney estimates that 48 000 employees work in Iraq under Kellogg, Brown and Root's contract to provide logistic services, of whom approximately 35 000 are lower paid workers from other nations. 143. AP I, supra n. 9, Art. 91.
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with respect to State Responsibility discloses a certain unresponsiveness to the problem of contractors already identified - that is, the deliberate use of contracted agencies to disassociate the hiring government from the acts done. The ILC Articles on Responsibility of States for Internationally Wrongfiul Acts 2001 in Chapter 2 deal with the attribution of responsibility to a State, and in particular Article 5 refers to the 'conduct of a person or entity which is not an organ of the state under Article 4 but which is empowered by the law of that state to exercise elements of the governmental authority shall be considered an act of the state under international law, provided the person or entity is acting in that capacity in the particular instance.' In its commentary to the article, the ILC concluded that in 'special cases' this article could cover 'private companies' so long as the specification relating to authorisation to perform a public or regulatory function 'by the law of that State' was met.144It is this last element which is problematic. The ILC themselves described it as a 'narrow ~ a t e g o r y ' . ' ~ ~ The situations in the view of the ILC which would attract this kind of responsibility included the delegation of immigration powers to national airlines which may be privately owned, the contracting of an agency to guard domestic prisons in the exercise of power to enforce judicial sentence, or the granting of police powers to a railroad company.146The ILC concluded that the determinative factors were 'not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise'.147The kind of corporation which seems to be envisaged by this provision is what is known in Australian domestic law as a 'statutory corporation' - a private entity established and empowered by legislation. Contracting companies, especially those engaged to perform some military-style functions, take a different form. When a government intends to dissociate itself through the employment of a contractor, as discussed above, it is not difficult to avoid the conditions of responsibility under Article 4. The contractor need not and often will not be empowered by law to perform governmental functions. For example, the wide range of contractor roles being performed in the Middle East, which causes problems for classification under IHL, causes similar problems when attempting to attribute responsibility to the state through the requirement of legal authorisation. Secondly, as a matter of fact, the requirement for empowerment by law is easily circumvented by a government intent on dissociation both in terms of the functions and of the level of accountability identified in the contract. Thus, while Article 4 is a potential basis of liability, it may often by avoided on the facts.
144. ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001) UNGA 31 May 200 1, available at
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Article 8 refers to a different kind of State Responsibility, where acts might be attributable to the contracting state 'if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that state in canying out the conduct.' This is also potentially relevant, although the test of 'direction and control' which international law applies is a strict one. The ILC noted that the 'principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State's direction or control."48 It is important to note that many contractor acts criticised, such as those of personnel at Abu Ghraib prison, are (or are likely to be) disavowed by the contracting state as being 'outside the contract'. The problem is a difficult one of evidence. Further, the ICJ in the much debated 1986 Nicaragua case has required a high level of 'control' to establish this form of attribution: [Dlespite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.'49 The result of this decision and Article 8 is the same as that criticised by Human Rights Watch at Abu Ghraib - the contracting state remains liable in international law for its own act in procuring the contract (so long as such a liability can be identified) but attributing contractor acts to the state is both difficult and, even where allowed by law, rather easily avoided by the State. This is a result requiring significant review and development in view of the increasing use of contractors in conflict situations, as well as the increasing number of complaints about contractor activities in places such as Iraq.
148. Ibid., p. 104. 149. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Rep. (1 986) p. 14.
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6.
CONCLUSION: PRIVATISING A QUINTESSENTIALLY PUBLIC ACT
The primary problem in the renewed role of private contractors in warfare is that IHL continues to conceive of war as a public affair - as Rousseau first argued, war is to be a relationship between states only, in which individuals are enemies by accident."' Privatised warfare not only places private individuals in the sphere of conflict, it permits them entry on the basis of private (corporate) gain - although this article has not considered the efficiency-based arguments advanced for and against private involvement in confli~t.'~' The law continues to grapple with this phenomenon of the increasing civilianization of the battle space both in terms of general principles of State Responsibility and IHL. We have argued that there are cogent arguments for extending the law's reach such as to more decisively attract State Responsibility for contractor activities and for broadening the application of 'direct participation' modalities to encompass a greater range of contractor activities. IHL's attempt to separate civilians from the field of battle and protect them from its effects is generally unable to comprehend the enormous civilianisation of warfare that is currently underway. Broad appeals to humanity struggle with the equally moralist assertion that those who seek financial gain from conflict by directly facilitating combat operations must bear its risks equally with soldiers in the field. Even Gerson and Colletta, staunch supporters of contracting security firms, recognize a 'moral hazard' in employing firms whose profits depend on the continuation, rather than the termination, of war. Is2 This is a particular area of law in which idealism struggles with reality. The aim of protecting civilians and minimizing the damage of war is tempered by the development of practical rules, permitting some things and forbidding others, in order that armed conflicts exist in a sphere of humanitarian law rather than beyond it. Justified or not, the increasing reliance on civilian contractors and corporatized warfare has brought out the weaknesses of existing law. The classification of persons taking a direct part in hostilities is essential to the assigning of criminal responsibility to soldiers, sailors and airmen who make the targeting decisions, yet the test of 'direct participation' is not easily susceptible to clear or settled legal determination. Instead, academic debates as reflected in the proceedings of the ICRC co-sponsored DPH study and more generally within the academic literature grapple with numerous tests and paradigms in order to more realistically place civilian involvement within the contours of existing law. Indeed some reviews seem to depend on intuitive understandings of what forms of participation ought not to be allowed (and conversely, what acts ought to be done by the
.
150. As compared to the Clausewitzian position that wars are life and death struggles involving whole populations. See Cassese, supra n. 75, p. 400. 15 1. See Gerson and Colletta, supra n. 14, for a more practical examination. 152. Ibid.. 91-92.
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armed forces as lawful combatants) to place activities on the spectrum of 'direct participation'. This article contends that intuitive morality and policy preference is a parlous and unreliable foundation for targeting decisions. Moreover, such a posture offers no practical protection to contractors or to commanders in the field who might differ in their subjective assessments. Article 4, GC 111, was intended to eliminate the idea that members of armed forces could be non-combatants if in a role not requiring violence. This intention can be used to illuminate the preference of the law not to protect those who voluntarily enmesh themselves in armed conflict. Perhaps the question of what constitutes 'direct participation in hostilities' is like that of 'reasonable belief' in common law countries, namely a concept one should not be too ready to define conclusively. The law must allow civilians to continue to do what are essentially 'civilian things' in a war zone but should draw a sharp distinction when that line is crossed. Similarly, it should also continue to make careful policy judgements on certain civilian/contractor activities that are dedicated to preserving or maintaining life and excuse such activity from any conception of 'direct participation' just as medical staff are afforded protection under IHL notwithstanding that as a matter of logic they are arguably taking a direct part themselves by ensuring the return of soldiers, sailors and airmen to the battlefield. With these exceptions in mind, it is our contention that most other civilian contractor activity that functionally perpetuates the direct military effort of a conflict should come within the definition of taking a direct part in hostilities. This may also include activities that are strategic in import if they nonetheless have a significant impact on the military effort underway. Such a position corresponds largely with that of the 2005 Israeli Supreme Court decision in The Public Committee against Torture in Israel et al. v. The Government of Israel et al. that takes a more pragmatic view of functionalism when determining the correspondence of civilian activity and military outcomes. It is our reading that state practice bolsters this position by recognising that so long as individuals are members of an organised group perpetuating acts of violence they are susceptible to direct and legitimate targeting for the duration of their membership in the group. It is our contention that current state practice supports a broadening of the concept of directly participating groups generally to those taking part in acts of violence (the Taliban in Afghanistan, Hezbollah in Lebanon). The consequence of these developments is the greater exposure of contractors to legitimate attack. Such an outcome has its own challenges but nonetheless reflects growing consensus in targeting methodology. Such a position may be defended on the basis of providing a more reliable basis for both commanders as well as contractors themselves to make informed choices concerning targeting. Paradoxically, it is our contention that a broadening of the concept of 'direct participation' to encompass most contractor activity functionally associated with perpetuating the military effort does serve to optimise humanitarian goals by removing enigmatic considerations of moral culpability and intuitive policy recourse which seem to ground many assessments of what 'direct participation in hostilities' should constitute. Accordingly, such express recognition would infuse the Law of Armed Con-
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flict with much needed pragmatism thus ensuring its longer term integrity and compliance.
LEARNING THE LESSONS OF THE MILOSEVIC TRIAL' Gideon Boas and Timothy L.H. ~ c ~ o r m a c k ~
1.
The significance of the Miloievii. trial for the future development of international criminal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.
The need to balance fairness and expedition in complex international criminaltrials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3. 3.1 3.2 3.3
Lessons from the MiloSeviC case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1 The Prosecution case must be focused, comprehensible and manageable 72 Case management of complex international criminal law trials . . . . . . . . 77 Managing resource and representation issues . . . . . . . . . . . . . . . . . . . . . . 82
4.
International criminal trials following MiloSeviC . . . . . . . . . . . . . . . . . . . 84
1.
THE SIGNIFICANCE OF THE MILOSEVICTRIAL FOR THE FUTURE DEVELOPMENT OF INTERNATIONAL CRIMINAL LAW
One noticeable coincidence in 2006 involved the deaths of three former heads of state: Saddam Hussein, Augusto Pinochet and Slobodan MiloSeviC. Many past ca-
1. O G. Boas and T.L.H. McCormack, 2008. 2. Gideon Boas is a Senior Lecturer in the Law Faculty of Monash University and was (until October 2006) Senior Legal Officer to Trial Chamber 111 of the ICTY and Senior Legal Adviser to that Chamber on the MiloSeviC case. Tim McCormack is the Foundation Australian Red Cross Professor of International Humanitarian Law (since 1996) and the Foundation Director of the Asia Pacific Centre for Military Law (since 2001) at the University of Melbourne Law School. He acted as amicus curiae on international law issues to the Judges of Trial Chamber 111 of the ICTY for the MiloSeviC trial (November 2002 - March 2006). This article is based on material taken from Gideon Boas, The MiloSeviC Trial: Lessons for the Conduct of Complex International Criminal Proceedings (Cambridge, CUP 2007) and on the observations of both authors of the trial proceedings against Mr MiloSevic. The authors have relied exclusively upon material available in the public domain to ensure that they have not breached confidentiality obligations in relation to protected trial material. The views expressed here are those of the authors alone and do not, and are not intended to, represent the views of the International Criminal Tribunal for the Former Yugoslavia or of any other institution or organisation. Yearbook of International Humanitarian Law Volume 9 - 2006 - pp. 65-85
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lendar years have no doubt marked the passing of multiple former heads of state but these three particular former leaders had all been subjected to judicial processes of one sort or another in respect of alleged widespread and systematic violations of human rights, arbitrary killings and - for two of them - genocide of their own or other peoples. In all three cases the deaths were linked in some way to the legal proceedings and evoked widespread dissatisfaction - Pinochet because he escaped trial, Hussein because the proceedings against him were fundamentally flawed and MiloSeviC because he died before the four-year trial proceedings against him could be brought to a conclusion. Despite the obvious differences in judicial proceedings against all three accused, an emergent and common refrain has been to query whether any satisfactory trial of a former head of state is indeed possible. Of the legal processes that initiated, contributed to or were responsible for the demise of these former leaders, it is the trial of Slobodan MiloSeviC that arguably encapsulates the greatest poignancy for the future of international criminal law. Much has already been said and written about lessons that can and should be learned from the case: some of it informed and thoughthl; other contributions premature or ill-informed. It is apparent that even before the death of MiloSeviC, and the subsequent termination of trial proceedings, much had been taken from the trial and applied or eschewed in other criminal trials, including prosecutorial strategies employed in the Saddam Hussein trials before the Iraqi High ~ r i b u n a land ~ the Lubanga indictment before the Intemational Criminal court: as well as the institutionalisation in the ad hoe ~ r i b u n a l sof~ case management methodology developed by the Trial Chamber in the MiloieviC case. These few examples of reactions to different aspects of the MiloieviC trial proceedings suggest that the trial, despite the lack of any judgment on guilt or innocence, will continue to influence the further development and solidification of international criminal law. This influence will manifest not so much in the substantive law relating to forms of criminal responsibility or elements of interna-
3. On 10 December 2003, the Statute of the 'Iraqi Special Tribunal was promulgated as an order of the Coalition Provisional Authority in Iraq (Coalition Provisional Authority Order No 48: Delegation of Authority Regarding an Iraqi Tribunal, CPAIORDI9 Dec 2003148 (2003)). The Statute was subsequently annulled by Iraq's Transitional National Assembly and, on 9 October 2005, was replaced by the Statute of the Iraqi High Tribunal (published in the Official Gazette on 18 October 2005). For a discussion of the Iraqi High Tribunal, see Guenael Mettraux, 'The 2005 Revision of the Statute of the Iraqi Special Tribunal' (2007) 1 Journal of International Criminal Justice, 1 ; and, for a discussion of the shortcomings of the Saddam Hussein Dujail trial, see C.F.J. Doebbler, 'An Intentionally unfair Trial', 1 Journal of International Criminal Justice (2007) pp. 264-271. 4. See the case of Prosecutor v. Lubanga before the ICC (ICC-01104-01106) and, in particular comments of the prosecutor defending its indictment strategy: See e.g., comments by Richard Dicker, head of the International Justice Programme at Human Rights Watch, criticising the ICC Prosecutor for not indicting Thomas Lubanga for a broader range of crimes: Institute for War and Peace Reporting ('IWPR'), 'ICC Prosecution Defends its Tactics' at: 1 July 2007,2. 5. See Statutes of the Intemational Criminal Tribunal for the former Yugoslavia ('ICTY') and International Criminal Tribunal for Rwanda ('ICTR').
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tional core ~ r i r n e sbut , ~ on issues of prosecutorial discretion, international criminal procedure, case management and key foundational principles of international criminal law (including, for example, the waiver of any immunity from international trial for former heads of state). The purpose of this article is to explore some of the key areas in which lessons can and must be learned from the MiloSeviC case so as to improve the conduct of international criminal trials and the institutional and judicial framework in which they occur. The trial itself represents one of the most protracted war crimes trials in history and the first trial of a former head of state by a truly international criminal tribunal.' When MiloSeviC was found dead in his cell in the United Nations Detention Unit in The Hague, on 11 March 2006,' he had been on trial for 66 counts of genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war. The alleged conduct encompassed more than 7000 allegations of wrongdoing over eight years of the conflicts in the former Yugoslavia. MiloSeviC's death prematurely terminated a manifestly complex trial and raised significant questions about how, if at all, large-scale international criminal trials against senior officials could be conducted both fairly and expeditiously.
2.
THE NEED TO BALANCE FAIRNESS AND EXPEDITION IN COMPLEX INTERNATIONAL CRIMINAL TRIALS
Throughout the MiloSeviC trial there was extensive discussion about the obligation on the Trial Chamber to ensure that the trial was conducted both fairly and expeditiously. Although much debate has arisen concerning the status and operation of these hndamental principles, it is widely accepted that their existence, derived
6. The reference to 'core crimes' is a reference to the principal international crimes which are the subject of prosecution before the international and intemationalised courts and tribunals, including the ICC, lCTY and ICTR: genocide, crimes against humanity, war crimes and violations of the laws and customs of war. Had MiloSeviC not died before judgment had been entered, the written judgment in the case would surely have profoundly impacted upon the development of substantive international criminal law. 7. It is well known, for example: that Adolf Hitler committed suicide and avoided trial by the International Military Tribunal at Nuremberg; that a political decision was taken not to subject Emperor Hirohito to trial by the International Military Tribunal for the Far East in Tokyo; and that John Kambanda pleaded guilty to the ICTR and so was only sentenced in Arusha. 8. See Prosecutor v. MiloSeviC, 'Order Terminating the Proceedings', Case No. IT-02-54-T, 14 March 2006; 'Report to the President: Death of Slobodan MiloSeviC', Judge Kevin Parker, Vice-President, 3 1 May 2006: LMNOWI108 1e < http:llwww.un.orglictyimilosevic/parke~at 1 July 2007.
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from human rights princip~es,~ is well entrenched in international criminal law." However, complexities arise in defining and applying the principles of fairness and expedition and in determining how they interact and how they are to be balanced and applied - particularly in the context of complex international criminal trials." Fair trial rights are primarily for the benefit of the accused and are applied and upheld to guarantee he or she receives a fair trial.'* A lack of expedition can threaten the right to a fair trial - particularly where an accused is subjected to a lengthy period of detention without a commencement of trial proceedings. However, it is also relevant that the individual accused's right to a fair trial must be balanced by a valid expectation on the part of the international community to observe trial proceedings brought to a conclusion in an acceptable time.I3 In reality these interests are composite in nature with both the accused and the international community holding a stake. An overly long trial threatens its fairness because it can be unmanageable for an accused for a variety of reasons. Furthermore, if any aspect of a fair trial is not properly respected then the whole process of international criminal justice suffers and with it the community interest in the proper functioning of the trial process. Any assertion couched in absolute terms for example, that an accused wants a fair trial but the international community wants a trial that is expeditious - is unrealistically simplistic. Fairness and expedition often manifest as competing interests. That was certainly the prevailing experience in the MiloSeviC case. The most ardent criticism of that trial was that it
9. This issue gives rise to a broad and complex debate, not within the ambit of this article. The relevant human rights instruments include the Intemational Covenant on Civil and Political Rights (GA Res. 2200A (XXI) 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A16316 (1966), entered into force 23 March 1976) ('ICCPR'); the European Convention on Human Rights (No. 5, opened for signature 4 November 1950, entered into force 3 September 1953); the American Convention on Human Rights (OAS, Treaty Series, No. 36, adopted 22 November 1969, entered into force 18 July 1978), and the African Charter on Human and Peoples' Rights (adopted June 27, 1981, OAU Doc. CABILEGl6713 rev. 5,21 ILM 58 (1982), entered into force 21 October, 1986). 10. For a discussion of the existence, application and operation of these principles, see G. Boas, The MiloSeviC Trial: Lessons for the Conduct of Complex lnternational Criminal Proceedings (Cambridge, CUP 2007) Ch 1. See also Judge R. May and M. Wierda, International Criminal Evidence (Ardsley NY, Transnational 2002); S. Zappala, Human Rights in lnternational Criminal Proceedings (Oxford, OUP 2003); C. Safferling, Towards an International Criminal Procedure (Oxford, OUP 2001) at pp. 21-30; P.L. Robinson, 'Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia', 11 EJIL (2000) p. 569; P.L. Robinson, 'Fair but Expeditious Trials', in H. Abtahi and G. Boas, eds., The Dynamics of lnternational Criminal Justice: Essays in Honour of Sir Richard May (Leiden, Nijhoff 2005) p. 169; H. Lahiouel, 'The Right of the Accused to an Expeditious Trial', in R. May et al., eds., Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald (The Hague, Kluwer Law Intemational 2001) p. 197. 11. For a discussion of the sui generis nature of international criminal law, see Robinson, supra n. 10, p. 569; Robinson, supra n. 10, 169. 12. See generally, May and Wierda, supra n. 10, Safferling, supra n. 10. 13. The right to an expeditious trial has been said to have its roots at the foundation of criminal proceedings, and the US Supreme Court has traced its roots back to the twelfth century: see Klopfer v. North Carolina, 386 US 213 (1967). See generally, Lahiouel, supra n. 10, p. 197.
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was simply allowed to go on for too long, compromising both its expedition and its fairness. The Milos'eviC trial lasted four years and one month and ended abruptly with the death of the accused months before its projected concl~sion.'~ It may have taken up to an additional twelve months to conclude the trial and to render the judgement in the case. Clearly it is impossible to define the trial as expeditious. However, it is essential to consider the context of a trial of this nature. International criminal trials are usually more complex than domestic criminal trials at least that is the reality in relation to trials of senior political and or military leaders whose alleged individual criminal responsibility often extends across a broad geographic base and a protracted temporal period, and usually occurs within the framework of organised, widespread and systematic policy. Such senior accused rarely, if ever, physically perpetrate the crimes themselves and so their trials involve establishing not only the actual crime base but also the individual criminal responsibility of the accused. These factors render such cases more complicated than even the most complex domestic trials and this was certainly the case in the MiloSevid trial. The international community, as well as victims, parties to proceedings and the key players within the relevant international judicial institutions, must accept the reality of complex international criminal trials and construct an appropriate approach for the achievement of expeditious conclusions of trial proceedings. There are a variety of ways in which a failure to ensure expedition in the conduct of complex international criminal trials can also have a negative effect on their fairness. The longer a trial is allowed to run, the broader its scope, and the more voluminous the evidence, the less manageable the trial becomes for all involved, particularly the accused. This can itself violate discrete fair trial rights (such as the right to trial without undue delay and the right to equality of arrns15) and may amount ultimately to an unfair trial. In considering the imposition of counsel on MiloSeviC, the Trial Chamber defined the issue of expedition itself as a fair trial issue.I6 Although this approach, without careful elucidation, confuses the already complicated framework for the conduct of these trials, it is an example of the importance placed on the issue by a court that had endured years of complex trial work. It is in fact impossible to set exact limits on the length of complex international criminal trials, if only because this so obviously depends on the individual facts and particularities of each case. However, there will always come a point in such a lengthy trial where the failure to conclude proceedings risks two infelicitous outcomes: calling into question the fairness of the trial and hazarding the loss of support by the international community for such trials and the courts -
14. See supra n. 8. 15. The hndamental fair trial rights, or 'minimum guarantees' as they are sometimes called, are based on Art. 14 of the ICCPR and reflected in all the constitutional instruments of the international criminal courts and tribunals (e.g., Art. 21 of the ICTY Statute; Art. 20 of the ICTR Statute, and Art. 17 of the Statute of the Special Court for Sierra Leone). 16. See Prosecution I! MiloSeviC, 'Reasons for Decision on Assignment of Defence Counsel', Case No. IT-02-54-T, 22 September 2004, para. 34.
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that conduct them. Best practice in the conduct of these cases will see them concluding in a considerably shorter time-frame than the greater than four year duration of the MiloSeviC trial. Many of the same factors relating to the expedition of complex international criminal trials encompass the fairness of such trials. There are a number of constituent parts to the content of fair trial rights, or 'minimum guarantees' as they tend to be described in the constitutional instruments of the international criminal courts and tribunals. The court must ensure that a trial is public (subject to legitimate and proportionate limitations);" that an accused have adequate time and facilities to prepare a defence;18that trial be given without undue delay;19 that an accused be allowed to confront witnesses and test the evidence against them,20and that there be an equality of arms between the prosecution and accused.'' The interpretation of such rights in the context of international criminal law may differ from their origin and interpretation within the international human rights law regime. The application of these rights in the sui generis system of international criminal law is necessarily context~al,'~ but this does not dilute their significance
17. See e.g., Prosecutor v. TadiC, 'Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses', Case No. IT-94-1-T, 10 August 1995; Prosecutor v. MiloSeviC, 'First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses', Case No. IT-02-54-T, 3 May 2002; Prosecutor v. Brdanin and TaliC, 'Decision on Motion by Prosecution for Protective Measures', Case No. IT-99-36-PT, 3 July 2000. See also, case law from the ECtHR: Sutter v. Switzerland (1984) 74 Eur Court HR (Series A) para. 26. See also Pretto & Ors. v Italy (1984) 7 1 Eur Court HR (Series A) 182. 18. See e.g., Art. 21(4)(b) of the ICTY Statute (mirroring Art. 14(3)(b) of the ICCPR); Prosecutor v. MiloSeviC, 'Decision in Relation to Severance, Extension of Time and Rest', Case No. IT-02-54-T, 12 December 2005, para. 13; and, Prosecutor v. DelaliC et al., 'Decision on the Applications for Adjournment of the Trial Date', Case No. IT-96-21-T, 3 February 1997, para. 19. 19. See e.g., Art. 14(3) of the ICCPR; Art. 6(1) of the ECHR and Art. 7(5) of the ACHR and case law (Firmenich v. Argentina, before the Inter-American Court of Human Rights, Resolution 17189, Report Case 10037 (13 April 1989); Maznetter v. Austria, before the ECtHR, (1969) 10 Eur Ct HR (Series A)). 20. See e.g., Art. 21(4)(e) of the ICTY Statute and case law relating to the admission of written evidence in lieu of oral testimony (Prosecutor v. KordiC and eerkez, 'Decision on Appeal Regarding Statement of a Deceased Witness', Case No. IT-95-1412-AR73.5, 21 July 2000; Prosecutor v. Aleksovski, 'Decision on Prosecutor's Appeal on Admissibility of Evidence', Case No. IT-95-95-1411AR73, 16 February 1999; Prosecutor v. Miloievid, 'Decision on Severance, Extension of Time and Rest', Case No. IT-02-54-T, 13 December 2005; Prosecutor v. MiloSeviC, 'Decision on Admission of Documents in Connection With Testimony of Defence Witness Dragan Jasovic', Case No. IT-02-54-T, 26 August 2005. See also, P.L. Robinson, 'Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY', 3 Journal oflnternational Criminal Justice (2005) p. 1. 21. See Art. 14(1) of the ICCPR; Art. 21(4)(e) of the ICTY Statute and case law (Prosecutor v. Tadic, 'Judgement', Case No. IT-94-1-A, 15 July 1999, para. 30; Prosecutor v. DelaliC et al., 'Decision on the Prosecutor's Motion for an Order requiring Advance Disclosure of Witnesses by the Defence', Case No. IT-96-2 1-T, 4 February 1998, para. 49; Prosecutor v. Miloievid, 'Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements', Case No. IT-02-54-AR73.4,30 September 2003). 22. See generally sources cited supra n. 10.
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or the requirement that they be adhered to within an established, consistent and clear regime.23 Arguably the greatest threat to the fairness of the Milos'eviC trial was the inequality in resources between the parties. Despite the efforts made by the Trial Chamber and the ICTY as an institution, the resources available to the Prosecution dwarfed ~ i l o ~ e vSiri ~Richard . ~ ~ May, the first presiding judge of the MiloSeviC trial, wrote in a different context that, while the question of equality of arms cannot be reduced to a n exact equation, 'there must, i n the least, be an approximate equality in terms of resources. Any substantial inequality will call into question the fairness of the The sheer volume of material and capacity to cope with that material posed challenges to the fairness of the trial in respect of the accused. However, despite reference by MiloSeviC during the trial to more than one million pages of disclosed material; his inability to read it all, let alone incorporate that material into his defence; and the insufficiency of time and resources given to him to cope,26he clearly had considerable information on which to base his cross-examination of prosecution witnesses and was able to deliver a prepared and relatively effective defence case.27Those realities were indicative of extensive resources and support available to MiloSevic - not only from his legal advisers based in The Hague but also, less visibly, from Belgrade. Numerous factors threatened the fairness of the MiloSevid trial and contributed to the protracted nature of the proceedings. We now consider some of these factors and seek to draw lessons from the experience of the trial for the more effective conduct of future complex international criminal trials.
3.
LESSONS FROM THE MILOSEVIC CASE
The explanation for the protracted nature of the Milos'eviC trial proceedings lay in multiple factors including, most significantly, the scope of the Prosecution case and a refusal to adjust its case strategy; the Appeals Chamber's ruling to join the
23. See G. McIntyre, 'Defining Human Rights in the Arena of International Humanitarian Law: Human Rights in the Jurisprudence of the ICTY', in G. Boas and W.A. Schabas, eds., International Criminal Law Developments in the Case Law o f the ICTY (Leiden, Nijhoff 2002). 24. See e.g., Prosecutor v. MiloSevid, 'Prosecution's Comprehensive Report Concerning Its Compliance to Date with Rule 68', Case No. IT-02-54-T, 20 February 2004, para. 2, where the Prosecution stated that identification and production of exculpatory or mitigatory had taken 'the equivalent of twenty-six "person years" of labour and cost nearly 1.5 million U S . dollars'; and, complaints to the Chamber by the accused (Prosecutor v. MiloBeviC, Hearing, Transcript, 29 November 2005,46687). 25. May and Wierda, supra n. 10, p. 27 1. 26. See comments by the accused referenced supra n. 24. 27. See comments made by the Trial Chamber in Prosecutor v. MiloSeviC, 'Decision in Relation to Severance, Extension of Time and Rest', Case No. IT-02-54-T, 12 December 2005.
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three indictments (Croatia, Bosnia and Kosovo) into one gargantuan i n d i ~ t m e n t ; ~ ~ issues relating to self-repre~entation;~~ and the ill-health of the accused which caused interruptions to the trial and required a reduced sitting ~chedule.~' The management and mismanagement of the Milos'eviC trial present crucial lessons for an improved approach to the conduct of international criminal trials (particularly those of senior officials charged with broad criminality). We turn to an analysis of the factors contributing to the protracted nature of the proceedings. It is not our intention here to discuss in depth the case itself but rather to emphasise what, in our view, constitute the principal lessons to be learned and applied in future international criminal trials. 3.1
The Prosecution case must be focused, comprehensible and manageable
There are ways in which these complex international criminal trials can be managed by appropriate conduct by the parties and appropriate control by the court. Pursuit of a manageable case should start with a restrained and realistic assessment by the prosecution of its case, in terms of what exactly it seeks to prove and how such proof will be presented. A clearer and more focused case will invariably affect favourably the fairness of the trial. Both the individual accused and the court will comprehend better the Prosecution case, and the scope of issues and the volume of material will be less likely to pose insurmountable challenges to the principle of the equality of arms. All three indictments against MiloSevid were defective in material respeck3' These shortcomings could have profoundly impacted on the final judgement in the case although such speculation will never be confirmed. Considering the broader application of these concerns relating to the deficiency of indictments before international criminal courts and tribunals more generally, and considering the outcome
28. See Prosecutor v. MiloSeviC, 'Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder', Case No. IT-99-37-AR73, IT-01-50- AR73, IT-01-51- AR73, 18 April 2002. 29. See Prosecution v. MiloSevid, 'Reasons for Decision on Assignment of Defence Counsel', Case No. IT-02-54-T, 22 September 2004. 30. Ibid. 3 1. For the Kosovo Indictment, see Prosecutor v. MiloSeviC, 'Decision on Application to Amend Indictment and on Confirmation of Amended Indictment', 29 June 2001; for the Croatia Indictment, see Prosecutor v. Milos'eviC, 'Order Modifying Second Order Granting Leave to Amend the Croatia Indictment', Case No. IT-02-54,28 July 2004; and, for the Bosnia Indictment, see Prosecutor v. MiloSeviC, 'Order on the Amended Bosnia Indictment', Case No. IT-02-54-T, 2 1 April 2004. For discussion of some of these defects, see Prosecutor v. Milutinovid et al., 'Decision on Motion to Amend the Indictment', Case No. IT-05-87-PT, 11 May 2006.
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of ICTY and ICTR appeal cases such as ~ u ~ r e i and k i ~takirutimana," ~ ~ ~ it is apparent that prosecutorial offices should act to address deficiencies in what has apparently become orthodoxy in the approach to the drafting of international indictments. Sound drafting principles have not been consistently applied and not enough has been done to redress errors and defects that have occurred.34Many indictments remain largely poorly structured and unnecessarily lengthy (sometimes in excess of 100 pages). To complicate matters further, the process of amendment (forced by legal process, or sought by the Prosecution for the addition, removal or alteration of, charges) has often served to layer error upon mishap. The future conduct of international criminal prosecutions should proceed from a fresh slate: indictments should be drafted with clarity of the criminal conduct charged, the accused's responsibility in it clearly particularised and defined, and nomenclature carefully and consistently employed. This in itself will save time both at the pretrial stage and at the trial stage, and it will benefit the Prosecution (which will be clearer about its case), the defence (which will know better the case it has to answer) and the court (which must adjudicate and determine the case). The effect will not only be beneficial for the expedition of the trial, it will also materially impact on the trial's fairness, as the accused will be properly informed of the case at an early stage, enabling time for investigation and preparation and enabling a focus on the real issues. Furthermore, the Prosecution should cease the lamentable practice of 'throwing the book' at those it charges in international criminal proceedings. Charging almost every accused with multiple forms of criminal responsibility, as is particularly the case with senior-level accused, has the effect of broadening the scope of the case and therefore the length of proceedings, as well as reducing their clarity and potentially impacting upon fairness. Throughout the MiloSevid trial proceedings the Prosecution persistently proclaimed its responsibility to all the victims of the three theatres of conflict - Croatia, Bosnia-Herzegovina and Kosovo - reflected in the three indictment^.^^ This is
32. Prosecutor v. KupreSkiC, 'Appeal Judgement', Case No. IT-95-16-A, 23 October 2001, where two accused were acquitted on the basis of defective pleading. 33. Prosecutor v. Ntakirutimana, 'Judgement', Case Nos. ICTR-96-10 & ICTR-96-17-TA, 21 February 2003, where acquittals on the basis of defective pleadings led to a genocide conviction being overturned. 34. Examples of this can be seen in the KupreSkiC and Ntakirutimana cases referred to above, as well as in Prosecutor v. KordiC and cerkez, 'Judgement', Case No. IT-95-1412-A, 17 December 2004; and, the trial decision of Prosecutor v. LazareviC, 'Decision, Decision on Vladimir Lazarevic's Preliminary Motion on Form of Indictment', Case No. IT-05-87-PT, 8 July 2005. 35. See e.g., Prosecutor v. MiloSeviC, 'Prosecution Submission in Response to the Trial Chamber's 22 November 2005 "Scheduling Order for a Hearing" on Severing the Kosovo Indictment', Case No. IT-02-54-T, 29 November 2005, para. 49: 'The individuals who are victims of the wars have a right to a public resolution of the conflicts they experienced. Some are elderly or ill and might not live to see another trial; those who would survive deserve to have a timely public and just resolution of the crimes committed against them or their families and friends.' See also, reference of the Prosecutor to 'the thousands of victims who are demanding justice': Prosecutor v. MiloSeviC, Hearing, Case Nos. IT-
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clearly a legitimate concern and one echoed by human rights groups in relation to other international criminal trials.36Laudable though such a sentiment may be, it was impossible to satisfy the legitimate needs, interests and concerns of all the victims of all three Balkan conflicts over eight years, particularly in the context of a single criminal trial against one accused. The Prosecution's specific allegations against MiloSeviC reflect a commitment to include reference to as many municipalities as possible. While some of the specific counts in the indictments related to incidents in single m~nici~alities,~' the overwhelming majority of counts allege patterns of conduct across multiple municipalities. The following four counts from the Bosnia Indictment are indicative of the complexity inherent in this approach. MiloSeviC was charged in counts 19-22 of war crimes in relation to the wanton destruction and plunder of the public and private property: ' ... of the Bosnian Muslim, Bosnian Croat and other non-Serb populations within the territories of Banja Luka; Bihac; Bijeljina; Bileca; Bosanska Gradiska; Bosanska Krupa; Bosanski Novi; Bosanski Samac; Bratunac; Brcko; Cajnice; Celinac; Doboj; Donji Vankuf; Foca; Gacko; Sarajevo (Hadzici); Sarajevo (Ilidza); Sarajevo (Ilijas); Kljuc; Kalinovik; Kotor Varos; Nevesinje; Sarajevo (Novi Grad); Sarajevo (Novo Sarajevo); Prijedor; Pmjavor; Rogatica; Rudo; Sanski Most; Sipovo; Srebrenica; Teslic; Trebinje; Visegrad; Vlasenica; and Zvomik. This intentional and wanton destruction and plunder was not justified by military necessity.'
The prosecutorial decision to charge the accused with the particular war crimes across 32 named municipalities required the Prosecution to prove the occurrence of the crimes in every single named municipality. A simpler approach would have been to enumerate an indicative list of municipalities - perhaps two or three key physical locations - and then to have added words such as 'and in other municipalities'. By not naming the additional municipalities the Prosecution could have significantly limited the scope of its obligations to establish the crime base. Some communities may have felt aggrieved not to have been named in the indictments against MiloSeviC but those same communities may also have seen judgment entered against the accused. In any case, there was no suggestion that, despite the large number of municipalities mentioned by name, the indictments were exhaus-
0 1-50-PT & IT-0 1-51-I & IT-99-37-PT, 1 1 December 200 1, Transcript, 69, 9 1;Prosecutor v. Milosevie, Hearing, 12 February 2002, Transcript, 10-11. 36. The trial of Saddam Hussein, for example, has been persistently subjected to criticism for the decision to focus exclusively on the Dujail massacre and its aftermath at the expense of many other atrocities perpetrated throughout Iraq by Saddam's regime. See also the comments by R. Dicker, head of the International Justice Programme at Human Rights Watch, criticising the ICC Prosecutor for not indicting Thomas Luhanga for a broader range of crimes: Institute for War and Peace Reporting ('IWPR'), 'ICC Prosecution Defends its Tactics': 1 July 2007. 37. See for example, in the Croatia Indictment the counts relating to the shelling of Dubrovnik and in the Bosnia Indictment the counts relating to the siege of Sarajevo and Sehrenica Massacre.
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tive in covering every municipality that was the subject of atrocities allegedly perpetrated by military forces under the authority of the accused. Instead, the case against the accused was so complex that the Prosecution ran out of allocated time to lead evidence in respect of many named municipalities. At the end of the presentation of its case, the Prosecution was ordered by the Trial Chamber to produce amended indictments to excise those municipalities for which no evidence was Ultimately, the Prosecution may have done little justice to victims by presenting a case of such overwhelming scale that it was unable to lead sufficient evidence to explain, let alone establish, many of the alleged offences. It is possible to pursue an opposite extreme. In the trial of Saddam Hussein, for example, the prosecutors appear to have taken an antithetical approach to the scope of the crimes alleged against the former Iraqi leader compared to the scope of the case against Slobodan MiloSeviC. The conduct of the trial proceedings, the evidentiary bases for judgment in the case and the derisive public execution of Saddam Hussein have all been subjected to sustained and extensive criticism.39But criticism has also been levelled at the prosecutorial choice to focus the charges in the trial exclusively upon the attempted assassination of Saddam Hussein in Dujail - hardly reflective of anything approaching the full extent of crimes allegedly committed by the deposed regime.40The determination to proceed with such a relatively narrow case against the former Iraqi leader raises a suggestion of an improper commitment to expeditious conviction and subsequent execution - at the expense of commitment to issues of legal principle. he mere scent of such a possibility seems so toxic as to taint any claim to fair trial. Perhaps the prosecutors at the Special Court for Sierra Leone have forged a middle path in their choice of the scope of their case against the former Liberian leader Charles Taylor. In charging Taylor with 11 counts of crimes against humanity and war crimes for alleged patterns of conduct across multiple alleged incidents the prosecutors seem to have attempted a pragmatic range of representative chargex4' It remains to be seen whether or not an appropriate balance has been struck.
38. Prosecutor v. Milos'eviC, 'Decision on Motion for Judgement of Acquittal', Case No. IT-02-54-
T, 16 June 2004. 39. See for example, Human Rights Watch, The Poisoned Chalice: A Human Rights Watch BrieF ing Paper on the Decision of the Iraqi High Tribunal in the Dujail Case, 22 June 2007 available at: http:/lhnv.org/backgrounder/ij/iraq0607; E.H. Blinderman, 'The Execution of Saddam Hussein - A Legal Analysis', 9 YIHL (2006) pp. 153-179. For the argument that there are meritorious aspects in the written judgment in the trial of Saddam Hussein see for example, M.P Scharf, 'The Iraqi High Tribunal: a Viable Experiment in International Justice?', 5 Journal of International Criminal Justice (2007) p. 258; and M.A. Newton, 'The Al-Dujail Trial and International Humanitarian Law: Context, Controversy and Potential Contributions', 9 YIHL (2006) pp. 117-15 1. 40. See for example, M. Sissons and A S . Bassin, 'Was the Dujail Trial Fair?', 5 Journal of International Criminal Justice (2007) p. 272. 41. The Indictment against Charles Ghankay Taylor is available online at: <www.sc-sl.org/Docu ments1SCSL-03-01 -PT-263.pde.
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The required process of reform in relation to the identification of a manageable case is not exclusively the responsibility of the Prosecution. The Miloievid Trial Chamber played some part in allowing the trial to proceed on the basis of defective indictments and it chose not to intervene proprio motu to order the Prosecution to remedy the defects. Had the Prosecution in the Miloievid case narrowed - or been ordered to narrow - the focus of its indictments, it may have been better placed to define its case against the accused and prove it. Instead, it took well into the defence case, more than three years after the commencement of the trial, before the Prosecution's principal case theory against MiloSeviC (relating to his alleged commitment to the notion of a Greater Serbia) was ~larified.~' The combination of both the breadth and the vagueness of the Prosecution indictments and, therefore, more broadly the lack of clarity and focus in the conception of its case constituted a principal reason for the lack of expedition in the trial. This is not an experience of international criminal trials limited to MiloSeviC. Carehl attention should be paid by judges or chambers reviewing indictments prepared for confirmation. This procedure did not occur in the early, or even relatively recent, history of the ad hoe Tribunals and, as a result, regrettably defective and overly expansive indictments were confirmed. The process of reforming the approach to pleading, in respect of accuracy as well as scope, also requires regulatory action. Beyond unilateral judicial review of an indictment presented by the Prosecution, an additional contested review procedure should be formally implemented. Following initial prosecutorial appearance and preliminary disclosure of allegations against the accused, the defence ought to be able to challenge the prima facie establishment of each and every charge in the indictment. Such a procedure should, if properly implemented and adjudicated, provide greater certainty about the merit of an indictment. It would undoubtedly clarify error or confusion arising from the Prosecution's accusatory instrument, and it would provide a vehicle for early agreement on material facts and case management approaches to the scope of the pleaded case. The implementation of such a procedure would result in a positive contribution to efforts to achieve both fairness and expedition. Another key reason for the length of the Miloievid trial was an important decision by the Appeals Chamber to join the three indictments into one case, spanning three conflicts over eight years and encompassing over 7000 charges in 66 separate counts against one man. The Appeals Chamber's reasoning was spurious, the consequences devastating for the expedition of the The Trial Chamber had determined that the trial would proceed on the Kosovo Indictment alone, leaving the other two indictments to be prosecuted later - possibly jointly because of the crossover of issues (and, therefore, evidentiary exhibits and witnesses) across the Croa-
42. See Prosecutor v. MiloSeviC, Hearing, 15 December 2004, Transcript, 43265-43266. 43. See Prosecutor v. MiloSeviC, 'Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder', Case Nos. IT-99-37-AR73, IT-01-50- AR73, IT-01-51- AR73, 18 April 2002.
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tian and Bosnian theatres of conflict. Apart from identification by the Trial Chamber of the disparate and tenuous connectivity between events at the end of the Bosnia war in 1995 and the start of the Kosovo war in 1999 as a single transaction, the Chamber also considered joinder of the three indictments as a case management nightmare. Even the Appeals Chamber, in overturning the Trial Chamber ruling, acknowledged that there was potential for joinder to create an unmanageable case.44The Appeals Chamber's endorsement of the Prosecution's zealous q u e s t f o r joinder, justified largely b y extra-legal c o n c e r n s relating to v i c t i m repre-
sentation and other political and historical interests, set the scene for an unmanageable trial. A valuable lesson to be learnt from this experience is that the Prosecution should exercise restraint and common sense in its approach to such strategic issues and, where the Prosecution fails to do this, courts should be willing to use a heavy hand to control the scope of proceedings so that they are manageably fair and expeditious.
3.2
Case management of complex international criminal law trials
The Trial Chamber intervened extensively in the management of the Milos'eviC trial far more so than in most international criminal trials - for a number of reasons. The accused was, especially early on in the trial, obstructive in a number of ways. In opening arguments, the cross-examination of prosecution witnesses and in the presentation of his defence, he mounted a highly politicised case, often straying from the forensic into long speeches or vitriol.45He refused to recognise the legitimacy of the Tribunal from the start, although he ultimately cooperated in many respects with the trial process. He was found to have manipulated his own health and was at times strategically disruptive.46This was also one of the most complex cases imaginable with an accused who, for much of the trial, represented himself. Furthermore, as discussed earlier, the prosecution mounted a case - and the Chambers allowed it to do so - that created considerable case management complexities. The breadth and scope of the case presented enormous obstacles for the court's ability to construct a trial process that would be both fair and expeditious. Of considerable interest to this discussion is the growing consciousness in adversarial criminal justice systems (which international criminal tribunals and courts
-
44. Ibid., para. 26. 45. For example, his initial appearances, where he stated: 'I consider this Tribunal a false Tribunal and the indictment a false indictment. It is illegal being not appointed by the UN General Assembly, so I have no need to appoint counsel to illegal [Tribunal] ... This trial's aim is to produce false justification for the war crimes of NATO committed in Yugoslavia' (Prosecutor v. MiloSeviC, Hearings, 3 July 200 1, at Transcript 2). 46. See findings of the Trial Chamber in Prosecution v. MiloSeviC, 'Reasons for Decision on Assignment of Defence Counsel', Case No. IT-02-54-T, 22 September 2004, and Prosecutor v. MiloSeviC, 'Decision in Relation to Severance, Extension of Time and Rest', Case No. IT-02-54-T, 12 December 2005.
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ostensibly are47)that courts must take an active part both in the pre-trial process and in the regulation of the scope and conduct of a case during trial.48These propositions are complementary because the better-managed a case is in pre-trial, the more focused it is likely to be at trial. For the future conduct of international criminal trials, it will be important for intemational courts and tribunals to focus on individual case management to reduce the scope of cases on the basis of their own particular complexities. There are ostensibly two forms of case management. The main division in the literature appears to be between individual case management and court-wide case flow management (or differential case management). There has been no evolution in the nomenclature relating to case management in international criminal law and, as is clear from the jurisprudence, little conscious discussion of case management models.49 We characterise two different kinds of case management within the rubric of international criminal law cases: 'micro' and 'macro' case management approaches, both of which operate within the context of any particular individual case. By 'micro' case management, we are referring to the detailed intervention by a chamber in the structure and scope of a party's case. For example, the selection of particular witnesses or categories of witnesses called to present evidence which the chamber considers repetitive, cumulative, insuficiently relevant, insufficiently credible or overly prejudicial. Another example might be limiting the number of witnesses that may testify on a specific incident, which would, therefore, involve
47. The Statutes of the ICTY and ICTR, the ICC to a slightly lesser extent, and other intemational criminal tribunals, all have profound characteristics of an adversarial criminal law system and, in the case of the ICTY and ICTR, have certainly been interpreted as such (see e.g., Robinson, supra n. 10; Robinson, supra n. 10; D.A. Mundis, 'From "Common Law" Towards "Civil Law": The Evolution of the ICTY Rules of Procedure and Evidence', 14 Leiden JIL (2001) p. 367; G. Boas, 'A Code of Evidence and Procedure for International Criminal Law? The Rules of the ICTY', in Boas and Schabas, supra n. 23; M . DamaSka, 'The Uncertain Fate of Evidentiary Transplants: Anglo-American and Contemporary Experiments', 45 A J Comp. L (1997) p. 839; F. Tulkens, 'Criminal Procedure: Main Comparable Features of the Different European Criminal Justice Systems', in M. Delmas-Marty, ed., The Criminal Process and Human Rights: Toward a European Consciousness (Dordrecht, Nijhoff 1995) p. 5). 48. See e.g., American Bar Association, 'Criminal Justice Section Standards Speedy Trial', approved by the American Bar Association's House of Delegates in August 2004
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judgements about the sufficiency of evidence to prove an aspect of a party's case or the case strategy of that party. A further example is the limitation on the number of counts, crime sites or incidents in respect of which evidence may be presented by the Prosecution. All of these micro case management approaches carry with them inherent risks and complexities in an adversarial criminal law system. By 'macro' case management, we are referring to more global forms of intervention available to a court to control the scope of a party's case. The most obvious example, and the technique which has yielded the greatest success thus far, is imposing limits on the time in which a party may lead evidence. Other examples include limiting witness numbers overall, as opposed to specific witnesses, witness categories and witnesses by location; encouraging the use of written testimony in lieu of oral evidence; allowing a more flexible approach to the introduction of documentary evidence than is typical of adversarial criminal law systems (for example, by not requiring a witness to necessarily introduce and authenticate each document through a witness). It is apparent that in the mere decade and a half in which modem international criminal law has existed, considerable development of complex case management has already occurred.50 The MiloSeviC case represented the turning point in the development of these issues in international criminal law. The case was so broad and complex that it compelled the ICTY to consider, and to take, radical action to try to contain and manage it. The action taken by the Trial Chamber, in turn, spilled over into other trials (before the ICTY and other international tribunals) and into the regulatory activities of those tribunals. In the MiloSevid case, the Trial Chamber initially endeavoured to control the case by reducing the number of witnesses and scope of overall evidence. In the Kosovo phase of the case, the Chamber had ordered the Prosecution to lead no more than 90 witnesses, although it allowed the Prosecution to apply to add witnesses on good cause being ~ h o w n . It~ 'also encouraged and permitted significant use of written testimony in lieu of oral testimony, considerably reducing the incourt time taken to give evidence-in-chief (and, in some cases, cross-examinat i ~ n ) . ~For ' the Bosnia and Croatia phases of the case, the Trial Chamber ordered
50. See e.g., G.-J.A. Knoops, An Introduction to the Law of International Criminal Trihunals: A Comparative Study (Ardsley NY, Transnational 2003); Mundis, supra n. 47, p. 367; D.A. Mundis, 'Improving the Operation and Functioning of the International Criminal Tribunals', 94 AJIL (2000) p. 759; Boas, supra n. 47; G. Boas, 'Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court', 12 CLF (2001) p. 167. 5 1. Prosecutor v. Milo.?eviC, Hearing, 9 January 2002, Transcript, 246. 52. The evidence-in-chief of around 54% of all Prosecution witnesses was given in writing and, for 15%, their entire evidence was given in writing (meaning the evidence was delivered in writing over the objection of the accused who was not permitted to cross-examine): see Prosecutor v. MiloSeviL:, 'Decision in Relation to Severance, Extension of Time and Rest', Case No. IT-02-54-T, 12 December 2005, para. 21. For a discussion of the methodology, rules and implications of the use of written testimony at the ICTY and in international criminal tribunals more generally, see Boas, supra n. 47; G. Nice and P. Vallieres-Roland, 'Procedural Innovations in War Crimes Trials', in Abtahi and Boas,
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the Prosecution to reduce the number of witnesses it intended to call, noting that on the basis of the over 560 proposed witnesses, 'we would be looking at a prosecution case of something in the order of two to two and a half years from now, and we have to say that we regard that as an unmanageable length and not consistent with a fair and manageable However, the overriding case management procedure adopted, ostensibly for the first time in international criminal law, was to set an overall time limit in which the Prosecution - and later the Defence - was required to lead their case. On 10 April 2002, the Trial Chamber ordered that the Prosecution would have to conclude its case by 10 April 2003: '[Wle have decided that the Prosecution should have one year from today to conclude their case. That will give them a total of 14 months in which to finish the case...In the view of the Trial Chamber, no Prosecution case should continue for a period longer than that.'54 This ruling led the Prosecution to appeal and, on 16 May 2002, the Appeals Chamber rendered its decision upholding the Trial Chamber's order.55The Trial Chamber subsequently extended the time available to the Prosecution to lead its case-inchief. At the pre-trial conference concerning the Croatia and Bosnia case on 25 July 2002, the Trial Chamber ordered an extension of that time to 16 May 2 0 0 3 . ~ ~ After numerous interferences with the sitting schedule, the Prosecution case finally closed a considerable time thereafter, on 25 February 2004.~' The same regime applied to the conduct of the Defence case.58 The case management procedures considered, attempted or discarded in the Milos'evii case, established a foundation for developing case management practices in later complex international criminal trials. Some of the regulatory changes that have been introduced in the ad hoc Tribunals have evolved directly from experiences or expressed ideas during Milos'eviC. Approaches in the Milos'eviC trial have
supra n. 47, p. 141. For a dissenting view of the use of this procedure before the ICTY, see Prosecutor v. MiloSeviC, 'Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92bis(D)-FoCa Transcripts: Dissenting Opinion of Judge Patrick Robinson', Case No. IT-02-54-T, 30 June 2003; Robinson, supra n. 20. 53. Prosecutor v. Milos'evid, Hearing, 25 July 2002, Transcript, 8610-861 1. 54. Prosecutor v. MiloSeviC, Hearing, 10 April 2002, Transcript, 2782-2784. Five days later the Prosecution sought clarification of what was meant by the use of the word 'should' in the ruling, and the Chamber clarified that 'is a mandatory order' (Prosecutor v. MiloSevid, Hearing, 15 April 2002, Transcript, 3029). 55. Prosecutor v. MiloSeviC, 'Reasons for Refusal of Leave to Appeal From Decision to impose Time Limit', Case No. IT-02-54-T, 16 May 2002. 56. Prosecutor v. MiloSeviC, Hearing, Transcript, 25 July 2002, 8641. 57. See Prosecutor v. MiloSeviC, 'Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form', Case No. IT-02-54-T, 25 February 2004. 58. See Prosecutor v. Milos'eviC, 'Order Re-Scheduling and Setting the Time Available to Present the Defence Case', Case No. IT-02-54-T, 25 February 2004.
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set the basis for a profound change in culture in the expedition of trials before these tribunals and have been evidenced in prolific development in the subsequent case law.59One relatively radical approach concerned the reduction in charges or crime sites pleaded by the Prosecution in a particular indictment. The Trial Chamber in Milos'eviC had foreshadowed such a case management approach when it put to the Prosecution the possibility of substantially reducing the scope of the Bosnia IndictrnenL6' This approach was subsequently included in an amended Rule 73bis of the ICTY R u l e s a n d first trialled in the Milutinovid c a s e s o m e y e a r s later.6'
Although setting overall time limits on the parties' cases is a safer and sometimes preferable form of macro case management, it is evident that this will not be enough to reduce sufficiently the length of complex international criminal trials and make them more manageable in the future. More radical case management approaches are needed for international criminal courts and tribunals to prove their ability to transcend real or perceived infiastructural adversarial limits imposed by their constitutional instruments or application of them. There must be a willingness in these institutions for the judges to define and grapple with some micro-management methodologies in conducting such cases. Rules 73bis(D) and (E) of the ICTY Rules may exemplify the future of case management of these trials, whereby courts have greater powers of intervention in the scope and conduct of the parties' cases, particularly that of the Prosecution. However, prosecution offices (particularly at the ad hoe Tribunals) have shown that they are not yet prepared to take responsibility for reducing and focusing their cases in a way that will impact substantially and favourably on their length and manageability. Judges will, therefore, have to intervene and judiciously exercise available powers to ensure cases are conducted in a reasonably expeditious manner. They will have to attend to the scope and nature of the case; limit witnesses and witness numbers where appropriate; foreclose on the parties leading tangential or irrelevant evidence; continue the procedure of setting global time limits; and develop nuanced case management approaches, macro and micro in nature, which answer challenges to both the fairness and the expedition of the trial process.
j
2
?
59. See e.g., Prosecutor v. Orb?, 'Interlocutory Decision on Length of Defence Case', Case No. IT03-68-AR73.2, 20 July 2005; Prosecutor v. Prlid et al., 'Order on Guidelines for Drawing up the List of Witnesses and Exhibits', Case No. IT-04-74-PT, 30 November 2005; Prosecutor v. Martid, 'Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court', Case No. IT-95-11-T, 13 April 2006; Prosecutor v. JelisiC, Hearing, Case No. IT-95-10-T, 7 September 1999, Transcript, 1063; Prosecutor v. Krajiinik, Case No. IT-00-39-T, 23 April 2004, Transcript, 2652; Prosecutor v. Milutinovid, 'Decision on Application of Rule 73bis', IT05-87-T, 11 July 2006. 60. See comments made by Judge Robinson ('If you have 47 municipalities, the question is: why do you need to present evidence from the 47? Why can't you present evidence from a half of that or a third of that?'): Prosecutor v. MiloSeviC, Hearing, 10 April 2002, Transcript, 2775-2776. 61. Prosecutor v. MilutinoviC, 'Decision on Application of Rule 73bis', IT-05-87-T, 11 July 2006.
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3.3
Managing resource and representation issues
Many models of representation have emerged in the short existence of modem international criminal law. The standard defence counsel model, as well as legal aid schemes and the regulation of the appearance and conduct of counsel, have developed over the past decade and a half. The evolution of defence counsel ofe ~ in ~ the I C C , ~are fices at the Special Court for Sierra ~ e o n and ~ signs of the development of a self-established international criminal defence bar. This is also a sign that international criminal law is becoming a well-rooted system of law with a secure future. However, other representation models have emerged or are emerging which expose some of the variety of challenges facing international criminal law. The sheer size and complexity of these cases, and the rarefied environment in which this system operates, pose challenges that have called for innovative and sometimes radical consideration of the kind of legal representation that is available, particularly to high-level accused. It is also true that considerable resources need to be made available to these accused to counterbalance the resources available to prosecution offices and to address the complexities, scope and nature of international criminal trials. The Milos'eviC case was the source of considerable experimentation and innovation in this area and techniques (relating to the provision of extraordinary resources or de facto legal assistance) were either created or developed by the Trial Chamber in an attempt to achieve the goal of conducting the trial fairly and expeditiously.64 The accused's insistence on self-representation posed a profound challenge to the conduct of the MiloSeviC trial and the same phenomenon is a spreading problem in international criminal law. MiloSeviC's representation status, coupled with significant health problems and his own medical manipulations, caused months of trial time to be lost while MiloSeviC rested and/or prepared his defence.65 Senior-level accused, with the personality and the will to interfere with the conduct of trials that are already complex, have increasingly followed MiloSeviC's lead and chosen to defend themselves or use representation issues in other ways to obstruct the trial process. In the MiloSeviC case, the self-representing accused ab-
62. Principle Defenders Office: see the Statute and Rules of the SCSL (Adopted on 16 January 2002, as amended on 7 March 2003, 1 August 2003, and 14 March 2004) and the 'Directive on Assignment of Defence Counsel (Adopted on 1 October 2003). 63. Office of Public Counsel for the Defence: see Regulation 77 of the Regulations (ICC-BDIOI01 -04, adopted by the Judges on 26 May 2004). 64. See e.g., Prosecutor v. MiloSevid, 'Registry Report on Practical Facilities Available to the Accused', Case No. IT-02-54-T, 18 March 2002; Prosecutor v. MiloSeviC, 'Decision in Relation to Severance, Extension of Time and Rest', Case No. IT-02-54-T, 12 December 2005; Prosecutor v. MiloSevid, 'Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel', Case No. IT02-54-T, 4 April 2003; Prosecutor v. MiloSevid, 'Brief on the Provision of Adequate Facilities to Allow the Accused to Prepare his Defence, re-filed by the Amici Curiae', 5 March 2002. 65. See detailed discussion of these issues by the Trial Chamber in Prosecution v. MiloSeviC, 'Reasons for Decision on Assignment of Defence Counsel', Case No. IT-02-54-T, 22 September 2004.
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sorbed considerable resources and energy and led the Trial Chamber to conclude that there were circumstances in which the right to self-representation, which it held was recognised in international criminal law, was subject to limitation and qualification.66In international criminal law, following the MiloSevid Trial and Appeals Chamber decision^,^' and other decisions in the ad hoe Tribunals and SCSL," there appears to be a clear legal proposition to the effect that the right to self-representation may, at least in principle, be taken away or limited in circumstances where it threatens the overall fairness and expedition of the trial. This will be so even in circumstances where individual constituent rights (or 'minimum guarantees') which make up the overarching right to a fair trial must be violated.69 In this area, the Miloievid trial once again provides a rich and detailed source of law for issues that go to the heart of best practice for the conduct of complex international criminal trials. Decisions in the ~ e i e l jand Krajis'nik cases before the ICTY and the Norman case before the SCSL are others." In future, international criminal courts and tribunals will undoubtedly be confronted with the complexities of these representation and resource issues and will be obliged to make difficult decisions about the balancing of rights and interests in determining the manner of representation, particularly where accused seek to wilfully manipulate or obstruct the trial process. Again, much can be taken from the MiloieviC trial in determining how to balance and to conclude such issues. Although different representation models have evolved in recent years to deal with accused who by their conduct or choices pose a challenge to a fair and expeditious trial (the appointment of standby counsel," the imposition of defence counsel, and development and modification of amici ~ u r i a e ) , 'the ~ real distinction to be drawn is between representation and self-representation. The strong position ulti-
66. Ibid. 67. See Prosecution v. MiloSeviC, 'Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel', Case No. IT-02-54-AR73.7, 1 November 2004. 68. See e.g., Prosecutor v. Norman et al., 'Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court', Case No. SCSL-0414-T; Prosecutor v. SeSelj, 'Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seielj with his Defence', Case No. IT-03-67-PT, 9 May 2003; Prosecutor v. SeSelj, 'Decision on Assignment of Counsel', Case No. IT-03-67-PT, 21 August 2006; Prosecutor v. KrajiSnik, 'Reasons for Oral Decision Denying Mr KrajiSnik's Request to Proceed Unrepresented by Counsel', Case NO. IT-00-39-T, 18 August 2005. 69. But see dangerous and poorly reasoned decisions of the ICTY Appeals Chamber in the S e w case (cited supra n. 68). 70. Supra n. 68. 71. For a discussion of this and other issues relating to self- representation in international and domestic criminal law, see G. Boas, 'The Right to Self-Representation in International and Domestic Criminal Law - Limitations and Qualifications on That Right', in Abtahi and Boas, supra n. 10; M.P. Scharf and C. M. Rassi, 'Do Former Rogue Leaders Have an International Right to Act as Their Own Lawyers in War Crimes Trials?', 20 Ohio State Journal on Dispute Resolution (2004) p. 1. 72. See Prosecutor v. MiloSevid, 'Order Inviting Designation of Amicus Curiae', Case No. IT-OI51-PT, 23 November 2001; Prosecutor v. MiloSeviC, 'Order Appointing Amicus Curiae', Case No. IT02-54-T, 22 November 2002; Prosecutor v. Milo.FeviC, 'Order of Further Instruction to the Amici Curiae', Case No. IT-02-54-T, 6 October 2003.
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mately taken by the Trial Chambers in the MiloSeviC and ~eSeZjcases, in imposing counsel on intransigent and manipulative accused, presents real challenges for the conduct of those trials as well as - crucially - their fair and expeditious conduct. However, the consequences of not taking a strong position may be the total derailment of the trial and an inability of the court to impose an effective and acceptable framework for the trial to proceed to conclusion - a potentially disastrous consequence resulting from the Appeals Chamber's intervention to override the Trial j Chamber in the ~ e i e lcase.73 An essential principle in the reform process when dealing with these issues for future complex international criminal trials, is for the court to enforce respect for the judicial institution, its officers and the forensic trial process. In the MiloSeviC trial, as in others, the court has shown a considerable degree of leniency towards accused who show disrespect and who use the forensic trial process to peddle political views or threaten the good conduct of the trial. The predisposition to leniency has developed, at least in part, from a concern to achieve the practical goal of keeping the trial process moving. However, the MiloSeviC case demonstrates the possibility of high-level self-representing accused capitalising on a judicial predisposition to leniency by manipulating the trial process for inappropriate motives. International criminal courts and tribunals must ensure that less latitude is given to such accused and that the integrity of the trial process is preserved. This is an important aspect of a court ensuring the fairness and expedition of these trials.
4.
INTERNATIONAL CRIMINAL TRIALS FOLLOWING MILOSEVIC
An unusually complex constellation of factors contributed to the protracted nature of the proceedings against Slobodan MiloSeviC and precluded conclusion to trial proceedings before the intervening death of the accused. MiloSeviC's serious health condition necessitated a significant reduction in the weekly sitting schedule and resulted in the loss of an additional 65 sitting days throughout the Prosecution case. His successful insistence on self-representation also provided MiloSeviC with opportunities to slow trial proceedings. The sheer magnitude of the Prosecution's accusations of fact against the accused, combined with the decision of the Appeals Chamber to override the Trial Chamber and approve joinder of all three indictments, produced a mega-case that ultimately proved unmanageable in any expeditious manner. The Milos'evii. trial provides important lessons for achieving both fair and expeditious international criminal trials of the most senior political figures. It is crucial
73. See Prosecutor v. Seielj, ,'Decision on Appeal Against the Trial Chamber's Decision on Assignment of Counsel', Case No. IT-03-67-AR73.3, 20 October 2006; Prosecutor v. Seielj, 'Decision on Appeal Against the Trial Chamber's Decision (No. 2) on Assignment of Counsel', Case No. IT-0367-AR73.4, 8 December 2006. The Appeals Chamber overruled the Trial Chamber's well-reasoned imposition of defence counsel of the accused twice, rendering the conduct of the trial almost impossible and causing the Trial Chamber to delay indefinitely the commencement of proceedings.
The Milos'eviC Trial
to the hture of international criminal law that not
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only the ad hoe international criminal tribunals and the internationalised criminal courts and tribunals build on the lessons learned thus far, but that the International Criminal Court (ICC) also pay close and conscious attention to approaches developed in The Hague, Arusha, Freetown and elsewhere. After all, the ICC will be responsible for building the preeminent intemational criminal law institution of the hture. If the lessons learned from MiloSeviC are heeded and adjustments made to the conduct of kture trials, there is a real prospect of conducting and improving fair and expeditious intemational criminal trials of the most senior accused. Such an outcome would constitute a positive legacy of the MiloSeviC trial.
TARGETED KILLING OR LESS HARMFUL MEANS? - ISRAEL'S HIGH COURT JUDGMENT ON TARGETED KILLING AND THE RESTRICTIVE FUNCTION OF MILITARY NECESSITY' Nils ~ e l z e r '
... Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.3
1.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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2. 2.1 2.2 2.3
The 'least harmful means'-requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . The requirement recalled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Source in Domestic and International Law . . . . . . . . . . . . . . . . . . . . . . . . Legal basis in international humanitarian law. . . . . . . . . . . . . . . . . . . . . .
90 90 91 95
3. 3.1 3.2 3.3 3.4
The principle of military necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Juridicalconcept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PemissivefUnction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictive function. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operational assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
100 101 104 108 1 11
4.
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
112
1.
INTRODUCTION
In November 2000, a few weeks after the outbreak of a major uprising in the occupied West Bank and Gaza Strip, the Israeli government officially acknowledged it
1. O N. Melzer 2008. 2. Dr Nils Melzer is Legal Adviser in the Legal Division of the International Committee of the Red Cross. The article reflects the views of the author alone and not necessarily those of the ICRC or its Leal Division. The author thanks Anne Deniaud for her research assistance in comparing the concepts of proportionality underlying various national and international systems. 3. Art. 14 Lieber Code (1 863). Yearbook oflnternational Humanitarian Law
Volume 9 - 2006 - pp. 87-1 13
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was operating a policy of targeted killing against selected Palestinian militank4 On 14 January 2002, an Israeli (PCATI') and a Palestinian LAW^) human rights group jointly submitted a petition to the Israeli High Court to halt the policy and to issue an interim order suspending its implementation.' The Court subsequently refused to issue the requested interim order and, when it finally delivered its judgment in the case on 14 December 2006, at least 213 targeted persons and 137 bystanders had been killed and hundreds of others injured in operations of targeted killing.8 In its judgment, the Court neither banned nor justified the state policy as a whole, but ruled that the lawfulness of targeted killings must be examined separately for each operation.9 The relevant substantive considerations of the Court can be summarized as follows: - The confrontations occurring between Israel and various terrorist organizations active in the occupied territories amount to a continuous situation of armed conflict.I0That conflict is of international character." - Although deemed 'necessary from a military standpoint' by the government, the targeted killing of terrorists in that context remains subject to the rule of law, in this case customary international law governing international armed conflicts.I2That law is part of the j u s in bello and of international humanitarian law (IHL).'~
4. The Israeli government has issued numerous statements confirming the existence of that policy. Instead of many, see Israel MFA, Press BrieJing by Colonel Daniel Reisner: Head ofthe International Law Branch o f the IDF Legal Division, Jerusalem, 15 November 2000, Questions and Answers, and Israel MFA, Cabinet Communique, Jerusalem, 1 September 2003, both at: . See also Israel HCJ, PCATI V.Israel (full reference infra n. 7), at 55 2, 10 ff. 5. PCATI: The Public Committee against Torture in Israel. 6. LAW: Palestinian Society for the Protection of Human Rights and the Environment. 7. Israel Supreme Court (sitting as High Court of Justice), The Public Committee Against Torture et al. v. The Government of Israel et al. (HCJ 769/02), Petition for a conditional order (Order Nisi) and for an interim order, submitted January 2002, Judgment of 14 December 2006 (hereinafter Israel HCJ, PCATI v. Israel). In this case, the Supreme Court of Israel sits as the High Court of Justice (HCJ), that is to say, as a court of first (and last) instance. 8. Statistical information taken from B'Tselem, at . According to B'Tselem, by 26 July 2007, these figures increased to 218 targeted persons and 141 bystanders. See also PCATI, Press Release of 17 February 2005, at , according to whom, already in the period between November 2000 and May 2004, the lsraeli policy of targeted killing claimed the lives of 362 persons (237 targeted and 125 incidental) and injuring 585 others, only 7 of whom were intended victims. Before the High Court, the petitioners (PCATI and LAW) claimed that, between November 2000 and the end of 2005, Israeli operations killed approximately 300 targeted persons and 150 bystanders, wounded hundreds of others and failed more than 30 times (Israel HCJ, PCATI V.Israel, supra n. 7, at 5 2). 9. Israel HCJ, PCATI v. Israel, supra n. 7, at 4 60. 10. Ibid., at 4 16. 11. Ibid., at 5 21. 12. Ibid.,at 5 61. 13. Ibid., at 5 18.
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situations of armed conflict, IHL is the lex specialis. Where there is a gap (lacuna) in IHL, it can be supplemented by human rights law. Alongside international law, fundamental principles of Israeli public law may apply.14 - According to customary IHL governing international armed conflicts, Palestinian terrorists cannot be combatants but, as there is no intermediate status of 'unlawful combatant', must be regarded as civilians entitled to protection against direct attack unless and for such time as they directly participate in hostilities. '' - Civilians who are directly participating in hostilities on a merely sporadic basis regain protection against attack in the intervals between specific hostile acts. Members of a terrorist organization whose function it is to commit a chain of hostile acts also remain civilians but lose their protection for as long as they assume that function, and may therefore be directly attacked even during the interval between specific hostile acts.16 - Customary IHL governing international armed conflict permits the targeted killing of civilians who are, at the time, directly participating in hostilities on the condition that, in each case, four cumulative requirements are fulfilled: - In
1. Information regarding the identity and activity of a person providing a legal basis for his or her targeting must be most thoroughly verified, which places a heavy burden of proof on the attacking forces. 2. Even a civilian directly participating in hostilities cannot lawfully be killed if less harmful means, such as arrest, interrogation and trial, can be employed. 3. After each targeted killing, a retroactive, thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack. 4. Any incidental death, injury or destruction inflicted on protected persons or objects must withstand the proportionality test.I7 The purpose of this article is not to provide a comprehensive legal evaluation of the Court's arguments or, more generally, of the international lawfulness of the method of targeted killing. Thus, in the following, the accuracy of the Court's conclusions regarding the legal qualification of the situation, the applicable law, the categorization of Palestinian armed actors, the interpretation of the notions of 'unlawful combatant' and 'direct participation in hostilities', as well as its discussion of the requirements of precaution, proportionality and investigation shall remain unquestioned. Instead, this article shall focus exclusively on examining the perhaps most significant and controversial consideration made by the Court, namely its recognition of a 'least harmful means'-requirement in the use of force against
14. Ibid.,at 5 18. 15. Ibid.,at $5 26,28, 30. 16. Ibid., at 5 39. 17. Ibid.,at $5 40,60.
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civilians directly participating in hostilities." In doing so, this article shall first recapitulate the relevant passages of the Targeted Killing-judgment and clarify the legal concepts and terminology used by the Court. In a second step, it shall examine the accuracy of the Court's proposition that the 'least harmhl means7-requirement is part of customary IHL governing international armed conflict and, to the extent that this question is to be answered in the affirmative, shall make a few basic observations as to the application of this requirement to concrete military operations.
2.
THE 'LEAST HARMFUL MEANS' -REQUIREMENT
2.1
The requirement recalled
The 'least harmful means'-requirement as set out by the Israeli High Court essentially denotes that the quality and degree of force used against civilians directly participating in hostilities must be adapted to what is reasonably required in the concrete circumstances. In the words of the Court: The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians 'for such time as they take a direct part in hostilities' (4 5 1 (3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means [. . .].I9
[A] civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed [...I. Trial is preferable to use of
18. For more detailed discussions on other aspects of the Targeted Killing-judgment see N. Melzer, Targeted Killing in International Law (Oxford, OUP 2008) pp. 32-36 and references p. xxxv and, as a whole, 0 . Ben-Nafiali, 'A Judgment in the Shadow of International Criminal Law', 5 J Int. Criminal Justice (2007) pp. 322-33 1; A. Cassese, 'On Some Merits of the Israeli Judgment on Targeted Killings', 5 J Int. Criminal Justice (2007) pp. 339-345; A. Cohen, Y. Shany, 'A Development of Modest Proportions, The Application of the Principle of Proportionality in the Targeted Killings Case', 5 JInt. Criminal Justice (2007) pp. 310-321; W.J. Fenrick, 'The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities', 5 JInt. Criminal Justice, (2007) pp. 332-338; R.S. Schondorf, 'The Targeted Killings Judgment, A Preliminary Assessment', 5 J Int. Criminal Justice (2007) pp. 301-309; A. Moodrick Even-Khen, 'Case Note: Can We Now Tell What "Direct Participation in Hostilities" Is?', HCJ 769102 The Public Committee Against Torture in Israel v. The Government of Israel', Research Paper No. 8-07, The Hebrew University of Jerusalem, Faculty of Law, July 2007, forthcoming: 40 Israel LR (2007) pp. 2 13-244. 19. Israel HCJ, PCATI V. Israel, supra n. 7, at 5 60.
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force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.20 In requiring that military means be chosen so as to minimize the harm inflicted not only on uninvolved bystanders, but also on the targeted persons themselves, the Court unequivocally rejects the view that IHL provides belligerents with an unfet-
tered 'right' to kill any person not entitled to protection against direct attack. In the legal doctrine, the Court's 'least harmful means'-requirement has, so far, given rise to more confusion than controversy. While some authors seem to accept the argument without closer scrutiny," others suggest that it 'is not derived from the laws of war' but 'from occupation law and human rights law',22 or emphasize that, though perhaps necessary and justified, it lacks sufficient theoretical or jurisprudential basis.23The Court's argument has even been described as, 'at best, unsubstantiated and probably also ina~curate'.'~Quite surprisingly, however, no author seems to have subjected the 'least harmful means'-requirement to a more systematic legal analysis.
2.2
Source in domestic and international law
Although the Court regards the 'least harmful means7-requirementas part of customary I H L , it ~ ~deduces it neither directly from that body of law, nor from human rights law, but from a general principle of proportionality of Israeli domestic law which, according to the Court's consistent jurisprudence, also constitutes part of IHL and of general international law.26Arguably, at least part of the confusion surrounding the 'least harmful means'-requirement stems from the fact that the theoretical concept of proportionality underlying the Court's argument (proportionality lato sensu) is conceived much more widely than the more specific principle of proportionality stipulated by IHL for the conduct of hostilities (proportionality in attack)." Inspired primarily by the constitutional and administrative law of Israel and several other states, the general principle of proportionality invoked by the Court comprises a three-pronged test evaluating the 'suitability', the 'least
20. Ibid., at 5 40. 21. So apparently Fenrick, supra n. 18, at p. 338 and Moodrick Even-Khen, supra n. 18, at pp. 30 ff.
22. Ben-Naftali, supra n. 18, at p. 330. 23. Schondorf, supra n. 18, at p. 309. 24. Cohen and Shany, supra n. 18, at p. 315. 25. Israel HCJ, PCATI v. Israel, supra n. 7, at 5 60 (see supra n. 19 and accompanying text) in conjunction with 5 18 (see supra nn. 13-14 and accompanying text). 26. Ibid., at $5 41-44; Israel Supreme Court (as HCJ), Beit Sourik Village Council v. The Government of Israel et al. (HCJ 2056/04), Judgment of 30 June 2004, $ 37, both with hrther references to doctrine and the Court's jurisprudence. 27. The phrase 'proportionality in attack' is also used by J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge, Cambridge University Press 2005) Rule 14, p. 46.
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harmfulness' and the 'proportionality stricto sensu' of state action.28Accordingly, in order to be proportionate (lato sensu), the means used by the state must, first, be Second, within the objectively suitable to achieve their purpose (suitabi~ity).~~ spectrum of such suitable means, the state must choose those that are least harmful to the persons concerned by its action (least harmfulne~s).~~ Third, once these two requirements are fulfilled, the harm likely to result from state action must additionally be balanced against the benefit expected from it (proportionality stricto ~ e n s u ) . The ~ ' principle of proportionality in attack stipulated in positive IHL, on the other hand, is limited to evaluating whether the incidental harm likely to be inflicted on protected persons and objects in the course of an attack directed against a legitimate military target must be regarded as excessive in relation to the anticipated military advantage. It neither takes into account the harm inflicted on
28. Israel HCJ, Beit Sourik v. Israel, supra n. 26, at 5 41. The three-pronged proportionality test finds its origin in German constitutional and administrative law and has been expressly confirmed in the case law of states such as Israel, Switzerland and Canada, as well as in the jurisprudence of the European Court of Justice and of the International Criminal Tribunal for the former Yugoslavia (ICTY). In the The Prosecutor v. fidoje Blagojevic et al., Case No. IT-02-60-PT, Decision of 22 July 2002 on application for provisional release, 3 29, the Trial Chamber of the ICTY held that, according to the general principle of proportionality, '[a] measure in public international law is proportional only when (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target (proportionality in its narrowest sense)". Similarly, in Ex parte Fedesa et al. (1986), 4 13, the European Court of Justice reiterated that 'the principle of proportionality is one of the general principles of Community law', which requires that 'prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued' (see European Court of Justice, The Queen v. Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others, Case C-331188, Judgment of 13 November 1990, ECR (1990) p. I04023). For national case law applying the three-pronged proportionality test, see for example, Israel HCJ, Beit Sourik v. Israel, supra n. 26, at 5 41; Supreme Court of Canada, R. v. Oakes Oakes (1 R.C. S. 103, Case No. 17550, 12 March 1985; 28 February 1986), 5 70; Swiss Federal Court, Social-Democrat Party of Basel-Stadt et al. v. Canton ofBasel-Stadt (BGE 117 IA 472), Judgment of 14 November 1991, p. 483, with references. In other states, such as France, Belgium, Luxembourg, the Netherlands, Greece, Italy and Spain, considerations of proportionality are taken into account in specific cases but are not recognized as a general principle of public law. In the United Kingdom and Ireland, aspects akin to proportionality are assessed in the traditional Anglo-Saxon test of reasonableness. For a detailed analysis of the principle of proportionality in the case law of European states, see J. Schwarze, Droit administrative europeen, Vol. 11, Office Publi Comm Europ (1994) pp. 724-746. For a comparison between the concepts of proportionality in German, French, Belgian and Dutch law, see E. Ellis, ed., The principle ofproportionality in the laws of Europe (Oxford, Hart Publishing 1999) pp. 1, 4458. According to J. Delbruck, 'Proportionality', in R. Bemhardt, Encyclopeadia of Public International Law, Vol. 111,(Amsterdam, North Holland 1997) pp. 1140 ff., at p. 1144, 'the widespread acceptance of the principle in various areas of intemational law and its hndamental importance for the intemational law applying process suggests that proportionality can already be characterized as a general principle of international law'. But see also R. Higgins, Problems & Process, International Law and How We Use It (Oxford, Oxford University Press 1994) p. 236, who concludes: 'Whether proportionality is yet a general principle of law is doubtful'. 29. Israel HCJ, Beit Sourik v. Israel, supra n. 26, at 5 41. 30. Ibid., at 5 41. 31. Ibid.
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the targets themselves, nor the potential availability of less harmfd
means.32 In essence, therefore, the principle of proportionality in attack performs the same value judgment as the element of proportionality stricto sensu of the general prinalbeit restricted to protected persons and objects.34 It does not, however, include the element of 'least harmfulness', upon which the Israeli High Court's corresponding requirement is based. Of course, the fact that the 'least harmhl means'-requirement cannot be based on the principle of proportionality in attack does not necessarily mean that it cannot be derived from IHL at all. In the words of the Court: The requirement of proportionality in the laws of armed conflict focuses primarily upon what our constitutional law calls proportionality 'stricto senso', that is, the requirement that there be a proper proportionate relationship between the military objective and the civilian damage. However, the laws of armed conflict include additional components, which are also an integral part of the theoretical principle of proportionality in the wider sense. The possibility of concentrating that law into the legal category to which it belongs, while formulating a comprehensive doctrine of proportionality, as is common in the internal law of many states, should be considered. That cannot be examined in the framework of the petition before us.35 Regrettably, far from formulating such a comprehensive doctrine of proportionality, the Court does not even attempt to identify the specific component of IHL, which would correspond to the 'least harmful means'-requirement invoked by it. It has therefore rightly been argued that the Court has not convincingly substantiated that requirement as part of customary I H L . ~ ~ This shortcoming is further aggravated by the Israeli High Court's rather conhsing references to human rights law, which have led some commentators to conclude that the 'least harmful means'-requirement must necessarily be derived fi-om human rights law or the law enforcement regime of the law of belligerent occupat i ~ n Particularly . ~ ~ misleading in this respect is the Court's apparent attempt to substantiate the 'least harmful means'-requirement by reference to the standards of precaution developed by the European Court of Human Rights in the McCann
32. See Art. 51 [5] (b) AP I. As Art. 57 [2] (a) (iii) AP I indicates, considerations ofproportionality in attack must be taken into account already as part of the duty to take precautions in attack. 33. Affirmative: Israel HCJ, PCATI V.Israel, supra n. 7, at 5 44; Cohen and Shany, supra n. 18, at pp. 315 ff. 34. From a strictly theoretical perspective, the assessment of proportionality sbicto sensu is also required with regard to legitimate military targets. However, in positive IHL, this function is assumed by the principle of distinction, which predetermines that the death, injury and destruction inflicted on legitimate military targets is, in principle, proportionate in view of the military advantage expected to result from neutralizing the threat posed by them. 35. Israel HCJ, PCATIv. Israel, supra n. 7, at 5 44. 36. Schondorf, supra n. 18, at p. 309; Cohen and Shany, supra n. 18, at p. 3 15; Melzer, supra n. 18, at pp. 33 ff. 37. So for example, Ben-Naftali, supra n. 18, at p. 330.
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case.38That case concerned an arrest operation which, due to the failure of the authorities to take sufficient precautions, unnecessarily escalated to a point where three suspected IRA-terrorists were intentionally killed by British SAS-operatives. In adjudicating the McCann case, the European Court discussed neither the principle of distinction, nor the kind and degree of force permissible against legitimate military targets, or any other question arising under IHL governing the conduct of hostilities, but relied exclusively on law enforcement standards derived from human rights law. The Targeted Killings-judgment of the Israeli High Court, in contrast, does not address the use of force in law enforcement operations but deals exclusively with the conduct of hostilities. In the words of the Court, '[tlhe petition before us is intended to determine the permissible and the forbidden in combat',39 and Israel's targeted killings constitute 'means of warfare, used [...] to preempt murderous terrorist attack^'.^' Accordingly, the judgment is systematically constructed around concepts such as combatancy, civilian participation in hostilities, loss of protection against direct attack and proportionate incidental harm to protected persons and objects. Indeed, although the Court repeatedly refers to the 'human rights' of targeted persons, it ultimately derives the substantive content of these rights from IHL governing the conduct of hostilities and recognizes that 'human rights are protected by the law of armed conflict, but not to their h l l scope'.4' As far as the interpretation of the right to life in the conduct of hostilities is concerned, therefore, the Israeli High Court appears to adhere to the lex specialis principle as outlined by the International Court of Justice in the following passage of its Nuclear Weapons Opinion (1996): In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant
38. ECtHR, McCann and others v. the United Kingdom, Application No. 18984191, Judgment of 27 September 1995, referred to in Israel HCJ, PCATI V. Israel, supra n. 7 , at § 40. 39. Israel, PCATI v. Israel, supra n. 7, at Q: 50. 40. Israel Supreme Court (as HCJ), Barakeh v. Prime Minster (Israel HCJ 5872101), Appeal submitted by MP Mohammed Barakeh, Judgment of 29 February 2002. In this judgment of 29 January 2002, responding to an appeal submitted by Arab Israeli Member of Parliament Mohammed Barakeh to halt the policy of targeted killings, the Supreme Court refused to subject the policy to its judicial review. For a translated reproduction and critique of the judgment see, as a whole, 0. Ben-Naftali and K.R. Michaeli, 'Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel's Policy of Targeted Killings', 1 Jlnt.. Criminal Justice (2003) pp. 368-405. 41. Israel HCJ, PCATI v. Israel, supra n. 7, at Q: 22. 42. International Court of Justice (ICJ), Advisory Opinion on the Legality ofthe Threat or Use of Nuclear Weapons, 8 July 1996, Q: 25, with reference to Art. 6 ICCPR.
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In
sum, despite significant theoretical and argumentative shortcomings, the Targeted Killing-judgment leaves no doubt as to the fact that the Israeli High Court regards the 'least harmful means'-requirement as part of customary IHL governing the conduct of hostilities in international armed conflict. Whether or not this proposition is legally accurate, in turn, does not depend on whether the Court succeeded - but on whether it is objectively possible to convincingly derive the 'least harmful means'-requirement directly from recognized rules and principles of IHL governing the conduct of hostilities. It shall in the following be demonstrated that this question must be answered in the affirmative. -
2.3
Legal basis in international humanitarian law
When searching for a legal basis for the 'least harmful means'-requirement in the recognized rules and principles of IHL, it is important to avoid the pitfalls of interpretive preconceptions which, for lack of challenge and theoretical scrutiny, have over time taken on the patina of juridical truth. For the purpose of the following argument it is therefore proposed to put into question the widespread assumption that IHL grants belligerents an unfettered 'right' to kill combatants and other persons not entitled to protection against direct atta~k,"~ a preconception which would squarely contradict the basic proposition of moderation inherent in the 'least harmful means'-requirement. Instead, a fresh and unprejudiced look shall be taken at the lex lata of IHL governing the conduct of hostilities with a view to determining whether its positive rules and underlying principles give rise to a duty corresponding to the 'least harmful means'-requirement. According to the Israeli High Court, the 'least harmful means'-requirement essentially prohibits the infliction of greater harm on civilians directly participating in hostilities than is necessary for the removal of the military threat posed by them in the concrete circumstances. Positive IHL not only prohibits direct attacks against civilians, but also obliges parties to an armed conflict to choose means, methods and targets of attack with a view to avoiding, and in any event minimizing, incidental harm to civilians.44Positive IHL further provides that civilians benefit from such protection 'unless and for such time as they take a direct part in
43. This view seems to be held, for example, by W. Hays Parks, Executive Order 12333 and Assassination, Memorandum of Law, 2 November 1989, Reproduction Department of the Army, Office of the Judge Advocate General of the Army, Washington D.C., p. 3; K. Watkin, 'Humans in the CrossHairs: Targeting, Assassination and Extra-Legal Killing in Contemporary Armed Conflict', in D. Wippman and M. Evangelists, eds., New Wars, New Laws? applying the laws of' war in the 2lst century conjlicts (Ardsley N Y , Transnational 2005) pp. 137-179, at p. 148; R.K. Goldman, 'Americas Watch's Experience in Monitoring Internal Armed Conflicts', 9 Arner. Univ. JIL & Pol. pp. 49-94, at pp. 59, 75. See also some of the opinions reflected in ICRC and TMC Asser Institute, Report Third Expert Meeting on 'Direct Participation in Hostilities under International Humanitarian Law' (Geneva, 23 to 25 October 2005) p. 46. 44. Arts. 57 [2] (a) (ii); 57 [2] (c); 57 [3] AP I. This rule is considered part of customary IHL by Henckaerts and Doswald-Beck, supra n. 27, Rule 15.
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ho~tilities'.~~ Thus, as the Court rightly observed, for as long as civilians directly participate in hostilities, they are subject to the same targeting regime as combata n t ~In. ~examining ~ the accuracy of the 'least harmhl means'-requirement under IHL governing the targeting of combatants and civilians directly participating in hostilities, it should first be recalled that '[tlhe right of belligerents to adopt means of injuring the enemy is not unlimited'47 and that, therefore, even persons not entitled to protection against direct attack do not fall outside the law. Clearly, this most basic principle of the conduct of hostilities requires concretization in specific prohibitions and restrictions but, in and of itself, can hardly be interpreted to impose a general 'least harmhl means'-requirement on the force employed against legitimate military targets.48The only positive rule of IHL that subjects the means and methods used against combatants to a more general limitation is the prohibition 'to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering' (hereinafter prohibi) . ~ ~ the prohibition of maux superflus has tradition of maux s ~ ~ e r f l u sAlthough tionally been discussed almost exclusively in connection with the permissibility of specific 'means' (i.e., arms, projectiles, or material) of warfare,50the subsequent inclusion of 'methods' of warfare in Article 35 [2] of the First Protocol Additional to the Geneva Conventions of 1977 (AP I) demonstrates that the drafters of the Protocol intended to give the prohibition a wider scope. Systematically, the prohibition of maux superfIus is today positioned and formulated as a basic rule under-
45. See Art. 51 [3] AP I and, for non-international armed conflict Art. 13 [3] AP 11. This rule is considered part of customary IHL by Henkaerts and Doswald-Beck, supra n. 27, Rule 6. 46. Israel HCJ, PCATI v. Israel, supra n. 7, at 3 3 1. 47. Art. 22 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land. See also Art. 35 [I] AP I: 'In any armed conflict, the right of the Parties to the conflict to choose methods and means of warfare is no unlimited'. 48. Specific treaty concretizations of this principle are, for example, the prohibitions or restrictions imposed on the use of poison (Art. 23 [l] (a) Hague Regulations; 1925 Geneva Protocol prohibiting asphyxiating, poisonous or other gases and analogous liquids, materials or devices), expanding bullets (1899 Hague Declaration IVl3) and certain other weapons (CCW-Convention and Protocols of 1980 and 1995), as well as the prohibition of methods involving the denial of quarter (Art. 40 AP I; Art. 23 [l] (d) Hague Regulations) and the resort to treachery or perfidy (Art. 23 [I] (b) Hague Regulations; Art. 37 AP I). 49. Art. 35 [2] AP I (Basic rules). In treaty law, the prohibition of maux superflus first appeared in the St. Petersburg Declaration (1868) banning the use of certain explosive projectiles because they were deemed to 'uselessly aggravate the sufferings of disabled men, or render their death inevitable' and was subsequently expanded to other 'arms, projectiles, or material calculated to cause unnecessary suffering' in Art. 23 (e) Hague Regulations (1899 and 1907). Art. 35 [2] AP I (1977) further extends the prohibition to 'methods' of warfare. 50. E. David, Principes de droit des conflits armts, 3rd edn. (Bruxelles, Bruylant 2002) pp. 312 ff. (2.100 ff.); R. Kolb, Ius in Bello: Le droit international des conflits arm& Prtcis (Basel, Helbing & Lichtenhahn 2003) pp. 139 ff. (nn. 3 12 ff.); Y. Sandoz, C. Swinarski, B. Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) $9 1410 ff.
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lying and informing the entire body of IHL goveming the conduct of h~stilities.~' According to the International Court of Justice, the prohibition to cause 'unnecessary suffering' to combatants constitutes an 'intransgressible principle of intemational customary law' and a 'cardinal principle' of IHL, which outlaws the causation of 'harm greater than that unavoidable to achieve legitimate military objective^'.^^ Even though, for the time being, neither state practice nor international jurisprudence provide clear standards as to when harm caused to combatants could be regarded as 'greater than that unavoidable to achieve legitimate military objective^',^^ the interpretation of the prohibition of m a w superjlus adopted by the International Court of Justice comes close to a generalized statement of principle from which a positive obligation corresponding to the 'least harmful means7-requirement could arguably be derived.54For the purpose of the present discussion, the additional value of this prohibition lies in the fact that it exposes the basic principles underlying the conduct of hostilities as a whole and makes unambiguously clear that they operate also in favour of persons not entitled to protection against direct attack. In the terminology prevailing in the doctrine of international law, the generic evaluation expressed both in the 'least harmful means'-requirement and in the prohibition of maux super-us is most commonly referred to as considerations of 'necessity'. In contrast to the principle of proportionality strict0 sensu, considerations of necessity do not evaluate the justzjication of expected harm in view of the anticipated benefit, but the objective necessity of resorting to a specific means in view of alternative, less harmful means of achieving the same objective. For example, under human rights law, the principle of proportionality determines the purposes which may justify the use of lethal force, namely the pro-
5 1. According to its title, Art. 35 AP I comprises the 'basic rules' goveming Section I on 'methods and means of warfare'. 52. ICJ, Nuclear Weapons Opinion (1996) supra n. 42, at $ 3 78 ff. According to the Court, the second cardinal principle is the basic principle of distinction between combatants and non-combatants. 53. According to Sandoz et al., eds., supra n. 50, at 3 1439: 'The concept of superfluous injury or unnecessary suffering, its objective effect on the victim (severity of the injury, intensity of suffering), and its relation to military necessity (rendering the enemy 'hors de combat') are not interpreted in a consistent and generally accepted manner. This concept continues to be the basis on which judgment is formed, but debates have shown its relative and imprecise character'. 54. The same conclusion seems to be reached in the ICRC's report on the work of experts preparatory to the Diplomatic Conference of 1974 to 1977 relating to 'Weapons that May Cause Unnecessary Suffering or have Indiscriminate Effects' (1973) p. 13 ( 5 23), according to which: '[.. .] if a combatant can be put out of action by taking him prisoner, he should not be injured; if he can be put out of action by injury, he should not be killed; and if he can be put out of action by light injury, grave injury should be avoided'. See also H. Meyrowitz, The Principle ofSuperfluous Injury or Unnecessary Suffering From the Declaration of St. Petersburg of 1868 to Additional Protocol I of 1977, IRRC No. 299 (1994) pp. 98-122, at pp. 104 ff., 116, according to whom the term maux used in the equally authentic French text of the prohibition of m u m superflus includes essentially 'any assault on the life or physical and mental integrity of persons', as well as 'damage caused to physical objects', and who argues that this provision could exceptionally be invoked to prohibit the killing of completely defeated combatants without giving them an opportunity to surrender.
tection of human life from a serious and immediate threat,55whereas the additional requirement of necessity entails that the use of lethal force must also be 'strictly' or 'absolutely' necessary for the achievement of such a purpose.56Under IHL, considerations of necessity are typically expressed in terms of the principle of 'military
55. Under the principle of proportionality of human rights law, the use of lethal force violates the human right to life if the nature or scale of the concrete threat to be addressed does not justify putting human life at risk, regardless of whether this would be objectively necessary to remove the threat in question (see for example, European Commission of Human Rights (Eur. Comm. HR), Kelly v. the United Kingdom, Application No. 17579190, Admissibility Decision of 13 January 1993; Eur.Comm. HR, Ayetkin v. Turkey, Application No. 22880193, Report of 18 September 1997, 5 95; European Court of Human Rights (ECtHR), McCann case, supra n. 38, at $5 192 ff.; ECtHR, Giil v. Turkey, Application No. 22676193, Judgment of 14 December 2000, 8 82; ECtHR, Streletz, Kessbr and Krenz v. Germany, Applications No. 34044196,35532197 and 44801198, Judgment of 22 March 2001, $5 87, 96 and 102; ECtHR, Makaratzis v. Greece, Application No. 50385199, Judgment of 20 December 2004, § § 64 to 66; ECtHR, Nachova and others v. Bulgaria, Applications No. 43577198 and 435791 98, Judgment of 6 July 2005, 5 95; UN Human Rights Committee (UNHRC), Suarez de Guerrero v. Colombia, Communication No. R.11145 of 31 March 1982, UN Doc. Supp. No. 40 (A137/40), $5 13.1.-13.3.; Inter-American Court of Human Rights (IIACtHR), Neira Alegria et al. v. Peru, Judgment of 19 January 1995 (Ser. C, No. 21, 1995), $5 43,69 and 72; VACtHR, Myrna Mack Chang v. Guatemala, Judgment of 25 November 2003 (Ser. C, No. 101, 2003), implicit in $5 134.6 ff.; Inter-American Commission on Human Rights (IIA Comm. HR), Alejandre et a/. v. Cuba, Case No. 11.589, Report No. 86199, 29 September 1999, $5 37, 42, 45; IIA Comm. HR, Report on the Situation of Human Rights in Guatemala, 6 April 2001, 5 50; IIA Comm. HR, Report on Terrorism and Human Rights, 22 October 2002 (OEAISer.LNI11.116 Doc. 5 rev. 1 corr.), $5 87 and 92; IIA Comm. HR, Third Report on the Situation of Human Rights in Colombia, 26 February 1999, Chapter IV, 5 169). Strictly speaking, it is therefore a basic expression of the requirement of proportionality when Article 2 [2] of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) limits the purposes which may potentially justify the resort to lethal force to (a) defending any person from unlawful violence, (b) effecting a lawful arrest or preventing the escape of a person lawfully detained, and (c) lawfully quelling a riot or insurrection. See also Art. 3 and accompanying Commentary (c) of the UN Code of Conduct for Law Enforcement Officials (1979), as well as Principles 5 and 9 of the UN Force and Firearms Principles (1990). 56. According to the European Court of Human Rights, the use of the term 'absolutely necessary' in Art. 2 [2] ECHR indicates 'that a stricter and more compelling test of necessity' must be employed from that normally applicable when determining whether state action is 'necessary in a democratic society' (Arts. 8 [2], 9 [2]. 10 [2], l l [2] ECHR), that is to say, 'the force used must be strictly proportionate to the achievement of the aims set out in' Art. 2 [2] (a), (b) and (c) ECHR. See ECtHR, McCann case, supra n. 38, at ij 149. Confirmed, inter alia, in ECtHR, Andronicou and Constantinou v. Cyprus, Application No. 25052194, Judgment of 9 October 1997, 5 171; Eur. Ct. HR, McKerr v. the United Kingdom, Application No. 28883195, Judgment of 4 May 2001, 5 110; Eur. Ct. HR, KeNy and others v. the United Kingdom, Application No. 30054196, Judgment of 4 May 2001, 5 93; Eur. Ct. HR, Shanaghan v. the United Kingdom, Application No. 377 15/97, Judgment of 4 May 200 1, 5 87; Eur. Ct. HR, Hugh Jordan v. the United Kingdom, Application No. 24746194, Judgment of 4 May 2001, 3 104; Eur. Ct. HR, Gul case, supra n. 55, at 5 77; Eur. Ct. HR, Nachova case, supra n. 55, at 5 94. See also UNHRC, de Guerrero case, supra n. 55, at 55 13.1.-13.3.; IIA Comm. HR, Alejandre case, supra n. 55, at 55 37, 42; 11A Comm. HR, Report Guatemala 2001, supra n. 55, at 5 50; IIA Comm. HR, Report Terrorism and Human Rights, supra n. 55, at $5 87 ff., 90 ff.; IIA Comm. HR, Chumbivilcas v. Peru, case No. 10.559, Report No. 1/96, 1 March 1996; African Commission on Human and Peoples' Rights, Outdraogo v. Burkina Faso, Communication No 204197, Decision of 1 May 2001, 29th Ordinary Session, AprilIMay 2001, § 4 and, in view of the surrender, also IIA Court HR, Neira Alegria case, supra n. 55.
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necessity', which is generally recognized as one of the h n d a m e n t a l principles underlying and informing the entire corpus of I H L . ~Although ~ the Israeli High Court does not e x p r e s s l y base the 'least h a r m f u l m e a n s ' - r e q u i r e m e n t on c o n s i d e r a t i o n s of military necessity, the close relation between the two concepts i s strongly indicated in the following statement of the Israeli government to the UN Human Rights C o m m i t t e e : [. . .] Even persons known to be terrorists were legitimate targets only if there was reli-
able evidence linking them directly to a hostile act. Senior political figures had not been attacked for their political activities but because they had been directly implicated in hostile acts. It would, o f course, be preferable to arrest such persons, but in areas like the Gaza Strip, over which Israel had n o control, his Government did not have that option. Its security forces were instructed by the Attorney-General, however: to attack
unlawfi*lcombatants only when there was an urgent military necessity and when no less harmful alternative was available to avert the danger posed by the terrorists. Furthermore, under the rule o f proportionality, which formed part o f the laws of armed conflict and was integral to Israel's accepted values, they were instructed to carry out such attacks only if they did not cause disproportionate harm to civilians. [...] For its part,
Israel operated only against legitimate targets, using legitimate methods of warfare while abiding by the rule o f proportionality in accordance with international law [emphases added].58 Similarly, in his r e p o r t of 16 November 2007 to the Human Rights Council, the UN Special R a p p o r t e u r on the p r o m o t i o n and p r o t e c t i o n of human rights and fun-
57. E. Rauch, 'Le Concept de Necessite Militaire dans le Droit de la Guerre', Rapport presente au VlIIe Congrks de la Societe internationale de droit penal militaire et de droit de la guerre (Ankara, Octobre 1979), 19 Military Law and Law of' War Review (1980) pp. 205-237, at p. 21 1; B.M. Camahan, 'Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity', 92 AJIL (1998) pp. 213-231, at p. 230; Sandoz et al., eds., supra n. 50, at /j 1389; G.I.A.D. Draper, 'Military Necessity and Humanitarian Imperatives', 12 Military Law and Law of' War Review (1973) pp. 129-142, at pp. 141 ff.; International Law Commission, Report to the General Assembly on the work of its 32nd session, in 2 Yb ILC (1980); U N Doc. AICN.4ISER.AII980I Add.1 (Part 2) at p. 45; J.S. Pictet, Development and Principles ofInternationa1 Humanitarian Law, Nijhoff Law Specials No. 2 (Dordrecht, Nijhoff 1985) p. 62; C. Greenwood, 'Historical Development and Legal Basis', in D. Fleck, ed., The Handbook of Humanitarian Law in Armed ConJicts (Oxford, Oxford University Press 1995) n. 130; S. Oeter, 'Means and Methods of Combat', in D. Fleck, ed., ibid., n. 401; R.W. Gehring, 'Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I', 19 Military Law and Law o f War Review (1980) pp. 11-48, at p. 14; L. Doswald-Beck and S. Vile, 'International Humanitarian Law and Human Rights Law', IRRC No. 293 (March-April 1993) pp. 94-1 19, at p. 98. Apparently of the view that the concept is too vague to be useful are J.G. Gardam, Necessity, Proportionality and the Use oj'Force by States (Cambridge, Cambridge University Press 2004) p. 8 and A. Eide, 'The Laws of War and Human Rights - Differences and Convergences', in C. Swinarski, ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour ofJean Pictet (Geneva, ICRC 1984) p. 68 1. 58. Israeli government's statement to the UN Human Rights Committee of 25 July 2003 (CCPRICI SR.2 1 18, /j 40).
damental freedoms while countering terrorism made the following recommendation: While acknowledging that military necessity may dictate the deliberate killing of enemy combatants during an armed conflict, the Special Rapporteur recommends that transparent laws and guidelines on the practice of targeted killings he established, and that they be strictly limited to persons directly participating in hostilities and as a means of last resort after all possible measures to apprehend the person have been taken.59
In view of the preliminary results obtained, it shall in the following be examined whether the principle of military necessity underlying IHL as a whole can also serve as a factor determining the quality and degree of permissible force in the course of specific military operations.
3.
THE PRINCIPLE OF MILITARY NECESSITY
Although the principle of military necessity is generally recognized as one of the primary foundations of IHL, hardly any notion of that body of law has been more misunderstood and neglected in the legal d~ctrine.~' At least part of the current disregard for the juridical function of the principle of military necessity is due to the fact that IHL has become one of the most densely codified fields of international law. This has given rise to a predominantly positivist approach to the determination of lawful conduct in situations of armed conflict. Devoid of its interpretive function with respect to positive IHL, however, the principle of military necessity is perceived exclusively as standing in opposition to the human, cultural, religious, environmental and economic values, which IHL aims to protect.61Thus, IHL is generally described as set of compromise rules based on a 'balance' between considerations of military necessity and the requirements of h~rnanity.~' What has been almost entirely forgotten, despite distinguished voices to the contrary, is that the concept of military necessity is not only of permissive nature, but
59. Report (advance edited version) of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, of 16 November 2007, Addendum on mission to Israel, including visit to occupied Palestinian territory, UN Doc. A/ HRC/6117iAdd.4, § 62. 60. Rauch, supra n. 57, at p. 209; Camahan, supra n. 57, at p. 230; Gardam, supra n. 57, at pp. 7 ff. Regarding the recognition of military necessity as a hndamental principle of IHL, see supra n. 57. 61. So for example, Y. Dinstein, The Conduct of Hostilities under the Law oflnternational Armed Conflict (Cambridge, Cambridge University Press 2004) p. 16, who is of the view that '[ilf military necessity were to prevail completely, no limitation of any kind would have been imposed on the freedom of action of belligerent States [. ..]'. 62. Already the St. Petersburg Declaration of 1868 described the two primary interests underlying the law of armed conflict as the 'necessities of war' and the 'requirements of humanity'. Instead of many, see also Sandoz et al., eds., supra n. 50, at 5 1389; K. Watkin, 'Controlling the Use of Force: a Role for Human Rights Norms in Contemporary Armed Conflict', 98 AJIL (2004) pp. 1-34, at pp. 9 ff.
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also provides the oldest and perhaps most effective restraint that has ever been imposed on warfare.63In order to obtain an adequate understanding of the principle of military necessity in contemporary IHL, it will therefore be necessary to examine the basic content of the juridical concept, as well as the complementary functions assumed by its permissive and, respectively, restrictive aspect.
3.1
Juridical concept
The modem interpretation of military necessity in military manuals, jurisprudence and legal doctrine has been strongly influenced by the following definition provided in the 1863 Lieber Code: Military necessity, as understood by modem civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modem law and usages of war.64 According to this definition, the principle of military necessity requires that measures taken in times of war fulfil both the factual requirement of being necessary for the achievement of the ends of the war, and the juridical requirement of being lawful according to the modern law and usages of war. While there can be no doubt that, today, the 'modem law and usages of war' must be interpreted to include the entire corpus of conventional and customary IHL applicable in situations of armed conflict, more difficulties arise in giving a contemporary meaning to 'measures which are indispensable for securing the ends of the war'. Already at the time of the Lieber Code, when the determination of the purpose of a war was still largely at the discretion of the belligerents, it was recognized that the sole
63. Camahan, supra n. 57, at p. 230; Rauch, supra n. 57, at p. 236. See also Gardam, supra n. 57, at p. 7, who points out that, originally, the concept of military necessity 'was not seen as in opposition to humanitarian values, in fact quite the reverse'. Unfortunately, however, Gardam does not examine the important legal implications of this observation. 64. Art. 14 of the Instructions for the Government of Armies of the United States in the Field of 24 April 1863 (Lieber Code). This definition is complemented by the following concrete examples: Art. 15: 'Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modem law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God'. Art. 16: 'Military necessity does not admit o f cruelty that is, the infliction of suffering for the sake of suffering or for revenge; maiming or wounding except in fight; torture to extort confessions; use of poison in any war; wanton devastation of a district; acts of perfidy; in general, military necessity does not include any act of hostility which makes the retum to peace unnecessarily difficult.' -
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legitimate aim of the actual conduct of hostilities was to 'weaken' the military forces of the enemy.65In modern military manuals, the Lieber Code's requirement that military action be 'indispensable for securing the ends of the war' is either expressed in terms of measures 'required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resource^'^^ or, more specifically, in terms of measures 'required to bring about the successful conclusion of a military operation',67 'necessary for military purposes',68 or 'indispensables a l'accomplissement de la mission'.69 In this context, it has been pointed out that '[tlhe reference to the complete submission of the enemy, written in the light of the experience of total war in the Second World War, is probably now obsolete, since war can have a limited purpose [. ..I',~'and that the criterion of minimum expenditure of time, life and physical resources should be understood to refer 'not only to the assailant, but also to the party atta~ked'.~' Considerations of military necessity are also the basis for the non-legal military doctrine of 'military economy' or of 'economy of force', according to which no more? or less, force should be employed than is actually necessary to achieve the pursued ~bjective.'~ The essence of the Lieber Code's two-pronged interpretation of the principle of military necessity has not only been adopted in numerous modem military man-
65. See the Declaration of St. Petersburg (1868), which states that 'the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy'. 66. United Kingdom: Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, Oxford University Press 2004) Section 2.2 (Military Necessity); United Kingdom: War Office, The Law of War on Land, being Part I11 of the Manual of Military Law (1958), at Section 3. Similar also United States: Department of the Navy, The Commander's Handbook on the Law ofNaval Operations (NWP 1-14M I MCWP 5-12-1 I COMDTPUB P5800.7A), July 2007, at 5 5.3.1, pp. 5-2; United States: Department of the Air Force, Air Force Pamphlet (AFP 110-3 I): International Law - The Conduct ofArmed Conflict and Air Operations, Judge Advocate General Activities, Department of the Air Force, 19 November 1976, at 5 1-3 (I), pp. 1-5 ff.; Germany: Federal Ministry of Defense (ed.), Triservice Manual ZDv 1512: Humanitarian Law in Armed Conflicts, English version, VR I1 3, August 1992, 5 130. 67. NATO, Glossary of Terms and Definitions (AAP-6V), September 1998, at
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~ a l sbut , ~has ~ also been confirmed in international jurisprudence74and in the legal doctrine." As a concept of modem IHL, therefore, the principle of military necessity can be said to subject all military action undertaken in situations of armed conflict to the dual requirement, first, of being necessary for the accomplishment of a legitimate military purpose and, second, of not otherwise being prohibited by IHL. The generally recognized purpose of the conduct of hostilities is to achieve
73. See for example: NATO: Glossary, supra n. 67, at p. 2-M-5; United States: Field Manual 27-10 (1956), supra n. 68, at jj 3; US Navy, Commander's Handbook, supra n. 66, at # 5.3.1, p. 5-2.; US Air Force Pamphlet, supra n. 66, at jj 1-3 (1) and (2), pp. 1-5 ff.; US Navy Manual, # 220 (a), cited in Gehring, supra n. 57, at p. 14; UK: Manual of the Law of Armed Conflict (2004), supru n. 66, at Section 2.2; France: Ministry of Defense, Manuel de Droit des Conflits Armis (Paris: Ministere de la Defense / Direction des affaires juridiques / Bureau des droits des conflits armes, 2001) pp. 86 ff.; Ministry of Defense, Droit des Conflicts Arm&, CD-ROM, Version 1.0 (Paris, Ministere de la Defense 1 Secretariat Gentral pour I'Administration / Direction des Affaires Juridiques / Bureau du droit des conflits armes, 2005) at glossaire 'ntcessite militaire'; Germany: Triservice Manual ZDv 1512, supra n. 66, at # 130; Switzerland: Army Regulations, supra n. 69, at # 160. 74. In United Nations War Crimes Commission (UNWCC), USA v. Wilhelm List and others (The Hostages case), Nuremberg, 8 July 1947 to 19 February 1948, Law Reports of Trials of War Criminals, Vol. VIII, Case No. 47 (London, HM Stationery Office 1949) p. 66, the Tribunal stated: 'Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money.' For an overview of post-Second World War trials dealing with the concept of military necessity, see N.C.H. Dunbar, 'Military Necessity in War Crimes Trials', 29 BYIL (1952) pp. 442-452, at pp. 446-452. For a corresponding understanding of military necessity after the First World War, see Annex I1 (Reservations US-Representatives) to the Report of the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, submitted to the Preliminary Conference of Versailles, 29 March 19 19, reproduced in 14 AJIL (1920) pp. 95-154, at pp. 150 ff., # # 5, 6, 9. In the 1996 Nuclear Weapons Opinion, the International Court of Justice held that a number of basic principles of IHL, including the prohibition 'to cause unnecessary suffering to combatants', constituted 'intransgressible principles of international customary law'. In the view of the Court, these principles are so fundamental to the respect of the human person that they could be derived directly from 'elementary considerations of humanity', that is to say, from a general principle of law (ICJ, Nuclear Weapons Opinion, supra n. 42, at ij 78). Referring to this statement, the International Law Commission considers it justified to regard the principles in question as part of jus cogens (International Law Commission, 2001 Report to the General Assembly on the work of its 53rd session (State Responsibility), General Assembly, Official Records, Fifty-fifth Session, Supplement No. 10, UN Doc. A/56/10, at: Draft Article 40, Commentary 5 5 , p. 284). 75. See for example, Rauch, supra n. 57, at p. 21 1 and Greenwood, supra n. 57, at n. 130, both subsequently confirming that military necessity cannot justify acts contrary to IHL; W.G. Downey Jr., 'The Law of War and Military Necessity', 47 AJZL (1953) pp. 251-262, at p. 254; Meyrowitz, supra n. 54, at p. 106, referring to a draft presented by Russia to the Conference of 1874; M. Greenspan, The Modern Law o f Land WarJhre (Berkeley CA, University of California Press 1959) pp. 313 ff.; Doswald-Beck and Vitt, supra n. 57, at p. 98 and n. 8, referring to the US Air Force Law of War Manual; Watkin, supra n. 62, at p. 10; Oeter, supra n. 57, at n. 401; Gehring, supra n. 57, at p. 14, with further references. See also M.N. Schmitt, 'State-Sponsored Assassination in International and Domestic Law', 17 Yale JIL (1992) pp. 609-685, at p. 640; J.F. Addicott, 'Proposal for a New Executive Order on Assassination', 37 Univ. Richmond LR, (2003) pp. 751-785, at p. 782, n. 210; Dunbar, supra n. 74, at pp. 443 ff.; Y. Dinstein, 'Military Necessity', in R. Bemhardt, ed., Encyclopedia ofpublic International Law, Vol. 111 (Amsterdam, North-Holland 1997) p. 396. For discussions of the concept of military necessity on the basis of the definition provided by the Lieber Code, see further: Sandoz et al., eds., supra n. 50, at # 1389, n. 14; Carnahan, supra n. 57, at pp. 213,231.
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the submission of the enemy or, depending on the perspective, the accomplishment of a more specific military operation or mission serving that purpose, with a minimum expenditure of time, life and physical resources on the part of both the attacker and the attacked. In other words, the primary aim in armed conflict is not to kill an enemy, but to defeat him, even if it should be necessary to kill him for that purpose. In functional terms, it is necessary to distinguish between the permissive and the restrictive aspect of the principle of military necessity. 3.2
Permissive function
In its permissive function, the principle of military necessity justifies 'those measures which are indispensable for securing the ends of the war, and which are lawful according to the modem law and usages of war'.76From a theoretical perspective, such 'justification' based on the principle of military necessity is required only for acts of hostility or exercise of authority which would be prohibited in situations other than armed conflict.77In other words, military necessity is the justifying factor inherent in all rules of IHL which, in derogation fiom the rules applicable in peacetime, permit the resort to measures meeting the needs of the extreme However, military necircumstances prevailing in situations of armed ~onflict.'~ cessity cannot justify conduct in deviation fiom an obligation or prohibition imposed by IHL, unless the provision in question is expressly qualified, in its own terms, by a reference to military necessity.79This necessarily follows from the universally recognized fact that the specific obligations and prohibitions established by positive IHL are the result of 'equations' which already include the 'necessityfactor" and that, therefore, considerations of military necessity have already been taken into account in their shaping.80 The fact that specific provisions of IHL make express reservations in favour of military necessity is sometimes confused with the so-called doctrine of Kriegsraison developed in Prussia in the late 19th and early 20th century,81which interpreted military necessity as an absolute interest capable of justifying any violation
76. Art. 14 Lieber Code. 77. ILC, Report 32nd Session, supra n. 57, at p. 45. 78. Ibid. 79. Affirmative: ibid., at p. 46; Draper, supra n. 57, at p. 142; Rauch, supra n. 57, at p. 210; Sandoz et al., eds., supra n. 50, at 5 1389; Meyrowitz, supra n. 54, at p. 108; Greenspan, supra n. 75, at p. 314. 80. Draper, supra n. 57, at p. 137; Doswald-Beck and VitC, supra n. 57, at p. 99. See also UK v. von Lewinski (called von Manstein), 16 Annual Digest and Reports of Public International Law Cases (1949) Case No. 192 (Cambridge, Cambridge University Press 1949) pp. 509-525, at p. 512: 'Military necessity has already been taken into consideration in the fiaming of these laws [i.e., the laws of war].' 81. So apparently Gardam, supra n. 57, at p. 7, n. 30; F.F. Martin, 'Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict', 64 Saskatchewan LR (2001) pp. 347-396, at p. 394.
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of THL.~'Accurately understood, however, where specific provisions of IHL explicitly allow derogation in favour of military necessity from the obligations to which they give rise, they limit these obligations (ab initio) rather than to excuse their violation (ex post). Such express permission for derogation is based on the determination that, in circumstances of increased military necessity, the balance expressed by a particular provision can be re-adjusted to the detriment of other interests involved in that balance, be they of humanitarian, cultural, religious, political, environmental or economic nature. This kind of provision simply reflects the
fact that the required balance of interests cannot be anticipated in a positive rule for every conceivable situation that might arise in a situation of armed ~onflict.'~ In doing so, these provisions give visible proof of a balance of interests which is inherent also in those provisions of IHL which, as a result of that same balance, do not foresee the possibility of derogation.84Contrary to the permissive aspect of the principle of military necessity, which remains an integral part of the lex lata of IHL, the doctrine of Kriegsraison was rightly discredited by the War Crimes Tribunals after the Second World War and can safely be regarded as obsolete.85 The permissive function of military necessity is that aspect of the principle, which must be balanced against other interests, such as humanitarian, cultural, religious, political or environmental values, in order to determine the lawhlness of conduct in situations of armed conflict.86In principle, this balance is already expressed in the positive rules of IHL, which can therefore be applied without a renewed balance of interests." In three cases only must the lawfulness of military action, which is not expressly prohibited in positive IHL, be determined through an additional balance between military necessity and opposing interests, namely: (1) where the operational application of specific provisions of IHL so requires (execu-
82. Rauch, supra n. 57, at p. 214; Camahan, supra n. 57, at p. 218; Greenspan, supra n. 75, at p. 314; Gardam, supra n. 57, at pp. 7 ff.; ILC, Report 32nd Session, supra n. 57, at p. 46, with references to legal writings on the subject. For a discussion of the scope and limits of military necessity as an exculpatory circumstance see: ILC, Report 32nd Session, supra n. 57, at pp. 45 ff.; Camahan, supra n. 57, at p. 218, n. 32. See further Rauch, supra n. 57, at pp. 214 ff. 83. Sandoz et al., eds., supra n. 50, at jj 1394. 84. Rauch, supra n. 57, at p. 2 15. 85. Sandoz et al., eds., supra n. 50, at 5 1386. For an overview of post-Second World War trials dealing with the concept of military necessity, see Dunbar, supra n. 74, at pp. 446-452. For rejection of Kriegsraison in the legal doctrine seem further, pars pro toto, ILC, Report 32nd Session, supra n. 57, at p. 46; Rauch, supra n. 57, at pp. 214 ff.; Camahan, supra n. 57, at p. 218; Gehring, supra n. 57, at p. 14; Greenspan, supra n. 75, at p. 3 14; Rogers, supra n. 70, at p. 4. 86. Apart from considerations of humanity, restraints on military action can also be derived, inter aha, from environmental (Art. 55 AP I; ICJ, Nuclear Weapons Opinion, supra n. 42, at $5 29 ff.), cultural (1954 Hague Convention for the Protection of Cultural Property; Arts. 53, 16 AP I), religious (e.g., protection of religious personnel in Arts. 24 First Geneva Convention (GC I); 36 Second Geneva Convention (GC 11); 8(d) AP I; 9 [I] AP 11) or political (e.g., restriction of the role of an occupying power in Arts. 43, 55 Hague Regulations; Art. 64 Fourth Geneva Convention (GC IV)) considerations. 87. Sandoz et al., eds., supra n. 50, at Q: 1389.
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tive balance), such as the definition of military objective^,^^ the requirement of proportionality in attacka9and the prohibition of employing means and methods of a nature to cause of superfluous injury or unnecessary suffering? (2) where specific provisions of IHL expressly allow a derogation in favour of military necessity from the obligations to which they give rise (derogatory b a l ~ n c e )and, ~ ' most importantly for the 'least harmful means7-requirement, (3) where the positive rules of IHL leave a margin of judgment that is sufficiently great to require their teleological interpretation in accordance with the underlying principles of IHL (interpretive balance).92According to the International Criminal Tribunal for the former Yugoslavia (ICTY), the importance of general principles for the interpretation of positive rules of IHL can also be deduced from the famous Martens Clause, which provides that, in cases not regulated by treaty law, 'civilians and combatants remain under the protection and authority of the principles of intemational law derived from established custom, from the principles of humanity and from the . ~ the ~ words of the Tribunal: dictates of public c o n ~ c i e n c e 'In More specifically, recourse might be had to the celebrated Martens Clause which, in the authoritative view of the International Court of Justice, has b y now become part of customary international law. True, this Clause may not be taken to mean that the 'principles of humanity' and the 'dictates of public conscience' have been elevated to the rank of independent sources of international law, for this conclusion is belied by intemational practice. However, this Clause enjoins, as a minimum, reference to those principles and
88. Art. 52 [2] AP 1. The identification of a 'definite military advantage' requires the evaluation of the military necessity to destroy, capture or neutralize a certain object. Affirmative, Rauch, supra n. 57, at pp. 212 ff. 89. Art. 51 [5] (b) and 57 [2] (a) (iii) and (b) AP I. The determination that incidental injury to civilians would be 'excessive' implies that the harm caused by such injury does not outweigh the military necessity of achieving a concrete and direct military advantage. Affirmative, Rauch, supra n. 57, at pp. 213 ff. 90. Art. 35 [2] AP I; Art. 23 [I] (e) Hague Regulations. Obviously, determining what is 'unnecessary' presupposes the determination of what is 'necessary'. See also: Meyrowitz, supra n. 54, at p. 106; Rauch, supra n. 57, at pp. 21 1 ff.; ICJ, Nuclear Weapons Opinion, supra n. 42, at # 78. 91. See for example, the express exceptions from specific proscriptive rules of IHL in favour of measures 'imperatively demanded by the necessities of war' (Art. 23 [I] (g) Hague Regulations) and 'rendered absolutely necessary by military operations' (Art. 53 GC IV). See also the references to 'military necessity' in Arts. 8 [3], 33 [2] and 34 [2] GC I; Art. 8 [3] GC 11; Articles 8 [3] Third Geneva Convention (GC 111) Arts. 49 [2] and 108 [2] GC IV; Arts. 54 [5], 62 [I], 67 [4], 71 [3] AP I. See also Arts. 27 [4] and 42 [I] GC IV. Further see the references to 'military considerations' in Art. 12 [4] GC I; Art. 23 [4] GC 111; Arts. 16 [2], 18 [4], 30 [2] GC Wand to 'military requirements' in Art. 30 GC I. 92. Sandoz et al. eds., supra n. 50, at 5 1389. 93. Art. 1 [2] AP I. Since its first formulation in the Preamble of the Hague Convention I1 in 1899, the Martens Clause has been reformulated and adopted in numerous international instruments (i.e., Preamble Hague Regulations (1907); Art. 63 GC I; Art. 62 GC 11; Art. 142 GC 111; Art. 158 GC IV; Art. 1 [2] AP I; Preamble AP 11; Preamble CCW) and is now recognized by the International Court of Justice as an operative part of IHL, 'which has proved to be an effective means of addressing the rapid evolution of military technology' (ICJ, Nuclear Weapons Opinion, supra n. 42, at 5 78).
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dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the scope and purport of the rule must be defined with reference to those principles and dictates. [. ..].94 As it is generally recognized that military necessity constitutes a fundamental principle underlying the normative framework of IHL as a whole, there can be no doubt that its basic content and juridical fwnctions have attained customary nature. Furthermore, as will be shown, at least the restrictive aspect of the principle can also be regarded as an expression of the basic principle of humanity. It therefore appears justified to regard considerations of military necessity as one of the guiding principles for the interpretation of the rights and duties of belligerents within the parameters of positive IHL. It is here argued that positive IHL leaves considerable margin of judgment with regard to the kind and degree of force, which is permissible in direct attack against combatants and civilians directly participating in hostilities. Admittedly, positive IHL expressly deprives civilians directly participating in hostilities of their protection against direct attack,95and also provides that the parties to the conflict shall direct their 'operations' (which are understood to include attacks), only against 'military objectives' (which are understood to include corn bat ant^).^^ Therefore, both combatants and civilians directly participating in hostilities are, in principle, subject to direct 'attacks', a term which is defined as 'acts of violence against the adversary, whether in offence or in defen~e'.~'From a theoretical perspective, however, the fact that a particular category of persons is not protected against offensive or defensive acts of violence is not necessarily equivalent to a legal entitlement to kill such persons without any hrther considerations, particularly in view of the fact that the only legitimate purpose of the conduct of hostilities is to weaken the adversary by rendering his personnel hors de combat.98In fact, apart from the prohibition or restriction of specific means and methods of warfare,99 including those of a nature to cause maux super-us, positive IHL does not expressly impose general restrictions on the kind and degree of violence, which is permissible in attacks against concrete legitimate military targets. Consequently, that question must be determined in accordance with the underlying principles of military necessity and humanity, taking into account the concrete circumstances prevailing in
94. ICTY, The Prosecutor v. Kupreskic et al., case No. IT-95-16-T-14, Judgment of January 2000 (Trial Chamber), ij 525, referring to ICJ, Nuclear Weapons Opinion, supra n. 42, at ij 78. See also the statement of Lauterpacht that 'the law on these subjects [i.e., on the conduct of hostilities] must be shaped - so far as it can be shaped at all - by reference not to existing law but to more compelling considerations of humanity, of the survival of civilisation, and of the sanctity of the individual human being' (H. Lauterpacht, 'The Problem of the Revision of the Law of War', 29 BYIL (1952) p. 360). 95. See supra n. 45. 96. Art. 48 AP I. 97. Art. 49 [I] AP I. 98. See the Declaration of St. Petersburg (1 868). See als infra n.106 and accompnying text. 99. See supru n. 48.
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each case. It is in this context, that the restrictive aspect of the principle of military necessity comes into play. 3.3
Restrictive function
The restrictive aspect of military necessity, summarized in the maxim 'necessity is the limit of legality','00 essentially prohibits the employment of any kind or degree of force in excess of what is required for the accomplishment of a legitimate military purpose in the concrete circumstances.'01In its restrictive dimension, the principle of military necessity is not contrary to, but constitutes the very expression of, humanitarian, cultural, religious, environmental and other protective values.'02 As illustrated by contemporary military manuals, the restrictive aspect of military necessity and considerations of humanity are not diametrically opposed but, in fact, constitute complementary expressions of the same principle of moderation imposed on all military action: Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment of legitimate military purposes.'03 Complementing the principle of necessity and implicitly contained within it is the principle of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.'04
Consequently, the principles of humanity and of military necessity enter into conflict only where considerations of humanity demand a restriction of military action below the level of what is reasonably required for the accomplishment of a legitimate military purpose in the concrete circumstances. In these cases, positive IHL generally already provides a balanced response, which cannot be derogated from unless expressly so foreseen by the specific provision in question. In reducing the sum total of lawful military action from that which IHL does not prohibit in abstracto to that which is reasonably required in concreto, however, and this is essential, the restrictive aspect of the principle of military necessity does not override or derogate from positive rules of IHL, but merely informs their interpretation to the extent that they leave certain questions not or not sufficiently regulated.
100. Sandoz et al., eds., supra n. 50, at 5 1395. 101. Ibid., at Q 1395; Rauch, supra n. 57, at pp. 209 K; Greenwood, supra n. 57, at n. 130; Draper, supra n. 57, at p. 135; Meyrowitz, supra n. 54, at pp. 106 ff.; Camahan, supra n. 57, at p. 230; Dunbar, supra n. 74, at p. 444; ILC, Report 32nd Session, supra n. 57, at p. 46. 102. The view of some authors that it is the principle of humanity that restricts lawful action to what is militarily necessary is correct, but incomplete, as it does not account for the restraints imposed by other interests and by the principle of military necessity itself. See for example, Greenspan, supra n. 75, at p. 315. 103. See for example UK Manual of the Law of Armed Conflict (2004), supra n. 66, at Section 2.4 (Humanity). 104. US Air Force Pamphlet, supra n. 66, at 5 1-3 (2), p. 1-6.
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As has been shown, the
fact that IHL does not prohibit direct attacks against combatants and civilians directly participating in hostilities is not necessarily equivalent to an express authorization to kill such persons at any time and any place so long as they are not hors de combat.lo5Although the absence of such a prohibition is undisputedly intentional, it constitutes no more than an authorization to use that kind and degree of force, which is reasonably necessary to achieve a legitimate military purpose with a minimum expenditure of time, life and physical resources. It does not permit the senseless slaughter of persons not entitled to protection against direct attack where there manifestly is no military necessity to do so. 1Oh For example, where patrolling soldiers observe an otherwise unarmed civilian who - whether voluntarily or under pressure from an opposing party to the conflict - is planting booby-traps in territory under their control, it may be possible to intercept and capture that civilian without undue risk to those involved. Similarly, where an individual member of an organized armed force is spotted unarmed in territory under effective control of the enemy, for example while engaging in espionage, political activities or simply visiting family members living in the area, military necessity could justify his or her intentional killing only where the circumstances are such that he or she cannot reasonably be apprehended without endangering the operating forces or the civilian population. Accordingly, the ICRC Commentary argues that, in international armed conflict, unarmed combatants only indirectly participating in military operations 'should be taken under fire only when there is no other way of neutralizing them'.''' It would therefore appear that,
105. For the definition of hors de combat, see Art. 41 [2] AP I. 106. Brief remarks by a number of authors suggest that the targeted killing of an individual combatant or civilian directly participating in hostilities is unlawful where it offers no military advantage or where the targeted person could have been captured without unreasonable risk to the operating forces (see Schmitt, above n. 75, at pp. 640 ff., at p. 644; T.J. Harder, 'Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current Law', 172 Mil. LR (2002) pp. 1-39, at p. 8, n. 37; R. Wedgwood, 'On the Legality of Targeted Assassinations', Interview (Q&A), New York Times, 25 March 2004, at , p. 4; Addicott, above n. 75, at p. 782, n. 210; C. Tomuschat, 'Gezielte Totungen (Targeted Killings): Zugleich ein Kommentar zum Gutachten des Internationalen Gerichtshofs vom 9. Juli 2004', 52 Vereinte Nationen (2004) pp. 136-140, at p. 136). See also the more detailed discussion in Melzez supra n. 18, at pp. 278 ff., 397 ff., 426 ff. Affirmative in a more general sense also Meyrowitz, supra n. 54, at p. 116. Some authors, similar to the Israeli High Court, discuss military necessity as an aspect of the principle of proportionality. Thus, with regard to the permissibility of direct attacks against civilians preparing to take a direct part in the hostilities or returning from combat, it has been held that '[tlhe proportionality principle imposes a duty to evaluate the military need in such action against the availability of other means in the particular circumstances' ( 0 . Ben-Naftali and K.R. Michaeli, "'We Must Not Make a Scarecrow of the Law": A Legal Analysis of the Israeli Policy of Targeted Killings', 36 Cornell International Law Journal (2003) pp. 233-292, at p. 279). Apparently affirming a 'right to kill', however, Hays Parks, supra n. 43, at p. 3; Watkin, supra n. 43, at p. 148, Goldman, supra n. 43, at pp. 59, 75. For various opinions on this issue see also: ICRC 1 TMC Asser Institute, Report Second Expert Meeting on 'Direct Participation in Hostilities under International Humanitarian Law' (The Hague, 25 to 26 October 2004) p. 19; ICRCI Asser Inst. , Report Third Expert Meeting, supra n. 43, at pp. 45 ff. 107. Sandoz et al., eds., supra n. 50, at 5 1694 and n. 35. Similar also Meyrowitz, supra n. 54, at p. 116.
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within the parameters of positive IHL, the actual existence of military necessity is an inherent condition for the lawfulness of any kind or degree of force employed against persons not entitled to protection against direct attack.Io8As the restrictive aspect of the principle of military necessity gives expression to those values, which IHL aims to protect from the destructive effects of the hostilities, these values provide further guidance for the assessment of military necessity in a concrete case. Accordingly, where the targeting of persons is concerned, the restrictive aspect of military necessity as informed (and not: balanced) by considerations of humanity requires that, whenever reasonably possible, capture is preferred to killing. It is in this sense that the famous words of Pictet should be interpreted: If we can put a soldier out of action by capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him. If there are two means to achieve the same military advantage, we must choose the one which causes the lesser evil.'09
The similarity between Pictet's statement and the corresponding conclusion reached by the Israeli High Court in the Targeted Killing-judgment is striking: Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. 'I0
While many armed forces may be prepared to exercise such moderation as a matter of chivalry, goodwill or commendable policy, it is important to recognize that they are obliged to do so as a matter of law. Recognizing the restrictive aspect of military necessity as a binding principle informing the interpretation of positive IHL has nothing to do with imposing unrealistic restrictions or unacceptable risks on armed forces operating against civilians directly participating in hostilities. Nor does it prohibit the targeting of members of organized armed forces or groups while they are not taking a direct part in hostilities,"' prevent parties to the conflict from achieving legitimate military purposes by resort to overwhelming military
108. Affirmative, Rauch, supra n. 57, at pp. 209 ff.; Schmitt, supra n. 75, at pp. 640 ff., 644; Harder, supra n. 106, at p. 8, n. 37; Wedgwood, supra n. 106, at p. 4. See also US reservations annexed to Report of the Commission on Responsibility of the Authors of the War (1919), supra n. 74, at p. 151, 5 9 and preceding sentences, describing the 'needlessness of the act from a military point of view' as a determining factor for the criminality of that act under the laws and customs of war. 109. Pictet, supra n. 57, at pp. 75 ff. See also the ICRC's report on the work of experts preparatory to the Diplomatic Conference of 1974 to 1977 relating to 'Weapons that may Cause Unnecessary Suffering or have Indiscriminate Effects' (1973) p. 13 ( 5 23), cited supra n. 54. 110. Israel HCJ, PCATIv. Israel, supra n. 7, at fj 40. 111. The latter approach is rightly criticized by Watkin, supra n. 43, at pp. 146 ff., with reference particularly to McKeogh.
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force,'I2 or imply the international criminalization of excessive use of force against legitimate military targets.'" It simply requires that, within the parameters of positive IHL, the parties to the conflict cause no more death, injury or destruction than the circumstances reasonably require for the accomplishment of a lawful military purpose, whether on the strategic, operational or tactical level. This is the essence of the 'least harmful means-requirement and, indeed, it is hard to see how claims to the contrary could be reconciled with elementary considerations of humanity. After all, not even the extreme doctrine of Kriegsraison went as far as to argue that military action could be lawful in the absence of military necessity. In conclusion, in the conduct of hostilities, the element of 'least harmfulness' of the general principle of proportionality and the corresponding 'least harmful means'-requirement of customary IHL invoked by the Israeli High Court in the Targeted Killings-judgment constitute a direct expression of the restrictive aspect of the principle of military necessity. Although a fundamental principle underlying and informing the entire normative framework of IHL, the restrictive aspect of military necessity is, within the parameters of positive IHL, also a determining factor for the kind and degree of force, which is permissible in direct attack against combatants and civilians directly participating in hostilities.
3.4
Operational assessment
In operational practice, of course, the question arises as to when exactly a particular targeted killing can be regarded as 'reasonably necessary' from a military standpoint. When elaborating on Israel's obligation to capture rather than kill civilians directly participating in hostilities, the Israeli High Court stated: Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed [...I. Arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required [...I. However, it is a possibility which should always be considered. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities (see $ 5 of The Fourth Geneva Convention). Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used.'14
112. US Navy, Commander'sHandbook, above, n. 66, at 5 5.3.1, p. 5-3. 113. Excessive use of force against legitimate military targets is not, as such, regarded as a war crime. Therefore, as long as such force does not fulfil the requirements of a separate war crime or other international crime, it may constitute an internationally wrongful act, but its penalization remains a matter of domestic law. 114. Israel HCJ, PCATI V. Isruel, supra n. 7 , at 5 40.
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Arguably, therefore, in order for the targeted killing of a particular individual to be considered militarily necessary, there must be no non-lethal alternative which could reasonably be expected to achieve the desired military advantage without unduly increasing the risk incurred by the operating forces or the surrounding civilian population. In view of the wide variety of conceivable operational and contextual circumstances, the required standard of necessity is likely to range from a generous criterion of 'reasonableness' in large-scale confrontations between wellequipped and organized armed forces to a strict standard of 'absolute' necessity where a party to the conflict conducts operations against selected enemy individuals under conditions comparable to peacetime policing. Also, whether the required standards of necessity will actually be fulfilled in a particular operation cannot be determined in abstracto, but must be assessed based on the concrete circumstances of each situation.l15 In view of the often extreme, dangerous and unpredictable realities prevailing in situations of armed conflict, great latitude may have to be given to the judgment of the responsible military ~ornmander."~ This was confirmed in the war crimes trials following the Second World War, where the IMT regarded as decisive whether the necessity assessment of the military commander had been made 'within the limits of honest judgment on the basis of the conditions prevailing at the time',"' a standard not unlike the subjective criterion of 'honest and reasonable but mistaken belief which emerges from human rights jurisprudence concerning the lawful use of lethal force in law enforcement operat i o n ~ . 'In ' ~ sum, therefore, while the objective restraints imposed by considerations of military necessity are fairly straightforward as a matter of principle, there can be no doubt that more flexibility and latitude is required in determining the reasonability of the required subjective assessments in operational practice.119
4.
CONCLUSIONS
The preceding analysis has shown that the 'least harmful means'-requirement invoked by the Israeli High Court for the conduct of hostilities against civilians directly participating in hostilities could arguably be derived from the general prohibition of maux supegus, and that it constitutes a direct expression of the fundamental principle of military necessity underlying and informing the entire
115. Meyrowitz, supra n. 54, at p. 109; Rogers, supra n.70, at p. 47. See also ILC, Report 32nd Session, supra n. 57, at p. 46, indicating that the existence or absence of military necessity must be assessed separately in each case. 116. UNWCC, USA v. FWhelm von Leeb and thirteen others (The German High Command Case), Nuremberg, 30 December 1947 to 28 October 1948, Law Reports of Trials of War Criminals, Vol. XII, Case No. 72 (London, HM Stationery Office 1949), pp. 93 ff. 117. UNWCC, FWhelm List Case, supra n. 74, at p. 69. See also Annual Digest 1949, Von Lewinski case, supra n. 80, at p. 522. 118. ECtHR, McCann case, supra n. 38, at 8 200. 119. For a more detailed discussion of the standards governing the operational assessment of military necessity, see Melzer, supra n. 18, pp. 291 ff.
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normative framework of IHL. The Court therefore rightly qualified the 'least harm-
ful means'-requirement as part of customary IHL governing international armed conflict. In its permissive function, the principle of military necessity justifies the resort to that kind and degree of force, which is reasonably required for the accomplishment of a legitimate military purpose with a minimum expenditure of time, life and physical resources, and which is not otherwise prohibited by IHL. In its restrictive function, which can also be said to express considerations of humanity, the principle of military necessity reduces the sum total of lawful military action from that which IHL does not prohibit in abstract0 to that which is reasonably required in concreto. In doing so, the restrictive aspect of military necessity does not override or derogate from positive rules of IHL, but merely informs their interpretation to the extent that they leave certain questions not or not sufficiently regulated. In result, within the parameters of positive IHL, the principle of military necessity constitutes a determining factor for the kind and degree of force, which is permissible in direct attack against combatants and civilians directly participating in hostilities. As a consequence, while targeted killings contrary to positive rules of IHL can never be justified by considerations of military necessity, targeted killings for which there manifestly is no military necessity in the concrete circumstances cannot be justified even if they are not otherwise prohibited under IHL. The intensity or urgency of necessity, which is required for a targeted killing to be considered militarily necessary, may range from a generous standard of 'reasonableness' in traditional large-scale confrontations between well-equipped and organized armed forces, to a strict standard of 'absolute necessity' where a state conducts operations against selected individuals under conditions comparable to peacetime policing. In view of the often extreme realities of armed conflict, however, there must be sufficient tolerance for error where a military commander has made the required necessity assessment within the limits of honest judgment on the basis of the circumstances prevailing at the time. Overall, the 'least harmful means'-requirement invoked by the Israeli High Court in the Targeted Killings-judgment forcefully demonstrates the relevance of considerations of humanity, expressed in the restrictive function of the principle of military necessity, for the lawfulness of targeted killings under customary IHL applicable in international armed conflict. In rejecting the claim that parties to the conflict have an unfettered 'right' to kill combatants or civilians directly participating in hostilities the Court has made a laudable first step towards dissolving an outdated juridical myth and clearing the way for an interpretation of the law of hostilities which more accurately reflects not only the principles and values underlying IHL as a whole, but also the evolving characteristics and challenges of contemporary military operations.
SYMPOSIUM: IRAQI HIGH TRIBUNAL
IMPLEMENTING INTERNATIONAL LAW: A QUALIFIED DEFENSE OF THE AL DUJAIL TRIAL'
Michael A. ~ e w t o n '
1.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
The battle for popular perception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1
3.
Transitional justice under the law of occupation. . . . . . . . . . . . . . . . . . . 127
4.
The lex mitior principle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
5. 5.1
The Dujail verdicts: findings and sentences . . . . . . . . . . . . . . . . . . . . . . 142 Retroactivity and the relation between international and domestic . . . . cnminalisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Judge Awad Al-Bandar: murder in the guise of justice as a crime againsthumanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
5.2 6.
118
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
1. O M.A. Newton 2008. 2. Professor of the Practice of Law, Vanderbilt University Law School, Nashville, Tennessee, see . Professor Newton previously served as the Senior Advisor to the Ambassador-at-Large for War Crimes Issues at the US Department of State, where he played a key role in negotiating the Statutes of the Special Court for Sierra Leone and the Elements of Crimes for the International Criminal Court, and has been active in accountability issues around the world. He assisted the Iraqi jurists as they drafted the Statute for the Iraqi High Tribunal, provided training to the Tribunal's judges, and shuttled back and forth to Baghdad to provide assistance to the judges during the trial of Saddam Hussein. He also sewed for periods of time as an international law advisor to the Tribunal during 2006 and 2007.
Yearbook o f International Humanitarian Law
Volume 9 - 2006 - pp. 117-151
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'The hour of liberation is at hand, God willing. But remember that your near-term goal is confined to freeing your country from the forces of occupation and their followers, and not to be preoccupied in settling scores ... You must show genuine forgiveness and put aside revenge over the spilled blood ofyour sons and brothers, including the sons of Saddam Hussein. ' Purported letter written b y Saddam Hussein, signed as 'President and commander in chief of the holy warrior armed f o r ~ e s . ' ~
'And now the former dictator of Iraq will face the justice he denied to millions. The capture of this man was crucial to the rise of a free Iraq. It marks the end of the road for him, and for all who bullied and killed in his name. ... there will be no return to the corrupt power and privilege they once held. For the vast majority of Iraqi citizens who wish to live asfree men and women, this event bringsfurther assurance that the torture chambers and the secret police are gone forever: And this afternoon, I have a message for the Iraqi people: You will not have to fear the rule of Saddam Hussein ever again. All Iraqis who take the side of freedom have taken the winning side. The goals of our coalition are the same as your goals - sovereignty for your country, dignity for your great culture, and for every Iraqi citizen, the opportunityfor a better life. ' President George W. Bush, Address to the Nation, 14December 2 0 0 3 ~
1.
INTRODUCTION
Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on 30 December 2006 following a tumultuous fourteen month trial5 for crimes committed against the citizens of a relatively obscure Iraqi village known as a l - ~ u j a i lPrior .~ to the sporadic small arms fire on 8 July 1982 that was perceived by Saddam as an attempted assassination, the Trial Judgment describes al-Dujail as a 'safe town . ..
3. See ~http:llwww.usatoday.cominews/world/iraq1200610-16-saddam-letter-x.htm>. 4. The full text of the statement is at ~http://www.whitehouse.gov1news/releases/20031121 2003 1214-3.html>. 5. The al-Dujail trial began on 19 October 2005 and the proceedings were completed on 27 July 2006. The verdict was announced on 5 November 2006, although the full trial opinion was not released until 22 November 2006. The defense submissions for the Cassation Court were received on 3 December 2006, and were denied on 26 December 2006. 'Timeline: Saddam Hussein Dujail Trial', BBC News, 4 December 2006, ~http:l/news.bbc.co.uk~2/hi/middle~east/4507568.stm~. 6. The oficial summary of Judge Ra'id Juhi's investigative file signed by the investigative judge responsible for developing the Dujail referral file summarizes the incident at Dujail and the subsequent criminal acts committed against the civilian population of the village. While the acts of the regime were criminal and excessive, the incident pales alongside other more widespread regime crimes such as the Anfal campaign, the 1991 uprisings, or the destruction of the southern marshes. See
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rich in fruit gardens irrigated from the Tigris river through canals and water pumps'.7 The people of Dujail enjoyed a good standard of living, and the local party membership 'was mixed between Shiites and ~unnites'.' Iraqi citizens were imprisoned in the aftermath of that July day; many were tortured and dozens were murdered. An eyewitness testified at trial that three months after the incident, the fields and orchards of Dujail were razed and all of the fruit trees carted off and destroyed by regime tractors, bulldozers, international type cars and six-wheel drive vehicles9 For specialists in international humanitarian law, the conviction of these acts as the crime against humanity of inhumane acts may become the very embodiment of that catch-all crime.'' Destroying the sustenance and prosperity of and entire village is the epitome of acts 'intentionally causing great suffering, or serious injury to the body or to the mental or physical health'." The al-Dujail trial is a metaphor for our common struggle to build the rule of law around the world. Maintaining his fagade of disdain when the verdict and sentence was announced on 5 November 2006, Saddam entered the courtroom with an arrogant strut, and refused to stand until the guards made him do so to hear the judge's opinion.12 When Saddam interrupted the reading of the verdict, Judge Ra'ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over him. Speaking on behalf of the five judge panel, Judge Ra'ouf pronounced a verdict of 'death by hanging' on Saddam for the crime of willfully murdering the Iraqi citizens of alDujail. Saddam railed 'God curse the enemies of the occupation.' He demanded that the Arab people 'stand up' and proclaimed 'death to the enemies of the nation'. An automatic appeal of the verdict was initiated and heard by the ninejudge Cassation Panel, which issued its opinion on 26 December 2006.13 Saddam's
7. See Case No. 119 Firsti2005 Al Dujail Lawsuit (Case), English Translation of Dujail Trial Chamber Opinion, Part I, p. 9 (2006) [hereinafter Part I, Unofficial Translation of Dujail Trial Chamber .pdP. Opinion], at . For the unofficial English translation, broken down into six segments, see
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execution was carried out on the first day of the Sunni religious holiday 'Eid al~ d h a despite "~ a provision of Iraqi law that a death sentence 'cannot be carried out on official holidays and special festivals connected with the religion of the condemned person'.'5 Skeptics in Iraq noted that the Ba'athist regime commonly ignored that provision of Iraqi domestic law. The executioner's rope tightened around his neck and interrupted him as he prayed the most sacred Islamic prayer. 'There is no god but Allah ...' The sectarian overtones of the poorly implemented execution were preserved on a grainy video apparently taken from an illicit cellphone.16 Despite the plea for dignity from a voice on the video that is heard to say 'Please no ... this man is about to die', some of those attending the execution taunted Hussein and gleehlly celebrated his demise." The jarring images flashed around the world ironically lent an eery air of dignity to the end of one of the cruelest tyrants of the twentieth century. Saddam died as a convicted criminal whose crimes were documented in the trial and its 283 page judgment.'' The present contribution considers some of the most significant implications of the Al-Dujail trial in light of the enduring public perceptions related to the establishment of the Tribunal during the post-war occupation of Iraq. In particular, the corollary relationship both to the law of occupation and its human rights implications are discussed. This contribution closes by outlining the most significant aspects of the trial in light of international humanitarian law.
. [Hereinafter Dujail Trial Judgment, References hereinafter are to specific pages of the unofficial English language translation made publicly available].
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THE BATTLE FOR POPULAR PERCEPTION The precise legacy of the al-Dujail trial remains unknown at the time of this writing partly because few outside the region followed the daily Arabic broadcasts, and because its larger aspirations remain unattainable by the turmoil inside Iraq and in the larger region. The record of the al-Dujail trial is one of missteps, mistakes and
misstatements. Its processes and political dimension were filled with controversy both within and without Iraq. There was very little about this first trial of the Iraqi High Criminal Court that was predictable, yet its very audacity is inspiring. Iraqi lawyers and politicians succeeded in integrating modem substantive norms into the domestic criminal code of Iraq. They privately took pride in emulating those states that have ratified the Rome Statute of the International Criminal Court by expanding the crimes punishable in domestic courts. To demonstrate tangible progress towards a modem Iraqi state standing alongside the community of nations, the Statute of the Iraqi High Criminal Court [commonly termed the Iraqi High Tribunal across the rest of the world^'^ embodied a synergy between domestic procedural law and the modem tenets of war crimes, crimes against humanity, and genocide that were to be implemented insofar as possible using the underlying foundation of the Iraqi procedural code. The judges also studied the best practices from the ad hoc tribunals and strove to follow those examples [such as having a Defense Office internal to the Tribunal with counsel available on stand by if needed]. The Tribunal Elements of crimesz0 were closely modeled on the International Criminal Court Elements, and the judges repeatedly used the Arabic version of the official International Criminal Court ~lements*'as the basis for their probing questions to international advisors regarding the fit between Iraqi domestic crimes and those recognized under international law. The Statute expressly permitted the Iraqi judges to 'resort to the decisions of international criminal tribunals' when needed to interpret and apply the provisions punishing genocide, war crimes, and crimes against humanity incorporated into Iraqi law." However, the precise linkage between the international character of the crimes and their domestic counterparts was not been fully explored in the Dujail opinions and remains for development in subsequent cases. Iraqi jurists conducted a trial that had moments of chaos interspersed amongst days of testimony, documentary evidence, and often arcane legal arguments. They used a transparent process to implement those norms to hold Ba'athist party offi-
19. Statute of the Iraqi High Criminal Court, supra n. 11. 20. At ~http:lllaw.case.edu/saddamtriaVdocuments~Elements.pdP. 2 1. See Preparatory Cornrn'n for the Int'l Criminal Court, Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2 November 2000) (establishing the 'Elements of Crimes' for the International Criminal Court). Art. 9 of the Rome Statute states that the Elements shall 'assist the Court in the interpretation and application' of the provisions related to war crimes, genocide and crimes against humanity. At ~http://www.icc-cpi.intilibrary/aboutiofficialjoumal~ome~Sta~te~ 120704-EN.pdP. 22. Statute of the Iraqi High Criminal Court, supra n. 11, Art. 17 (Second).
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cials accountable for crimes committed against their own citizens. Moreover, the al-Dujail trial was held in the midst of a burgeoning insurgency that made the logistical coordination required to gather evidence, protect trial participants, and procure the attendance of witnesses more difficult than for any other major war crimes trial in history.23For each witness who looked into the faces of those who had traumatized Iraqi society and testified of their personal suffering, there were thousands whose stories could have been heard. The Iraqi people watched, and commented, and critiqued every nuance of the trial process. The legal processes formed the canvas against which an explosive mix of personalities, politics, power, and ego combined to produce the most important trial in the history of the region. Saddam's trial was one of the pivotal events in the modem history of the Middle East, yet its history is muddled in misconception and shrouded with miscommunication. Perceptions of the trial and its processes rapidly hardened around fragments of media reporting and the few moments of video that were repeatedly replayed worldwide. Saddam and ten other potential defendants appeared one by one before the investigative judge, Judge Ra'id Juhi, for the first time on 1 July 2004 and many Iraqis watched with breathless incredulity that the dictator was truly in custody and facing trial and possible punishment for the crimes committed under Ba'athist rule. The initial confrontation between Judge Ra'id in the service of the law and Saddam clinging to the vestiges of absolute authority was one of high drama. Many commentators incorrectly characterized the session as an 'arraignment' akin to those common in American courtrooms, although such a process would have been a foreign practice grafted onto Iraqi practice. Neither Saddam nor any other defendant had been formally charged with anything and the construction of the courthouse was still ongoing. The sole purpose of that first hearing before Judge Ra'id was to provide the legal justification for detaining Saddam and the other potential defendants as investigations proceeded following the return of full Iraqi sovereignty.24Saddam immediately challenged the sense of orderly process and set
23. See ~http:i/icasualties.org/oiflCumulative.aspx>. Thousands of Iraqis have been killed and wounded by the conflict itself as well as the deliberate targeting by insurgent forces. At the time of this writing, nearly 4,300 members of the coalition have lost their lives in Iraq along with an estimated 70,000 Iraqi civilian, police, and security forces as a result of the ongoing armed conflict. American military killed and wounded have topped 26,000 in addition to a number of casualties suffered by civilian contractors. 24. Aside from questions regarding the incident in al-Dujail and its bloody aftermath, the focus of the early investigative hearing was on a range of other alleged crimes such as the invasion of Kuwait and the brutal suppression of the 1991 uprising, and the gassing of the village of Halabja. For a description of the proceedings, see J.F. Bums, 'Defiant Hussein Rebukes lraqi Court for Trying Him: Tells Judge He is Still Lawful President', N.Y Times, 2 July 2004, at A l . The initial hearing before an investigative judge is required by lraqi law as a predicate for holding the potential defendant in custody. See also Iraqi Law No. 23 on Criminal Proceedings, supra n. 10, para. 123 ['the examining magistrate or investigator must question the accused within 24 hours of his attendance, after proving his identity
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the tone that would permeate the entire trial until the moment of his execution nearly thirty months later; he demanded to know 'how can you charge me with anything without protecting my rights under the con~titution'.~~ In fact, the purpose of that initial hearing was not to charge Saddam or any of the other defendants with any crime, but merely to establish a prima facie case that the investigative judge had opened a legal investigation and to have them acknowledge the notification of
their legal rights with their signatures. The High Criminal Court Rules of Procedure stipulate that the investigating judge must notify all suspects of their rights during their first appearance for quest i ~ n i n ~In . ' accordance ~ with Iraqi procedural law, any statement of the accused to the investigating judge is recorded in the written record and 'signed by the accused and the magistrate or in~estigator'.'~ Thus, every suspect (to include Saddam) who has appeared before the investigative judges to date has been notified of their rights to counsel and has acknowledged their comprehension of those rights in writing.28 Subsequent appearances before the investigative judge are undertaken
and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.']. 25. R. Cornwell, 'Saddam in the Dock: Listen to His Victims, Not Saddam, Says White House', The Independent (London), 2 July 2004 (reporting that Hussein stated, 'This is all theater,' at his first (last vispre-trial hearing) at ited 4 October 2004). For those who have observed the Milosevic trial, Saddam's statements were eerily familiar. During his initial appearance before the ICTY on 3 July 2001, Milosevic challenged the legality of the establishment of the ICTY. In a pre-trial motion, Milosevic stated, 'I challenge the very legality of this court because it is not established in the basis of law.' 'Milosevic Challenges the Legality of the U.N. Tribunal', Online NewsHour, 13 February 2002, at
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only in the presence of the defense counsel.29Numerous important facts emerged from the investigative record that would become important evidence in the Dujail trial, such as the fact that the 'assassination' attempt had been nothing more than 10-12 shots from what Saddam characterized as an AK-47 fired from some distance away as his convoy travelled through al-~ujail.~' Outside the judicial process, lawyers hired by Hussein's wife sought to create a perception of lawless irregularity by publicly claiming that the Tribunal could not impose any punishments lawhlly because it lacked legitimacy, or lawhl ~reation.~' These issues would never be definitively addressed by the Tribunal until the written Trial Judgment came nearly thirty months later - far too late to affect rapidly hardening public impressions and assumptions. From those first dramatic moments in July 2004, the tension between truth and tyranny, was a constant undercurrent in the al-Dujail trial. It was almost palpable to trial observers inside the courtroom as the days went by. In its Judgment, the Trial Chamber describes the conduct of the defendants and their lawyers as 'anarchist' and an 'organized offensive course' intended to provoke the court.32Iraqi law provides that the Trial Chamber 'is not permitted, in its ruling, to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing, nor is it permitted to rely on a piece of paper given to it by a litigant without the rest of the litigants seeing Despite the frequency of outbursts and disruptive conduct, the Trial Chamber expressly noted that it strove to demonstrate 'magnanimity' and 'tolerance ... for the purpose of serving .. . justice,' and hence 'disregarded all these fabrications and violations' by basing its decision on the evidentiary record.34 Quite apart from the processes inside the courtroom, the revitalized free press in the country had a field day throughout the trial. The barrage of media criticism amidst the chorus of commentary from all across the political spectrum led to the 8 perresignation of the original Presiding Judge, Judge Rizgar ~ m i nMoreover, . ~ ~ sons associated with the process were murdered during the course of the trial, further creating the perception of disorder and unfairness. Rather than succumbing to the manipulation of the murders, the judges expressed their sympathy, granted defense requests for delays, ensured that procedures were in place to preserve the rights of defendants to the assistance of counsel, scrutinized security precautions
29. Ibid. 30. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7 , at p. 9. 31. R. McCarthy and J. Steele, 'Saddam on TriaLLegitimacy and Neutrality of Court Will Be Challenged', The Guardian, 2 July 2004, at ~http:l/www.guardian.co.uk/Iraq/Story/O,2763,1252096,00. htmP (last visited 10 April 2004). 32. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7 , at p. 24. 33. Iraqi Law No. 23 on Criminal Proceedings, supra n. 10, para. 212. 34. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7 at p. 24 35. See R.F.Worth, 'Fed Up, Judge in Hussein Trial Offers to Quit', N. Y: Times,15 January 2006, at A6 (reporting Judge Rizgar's frustration that the Tribunal officials took no public action to defend his actions or judicial integrity).
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for trial participants and forged ahead.36Despite the interruptions, there was no stage of the al-Dujail trial in which any defendant was unrepresented by his attorneys, or those provided by the Court when the retained counsel boycotted proceedings.37 Many of the judges' decisions intended to increase the perceptions of fairness and demonstrate the rebirth of an effective Iraqi judiciary committed to finding the truth while adhering to the rights of defendants instead seemed to catalyze the cynicism of the population and feed popular misconceptions of the trial as a form of American power. The Coalition Provisional Authority Order that delegated authority to the Iraqi leaders to promulgate the Statute required that the Tribunal meet 'international standards of j~stice'.~'Under the terms of the Statute, the Trial Chambers must 'ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with this Statute and the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and w i t n e ~ s e s ' . ~ ~ Articles 19 and 20 of the Tribunal Statute set out a range of fundamental rights, styled as 'Guaranties', for the defendants that the judges must ensure are implemented.40Based on these mandates and the requirements of Iraqi law, for example, after a witness has testified and answered any questions from the bench necessary to clarifL the facts, the 'prosecutor, complainant, civilian plaintiff, a civil official and the defendant may discuss the testimony via the court and ask questions and request clarifications to establish the fact^'.^' In accordance with the procedural law, the judges permitted Saddam and other defendants to question witnesses and participate in exploring the defense perspectives on the testimony. The defendants' lawful right to raise issues in their own defense became the sword that Saddam and other defendants used to conduct the rants and outbursts that in time became fixed in the public perception as the norm during court sessions because they were widely reported. There were times when the insurgency raging outside the courtroom seemed directly linked and fed by the events inside the courtroom. Saddam and other defendants managed to fan the flames of conflict from within the walls
36. The Trial Chamber opinion contains describes many of the specific measures taken to preserve the fair trial rights of the defendants and those taken to safeguard members of the defense team, to include secure transportation and living arrangements upon request. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7, at pp. 24-27. 37. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7, at p. 26. 38. See Coalition Provisional Authority Order # 48: Delegation of Authority Regarding and Iraqi 1210-CPAORD-48-1ST-and-Appen Special Tribunal, at . 39. Statute of the Iraqi High Criminal Court, supra n. 15, Art. 20 (Second). The 'phrase rules of procedure' includes those contained in the underlying Iraqi Law No. 23 of 197 1. Statute of the Iraqi High Criminal Court, ibid., Art. 16. 40. The Arabic word used is diL.;. ,which literally means guarantees, but the intended meaning is 'rights'. The oficial translation uses the phrase 'Guaranteees of the Accused' as the headmg for Art. 19. 41. Iraqi Law No. 23 on Criminal Proceedings, supra n. 10, para. 168.
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of the trial on a number of occasions. For example, on one occasion, Saddam shouted 'down with the Americans! Down with the traitors':' which in turn prompted the defense attorneys to start yelling resulting in what the Judgment describes as 'him being taken away from the hall in accordance with the provision of Article (158) of the penal regulations law'.43 Saddam's persona competed with the judicial power from the first moments of trial down to its dramatic conclusion as the dominating force in the courtroom. The shouted exhortations, extraneous arguments, and demonstrations of defiance to the judges (such as Barzan al-Tiknti wearing pajamas to court or turning their backs to the judges) became flashpoints of controversy. The hours of orderly testimony and the trauma endured by the civilians of al-Dujail went largely ignored. No western media outlet ever showed Saddam or any other defendant apologizing to the bench, despite the fact that they did so more than a dozen times during the course of the trial. However, the problems faced by the Iraqi judges were identical to those presented by other defendants in international ad hoc tribunals whose conduct has been far more disruptive and defiant; like the Iraqi bench, international judges have been repeatedly forced to remove disruptive defendants from the courtroom in the interests of decorum and the judicial process, and have appointed stand-by counsel to preserve the rights of defendants who have chosen to undermine the truth-seeking processes inherent in a fair During the Dujail trial, stand by counsel served to protect the rights of the defendant in 'interests of justice' and helped preserve the Tribunal's 'legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions'.45 Like their
42. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7, at p. 25. 43. Iraqi Law No. 23 on Criminal Proceedings, supra n. 10, para. 158 ['The defendant may not be removed from the court room during consideration of the case unless he violates the rules of the court, in which case procedures continue as if he were present. The court must keep him informed of the procedures which took place in his absence.'] According to the Trial Chamber, the defense team also spread the names of court appointed attorneys to internet web sites in defiance of the orders from the bench. 44. See e.g., Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defense, Prosecutor v. Seselj, IT-03-67-PT, 1 March 2005; Decision on Assignment of Counsel, Prosecutor v. Seselj, IT-03-67-PT, 21 August 2006; Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial, Prosecutor v. Seselj, IT-03-67-PT, 25 October 2006. D. Hooper, 'Serbian War Crimes Suspect Seselj Removed From Hague Hearing', BBC Monitoring News$le, 1 November 2006, at 1. 45. Decision on the Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defense, Prosecutor v. Seselj, IT-03-63-PT, 9 May 2003 [holding that Art. 21 of the ICTY Statute does not on its face exclude the possibility of offering an accused the assistance of assigned counsel where' the interests of justice so require. The need may arise for unforeseeable reasons to protect an accused's interests and to ensure a fair and expeditious trial.'] The need for a strong Defense Office and the availability of stand by counsel familiar with the entire trial is one of the most enduring lessons of the al-Dujail Trial. See Ten Lessons from the Saddam Trial, Generated from the 7 October 2006 Cleveland Experts Meeting Chaired by Professor Michael Scharf, at . Because the Iraqi domestic system is built on a civil law model, the Tribunal represents the most modem effort to meld common and civil law principles into a consolidated system, and has accordingly yielded a number of important lessons for future trial processes.
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colleagues in international processes, the Iraqi judges would respond to repeated demonstrations of defiance and rambling diatribes by occasionally blocking the audio and video broadcasts. They also handled the repetitive hunger strikes precisely in accordance with international standard^.^^ Lastly, while the Tribunal Statute permits the presiding judge to close proceedings under extremely limited circumstances, that power was used quite sparingly.47 When defendants were removed from court, they had full access to their attorneys and watched a close c i r c u i t b r o a d c a s t of t h e p r o c e e d i n g s f r o m t h e i r cells, and were a b l e to c o n s u l t w i t h
their counsel during trial sessions. No defendant or defense attorney was ever denied admission to the courtroom when they acceded to the authority of the presiding judge. Despite the range of protections accorded to defendants, and the efforts of the judges to maintain the focus on the presentation and evaluation of the actual evidence during the trial, the 'speechifying' and political diatribe ultimately caused many Iraqis to conclude that a 'far more suitable outcome would have been to . .. hold the trials outside Iraq even if a capital sentence could not have been passed.'48 Hence, at this early date, it appears that the Iraqi High Criminal Court has fallen short of its aspiration to serve as a rallying point of unity and pride for the Iraqi people as they address the crimes of their past.
3.
TRANSITIONAL JUSTICE UNDER THE LAW OF OCCUPATION
The procedural and substantive components of the Iraqi High Criminal Court functioned in the shadow cast by its inception during the Coalition occupation. The very antithesis of a judicial process based on legal arguments and evidence is one in which the courtroom simply serves as the stage upon which judges act as proxies for the political desires of their masters. The relationship of a subjugated civilian population to a foreign power temporarily exercising de,facto sovereignty is regulated by the extensive development of the law of o c ~ u p a t i o n In . ~ ~terms of legal rights and duties, rather than losing its identity as a sovereign state, Iraq was
46. See Nevmerzhehitsky v. Ukraine, ECHR Judgment, Application No. 54825100, 5 April 2005 (final 12 October 2005) para. 94; M. Silver, 'Testing Cmzan: Prisoners and the Constitutional Question of Self-Starvation', 58 Stanford LR (2005) pp. 631, 633-634 (Giving into a prisoner's demands has never, in any legal system across the globe, been openly put forth as a legitimate judicial solution to ending that prisoner's hunger-strike); For consideration of force feeding under US law, see J.K. Greenberg, 'Hunger Striking Prisoners: The Constitutionality of Force-Feeding', 52 Fordham LR (1983) p. 747. 47. Statute of the Iraqi High Criminal Court, supra n. 15, Art. 20 (Fourth). 48. A.A. Allawi, The Occupation oflraq: Winning the War and Losing the Peace,(New Haven CT, Yale University Press 2007) pp. 434-435. 49. Regulations annexed to Hague Convention IV of 1907 respecting the Laws and Customs of War on Land (hereinafter 1907 Hague Regulations), entered into force 26 January 1910, reprinted in A. Roberts and R. Guelff, eds., Documentation on the Laws of War, 3rd edn. (Oxford, Oxford University Press 2000) p. 73; Geneva Convention Relative to the Protection of Civilians in Time of War,
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considered as occupied territory when it was 'actually placed under the authority of the hostile army'.50 This legal criterion is fulfilled when the following circumstances prevail on the ground: first, that the existing government structures have been rendered incapable of exercising their normal authority; and second that the occupying power is in a position to carry out the normal functions of government over the affected area.51 For the purposes of United States policy, occupation is the legal state occasioned by 'invasion plus taking firm possession of enemy territory for the purpose of holding it.'52Although a state of occupation does not 'affect the legal status of the territory in question,'53 the emotionalism attached to any implication that the victorious coalition in Iraq would simply mandate punishment of its political enemies was heightened as a result of the political controversy around the world regarding the legality of the coalition military operations. Indeed, some scholars argued that the perceptions of hegemonic external power could negate the conceptual benefits of holding trials in Iraq such as the availability of victims and evidence.54 The baseline principle of occupation law is that the civilian population should continue to live their lives as normally as possible. This concept may be termed the minimalist principle, though some observers have termed it the principle of norm a l i ~ In . ~accordance ~ with the baseline principle of normality, Article 43 of the 1907 Hague Regulations stipulates that the occupying power must respect, 'unless
Arts. 47-78, opened for signature 12 August 1949, 75 UNTS 287, 6 UST 3516 [hereinafter Fourth Geneva Convention]. 50. 1907 Hague Regulations, ibid., Art.42; The Law of Land Warfare, Department of the Army Field Manual 27-10;, Washington, 1956, 5 351 [hereinafter US Army Field Manual]. The entire Chapter 6 of the US Army Field Manual relating to the law of armed conflict is devoted to explaining the text of the law on occupation and US occupation policy. 5 1. The Manual of the Law ofArmed Conflict, UK Ministry of Defence (Oxford, Oxford University Press 2004) p. 275, § 11.3. 52. US Army Field Manual 27-10, supra n. 50, 5 352. 53. Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War in J.S. Pictet, ed., Part IV, (Geneva, International Committee of the Red Cross 1958) pp. 335, 275 ('[tlhe occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights.'); F.L. Kirgis, 'Security Council Resolution 1483 on the Rebuilding of Iraq', ASIL Insights (May 2003) last viewed 11 September 2006 at . ('Internationally, though, the fact that a country is occupied and is under the effective, but temporary, control of the occupying powers does not affect its continuing status as a sovereign state. Iraq remains a state as a matter of international law, with rights and obligations toward other sovereign states.'). See also Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, opened for signature at Beme, 12 December 1977, UN Doc. A/32/144 Annex I, Art. 4, entered into force 7 December 1978, reprinted in 16 ILM 1391 (1977) [hereinafter Protocol I]. The United States policy in this regard is clear that occupation confers only the 'means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.' US Army Field Manual, supra n. 50,§ 358. 54. J. Alvarez, 'Trying Hussein: Between Hubris and Hegemony', 2 JInt. Criminal Justice (2004) pp. 3 19, 326. 55. J.S. Pictet, The Principles oflnternational Humanitarian Law (Geneva, ICRC 1967) p. 50.
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absolutely prevented, the laws in force in the country'.56 In its temporary exercise of authority over the occupied territory, and as a pragmatic necessity, the occupation authority must ensure the proper functioning of domestic criminal proccsscs.57 The Fourth Geneva Convention recognizes the importance of individual rights enjoyed by the civilian population and the correlative duties of the occupier to that population. The structure of the Fourth Convention focuses on the duties that an Occupying Power has towards the individual civilians and the overall societal structure rather than on the relations between the victorious sovereign and the defeated government. Under the rejected concept termed 'debellatio', the enemy was utterly defeated and accordingly the defeated State forfeited its legal personality and was absorbed into the sovereignty of the occupier.58The successful negotiation of the Geneva Conventions in the aftermath of World War I1 marked the definitive rejection of the concept of debellatio, under which the occupier assumed full sovereignty over the civilians in the occupied territory.59Hence as a policy priority, domestic law should be enforced by domestic officials insofar as possible, and crimes not of a military nature that do not affect the occupant's security will normally be delegated to the jurisdiction of local courts.60 Pursuant to its temporary assumption of domestic authority, the occupier may detain civilians when there are 'serious and legitimate reasons' to believe that detained persons threaten the safety and security of the occupying power.61The coercive authority of the occupying power is limited by a specific prohibition against making any changes to the governmental structure or institutions that would undermine the benefits guaranteed to civilians under the Geneva ~ o n v e n t i o n s . ~ ~ Because the foreign power has displaced the normal domestic offices, the cornerstone of the law of occupation is the broad obligation that the foreign power must 'take all the measures in his power to restore, and ensure, as far as possible, public order and safety'.63 In the authoritative French, the occupier must preserve 'I'ordre et la vie publics' (i.e., public order and life).64In the face of mounting
56. 1907 Hague Regulations, supra n. 49, Art. 43. 57. Fourth Geneva Convention, supra n. 49, Art. 54: 'The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from hlfilling their functions for reasons of conscience.' 58. Greenspan, The Modern Law ofLand Warfare (Berkeley CA, University of California Press 1959) pp. 600-601. 59. E. Benvenisti, The International Law of Occupation (Princeton NJ, Princeton University Press 1993) p. 92. Debellatio 'refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none of its allies continue militarily to challenge the enemy on its behalf', ibid., p. 59. 60. US Army Field Manual, supra n. 50, 5 370. 61. Prosecutor v. DelaliC, MuciC, DeliC, and Landio (telibici) (Judgment), IT-96-21-T, 20 February 200 1. 62. Fourth Geneva Convention, supra n. 49, Art. 47. 63. 1907 Hague Regulations, supra n. 49, Art.43 (emphasis added). 64. b i d . The conceptual limitations of foreign occupation also warranted a temporal limitation built into the 1949 Geneva Conventions that the general application of the law of occupation 'shall
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public pressure for vigilante justice or sectarian death squads, occupation oEcials might have been warranted in establishing a Tribunal under the inherent occupation authority of the Coalition if it had been an integral aspect of a larger strategic plan for restoring public calm and peaceful stability to the civilian population across Iraq. The circumstances surrounding the formulation of the High Criminal Court are at once the most potent legal and political hurdle to its long-term reputation. In fact, arguments over the legality of the Tribunal's formation caused the first of what would be many defense protests during the long trial. During the third trial session on 5 December 2005, ex-Qatari Justice Minister Najib al-Nu'aymi asked to speak regarding the legitimacy of the tribunal and its formation. When Judge Rizgar resisted hearing such an oral motion in lieu of written submissions, the defense lawyers threatened to stage an en masse walk out. Judge Rizgar responded that he would appoint stand by counsel to represent the rights of the defendants if the retained counsel walked out of the courtroom. Although international practice clearly warrants the appointment of counsel when necessary to preserve the dignity of the courtroom and protect the rights of the defendant^,^^ Saddam and his brother-in-law Barzan al-Tikriti began to shout 'This is a law made by America and does not reflect Iraqi sovereignty.' After the defense lawyers left, Saddam, shaking his right hand, told the judge: 'You are imposing lawyers on us. They are imposed lawyers. The court is imposed by itself. We reject that.'66 Following a ninety minute defense walk out, al-Nu'aymi read aloud from the Geneva Conventions and argued that the case could not proceed because it had been established during a period of occupation that resulted from an illegal invasion and was not the pro. ~ ~ defense team representing Awad duct of a 'legitimate' Iraqi g ~ v e r n m e n t The Hamad a1 Bandar then followed up the courtroom theatrics with a written motion submitted on 21 December 2005 challenging the legality of the tribunal based on its creation during a period of coalition occupation rather than at the hands of a
cease one year after the general close of military operations'; Fourth Geneva Convention, supra n. 49, Art. 6. Based on pure pragmatism, Article 6 of the Fourth Geneva Convention does permit the application of a broader range of specific treaty provisions 'for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory'; ibid. The 1977 Protocols eliminated the patchwork approach to treaty protections with the simple declaration that 'the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation'; Protocol I, supra n. 53, Art. 3(b). 65. G. Zellick, 'The Criminal Trial and the Disruptive Defendant. Part Two', 43 MLR (1980) pp. 284, 295; M. Scharf, 'Self Representation Versus Assignment of Defense Counsel Before International Criminal Tribunals', 4 JInt. Criminal Justice (2005) pp. l , 31, 35. See also Faretta v. California, 422 U.S. 806, 834 (1975)(holding that 'the right of self-representation is not a license to abuse the dignity of the courtroom.' and that 'the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.'). 66. 'Saddam says he is not afraid of execution in chaotic day in court', Jerusalem Post, 5 December 2005, at ~http://www.jpost.corn/se~let/Satellite?cid=1132475686374&pagename=JPost%2FJPAr ticle%2FShowFull>. 67. Author's personal notes of trial testimony.
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sovereign Iraqi government. Though it would have been far preferable to respond with a written motion, the Trial Chamber followed the Iraqi practice of issuing an oral decision, and it was not until the publication of the lengthy Trial Judgment that its reasoning became a matter of public record. The touchstone of analysis for the promulgation of the original Tribunal Statute in December 2003 is to recognize that the entity named the 'Coalition Provisional Authority' (CPA) had affirmative authority to do so as the 'temporary governing body designated by the United Nations as the lawful government of Iraq until such a time as Iraq is politically and socially stable enough to assume its s ~ v e r e i g n t y ' . ~ ~ The United Nations Security Council unanimously afirmed 'the specific authorities, responsibilities, and obligations under applicable international law of these States [the members of the Coalition] as occupying powers under unified command (the ~ u t h o r i t y ) ' The . ~ ~ CPA posited its power as the occupation authority in Iraq in declarative terms: 'The CPA is vested with all executive, legislative, and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war.'70The 'Coalition Provisional Authority' was literally titled: 1) it represented the two States legally occupying Iraq (the United States and the United Kingdom) as well as the coalition of more than twenty other States referred to in Resolution 1483 as working 'under the Authority'; 2) it was intended to be a temporary power to bridge the gap to a full restoration of Iraqi sovereign authority"; and 3) (perhaps most importantly), it exercised the obligations incumbent on those States occupying Iraq in the legal sense, and conversely enjoyed the legal authority flowing from the laws and customs of war. This understanding of CPA status comports with the diplomatic representations made at the time of its formati~n.'~ Because the allegations of so called 'victor's justice' have haunted virtually every accountability process since ~uremberg," they have a visceral power that could corrode every facet of the trial. If the truth seeking process of trials is over-
68. Overview of Coalition Provisional Authority, at
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come by externally imposed limits on judicial independence or politically motivated revenge, the entire process would suffer from a crisis of legitimacy. On the other hand, the mere fact that formation of a new judicial process was predicated on political power does not itself constitute fatal bias. Summarizing the International Military Tribunal at Nuremberg, one preeminent international jurist opined that 'despite certain shortcomings of due process rules at Nuremberg ... Nuremberg was neither arbitrary nor unjust ... that victors sat in judgment did not corrupt the essential fairness of the proceedings'.74 The Iraqi High Criminal Court and the International Criminal Tribunal for the former Yugoslavia (ICTY) share the same jurisprudential underpinnings. The United Nations Security Council established the ICTY with a ground-breaking 1993 that was premised on the legal authority of the Security Council to 'maintain or restore intemational peace and security'.76The ICTY has upheld the Chaper VII authority of the Security Council as being dispositive of the legal controversy regarding Tribunal formation.77Just as the Security Council has the 'primary responsibility' for maintaining international peace and security,78the Coalition Provisional Authority (CPA) had a concrete legal duty to facilitate the return of stability and order to Iraq after the fall of the regime. Both Tribunals were thus founded on the assessment by the officials charged with preserving stability and the rule of law that prosecution of selected persons responsible for serious violations of international humanitarian law would facilitate the restoration of peace and stability. Security Council Resolution 1483 was passed unanimously on 22 May 2003, and called upon the members of the CPA to 'comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1 9 0 7 ' . ~Resolution ~ 1483 is particularly noteworthy because the Dujail Judgment cites it as conveying the imprimatur of unanimous Security Council authority to the Iraqi High Criminal Court by highlighting the need for an accountability mechanism 'for crimes and atrocities committed by the
whom the accused may be is the best policy for the advancement of the intemational rule of law and for the prevention and control of international and transnational criminality.'). 74. T. Meron, War Crimes Law Comes of Age Essays (Oxford, Oxford University Press 1998) p. 198. 75. UNSC Res. 827 (25 May 1993). 76. UN Charter, Art. 39 (giving the Security Council the power to 'determine the existence of any threat to the peace, breach of the peace, or act of aggression' and it 'shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore intemational peace and security'). 77. 'This International Tribunal is not a constitutional court set up to scrutinize the actions of organs of the United Nations. It is, on the contrary, a criminal tribunal with clearly defined powers, involving a quite specific and limited criminal jurisdiction. If it is to confine its adjudications to those specific limits, it will have no authority to investigate the legality of its creation by the Security Council.' Prosecutor v. TadiC (Decision on the Defence Motion on Jurisdiction), IT-94-1, 10 August 1995, at
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previous Iraqi regime7." The Security Council further required the CPA to exercise its temporary power over Iraq in a manner 'consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory'.81 Though strikingly similar to the declaration of Allied power in occupied Germany after World War 11,'~CPA Regulation 1 was founded on bedrock legal authority flowing from the Chapter VII power of the Security Council as supplemented by the pre-existing power granted to the CPA under the law of occupation. Responding to the defense motion challenging the legitimacy of the High Criminal Court, the Dujail Judgment strikes something of an indignant tone. The judges were apparently offended by the constant defense insinuation that they were 'propelled by others' as a result of the occupation and wrote that the defense allegations constituted 'degrading statements' that amounted to an 'indecent attack' on their character.83The Iraqi Judicial Law specifies that the judge shall be bound to 'preserve the dignity of the judicature and to avoid any thing that arouses suspicion on his honesty'.84 Careful trial observers noted that the Dujail judges were very conscious of the gravity of their task in seeking the truth about the events surrounding al-Dujail. Judge Ra'ouf frequently reminded the defendants of the constitutional principle [also found in the Statute of the ~ r i b u n a l 'and ~ in the International Covenant on Civil and Political ~ i g h t s that ~ ~ ]an accused is 'innocent until he is proven guilty in a legal Citing the series of Security Council Resolutions that began with Resolution 1483, the Trial Chamber flatly rejected the de-
80. Ibid., Preamble and 8 3. 81. Ibid.. 5 4. 82. General Eisenhower's Proclamation said: 'Supreme legislative, judicial, and executive authority and powers within the occupied territory are vested in me as Supreme Commander of the Allied Forces and as Military Governor, and the Military Government is established to exercise these powers.' Reprinted in Military Government Gazette, Germany, United States Zone, Office of Military Government for Germany US 1 June 1946) 1 Issue A (copy on file with author). 83. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7, at p. 24. 84. Law of Judicial Organization, Number 160 of 1979, Resolution No. 1724 Issued by the Revolutionary Command Council, 12 October 1979, Art. 7, Published by the Ministry of Justice, Official Gazette of the Republic of Iraq, Vol. 23, No. 27 at p. 2 (2 July 1980), reprinted in United States Institute of Peace, Iraqi Laws Referenced in the Statute of the Iraqi Special Tribunal (2004) (copy on file with author). 85. Statute of the Iraqi High Criminal Court, supra n. 15, Art. 19 (Second). 86. International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR Supp. No. 16 at p. 52, UN Doc. A163 16 (1966), Art. 14, 999 UNTS 171, entered into force 23 March 1976 (describing analogous provisions derived from international human rights law)[hereinafter ICCPR]. 87. 1970 Interim Constitution of Iraq, Art. 20, reprinted in United States Institute of Peace, Iraqi Laws Referenced in the Statute of the Iraqi Special Tribunal (2004) (copy on file with author). This principle is also embodied in Article 19 of the 2005 Iraqi Constitution, see
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fense motion based on the 'self evident' truth that the Iraqi government retained the right to prosecute Ba'athist officials for 'the crimes determined and adopted in international criminal law'." Resolution 1483 operated in conjunction with the residual laws and customs of war to establish positive legal authority for the formation of the Iraqi High Criminal Court under CPA authority as delegated to the Interim Governing Council. The Trial Chamber also supported its conclusion by citing the text of Security Council Resolution 1511 (which was also a unanimous Resolution based on its Chapter VII authority), which reaffirmed 'the sovereignty and territorial integrity of ~ r a ~In' the . ~fourth ~ operative paragraph, the Security Council determined 'that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its fixther evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the ~ u t h o r i t ~Buttressed .'~~ by the Chapter VII power of the Security Council at the time of its creatioqgl the Iraqi High Criminal court rested not only on the authority of the occupation officials, but directly on the legal power of the Interim Governing Council responsible for drafting and adopting the original Statute. The Trial Chamber Judgment notes that 78% of the Iraqi people had elected the sovereign Iraqi government that amended and repromulgated the original Tribunal Statute in October 2 0 0 5 . ~The ~ opinion also cites the principle of complementarity embedded in the International Criminal Court that sovereign states have the primacy for enforcing international norms.93The rejection of the defense motion and approval of its formation under the authority granted to the Iraqi Governing Council creates an almost perfect parallel to the post-World War I1 occupations in which
88. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7 , at p. 3 1. 89. SC Res. 1511, 16 October 2003, 3 1, at . 90. Ibid., 5 4. 91. The ICTY and Iraqi High Criminal Court are thus intellectual twins as they rest on the authority of the Security Council's Chapter VII power. The former US Attorney General Ramsey Clark has attacked the legal authority for forming the ad hoc tribunals in a number of public comments and letters which raise the almost identical arguments to those raised in the Dujail Trial strategy. At ('The former President of Yugoslavia is on trial for defending Yugoslavia in a court the Security Council had no power to create. ... The ICTY and other ad hoc criminal tribunals created by the Security Council are illegal because the Charter of the United Nations does not empower the Security Council to create any criminal court. The language of the Charter is clear. Had such power been placed in the Charter in 1945 there would be no UN. None of the five powers made permanent members of the Security Council in the Charter would have agreed to submit to a UN criminal report.'). 92. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7, at p. 31. 93. Preamble, Arts. 1 and 17 of the Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, UN Doc. AlCONF.18319 (1998). See also M.A. Newton, 'Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court', 167 MLR (2001) p. 20.
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the British and Americans created guidelines to direct Germany towards democracy, but ultimately gave the Germans great latitude in rebuilding their country.94 The legality portion of the Dujail Judgment is an important example of modem state practice that will guide future post-conflict occupations. It reinforces the premise that the Fourth Geneva convention does not doggedly elevate the provisions of domestic law and the structure of domestic institutions above the pursuit of justice. The duty found in Article 43 of the Hague Regulations to respect local laws unless 'absolutely prevented' (in French 'emp2chement absolu') imposes a seemingly categorical imperative. However, rather than being understood literally, 'empichernent absolu' has been interpreted as the equivalent of ' n e c e ~ s i t i ' In .~~ other words, the occupying power may modify local laws when necessitated by the overarching need to maintain law and order in conformity with established 2 1st century human rights. The Dujail verdict reinforces this functional meaning. Under the obligations of modem human rights law, an occupier may amend local law to 'remove from the penal code any punishments that are 'unreasonable, cruel, or inhumane' together with any discriminatory racial legislation'." Current state practice warrants the conclusion that such amendments may be justified on the basis of military necessity by the occupying authority. For example, the Israeli decision to confer the vote in mayoral elections on women who had not formerly enjoyed this right would probably comport with the Article 43 obligation of an o~cupier.~' Despite the minimalist principle, international law allows reasonable latitude for an occupying power to modify, suspend or replace the existing penal structure in the interests of ensuring justice and the restoration of the rule of law. The Dujail Judgment builds on the state practice in the post-World War I1 context that permitted the Allies to set the feet of the defeated Axis powers 'on a more wholesome path'98 rather than
94. W.M. Hudson, 'The US military Government and the establishment of democratic reform, federalism, and constitutionalism during the occupation of Bavaria 1945-47', 180 MLR (2004) pp. 115, 123. 95. Y. Dinstein, 'Legislation under Article 43 of the Hague Regulations: Belligerent occupation and peacebuilding', No. 1, Fall 2004, Program on Humanitarian Policy and Conflict Research, Harvard University Occasional Paper Series 8. See also A. Roberts, 'Transformative Military Occupation : Applying the Laws of War and Human Rights', 100 AJIL (2006) p. 580; M. Sassoli, 'Legislation and Maintenance of Public Order and Civil Life by Occupying Powers', 16 EJIL (2005) p. 661; and on the interplay between occupation law and Security Council Resolutions: D. Scheffer, 'Beyond Occupation Law', 97 AJIL (2003) pp. 842-860; E.H. Schwenk, 'Legislative powers of the military occupant under Article 43, Hague Regulations', 54 Yale U, (1945) p. 393. 96. L.C. Green, The Contemporary Law ofArmed Conflict (Yonkers NK, Juris 2000) p. 259. 97. Ibid. See also Issa a.o. v. Turkey, ECHR Judgment, Application No. 31821196, 30 May 2000 for further support of this key development from the perspective of the European Court of Human Rights, though admittedly the ECHR opinion provides an incomplete analysis of the overlap between residual human rights norms and the occupation law flowing from the Fourth Geneva Convention 98. Greenspan, supra n. 58, pp. 223-227.
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blindly enforcing the institutional and legal constraints that had been the main bulwarks of tyranny.99 The modem implementation of human rights obligations by the temporary authority is wholly consistent with both the letter and the spirit of the Fourth Geneva Convention when Articles 64 and 43 are read together in a holistic manner. Though Trial Chamber I merely mentions Article 64 of the Fourth Geneva Convention only in passing, its opinion is consistent with the modem interpretation of the law of occupation. The subtle linkage between Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention gave the CPA broad discretion to delegate the authority for promulgation of the Tribunal to the Governing Council as a matter of necessity. Article 64 of the Fourth Geneva Convention clarified the old Hague Article 43 by explaining the exception to the minimalist principle in more concrete terms. In ascertaining the implications of Article 64 with regard to the occupation in Iraq, it is important to realize that its drafters did not extend the 'traditional scope of occupation legislation'.100The Geneva Convention added detail to the concept of necessity enshrined in the 1907 Article 43 obligation, but did so with the intent of protecting the legal rights of the civilian population. lo' The plain language of Article 64 must be interpreted in good faith in light of the object and purpose of the Fourth onv vent ion,'^^ which seeks to alleviate the suffering of the civilian population and ameliorate the potentially adverse consequences of occupation subsequent to military defeat. The first paragraph strikes a balance between the minimalist intent of the framers and the overriding purpose of making due allowance both for the rights of the civilian population and the concurrent right
99. For example, the oath of the Nazi party was: 'I owe inviolable fidelity to Adolf Hitler; I vow absolute obedience to him and to the leaders he designates for me'. D.A. Sprecher, Inside the Nuremberg Trial: A Prosecutor k Comprehensive Account (Lanham M D , University Press of America 1999) pp. 1037-1038. Accordingly, power resided in Hitler, from who subordinates derived absolute authority in hierarchical order. This absolute and unconditional obedience to the superior in all areas of public and private life led in Justice Jackson's famous words to 'a National Socialist despotism equaled only by the dynasties of the ancient East.' Opening Statement to the International Military Tribunal at Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Vol. I1 (1947) p. 100. 100. G. Schwarzenberger, The Law ofArmed Conflict (London, Stevens 1968) p. 194. 101. Fourth Geneva Convention, supra n. 49, Art. 64 reads as follows: 'The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. 102. Vienna Convention on the Law of Treaties, Art. 3 1(1), 27 January 1980, 1155 UNTS 331, reprinted in 8 ILM (1969).
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of the occupier to maintain the security of its forces and property. he second paragraph of Article 64 morphed the implicit meaning of 'necessary' drawn from the old Hague Article 43 into an explicit authority to amend the domestic laws in order to achieve the core purposes of the Convention. Article 64 has thus been accepted in light of the common-sense reading and the underlying legal duties of the occupier to permit modification of domestic law under limited circum-
stances.lo3 At its core, Article 64 protects the rights of citizens in the occupied territory t o a fair and effective system of justice. As a first step, and citing its obligation to ensure the 'effective administration of justice', the CPA issued an order suspending the imposition of capital punishment in the criminal courts of Iraq and prohibiting torture as well as cruel, inhumane, and degrading treatment in occupied 1raq.lo4 Exercising his power as the temporary occupation authority, Ambassador Bremer signed CPA Order No 7 , which amended the Iraqi Criminal Code in other important ways seeking to suspend or modify laws that 'the former regime used ... as a tool of repression in violation of internationally recognized human rights'.lo5 The subsequent promulgation of CPA Policy Memorandum No. 3 on 18 June 2003, which amended key provisions of the Iraqi Criminal Code in order to protect the rights of the civilians in Iraq, Io6 was based on the treaty obligation to eliminate obstacles to the application of the Geneva Conventions. Though the CPA Policy aligned Iraqi domestic procedure and law with the requirements of international law, it was at best a stopgap measure that was neither designed nor intended to bear the full weight of prosecuting the range of crimes committed by the regime. Indeed, Section 1 of the original 18 June 2003 Policy Memorandum No. 3 expressly focused on the 'need to transition' to an effective administration of domestic justice weaned from a 'dependency on military support'.'07 Authority grounded in Article 64 to subject the population of the occupied territory to provisions deemed essential to hlfilling the obligations of the Occupying Power to maintain law and order in turn permitted the delegation of authority to the Interim Governing Council needed to draft and adopt the Statute of the Tribunal. Article 47 implicitly concedes power to the occupying force to 'change (. ..) the
103. The Manual of the Law ofArmed Conflict, UK Ministry of Defence (Oxford, Oxford University Press 2004) p. 275 [11.56]. United States doctrine states that the 'occupant may alter, repeal, or suspend laws of the following types: a. Legislation constituting a threat to its security, such as laws relating to recruitment and the bearing of arms.6. Legislation dealing with political process, such as laws regarding the rights of suffrage and of assemb1y.c. Legislation the enforcement of which would be inconsistent with the duties of the occupant, such as laws establishing racial discrimination.' US Army Field Manual 27-10, supra n. 50, 9 37 1. 104. Coalition Provisional Authority Order Number No 7 (9 June 2003) Doc. No. CPAIORDI7 (9 (copy on file June 2003) Sec. 2 and 3, at ~http://www.cpa-iraq.org/regulations/index.html#Orders with author). 105. Ibid. 106. Coalition Provisional Authority Memorandum Number 3 was revised on 27 June 2004, at ~http:/lwww.cpa-.iraq.org/regulations/20040627~CPAMEMO~3~Criminal~Procedures~RevV.pdf . 107. Copy on file with author.
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institutions or government' of the occupied territory, so long as those changes do not deprive the population of the benefits of that convention.Io8Article 47 of the Fourth Convention makes clear that such 'provisions' may include sweeping changes to the domestic legal and governmental structures. The Commentary to the Fourth Geneva Convention on the protection of civilians also makes clear that the occupying power may modify domestic institutions (which would include the judicial system and the laws applicable thereto) when the existing institutions or government of the occupied territory operate to deprive human beings of 'the rights and safeguards provided for them' under the Fourth on vent ion."^ These provisions of occupation law are consistent with the Allied experiences during the post-World War I1 occupations, and were intended to permit future occupation forces to achieve the salutary effects inherent in rebuilding or restructuring domestic legal systems when the demands of justice require such reconstruction. Against that legal backdrop, direct CPA promulgation of the Statute and the accompanying reforms to the existing Iraqi court system could have been justified on the basis of any of the three permissible purposes specified in Article 64 of the Fourth Convention (i.e., fulfilling its treaty obligation to protect civilians, maintaining orderly government over a restless population demanding accountability for the crimes suffered under Saddam, or enhancing the security of Coalition force^"^).
THE LEX MITIOR PRINCIPLE The Trial Chamber's findings with regard to legality formed a necessary predicate to resolving a critical issue that was raised sua sponte by judges of Trial Chamber I. The death penalty has been both permitted and utilized within Iraqi criminal
108. Fourth Geneva Convention, supra n. 49, Art. 47 [Arti. 47 also prevented the CPA from effecting changes that would undermine the rights enjoyed by the civilian population 'by any agreement concluded between the authorities of the occupied territories and the Occupying Power']. See also US Army Field Manual, supra n. 50, T( 365. United States Army doctrine reflects this understanding of the normative relationship with the reminder that 'restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would have been unlawful if performed directly by the occupant' US Army Field Manual, supra n. 50, 5 366 (further specifying that 'Acts induced or compelled by the occupant are nonetheless its acts'). 109. J. Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary, Vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, (Geneva, 1958) p. 274 (explaining the intended implementation of the provision in Article 47 that any change introduced to domestic institutions by the occupying power must protect the rights of the civilian population). 110. This latter justification might have been warranted if the Iraqi populace had begun to engage in hostilities against coalition forces under the premise that they were acting as the protectors or the displaced and discredited Ba'athist political elites. Given the reality that the leading Ba'athists were in coalition custody, which changed legally but not physically upon the return of full sovereignty, it is entirely conceivable that an effective propaganda campaign might have succeeded in enraging average citizens based on the false premise that the coalition wanted to protect Ba'athist officials from prosecution.
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courts throughout the modern era and dates back to the Code of Hammurabi in practice. Under the Iraqi Penal Code of 1969, the death penalty is listed among the range of permitted penalties for criminal offenses."' However, Ambassador Bremer promulgated Coalition Provisional Order # 7 in June 2003 seeking to align Iraqi practice with international human rights norms during the period of occupation. Regardless of the procedural forms adopted, international law is clear
that no accused should face punishment unless convicted pursuant to a fair trial affording all of the essential guarantees embodied in widespread state practi~e."~ The affirmative obligations of Article 47 of the Fourth Geneva onv vent ion"^ required a CPA role to ensure that the judicial structure that emerged as a hnction of Iraqi domestic politics and was promulgated as a domestic statute hlly complied with relevant human rights obligation^."^ Within Iraq, Section 3, Paragraph 1 of
111. 'The primary penalties are: 1) death penalty, 2) life imprisonment, 3) imprisonment for a term of years, 4) penal servitude, 5) detention, 6) a fine, 7) confinement in a school for young offenders, 8) confinement in a reform school .' Iraqi Penal Code of 1969, Chapter V, $1, 7 85, at . The subsequent sections specify of range and limitations on the actual imposition of cauital sentences. - of procedural obligations 112. For a summary of state practice and its implementation in treaty norms and military manuals around the world, see J.-M. Henkaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol. I , (2005) pp. 352-375 [hereinafter ICRC Study]. 113. Fourth Geneva Convention, supra n. 49, Article 47 also prevented the CPA from effecting changes that would undermine the rights enjoyed by the civilian population 'by any agreement concluded between the authorities of the occupied territories and the Occupying Power' Hence, any express or implicit agreement between the CPA and the transitional Iraqi government to establish a Tribunal did not absolve the occupying coalition powers of the legal duty to protect the rights of the domestic class of protected persons. Indeed, the Sunni status of the defeated Ba'athists at the hands of a Shiite dominated new political class was one of the express and repeated CPA concerns based on the obligations of occupation law. 114. A full discussion of the extent to which human rights law applies in an occupation environment is beyond the scope of this contribution. There is a growing awareness that some aspects of human rights may apply extraterritorially alongside the conventional obligations found in occupation law. The precise interrelationship between occupation law and human rights norms is debatable and ill-defined at present. See e.g., Bankovic a.0. v. Belgium and 16 Other Contracting States, ECHR Judgment, Application No. 52207199, 12 December 2001, para. 71 admissibility decision (rejected on jurisdictional grounds)(declaring in dicta on the one hand that the European Convention may impose obligations on states parties anywhere they exercise 'effective control' while in another paragraph, para. 80, limiting that gratuitous language to temtory that 'for the specific circumstances, would normally be covered by the Convention' which means those state parties signatory). Both bodies of law serve to protect fimdamental human values, albeit in differing manners and from differing jurisprudential frameworks. Obliquely referring to the connection between the two distinct bodies of law, the Inter-American commission on ~ u h a nRights ,Inter-American Commission, Coard et al. v. United States, 29 September 1999, Case 10.951, Report No. 109100, $ 37, noted in dicta that: 'While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extratenitorial locus will not only be consistent with but required by the norms which pertain. The fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non-discrimination - "without distinction as to race, nationality, creed or sex." Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may, under given circumstances, refer to con&
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CPA Order #7 was its most controversial provision, because it provided that 'Capital punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal ode.'"^ Despite the promulgation of CPA Order # 7 and its temporary abolition of capital sentences, the original Tribunal Statute adopted by the Interim Goveming Council in December 2003 permitted the range of punishments 'prescribed by the Penal Code of 1969,' and this language was retained in each of the subsequent legislative enactments following the restoration of full sovereignty.'I6 During the Dujail trial, the defense never raised the apparent conflict between the sentencing provisions of the Statute and the enactment of its original version during the occupation period under which the use of capital punishment was not permitted. Enshrined in Article 15 of the ICCPR,"' the principle of lex mitior requires that if, subsequent to commission of a crime, the applicable law is changed so as to allow for a lighter penalty, the offender shall benefit thereby. The Iraqi Penal Code of 1969 expressly adopts the principle of lex mitior in 52(2). This section reads as follows: 1. The occurrence and consequences o f a n offence are determined in accordance with the law in force at the time o f its commission and the time o f commission is determined by reference to the time at which the criminal act occurs and not by reference to the time when the consequence o f the offence is realised.
2. However, if one o r more laws are enacted after a n offence h a s been committed and before final judgment is given, then the law that is most favourable (sic) to the convicted person is applied.
Hence, the Dujail Trial Chamber faced a potential legal barrier to even considering any capital sentence. The Trial Judgment addressed the lex mitior issue as its first substantive issue. As shown in the previous section, one of the central pillars of the law of occupation is that the occupying power does not acquire sovereignty over
duct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state - usually through the acts of the latter's agents abroad. In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.' 115. Coalition Provisional Authority Order Number No. 7 (9 June 2003) Doc. No. CPAIORDI7 (9 June 2003) Sec. 3(1), at
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the territory. During the fourteen months of occupation, the CPA effected a displacement, rather than a replacement, of Iraqi sovereignty. Trial Chamber I specifically highlighted in its unanimous judgment that 'the Temporary Coalition Government is considered a transitional authority in Iraq until achieving full sovereignty according to article (43) of The Hague Laws of 1907- the orientation of the occupier is to respect the language, norms and traditions of the occupied country.''" Lex mitior is meant to give the accused the benefits of a change in the value
judgments of society at large. Laws imposing new and lighter penalties are often the concrete expression of some change in the attitude of the community towards the offense in question.''9 As a result, the principle of lex mitior 'applies only to cases in which the commission of the criminal offence and the subsequent imposiIn the context tion of a penalty took place within one and the same jurisdicti~n'.'~~ of the Iraqi Penal Code of 1969, the phrase 'one or more laws' clearly indicates that a law must be enacted within the formal process of the domestic law for lex mitior to attach. The concept of 'one or more laws' found in 52(2) of the Penal Code parallels the phrase 'provision made by law' found in Article 15 of the ICCPR.'~'The Trial Chamber implicitly concluded that a 'procedure made by law' is one that has been enacted in accordance with Iraqi legislative procedure. The CPA's purpose was to protect the people of Iraq, not to speak for them.Iz2 Coalition Provisional Authority Order Section 7, paragraph 3 contained no measure of public opinion, but only represented the operational necessity under which the Coalition was acting in light of its powers under occupation law Based on the findings of the Trial Chamber and the status of the CPA under Article 43, the CPA was not, and did not consider itself to be, the voice of the people, since it was not the legislative organ of the Iraqi people.'23
118. Part I, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 7 at p. 3. 119. Commission on Human Rights, 5th Session (1949), 6th Session (1950), 8th Session (1952) [EICN.4ISR.112, p.8 (F)]. 120. The Prosecutor v. Momir NikoliC, Case No. IT-02-6011-S, Sentencing Judgment, 2 December 2003, Judicial Supplement No. 46, 9 163. 12 1. Supra n. 117 (with full text). 122. P. Bowers, 'Iraq: Law of Occupation', Research Paper 03/51, House of Commons Library 19 (2 June 2003). 123. United Kingdom Foreign Secretary Jack Straw comments on trials for members of the Saddam Hussein regime in response to a question by Douglas Hogg: 'We want the Iraqi people, in the main, to take responsibility for ensuring justice in respect of former members of the regime.' House of Parliament Councils Debate, cc32-3 (28 April 2003), at ~http:/lwww.parliament.uk~commonslliblre searchkp2003lrp03-05 1.pdB. Pierre-Richard Prosper, the US Ambassador for War Crimes, was interviewed by the Daily Telegraph in April 2003. The report gave the following account of his arguments: 'As for Saddam's crimes, he believes that the Iraqis themselves should take the lead, and that their former president and his henchmen should be tried in Iraq itself. 'We really need to allow the Iraqis the opportunity to do this. They are the victims. It is their country that was oppressed and abused. We want them to have a leadership role, and we're there to be supportive.' T. Hamden, 'Man with a Mission to Put Saddam in the Dock: Pierre-Richard Prosper, the US Ambassador for War Crimes,
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The Cassation Panel Opinion addressed this issue squarely and upheld the assessment of the Trial Chamber that lex mitior was inapplicable due to the ephemeral nature of CPA authority by holding that CPA Order #7: 'did not stem from the Legislative Authority in Iraq, nor did it include any standards of the public opinion, and it merely reflected the necessity that the Coalition was supposed to act according to in light of the authority entrusted in it in accordance with the occupation law being the interim sponsor during that present period in Iraq; and because that Authority had no legal sovereignty over the occupied region, and consequently, the Coalition Authority was kind of a separate legal jurisdiction; and according to wellestablished international laws, the Iraqi High Tribunal was not obliged to implement its rulings or its laws. The order of the Interim Coalition Authority, which suspended execution of capital punishment, was merely a temporary procedure imposed by a interim authority, and therefore, this law could not have been considered a law issued before the sentencing and consequently would have the power to make the law of capital punishment null and void and a law that would be an applicable legal choice of the legal judgment.'124
5.
THE DUJAIL VERDICTS: FINDINGS AND SENTENCES
The International Military Tribunal at Nuremberg set the precedent for simplifying evidentiary requirements in favor of a full airing of available facts before a panel of judges. Justice Robert H. Jackson noted that 'peculiar and technical rules of evidence developed under the common law system of jury trials to prevent the jury from being influenced by improper evidence constitute a complex and artificial science', and accordingly accepted that rules of evidence at Nuremberg should put the premium on the probative value of the evidence.125Although dispensing with rigid rules of evidence gave the International Military Tribunal 'a large and somewhat unpredictable discretion', it also permitted both the prosecution and defense to select evidence on the basis of 'what it was worth as proof rather than whether it complied with some technical requirement'.'26 Since 1945, rather than operating under restrictive rules of evidence, all of the tribunals applying international humanitarian law have permitted evidence so long as it is 'relevant and necessary for
Tells Toby Hamden in Washington Why He Would Love to Look the Fallen Dictator in the Eye',
Daily Telegraph, 21 April 2003 at p. 12. 124. Cassation Panel, Iraqi High Criminal Court, al-Dujail Final Opinion, supra n. 15, at p. 13. 125. Report of R.H. Jackson, United States Representative to the International Conference on Military Tribunals 1I, Department of State Publication 3080, Washington D.C., Preface at xi (1949). Interestingly, as a matter of historical record, the teams of international prosecutors at Nuremberg did not develop detailed Elements of Crimes that have become an accepted feature of every subsequent international process. 126. Ibid.
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the determination of the truth'.12' This standard [drawn from the International Criminal Court Statute] compares favorably to the Iraqi High Criminal Court Rule of Procedure that permits the Trial Chamber to admit 'any relevant evidence which it deems to have probative value'.128 The procedures for the introduction of evidence and the consideration of verdicts before the Iraqi High Criminal Court are perhaps the most notable aspect of the commingling of common and civil law traditions, Many commentators fiom outside Iraq never understood the different nature of trial evidence in relation to the broader referral file. As one Iraqi judge put it, 'in our system, only the evidence speaks'.I2' Rather than developing a straitjacket set of rules related to the introduction of evidence, the Dujail Trial Chamber had the broader mandate to 'apply rules of evidence which will best favour [sic] a fair determination of the matter before it and are consonant with the spirit of the Statute and general principles of law'.130 The lengthy Trial Judgment contains a wealth of detail regarding facts, inferences, trial motions, allegations, and outright false testimony in the Dujail case. While the Trial Chamber I findings can be simply stated, they rest upon an array of detailed factual underpinnings and analytical comparison to the Elements for each and every offense that is beyond the scope of this chapter. For example, no defendant was convicted of the crime against humanity of enforced disappearances because the judges concluded that the elements of the crime were not satisfied based on the available e ~ i d e n c e . 'The ~ ' Judgment is an exhaustive catalogue of the questions raised by the legal elements of each offense alleged and a recitation of the exculpatory and inculpatory evidence raised against each defendant for each
127. This rule is now codified in the Rome Statute, supra n. 93, Art. 69(3), reprinted in 37 ILM 999 (1998). 128. Tribunal Rules of Procedure, supra n. 26, Rule 79. This provision is adjacent to the common sense caveat that the Trial Chamber should 'exclude evidence if its probative value is substantially outweighed by the potential for unfair prejudice, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' 129. Interview with Judge Ra'id Juhi, 2 August 2006. 130. Tribunal Rules of Procedure, supra n. 26, Rule 79. 131. For a discussion of this crime with regard to Saddam Hussein, see Case No. 119 Firsti2005 Al Dujail Lawsuit (Case), English Translation of Dujail Trial Chamber Opinion, Part 3, 41-43 (2006) [hereinafter Part 111, Unofficial Translation of Dujail Trial Chamber Opinion], at
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charge. Finally, there is a great deal of discussion regarding the inferences to be drawn by the judges regarding the modes of individual participation in the offenses. 5.1
Retroactivity and the relation between international and domestic criminalisations
Prior to assessing any verdicts, the Trial Chamber analyzed the propriety of assessing guilt on the basis of crimes against humanity. Crimes against humanity have never been reduced to a globally applicable general convention, though the corpus is expanded and captured in the Rome Statute of the International Criminal Similar to the European Court of Human Rights analysis in Kolk and Kislyiy v. ~ s t o n i a ,the ' ~ ~Trial Chamber engaged in an extensive analysis to determine whether the Iraqi High Criminal Court could lawfully impose punishment for crimes against humanity committed in 1982, although they were not specifically criminalized in Iraqi domestic law until the December 2003 original IST Statute (later revalidated in Article 130 of the 2005 Iraqi c ~ n s t i t u t i o n 'as ~ ~well as amended in the legislative revisions promulgated in October 2005). The Trial Chamber discussion is a sophisticated discourse on the interface between international and domestic law as well as between treaties and international custom as authoritative sources of law.'35Like every international tribunal going back to Nuremberg,'36Trial Chamber I concluded that 'the actions attributed to the accused in Al Dujail case, if verified, are considered international and internal crimes simultaneously; the committing of such crimes is considered a violation of international criminal law and international human [rights] law and, at the same time, also considered a violation of Iraqi law."37By logical extension, the international character of the crimes against humanity alleged in connection with al-Dujail required 'additional elements other than those stipulated in the Iraqi penal code.'13' Holding that crimes against humanity when committed during a time of peace had become international crimes prior to 1982, the Statute of the Iraqi High Criminal Court com-
132. Rome Statute of the International Criminal Court, supra n. 93, Art. 7. 133. See Kolk and Kislyiy v. Estonia, ECHR Judgment, Application No. 24018104, 26 January 2006. According to the European Court of Human Rights, crimes against humanity were proscribed and defined sufficiently by 1949 to permit the conviction of Estonian nationals in 1994 based on a domestic statute enacted in 1992 that created jurisdiction over crimes against humanity. 134. Constitution of the Republic of Iraq, Art. 134. ('The Iraqi High Tribunal shall continue its duties as an independent judicial body, in examining the crimes of the defunct dictatorial regime and its symbols. The Council of Representatives shall have the right to dissolve it by law after the completion of its work), unofficial English translation, at
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ported with human rights norms.'39 In the words of the Trial Judgment, the procedural and due process principle of non-retroactivity cannot be perverted to provide impunity for those who committed crimes against humanity during the Ba'athist era: 'Therefore, it can be said that the tribunal law did not stipulate itself the criminal nature of these acts and it is not their originator, rather it merely transferred these crimes from the international domain where they already existed and still exist, to the national domain. In another sense, the tribunal law took over what was included in international penal law which incriminates the acts that form international crimes and transferred them to domestic law, based on the theory of reception which is well known in the field of international law. The principle of non-retroactivity of criminal law is respected for the purpose [of] preventing injustice and protecting the innocent. However, objecting or taking exception to it without a sound legal basis for the purpose of absolving individuals accused of committing international crimes from criminal responsibility means that justice is denied and injustice is d e d i ~ a t e d . " ~ ~ A s a number o f defendants raised the retroactivity defense on appeal, the Cassation Chamber also addressed its applicability to crimes against humanity committed before the enactment o f the domestic statutes. Though it has gaps in a number of other areas, the language o f the Appeals Opinion is clear and correct in rejecting the defense allegation: 'if a provision is stated in an international treaty or agreement for a specific incriminating act, the application of this provision on acts perpetrated before its issuance does not mean that the provision was applied retroactively. This provision was preceded by international norms which entail non-legitimacy of the act. The provisions did no more than record and clarify the substance of previous norms and traditions for the perpetrator of the act and his presence. Therefore, the principle of legitimizing crimes and criminal penalties is consistent with justice principles since it is a fundamental principle in all laws, including international criminal law.'I4' Having established the legality of the tribunal's formation, and its subject matter competence to adjudicate crimes against humanity, the Trial Chamber sentenced seven defendants, and fully acquitted Muhamad 'Azzawi 'Ali, a former Ba'ath
139. Art. 15 of the ICCPR, supra n. 86, reads [emphasis added], 'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.' 140. Case No. 119 Firstl2005 Al Dujail Lawsuit (Case), English Translation of Dujail Trial Chamber Opinion, Part 2, 4 (2006)[hereinafter Part 11, Unofficial Translation of Dujail Trial Chamber Opinion], at
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party official from the region of al-Dujail, due to a lack of evidence. The Trial Judgment contains a great deal of detail broken down by crime and defendant establishing the widespread and systematic nature of the crimes, as well as detailing the mens rea of each accused.'42The Trial Chamber also 'decided to confiscate the movable and immovable money belonging to the convicted under Article 241 Sixth of the Iraqi Supreme Criminal Court law No. 10 - 2005' in order to preserve assets on behalf of any victims resorting to civil courts to 'in order to claim compensation for damages incurred as a result of crimes committed against them'.143 5.2
Judge Awad Al-Bandar: murder in the guise of justice as a crime against humanity
The conviction of Judge Awad Hamad al-Bandar for the crime against humanity of willful murder is one of the most significant aspects of the Dujail Trial. This marks the first time since World War I1 that a jurist has been convicted of crimes against humanity for perverting the power of the law into the tool of political power. A United States military commission convicted ten Nazi era judges in the famous case United States of America v. Alstotter et ~ l . ' ~ ~ ( k n oworldwide wn as the Justice Case and later fictionalized in the famous film Judgment at Nuremberg). Bandar, whose lead attorney in the Dujail Trial was his son, served as the President of the Revolutionary Command Council Court (RCCC). The Ba'athist regime could never completely destroy the Iraqi judiciary, and Saddam therefore created the Revolutionary Command Council Court as a convenient mechanism for imposing his
142. Part VI, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 9, at pp. 51-54 . Saddam Hussein and Barzan al-Tikriti, the former intelligence chief and the half-brother of Hussein, were found guilty of willful killing, forcible deportation and torture and were sentenced to two tenyear prison terms and death by hanging; Awad Hamed al-Bandar, the head of the Revolutionary Court, was found guilty of willful killing and was sentenced to death by hanging; Taha Yassin Ramadan, the former vice president, was found guilty of willful killing, deportation, torture, and other inhumane acts and was sentenced to life imprisonment. The Cassation Panel upheld the convictions against Taha Yassin Ramadan but ordered 'the repeal of the sentencing paragraph related to the punishment of life imprisonment' and ordered that his case be sent back to Trial Chamber I 'for the purpose of strengthening the penalty against him and raising it to the appropriate legal limit.' Cassation Panel, Iraqi High Criminal Court, al-Dujail Final Opinion, supra note 11, at 20. This aspect of the Cassation Decision was one of the most troubling components of the entire Dujail trial. It is not explained in the written opinion, and there is no delineation of the matters in aggravation that warranted a more severe punishment. The decision carried overtones of political manipulation of the judicial process, prompting the U.N. High Commissioner for Human Rights to submit a specific brief requesting that the capital sentence be reversed. At ~http:l/law.case.edu/saddamtriaVdocuments/arbour~amicus~curiae~brief~en. pdB. Ramadan was hanged until death. Three former Ba'ath party officials from the al-Dujail region were sentenced to prison terms, 'Abdallah al-Ruwaid and 'Ali Dayih 'Ali. were found guilty of willful killing and sentenced to fifteen years in prison; former Ba'ath party official from the al-Dujail region, Mizher al-Ruwaid, was found guilty of willful killing and torture and was sentenced to fifteen years' and seven years' imprisonment. 143. Part VI, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 9, at p. 52. 144. ('The Justice Case') 3 TWC 1 (1948), 6 LRTWC 1 (1948), 14 Ann. Dig. 278 (1948). At
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personal will in the guise of justice. The Revolutionary Command Council Courts had jurisdiction over any cases directed by Saddam, in particular national security matters.'45Defendants could expect little or no due process and their verdicts could not be appealed, although President Hussein had to personally approve death sent e n c e ~ .On ' ~ ~27 May 1984 Saddam referred 148 men and boys to the RCCC for 'trial' whereupon Bandar dutifully sentenced them to death. The Trial Chamber noted that Judge Bandar characterized the civilians as 'ravaging traitors' in the papers for the case,I4' and supported its findings regarding the criminal use of an ostensibly legal process by observing that the systematic 'attack directed against the civilian population' required to constitute a crime against humanity need not be a purely military attack.14' The Trial Judgment describes a great weight of evidence leading it to 'form a solid conviction without any reasonable doubt' that the civilians were sentenced to death without any trial at all.149In fact, the Trial Judgment language describing Bandar's death decree could not be more pointed or more poignant to the ears of a professional attorney:'50 'The decision issued by the defendant Al-Bandar and with the members of the so-called Revolutionary Court on June 14, 1984 is in fact an order of murder and not a judgment issued by virtue of the law and in conformity with it. This order was indeed fulfilled and more than 90 citizens of A1 Dujail were killed on the pretext of the death penalty against them which was issued by the court and carried out by hanging.' The decision to convict Bandar of willful killing was predicated on the conclusion that he had actual knowledge of the attack directed against the citizens of al-Dujail, and that he used his office to participate in that attack: 'The tribunal panel is convinced that there was a widespread and systematic attack perpetrated first by the military forces and armed forces of the intelligence service, security
145. International Commission of Jurists, Iraq and the Rule of Law (1994) pp. 109-113. 146. The signed death warrants were available at trial and entered into evidence, at
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service and popular army. This widespread and organized (systematic) attack by these forces and organizations against andI5' the civilian population of A1 Dujail, and later on other governmental bodies participated in the attack. .. . These organizations belonged to the Iraqi state which was lead [sic] at the time by the Ba'ath party, which was presided over by the individuals on top of whom stood the defendant Saddam Hussein. Amongst those governmental organizations was the (disbanded) Revolutionary Tribunal, which was presided over by the defendant Awad Al-Bandar, and which took part in the attacks against the civilian population of A1 Dujail in pursuance of the policy of the state and Ba'ath party which called for conducting that attack or furthered such a policy. This tribunal is also convinced that this widespread attack included organized detention and imprisonment of civilians from A1 Dujail, as well as torturing, abusing and murdering them."52
In approving the death sentence against Awad Hamad Al-Bandar, the Cassation Panel concluded that he committed, as a principal actor, a joint criminal act that represents a premeditated murder as a crime against humanity. The conclusion that he 'issued verdicts to execute a large number of citizens of Dujail through a mock trial' stands in sharp contrast to the range of due process available to the Dujail defendants on trial before Trial Chamber I. One of the great ironies for the future of Iraq is that the graphic juxtaposition between law and power that the founders of the Iraqi High Criminal Court intended was largely lost in the controversy and condemnation of the lengthy trial in the public discourse.
6.
CONCLUSION
The Iraqi decision to create a Tribunal and prosecute the leading Ba'athists who terrorized the Iraqi people and dominated Iraqi society for more than three decades was a bold gambit. The Iraqi High Criminal Court was conceived and created at precisely the time when Iraqi politicians were discovering the reality of running a nation and reestablishing order that could contain sectarian and tribal rivalries. In many areas, the fissures of tribal loyalty, family bonds, and religious perspective became the poles that attracted political support. Against this backdrop, all the tribes, regions, religions and economic classes within Iraq were united by a deep need to expose the crimes of the regime and witness an accounting for their suffering. As the era of international enforcement of humanitarian law dawned in response to what President Roosevelt later described as the 'blackest crimes in all his-
151. This conjunction is in the original English translation, but may reflect a translation error. 152. Part 11, Unofficial Translation of Dujail Trial Chamber Opinion, supra n. 140, at p. 29.
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tory','53 the Allied Powers issued the Moscow Declaration on 30 October 1943.Is4 In the context of the current debate over internationalizing justice, it is important to note that the Moscow Declaration favored punishment through the national courts in the countries where the crimes were committed. The Declaration specifically stated that German criminals were to be 'sent back to the countries in which their abominable deeds were done in order that they may be judged and punished ac-
cording to the laws of these liberated countries and of the free governments which will be erected therein'.'55 As the International Military Tribunal at Nuremberg opened, Justice Robert Jackson's magnificent opening statement reiterated the truth that the IMT was merely an alternative to domestic courts for prosecuting the 'symbols of fierce nationalism and of m i l i t a r i ~ m ' . ' ~ ~ Fulfilling the original premise of the IMT, the power of the state representing its own aggrieved population trumped the dictator's power. Saddam and the other leading Ba'athists were subjected to criminal prosecutions because the democratically elected representatives of the people enacted legislation to remove that imm ~ n i t y . ' ~This ' rcvocation of immunity stands for the principle that personal immunity flowing from the ofticia1 position of an accused is property of the state and cannot be perverted into an irrevocable license to commit the most serious crimes known to mankind. Not only does a sovereign state have the right to revoke immunity flowing from constitution or statute, the Dujail Cassation Decision even postulates that: 'it is the duty of the state to exercise its criminal jurisdiction against those responsible for committing international crimes since the crimes of which the defendants are accused of in the Dujail case form both international and domestic crimes and committing
153. Statement by the President, 24 March 1944, reprinted in Report of Robert H. Jackson United States Representative to the International Conference on Military Tribunals 12, Department of State Publication 3080, Washington DC (1 945) [hereinafter Jackson Report]. 154. IX Department of State Bulletin, No. 228, 310, reprinted in Jackson Report, supra n. 153, at p. 11. The Moscow Declaration was actually issued to the Press on 1 November 1943. For an account of the political and legal maneuvering behind the effort to bring this stated war aim into actuality, see P. Maguire, Law and War: An American Story (New York NY, Columbia University Press 2001) pp. 85-110. 155. Ibid. 156. Opening Statement to the International Military Tribunal at Nuremberg, I1 Trial of the Major War Criminals Before the International Military Tribunal 99 (1947). 157. Echoing the tenets of modem international criminal law embodied in Article 27 of the Rome Statute of the International Criminal Court (supra n.93), the Iraqis revoked the immunity of former Ba'athist officials. Statute of the Iraqi High Criminal Court, supra n. 15, Art. 15 (Third). The official position of any accused person, whether as president, chairman or a member of the Revolution Command Council, prime minister, member of the counsel of ministers, a member of the Ba'ath Party Command, shall not relieve such person of criminal penal, nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11, 12, 13, and 14 of this law.
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them constitutes a violation of the Intemational Penal Code and the Law of Human Rights while at the same time violating Iraqi laws."58
Furthermore, in perhaps the clearest jurisprudential statement regarding the specific liability attaching to a head of state found guilty of serious breaches of international humanitarian law, the Cassation Panel wrote that crimes committed while subject to a grant of immunity should be subject to more severe punishment. This principle is worthy of emulation in other tribunals as other nations strive to apply the substantive content of international law, and may over time represent the single most important legal concept to come out of the al-Dujail verdicts. The cloak of official immunity is a factor for aggravating the sentence because in the words of the Iraqi jurists: 'a person who enjoys it usually exercises power which enables him to affect a large number of people, which intensifies the damages and losses resulting from commitment of crimes. The president of the state has intemational responsibility for the crimes he commits against the intemational community, since it is not logical and just to punish subordinates who execute illegal orders issued by the president and his aides, and to excuse the president who ordered and schemed for commitment of those crimes. Therefore, he is considered the leader of a gang and not the president of a state which respects the law, and therefore, the head chief is responsible for crimes committed by his subordinates, not only because he is aware of those crimes, but also for his failure to gain that awareness."s9
Building on the baseline contained in the eleven hundred page referral file, the Trial Chamber Judgment is a thorough and organized catalogue of the factual record of evidence from the trial and the investigative file given to the defense and to the Trial Chamber. The Trial Chamber carehlly documented its consideration and analysis of the elements for each charged offense, along with the relevant mens rea as shown by the available evidence and applies the relevant domestic and international law to each and every charge against each of the eight defendants in detail. The grossly sectarian overtones of the botched execution do not negate the entirety of the publicly accessible trial sessions, in which the defense presented more than sixty witnesses and the prosecution had more than twenty complainants testify. Paraphrasing Justice Jackson's assessment of the IMT, 'no history' of the era of Iraq under Ba'athist rule will be 'entitled to authority' 160 if it ignores the factual and legal conclusions engendered by the work of the Iraqi High Criminal Court.
158. Cassation Panel, Iraqi High Criminal Court, al-Dujail Final Opinion, supra n. 13, at p. 18. 159. Cassation Panel, Iraqi High Criminal Court, al-Dujail Final Opinion, supra n. 13, at pp. 9-10. 160. Report to the President by Mr Justice Jackson, 7 October 1946, quoted in 49 AJIL (1955) pp. 44, 49, reprinted in Report of Robert H. Jackson United States Representative to the International Conference on Military Tribunals 11, Department of State Publication 3080, Washington DC (1949) pp. 432, 438 (Justice Jackson also wrote that 'We have documented from German sources the Nazi aggressions, persecutions, and atrocities with such authenticity and in such detail that there can be no
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The flawed execution is an incomplete snapshot of the legal process just as the Nuremberg experience cannot fairly be reduced to Justice Jackson's confrontational (and largely unsuccess~l)cross examination of Herman ~ o e r i n ~The ' ~ 'importance of the process is captured in the reality of what happens inside the courtroom and what is captured in the written legacy of the judges rather than what is transmitted for seconds that day in the broadcast media. So long as it functions as a
neutral, independent, and apolitical servant of the people's interests in upholding legal precepts, the work of the High Criminal Court remains emblematic as a modem chapter in the age old struggle to implement law as a constraining and constructive force in society. While its operation has been pockmarked with tragedy and occasional mistakes, it is one of the bulwarks that even today guards against the tide of lawlessness and power sweeping across Iraq. The al-Dujail trial represents a significant window into the current practice of states in implementing humanitarian norms, and its lessons have larger reverberations within the corpus of humanitarian law. Because the Iraqi domestic system is built on a civil law model, the Tribunal also represents the most modem effort to meld common and civil law principles into a consolidated domestic system. This melding, in turn, has yielded a number of important lessons for future trial processes. The era of accountability is irreversibly underway, and the rule of law cannot be ignored or obviated by the demands of short term expediency. That is the legacy of al-Dujail.
responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people.'). 161. T. Taylor, The Anatomy ofthe Nuremberg Trials (Boston, Little, Brown 1992) pp. 335-336.
THE EXECUTION OF SADDAM HUSSEIN - A LEGAL ANALYSIS' Eric H. Blinderman2
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Iraqi law and the death penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Three relevant laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The IHT's legal authority to issue a death sentence against Saddam Hussein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lexmitior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes carrying the death penalty under Iraqi law . . . . . . . . . . . . . . . . . Procedural requirements to impose a death sentence under Iraqi law. . . Automatic right of appeal and correction of appeal . . . . . . . . . . . . . . . . Automatic right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Motion for correction of appellate decision . . . . . . . . . . . . . . . . . . . . . . Requests for clemency andlor pardon . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of case to Ministry of Justice and other administrative steps . .
158 158 159 159 162 165 166 166 168 169 169
The Iraqi govemment did not comply with relevant domestic law when carrying out the death sentence against Saddam Hussein . . . . . . . 172 The IHT unfairly calculated the time frame for the defense to file their appellate papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
1. O E.H. Blinderman 2008. 2. From March 2004 until December 2006, Eric Blinderman served in Iraq, first as an Associate General Counsel of the Coalition Provisional Authority and later as an Attorney Adviser, Chief Legal Counsel, and Associate Deputy to the Regime Crimes Liaison's Office. During his tenure in Iraq, Eric worked principally with the Iraqi High Tribunal (IHT) as it prepared to try and tried members of the former regime, including Saddam Hussein, for atrocities committed against the Iraqi people. For his service in Iraq, Eric received a Special Commendation Award from the United States Department of Justice. Eric has a J.D. cum laude from Comell Law School and was awarded an M.St. in international law from the University of Oxford with distinction. In addition, he has served as a law clerk to a United States Federal Judge and worked at the United Nations Development Program, the Preparatory Commission for the Establishment of an International Criminal Court, and the Programme in Comparative Media Law and Policy. He is International Litigation Counsel at the New York office of Proskauer Rose LLP. The views expressed in this article are based upon the author's experiences and publicly available information that do not violate any privileges or confidences that may exist between the author and the IHT or the author and the United States government. The views expressed herein are the author's own and do not necessarily reflect the views of the Department of Justice, the Regime Crimes Liaison's Office, or the United States govemment.
Yearbook of International Humanitarian Law Volume 9 - 2006 - pp. 153-179
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The appellate process was rapid, cursory, and created the appearance of executive interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 The administrative steps taken to execute Saddam Hussein did not comply with Iraqi law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Saddam Hussein was executed despite the fact that the Presidency Council did not ratify the death sentence . . . . . . . . . . . . . . . . . . . . . . . . 175 The execution violated paragraph 290 of Iraq's Criminal Procedure Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 The execution violated other provisions of the Iraqi Criminal Procedure Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
INTRODUCTION The first trial before Trial Chamber 1 of the Iraqi High Tribunal (hereinafter IHT) involved allegations that the former Iraqi regime engaged in a widespread and systematic attack against the civilian population of the city of ~ l - ~ u j a iThe l.~ former Iraqi regime launched this attack against the city of Al-Dujail in retaliation for a failed assassination attempt against Saddam Hussein that occurred there on 8 July 1982.~ In response to the assassination attempt, Saddam Hussein ordered military units, intelligence operatives, and others to descend upon the town.5 Hundreds of people were arrested and detained for years without trial in a desert camp located near the Saudi b ~ r d e r .Saddam ~ Hussein also referred approximately 148 men and boys for trial before Iraq's Revolutionary Command Council Court (hereinafter RCCC) whereupon they were sentenced to death after a summary trial and e ~ e c u t e dIn . ~addition, large portions of the town were razed - including the town's orchards and date palms - upon Saddam Hussein's order^.^
3. See generally Iraqi High Tribunal, Case No. l/C/1/2005, Final Decision and Judgment, Trial Chamber 1 (22 November 2006) (hereinafter Trial Chamber Judgment). 4. See 'Saddam Hussein and the Town of Dujayl', L.A. Times, 18 October 2005. 5. Ibid. 6. See Minutes of Joint Committee Meeting of Iraqi Intelligence Services and Iraq's Department of General Intelligence (28 December 1982) (Document IST.A4021.001.053-057) (discussing the transfer of 687 men, women, and children from Al-Dujail to a prison camp located in Muthanna Govemorate). 7. See Memorandum from Saddam Hussein, President, Iraq, to Revolutionary Command Council Court (27 May 1984) (IST.A4019.008.03 1-034) (hereinafter Referral Memorandum); see also Presidential Decree No. 778 from Saddam Hussein, President, Iraq (16 June 1984) (IST.AO480.002.002003) (approving the execution of those condemned to death). 8. See Trial Chamber Judgment, supra n. 3, Part 5, p. 10 (stating that Taha Yaseen Ramadan was seen 'supervising the acts of razing the orchards in [the Dujail] area'); see also Transcript of Record at 18, al-Dujail Trial, (1 March 2006) (No. 2) (on file with author in which Saddam Hussein declares
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Eight defendants were haled before Trial Chamber 1 as a result of their alleged participation in this attack against the town. They were: Saddam ~ u s s e i n ?Barzan al-~iknti," Awad al-Bandar," Taha Yaseen Ramadan,12 Mizher Abdullah ~ o w e e d , ' Abdullah ~ Kadhim ~ o w e e d , 'Ali ~ Diyah ~ l i , 'and ~ Mohammed
that he ordered the orchards in Dujail razed in retaliation for the failed 1982 assassination attempt against him). 9. Saddam Hussein was the President of Iraq in 1982. 10. Barzan al-Tikriti was the Director of Iraq's Department of General Intelligence ('Mukhabarrat') in 1982 and supervised the investigation into the failed assassination attempt against Saddam Hussein. See Memorandum from Barzan al-Tikriti, Director, Iraq's General Department of Intelligence, to Chairman of the Revolutionary Command Council (13 July 1982) (Document IST.A49019.008.074077). He allegedly ordered the arrests of hundreds of citizens from Al-Dujail and personally participated in the murder and torture of those who remained in his custody. See J.F. Bums and E. Wong, 'Defiant Hussein, Lashing Out at U.S., Goes on Trial', N. YI Times, 20 October 2005, at Al . 11. Awad al-Bandar was President of the RCCC. The RCCC was a special court which sat outside Iraq's regular courts of general jurisdiction and reported directly to the President of Iraq. See generally International Commission of Jurists, Iraq and the Rule of Law (1994) pp. 109, 113. It primarily had jurisdiction over cases involving national security and its judiciary consisted (in part) of civil servants rather than professional judges. Ibid., at pp. 110-1 12. According to the International Commission of Jurists: 'Trials before the Revolutionary Court were conducted in camera and defendants did not enjoy adequate safeguards for their defence, since they were not permitted to contact their lawyers freely and without surveillance. The Judgements of the Revolutionary Court were final and could not be contested before any other official body; they were camed out immediately, except in the case of death sentences, which were camed out only after their ratification by the President of the Republic.' Ibid., at p. 112. On 27 May 1984, Saddam Hussein referred 148 men and boys to the RCCC for trial as a result of their alleged participation in the failed Al-Dujail assassination attempt. See Referral Memorandum, supra n. 7. Approximately two weeks later, Awad al-Bandar sentenced all those referred to him to death, despite the fact that some of the individuals referred were minors and despite the fact that 46 had already died during investigation. See RCCC Decision No. 9441511984 (14 June 1984); see also Death Certificate of Qasem Mohammed Jasim (23 March 1989) (IST. A4000.001.007,009,034,031) (indicating that the individual was 15 years old at the time Awad alBandar sentenced him to death); Memorandum from Counsel of the Revolutionary Command Intelligence Service (9 February 1987) (IST.A4019.007.078) (stating that 46 people whom Awad al-Bandar had sentenced to death in 1984 had died during the investigation and interrogation process). 12. Taha Yaseen Ramadan was the head of Iraq's largest militia - the Popular Army at the time of the failed assassination attempt. See BBC News, 'Profile: Taha Yassin Ramadan' at
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~ z z a w i . Trial ' ~ commenced on 19 October 2005 and concluded on 5 November 2006 with the issuance of Trial Chamber 1's verdict.17 That verdict convicted Saddam Hussein, Barzan al-Tikriti, and Awad a1 Bandar of crimes against humanity inflicted upon the civilian population of A I - ~ u j a i 1 .Each l ~ of these three defendants was sentenced to death.I9 Trial Chamber 1 also sentenced Taha Yaseen Ramadan to life:' three other defendants (Mizher Abdullah Ruweed, Abdullah Kadhim Ruweed, and Ali Diyah Ali) to a term of 15 years imprisonment,21and acquitted one defendant (Mohammed Azzawi) of all charges.22 On 14 November 2006, the entire 1000-t page Al-Dujail case file, trial records, transcripts, and other material were transferred to the IHT Appellate Chamber for study and review.23Notably, Trial Chamber 1 issued its densely worded, singlespaced, 300 page opinion, explaining its rationale for the 5 November 2006 verdict on 22 November 2006 - eight days after the case file was sent to the IHT Appellate One day later, Trial Chamber 1 provided electronic and hard copies of the opinion to the IHT Appellate Chamber and defense attorneys for all defendant~.~~ On 3 December 2006 (approximately ten days after receiving the opinion), attorneys for Saddam Hussein filed comprehensive appellate papers to the IHT Appellate Chamber that raised numerous substantive and legal points. The IHT Appellate Chamber assured the defense attorneys that they could supplement this initial filing with additional papers at any point prior to the issuance of an appellate judgment. On 17 December 2006 attorneys for Saddam Hussein, Barzan al-Tiknti, and Taha Yaseen Ramadan did supplement their initial briefs by filing an additional voluminous submission with the IHT Appellate Chamber. Nine days later (26 December 2006), the IHT Appellate Chamber affirmed the trial chamber's death sentences in a 17-page written opinion and remanded back to Trial Chamber 1 the judgment against Taha Yaseen Ramadan with instructions to increase the
16. Mohammed Azzawi was a resident of Al-Dujail charged with assisting the Iraqi government as it arrested citizens from Al-Dujail. 17. See J.F. Bums and K. Semple, 'The Struggle for Iraq; Hussein is Sentenced to Death by Hanging', N. Z Times, 6 November 2006, at Al . 18. Ibid. 19. Ibid. 20. Ibid. 21. Ibid. 22. Ibid. 23. Al-Hay'a al-Tamyiziya, al-Mahkama al-Jina'iya al-'Iraqiya al-'Uliya [Cassation Panel, Iraqi High Criminal Court], al-Dujail Final Opinion, at 2 at ~http:llwww.iraq-iht.org/ar/doclihtdf.pdfi, translated in Grotian Moment: The Saddam Hussein Trial Blog, Unofficial English Translation of the Dujail Trial IHT Appellate Chamber Opinion, 26 December 2006),
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penalty against him, to death.26Shortly thereafter, the entire case file was transferred to the Prime Minister for approval of Saddam Hussein's death sentence. On 27 December 2006, Saddam Hussein met with his brother Watban Ibrahim Hassan al-Tiknti and handed him his will and belongings.27 On 30 December 2006, in a ceremony broadcast for the public, Prime Minister Noun al-Malaki removed a pen he had carried with him since he fled Saddam Hussein more than 25 years earlier and signed the document approving Saddam Hussein's sentence.28 At approximately 3 5 5 a.m. on 30 December 2006, several American guards at the US controlled detention facility at Camp Cropper (near Baghdad's International Airport) woke Saddam Hussein and told him to dress.29Wearing a dark overcoat to protect him from the winter desert air, Saddam Hussein stepped aboard a US Blackhawk helicopter at approximately 5:00 a.m. for a short flight to an Iraqicontrolled prison facility in the Khadhimiya District of The helicopter landed at 5 : 15 a.m. at which point Saddam Hussein was handed over to the prison's governor and led into a holding ceL3' Paperwork was signed and the Iraqi government assumed physical custody of Saddam Hussein at approximately 5:30 a.m.32 Shortly thereafter, Iraqi prison officials escorted Saddam Hussein into a dank room with a large metal scaffold33 whereupon he presented his Koran to the Deputy Prosecutor of the Al-Dujail trial (Munqith al-Faroon) and instructed him to provide it to one of his defense attorneys. US Marshals and military officials remained outside the execution chamber. As Saddam Hussein entered the room, at least one Iraqi official began recording that morning's events on his cell phone.34A heavy noose was wrapped around Mr. Hussein's neck as several Shiite guards began chanting the name of Muqtada a l - ~ a d r Munqith .~~ al-Faroon pled with the guards to stop their taunting shouting, 'please no, this man is being executed, please no, I beg yo~'.36Saddam Hussein stared ahead, mocking his guards before reciting the most sacred of Islamic prayers - 'There is no God but God, and Mu-
26. See generally Appellate Chamber Opinion, supra n. 23. 27. See K. Mayhood, 'U.S. Lawyer Helped Iraq Fight Saddam', The Columbus Dispatch, 11 March 2007, at IA. 28. See F. Ajami, 'Measure for Measure', U.S. News & World Report, 7 January 2007. 29. See J.F. Bums, 'In Days Before Hanging, a Push for Revenge and a Push Back from the US.', N. Y: Times, 7 January 2007, at A1 2. 30. Ibid. 31. Ibid. 32. Ibid. 33. Ibid. 34. Ibid. 35. Ibid. Muqtada al-Sadr is a young Shiite cleric who controls one of the largest and most violent militias in Iraq Jaish al-Mahdi. See International Crisis Group, 'Iraq's Muqtada Al-Sadr: Spoiler Stabiliser?', Middle East Report No. 55, 11 July 2006, at i; see also J.F. Bums and S. Tavernise, 'In Baghdad, Bush Policy Is Met with Resentment', N. Z Emes, 12 January 2007, at A l (describing Jaysh al-Mahdi as the 'most powerful of the Shiite militias'). 36. Associated Press, 'Death Taunts: What they Didn't Want you to See - Camera Phone Footage Captures Saddam's Insult Filled Execution', Chicago Tribune, 3 January 2007, at p. 9. -
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hammed is his prophet'.37 The trap door beneath Saddam Hussein swung open at 6: 10 a.m. Saddam Hussein never finished his prayer.38 Thus ended a three-year journey for Saddam Hussein through the complicated legal machinery of Iraq's criminal justice system and, more specifically, his journey through the corridors of the IHT. This article will attempt to synthesize the legal rules that governed Mr. Hussein's last moments of life. It will not explain in detail the mechanics of how the IHT operated, nor will it discuss evidentiary issues related to the trial that resulted in Saddam Hussein's death sentence. Such matters far exceed the scope of this article. Instead, this article will limit itself to setting forth the legal framework that governs the imposition of the death penalty in Iraq and discuss whether the Iraqi government assiduously followed the legal requirements needed to impose the death penalty against Saddam Hussein. In order to accomplish this goal, this article will: (1) set forth the legal requirements necessary for the Iraqi government to have executed Saddam Hussein; and (2) opine that the Iraqi government did not comply with relevant Iraqi legal precedents when carrying out the death sentence against Saddam Hussein.
2.
IRAQI LAW AND THE DEATH PENALTY
2.1
Three relevant laws
Three primary laws governed the IHT's authority to sentence to Saddam Hussein to death for crimes against humanity committed against the citizens of Al-Dujail. Without addressing evidentiary issues, the power of the IHT to impose the death sentence against Saddam Hussein turned on a complex interplay of the Statute of the Iraqi High Tribunal (hereinafter IHT Iraq's Law on Criminal Proceedings with Amendments - Law No. 23 of 1971 (hereinafter Iraqi Criminal Procedure and the Iraqi Penal Code - Law No. 1 11 of 1969 (hereinafter Iraqi Penal The specific steps that the Iraqi government was required to take in order to implement any death sentence are also set forth in those three laws. The next two sections of this article will address: (1) whether the IHT had legal authority to sentence Saddam Hussein to death and (2) the procedural mechanisms that
37. See Bums, supra n. 29. 38. Ibid. Saddam's final wishes were carried out several days later when Prosecutor Munqith presented Saddam Hussein's Koran to the defense attorney to whom it was bequeathed. 39. See Qanoon Al-Mahkamat Al-Jeena'eyyat Al-Eraqiyyat Al-Mukhtas [Statute of the Iraqi High Tribunal], 18 October 2005, at <www.law.case.edu/saddamtrial/documents/IST~statute~official~eng 1ish.pdP (Iraq). 40. See Law on Criminal Proceedings With Amendments, No. 23, (1971), at
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the Iraqi government was required to follow in order to carry out any death sentence imposed against Saddam Hussein.
The IHT's legal authority to issue a death sentence against Saddam Hussein
2.2
Whether the IHT had legal authority to sentence Saddam Hussein to death turns on two questions. The first is whether the Coalition Provisional Authority's (hereinafter CPA) decision to suspend the death penalty during the occupation of ~ r abrogated (under the concept of lex mitior) the IHT's ability to impose a death sentence against Saddam Hussein. The second is whether Iraqi law provided for the death sentence for the crimes charged against Saddam Hussein in the AlDujail case. The next two sections of this article address these questions in turn. 2.2.1
Lex mitior
Lex mitior is a bedrock international criminal law principle that requires a court to apply the more lenient sentence against an accused if the punishment for a specific offense changes before final judgment is issued.43Iraq became a state party to the International Covenant on Civil and Political Rights on 25 January 1971 and was therefore bound by the lex mitior rule emanating from Article 15 of the I C C P R . ~ ~ In addition, Iraq had already incorporated the concept of lex mitior into its domestic legal code in 1969 under Part 1, Chapter 1, Section 2, sub-section 2, paragraph 2 of the Iraqi Penal Code.45That section of Iraq's Penal Code states: (1) The occurrence and consequences o f a n offence are determined in accordance with law in force at the time o f its commission and the time o f commission is determined
the
42. See Coalition Provisional Authority Order No. 7, 3 3(1), CPA/ORD/lO June 2003/07 (10 June 2003), at ~http://www.cpa-iraq.org/regulationsi20030610~CPAORD~7~Penal~Code.pdP. 43. See D.A. Mundis and F. Gaynor, 'Current Developments at the Ad Hoc International Tribunals', 3 J Int. Criminal Justice (2005) pp. 1134, 1148; see also Prosecutor v. Dragan Nikolid (IT-942-A). Judgment on Sentencing Appeal, 4 February 2005, §§ 81 and 84 (holding that the 'principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied'). 44. Art. 15 of the International Covenant on Civil and Political Rights, defines the concept of lex mitior as follows: 'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavierpenalty he imposed than the one that was applicable at the time when the criminal offence was committed. IJ; subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.' International Covenant on Civil and Political Rights, Art. 15, G.A. Res. 2200A, at 52, UN GAOR, 21st Sess., Supp. No. 16, UN Doc. A163 I6 (19 December 1966) (emphasis added). For the status of ratification of the ICCPR, see Office of the United Nations High Commissioner for Human Rights, at
a
~
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by reference to the time at which the criminal act occurs and not by reference to the time when the consequence of the offence is realised:
(2) However, if one or more laws are enacted after an offence has been committed and before final judgment is given, then the law that is most favourable to the convicted person is applied.46
Saddam Hussein's defense lawyers and the prosecution hotly contested the applicability of lex mitior to the Al-Dujail trial as a result of the CPA's decision to suspend capital punishment in section 3(1) of CPA Order No. 7.47CPA Order No. 7, enacted by the CPA in its temporary capacity as the occupying power of Iraq, states that '[clapital punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal Code.'48When the Iraqi Interim Government was created, it passed Law No. 3 of 2004 - which lifted the death penalty suspension passed by the CPA for specific enumerated crimes later charged against Saddam ~ u s s e i n ?including ~ willful murder as defined under paragraph 406 of the Iraqi Penal Code No. (1 11) of 1969.50 Saddam Hussein argued that the promulgation of CPA Order No. 7 was a more favorable law enacted after the offenses charged in Al-Dujail had been committed and before final judgment was i ~ s u e d .Saddam ~' Hussein therefore claimed that the IHT lacked authority to sentence him to death and was required to utilize CPA Order No. 7 in determining which sentences to apply against him.52 Trial Chamber 1 disagreed with this contention. Trial Chamber 1 noted that Article 43 of the 1907 Hague Regulations prohibited the CPA (as an occupying power) from altering existing Iraqi law (including the state's ability to impose the death penalty), unless necessity compelled it to do Trial Chamber 1 observed, however, that CPA Order No. 7 did not alter existing Iraqi law. Instead, according to Trial Chamber 1, the CPA simply 'suspended' operation of a specific penalty found in Iraqi law since 1919.54 Because the CPA suspended implementation of the death penalty during the occupation without canceling the law entirely, Trial Chamber 1 held that: (1) the CPA's promulgation of CPA Order No. 7 had not altered existing Iraqi law in vio-
46. Ibid. (emphasis added). 47. See Coalition Provisional Authority Order Number 7, 3 3(1), supra n. 42. 48. Ibid. 49. See inpa Section 2.2.2. 50. See Iraqi Interim Government, Law No. 3 of 2004 (on file with author) dated 8 August 2004. 5 1. See Trial Chamber Judgment, supra n. 3, Part 1, at p. 2. 52. Ibid., at p. 3. 53. Ibid. 54. Ibid., (holding that because the Coalition Provisional Authority 'suspended the [death] penalty and did not cancel it [that] this penalty [has] exist[ed] in the Iraqi penal code since the year 1919').
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lation of Article 43 of the Hague Regulations and (2) that Iraqi courts (even during the occupation) were capable of sentencing defendants to death.55In reaching these conclusions, Trial Chamber 1 relied upon the precise language of CPA Order No 7, that states that, during the death penalty's suspension, a 'court may [but is not obligated to] substitute the lesser penalty of life imprisonment, or other such lesser penalty as provided for in the Penal Thus, during the occupation, courts had the option of either sentencing a defendant to death (although they were prohibited from carrying out the death penalty for proscribed offenses until such time as the suspension was repealed) or substituting the death sentence for the lesser penalty of life imprisonment. Because Trial Chamber 1 held that the death penalty had remained in effect (albeit suspended during the occupation) from 1919 until the issuance of judgment in the Al-Dujail case on 5 November 2006, Saddam Hussein was not entitled to benefit from the principle of lex mitior and the IHT had authority to apply the full range of penalties against him found in Iraqi law.57 Whether the IHT had the power to carry out any death sentence is a different question, one answered in Law No. 3 of 2004, that the Iraqi Interim Government enacted on 8 August 2004. Iraqi Interim Government Law No. 3 of 2004 repealed the suspension on the implementation of the death sentence for a series of specified crimes.58As such, the Iraqi Government was empowered to cany out a death sentence against Saddam Hussein only if the IHT issued a conviction and sentence of death for a crime that fell within the six classes of crimes for which Iraq Interim Government Law No. 3 of 2004 reinstated the death penalty. Trial Chamber 1's ruling on this point was in accordance with applicable Iraqi and international law. Having made this ruling, the IHT next had to determine whether any of the crimes charged against Saddam Hussein qualified for implementation of the death sentence under Law No. 3 of 2004. The next section of this article addresses that issue.
55. See ibid. 56. See Coalition Provisional Authority Order Number 7, 5 3(1), supra n. 42 (emphasis added). 57. See Trial Chamber Judgment, supra n. 3, Part 1, at p. 3 (ruling unanimously that the IHT could apply the 'appropriate penalty due to the seriousness of the felony . .. including the [death] penalty'). 58. See Coalition Provisional Authority Order Number 7, 5 3(1), supra n. 42; see also Iraqi Interim Government Law No. 3 of 2004, supra n. 50 at paras. 1-3 (reinstating the death penalty for the following crimes: (1) offenses against the internal security of Iraq as defined in paragraphs 190, 191 192(3), 194, 195, 196, and 197(1)(2) of the Iraqi Penal Code of 1969; (2) offenses against public welfare as defined in paragraphs 349 and 351(1) of the Iraqi Penal Code of 1969; (3) offenses against public transport as defined in paragraphs 354 and 355 of the Iraqi Penal Code of 1969; (4) willful murder as defined in paragraph 406 of the Iraqi Penal Code of 1969; (5) drug trafficking in violation of paragraph 14(a, c, and d) of Iraqi Drug Law No. 68 of 1965 provided that the trafficking was designed to finance the overthrow of the Iraqi Government in violation of paragraph 190 of the Iraqi Penal Code of 1969; and (6) kidnapping as defined in paragraphs 42 1-423 of the Iraqi Penal Code of 1969).
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2.2.2
Crimes carrying the death penalty under Iraqi law
Saddam Hussein was charged with crimes against humanity under Article 12 of the IHT More specifically, Trial Chamber 1 charged Saddam Hussein with committing a series of enumerated acts - 'willful murder', 'deportation or forcible transfer of population', 'imprisonment', 'torture', 'enforced disappearance', and 'other inhumane acts ... intentionally causing great suffering or serious bodily injury to the body or to the mental or physical health [of a victim]' - as part of a widespread or systematic attack against the civilian population of ~ l - ~ u j a i lCri.~' tically, Iraqi law had not criminalized the commission of a crime against humanity against a civilian population prior to the adoption of the IHT Statute. As a result, it was arguable that the trial of Saddam Hussein violated the nullum crimen sine lege principle on the ground that the IHT was trying and punishing him for acts which were not criminal at the time they were perpetrated.h' The Court avoided a comprehensive nullum crimen sine lege debate by relying on the fact that, the Iraqi Penal Code No. (1 11) of 1969, and its predecessor, the Baghdad Penal Code of 1919, had long criminalized almost each and every of the enumerated acts charged against Saddam Hussein under Article 12 of the IHT Sta-
59. See Formal Charging Document, Case No. 111, First Trial Chamber (15 May 2006), at
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tuteb2 - i.e., willful murder," deportation, 64 torture, 65
false imprisonment, 66 enforced disappearance, 67 and destruction of property.68Trial Chamber 1 reasoned that the acts criminalized in the Iraqi Penal Code were not substantively different than the acts criminalized under Article 12 of the IHT Statute such that Saddam Hussein's trial for the crimes charged violated the nullum crimen sine lege princiIn support of this conclusion, Trial Chamber 1 observed that the only distinction between liability for a crime against humanity and the commission of a simple crime under Iraq's Penal Code of 1969 is that the perpetration of an enumerated act in the context of a crime against humanity has a heightened requirement of intent.70 Thus, Trial Chamber 1 concluded that: (1) the defendants were aware of the criminality of their conduct at the time they committed the charged offenses and (2) the court could try and sentence the defendants for the crimes committed against the civilian population of ~ l - ~ u j a i l . " Because Iraqi law had already criminalized the majority of enumerated acts set forth in Article 12 of the IHT Statute but not the more serious offense of a crime
62. Trial Chamber 1 noted that because the enumerated acts set forth in Article 12 were long criminalized in Iraq, there were no ex-postfacto problems in prosecuting Saddam Hussein for the crimes charged in Al-Dujail. See Trial Chamber Judgment, supra n. 3, at p. 6 (listing each of the enumerated acts in Article 12, comparing those enumerated acts to their Iraqi Penal Code counterparts, and concluding that no nuNum crimen sine lege issues warranted dropping the charges against Saddam Hussein because the enumerated acts set forth in Article 12 of the IHT Statute were also 'criminal acts identified within the amended penal code number (I 11) of 1969' and thus outlawed when the defendants perpetrated their widespread and systematic attack against Al-Dujail). 63. See Iraqi Penal Code, supra n. 41, at paras. 405-406. 64. The crime of deportation or forcible transfer of population was the only crime charged against Saddam Hussein in the Al-Dujail trial which did not seem to have an exact counterpart under Iraqi law. Trial Chamber 1 cited paragraph 325 of Iraq's Penal Code as equivalent to the crime of deportation or forcible transfer of population. See Trial Chamber Judgment, supra n. 3, Part 1, at p. 6. But the acts outlawed under paragraph 325 of Iraq's Penal Code are the use of 'slave labor' and the compelling of a person 'to engage in activities or circumstances other than those .. . which the law sanctions'. Iraqi Penal Code, supra n. 41, at para. 325. Because the crimes codified under paragraph 325 of the Iraqi Penal Code and the crime of deportation and forcible transfer of population codified under Article 12(1)(D) seem to be facially different, it is debatable that (at least with regard to the crime of deportation and forcible transfer of population) a more thorough analysis of nullum crimen sine lege was required. That said, neither defense counsel nor the prosecution raised this issue during the course of the Al-Dujail trial or appeal. 65. See ibid., at paras. 332-333. 66. See ibid., at paras. 322-324. 67. See ibid., at paras. 421-426 (kidnapping) 68. See ibid., at para. 479 (destruction of unharvested plants, fields, and trees). 69. See Trial Chamber Judgment, supra n. 3, Part 1, at p. 6. 70. For example, in the common law system, killing simpliciter is a crime of specific intent, in that a defendant may rebut a charge with evidence that he or she lacked the intent to murder, for example because of intoxication. See W.A. Schabas, 'Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia', 25 Fordham ILJ (2001) pp. 23, 49. In contrast, for 'killing' to constitute a crime against humanity, the defendant must kill with the intent (not just to kill) but to kill for the purpose of perpetrating a widespread or systematic attack against a civilian population. See Poisoned Chalice, supra n. 24, at p. 18 n. 53. 71. See Trial Chamber Judgment, supra n. 3, at p. 6.
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against humanity, the IHT Statute demanded that Trial Chamber 1 turn to existing Iraqi law in order to sentence any defendant found guilty of violating the IHT ~tatute.'~ Thus, in the event that Trial Chamber 1 determined that Saddam Hussein had perpetrated any of the charged enumerated acts in the context of a widespread or systematic attack against the civilian population of Al-Dujail, the penalties it could impose were those 'prescribed by the Iraqi Penal Code No. (1 11) of 1 9 6 9 ' . ~ ~ Had Trial Chamber 1 concluded that a specific enumerated act did not have a counterpart under Iraqi law, Trial Chamber 1 had discretion to sentence a defendant by 'taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person, guided by judicial precedents and other relevant sentences issued by the international criminal courts'.74 With regard to Saddam Hussein and the charges for which he was accused in the Al-Dujail case, only one carried with it a possible death sentence - willful murder.75For Trial Chamber 1 to conclude that Saddam Hussein was guilty of the crime against humanity of willful murder, it needed to find that (1) he willfully killed one or more people; (2) the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and (3) that Saddam Hussein knew that the conduct was part of, or intended the conduct to be part of a widespread or systematic attack against a civilian population.76Once making the requisite findings regarding the elements of willful murder, Trial Chamber 1 was required to examine the sentencing provisions related to murder in Iraq's Penal Code (as those provisions were the most relevant counterpart to the crime against humanity of willful murder) in order to determine an appropriate penalty for Saddam ~ u s s e i n . ~ ~ The situation for Trial Chamber 1 became complicated in view of the fact that paragraph 405 and paragraph 406 of Iraq's Penal Code set forth two distinct penalties for murder. Paragraph 405 states that '[alny person who willfully kills another is punishable by life imprisonment or imprisonment for a term of years'.78 Paragraph 406 states that '[alny person who willfully kills another is punishable by death .. . if such killing is premeditated'.79 Because of Iraqi law's sentencing distinction between the crime of murder (which warrants a life sentence or term of imprisonment) and premeditated murder (which warrants a death sentence), it was not immediately obvious to Trial Chamber 1 whether the crime against humanity of willful murder was more closely related to simple murder such that paragraph 405 and a sentence of life imprisonment or a term of years should apply or whether
72. See IHT Statute, supra n. 39, at Art. 24(1). 73. See ibid. 74. See ibid., at Art. 24(5). 75. See Iraqi Penal Code, supra n. 41, at para. 406. 76. See Prosecutor v. BlagojeviC and JokiC, ICTY Case No. IT-02-60, Judgment (Trial Chamber), 17 January 2005, at para. 556. 77. See IHT Statute, supra n. 39, at Art. 24(1). 78. Iraqi Penal Code, supra n. 41, at para. 405-406. 79. bid., at para. 406.
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the crime against humanity of murder was
more closely related to premeditated murder such that paragraph 406 and a sentence of death should apply.80 In examining this issue, Trial Chamber 1 was permitted under Article 24(5) of the IHT Statute to examine relevant international criminal precedents.8' And precedents from various international criminal tribunals hold that only 'premeditated murder [may constitute] a crime against humanity'." According to the International Criminal Tribunal for the Former Yugoslavia (ICTY), the crime against humanity of willful murder requires that a defendant have a 'premeditated intention to murder civilians as part of a widespread or systematic attack'.83 As the ICTY has further explained, a result 'is premeditated when the actor formulated his intent to kill after a cool moment of r e f l e ~ t i o n ' . ~ ~ Given these precedents and Trial Chamber 1's finding that Saddam Hussein systematically planned and ordered the deaths of multiple citizens from Al-Dujail, there was ample authority for the IHT to conclude that the crime against humanity of willful murder (at least under the facts relating to Saddam Hussein presented in the Al-Dujail trial) was most closely related to paragraph 406 of Iraq's Penal This distinction was of critical importance too because Iraqi Interim Government Law No. 3 of 2004 had repealed the suspension of the death penalty that the CPA had put in place for violations of paragraph 406 of Iraq's Penal Upon making this legal finding, Trial Chamber 1 had legal authority to sentence Saddam Hussein to death so long as it followed the procedural requirements set forth in Iraqi law - which are discussed in the next sections of this article. 2.3
Procedural requirements to impose a death sentence under Iraqi law
In view of the above discussion, there can be little doubt as to whether Trial Chamber 1 had power to sentence Saddam Hussein to death for any crimes that were analogous to or constituted premeditated murder under Iraq's Penal Code. Having made these conclusions and issued a sentence of death, the IHT and Iraqi government were required to look primarily to the IHT Statute and Iraqi Criminal Procedure Code in order to carry out that sentence lawfully.87These steps were intricate but included an automatic right of appeal, possible clemency before Iraq's three-
80. See Trial Chamber Judgment, supra n. 3 , Part 3, p. 3. 8 1. See IHT Statute, supra n. 37, at Art. 24(5). 82. Prosecutor v. Semanza, ICTR Case No. ICTR-97-20, Judgment (Trial Chamber), 15 May 2003, at para. 334-339; see also Prosecutor v. Bagilishema, ICTR Case No. ICTR-95-1A-T, Judgment (Trial Chamber), 7 June 2001, at para. 84. 83. See Semanza, ibid. 84. See Prosecutor v. Kayishema and Ruvgndana, ICTR Case No. ICTR-95-1-T, Judgment (Trial Chamber), 21 May 1999, at paras. 137-140. 85. See Trial Chamber Judgment, supra n. 3, Part 2, pp. 44-52; Part 3, pp. 3-12, 13-28. 86. See Coalition Provisional Authority Order No. 7, supra n. 42, at 5 3(1); see also supra n. 58. 87. See generally IHT Statute, supra n. 39, at Art. 27(2); see also Iraqi Criminal Procedure Code, supra n. 38, at paras. 285 et seq.
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person Presidency transfer of the case to Iraq's Ministry of Justice for issuance of a necessary decree, and other administrative matters set forth under Iraqi law.89The next sections of this article will address how the Iraqi government should have applied these procedural steps in the abstract while Section IV will apply these abstract procedural steps to the concrete events that occurred in the days leading to Saddam Hussein's execution. 2.3.1
Automatic right of appeal and correction of appeal
2.3.1.1
Automatic right of appeal
Article 25 of the IHT Statute and Rule 68 of the IHT Rules of Evidence and Procedure govern all appellate matters before the IHT.~' Pursuant to Article 25 of the IHT Statute, a convicted person or the public prosecutor can appeal errors of law, procedure, or facts to the Appellate ~ h a m b e r . ~ Article ' 25 grants the Appellate Chamber the opportunity to affirm, reverse, or alter any decision that a Trial Chamber or Investigative Chamber made during the course of a proceeding.92Moreover, Article 25 and Rule 68 state that all appellate matters before the IHT should be consistent with and governed by the appellate provisions of Iraq's Criminal Procedure Because Trial Chamber 1 issued a sentence of death to Saddam Hussein, specific provisions in Iraq's Criminal Procedure Code applied. In particular, paragraph 254 of Iraq's Criminal Procedure Code required Trial Chamber 1 to send the entire investigative dossier to the IHT Appellate Chamber within ten days of the issuance
88. Under Art. 138(1) and (2) of Iraq's Constitution, the office of Presidency for the first electoral term following the Constitution's implementation is composed of a President and two Vice Presidents who collectively form the 'Presidency Council'. See Iraqi Constitution Art. 138(1)-(2). The Presidency Council 'practice[s] the powers of the President Republic stipulated in [Iraq's] Constitution'. Ibid., at Art. 138(6). The Presidency Council can only make decisions if all three members agree except that any member of the Presidency Council may delegate his decision making authority to one of the other two members. See ibid., Art. 138(4) (stating that the 'Presidency Council shall issue its decisions unanimously and any member may delegate to one of the two other members to take his place'). The members of Iraq's Presidency Council at the time Saddam Hussein was executed were Jalal Talabani (a Kurd), Adil Abdul Mahdi (a Shiite), and Tariq al-Hashemi (a Sunni Arab) who, as explained further below, were required under Iraqi law unanimously to ratify Saddam Hussein's death sentence. See Associated Press, 'Iraqi Vice President Criticizes the Execution of two Saddam Aides', USA Today 15 January 2007 (stating that 'Tariq Al-Hashemi, President Jalal Talabani and Vice President Adil Abdul-Mahdi make up Iraq's presidential council, and all three must sign death warrants before executions can be camed out'); see also infva n. 110 and accompanying text. 89. See ibid. 90. See generally IHT Statute, supra n. 39, at Art. 25; see also IHT Rules of Evidence and Procedure 68, at
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of a death or life sentence.94The submission of this dossier to the Appellate Chamber was required regardless of whether Saddam Hussein wished to appeal his death ~entence.'~ Stated differently, paragraph 254(A) of Iraq's Criminal Procedure Code granted Saddam Hussein an automatic right of appeal of his death sentence to the IHT Appellate ~ h a m b e r . ' ~ Upon receipt of the investigative dossier from the Trial Chamber, the Appellate
Chamber was obligated to log its entry and to distribute it immediately to the Public Prosecutor for ~ommentary.~' The Public Prosecutor was required to provide commentary (in the form of written submissions) to the Appellate Chamber within 20 days of receipt of the file.98 Once this 30 day clock began ticking,99 Saddam Hussein had (pursuant to paragraph 252(A) of Iraq's Criminal Procedure Code) the legal right to present any commentary about his sentence to the IHT Appellate Chamber so long as the IHT Appellate Chamber received his submissions prior to the expiration of the 30 day period.100 The IHT Appellate Chamber had discretion (but was not obligated) to summon the defendants, complainants, civil complainants, Public Prosecutor or any other witnesses to the IHT in order to hear their statements in the event that such a hearing was required to 'obtain the truth'.lOl This meant that the IHT Appellate Chamber could have held additional hearings on the evidence in the Al-Dujail case, summoned the attorneys to open court to present legal arguments, or simply decided the case on the paperwork in the investigative dossier and the trial record. Upon concluding its review of the case documentation, the IHT Appellate Chamber then was required to issue a ruling that either affirmed Trial Chamber 1's ruling in whole or in part, reversed the judgment in whole or in part, remanded the matter back to the Trial Chamber for retrial or resentencing with a view towards increasing or decreasing sentence, or remanded the matter back to the Investigative Chamber for continued investigation.lo2
94. See Iraqi Criminal Procedure Code, supra n. 40, at para. 254(A). 95. See ibid., (declaring that a trial court that 'has issued a sentence of death or life imprisonment must send a file on the case to the Court of Cassation within 10 days of the judgment ... even if an appeal has not been lodged'). 96. See ibid. 97. See ibid., at para. 255. 98. See ibid. 99. This 30 day period is composed of the ten day window in which the Trial Chamber must send the case file to the Appellate Chamber, see ibid., at para. 254(A), and the 20 days thereafter in which the Public ~rosecutoimust return the file to the Appellate Chamber with written commentary, see ibid., at para. 255. 100. See ibid., at para. 252(A). 101. See ibid., at para. 258(B). 102. See ibid., at para. 259(A)(l-9).
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2.3.1.2
Motion for correction of appellate decision
It would appear that persons convicted by the IHT are not entitled to submit a motion for correction of the Appellate Chamber's decision pursuant to paragraph 266(a) of the Iraqi Criminal Procedure Code.lo3This is so because of the following reason. While the Statute of the IHT calls for appellate matters to be decided in accordance with the procedures used in Iraq's regular appellate court (called the Court of Cassation), certain procedures before the Court of Cassation (particularly those that apply to the death penalty) do not many well with the IHT's structure.lo4 Specifically, the Court of Cassation is composed of not less than 30 judges who sit together on a 'General ~ o d ~ ' . 'The O ~judges of the General Body are dispersed among a series of five separate bodies (an 'Enlarged Body', a 'Civil Body', a 'Personal Status Body', and 'Administrative Matters Body', and a 'Criminal Body') that hear cases involving discrete subject matters.lo6Thus, the Court of Cassation's 'Criminal Body' (composed of the President and Vice-president of the Cassation Court and at least two other judges)lo7is responsible for hearing appeals on regular criminal matters arising from Iraq's courts. The General Body (composed of the entire compliment of at least 30 Cassation Judges) has limited subject matter jurisdiction and can only decide: (1) matters that one of the limited bodies refer to it;lo8 (2) disputes between the Cassation Court's other bodiesIo9and (3) 'suits in which a judgment [of] death has been i ~ s u e d ' . " ~ As such, defendants sentenced to death in Iraq's regular courts have the full compliment of judges on the Cassation Court hear their appeals in the first instance. This is important because paragraph 267 of the Iraqi Criminal Procedure Code states that a defendant may not submit a motion for correction of decision if the full compliment of judges of the Court of Cassation's General Body (as opposed to a limited body) has issued a decision."' Accordingly, defendants sentenced to death in Iraq's regular courts would appear not to have the ability to file a motion for correction of decision under paragraph 266 of Iraq's Criminal Procedure Code.
103. See Iraqi Criminal Procedure Code, supra n. 40, at para. 266(A) (stating that 'the Public Prosecutor, the convicted person and all others connected with a criminal case may request the correction of a legal error in the decision issued by the Court of Cassation, provided the request is submitted within 30 days, counted from the date a convicted ... person is notified of the Court of Cassation decision'). 104. See supra n. 93 and accompanying text. 105. See Judicial Organization Law, No. 160 (1979), Art. l3(l)(A) (hereinafter Iraqi Judicial Organization Law). 106. See ibid., at Art. 13(1)(C)-13(1)(F). 107. See ibid., at Art. 13(2). 108. See ibid., at Art. 13(1)(A)(l). 109. See ibid., at Art. 13(1)(A)(3). 110. See ibid., at Art. l3(l)(A)(2). I1 1. Iraqi Criminal Procedure Code, supra n. 40, at para. 267(3) (stating that 'a request for correction is not accepted for ... a decision of judgment issued by the Court of Cassation General Board').
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This rule of law and the policies behind it apply equally to the IHT which does not have a 'General Body' and limited bodies. Instead, appeals before the IHT are heard before the entire compliment of nine appellate judges in the first instance. Accordingly, the IHT Appellate Chamber is the functional equivalent of the Court of Cassation's General Body such that paragraph 267 of the Iraqi Criminal Procedure Code applies. Therefore, unlike defendants filing their appeals before a limited body of the Court Cassation and who may file a motion for correction of decision, defendants before the IHT do not have a statutory vehicle to file such a motion. 2.3.2
Requests for clemency and/or pardon
Article 73(1) of Iraq's Permanent Constitution grants Iraq's Presidency Council (composed of a Kurdish President and a Sunni and Shiite Vice-president) the right to issue orders of amnesty, upon a recommendation from the Prime ~inister."' The right of the Presidency Council to issue orders of amnesty is not, however, absolute. Article 73(1) excludes 'those convicted of international crimes, terrorism, financial or administrative corruption, or crimes against personal rights' from any right to receive an amnesty order from the Presidency ~ o u n c i l . "Article ~ 73(1) of Iraq's Constitution gives full effect to Article 27(2) of the IHT Statute, which states that 'No authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the [IHT]'."~ Because Trial Chamber 1 convicted Saddam Hussein for crimes against humanity (an international crime), Article 73 of Iraq's Constitution applied and any avenue of clemency, pardon, or amnesty was foreclosed once the IHT appellate process ended. That said, it is arguable whether the Presidency Council (although lacking powers of pardon or amnesty) was required under Article 73(8) of the Constitution to ratie a death sentence for Saddam ~ u s s e i n "in~ the event that proper administrative steps relevant to carrying out of an execution were conducted - a point more fully discussed in the section that follow^."^ 2.3.3
Transfer of case to Ministry of Justice and other administrative steps
The administrative steps necessary to carry out a death sentence in Iraq are detailed in the IHT Statute and the Iraqi Criminal Procedure Code as modified by Iraqi Interim Government Law No. 3 of 2004. Article 27(2) of the IHT Statute requires that all sentences that the IHT issues be implemented 'within 30 days of the date when the judgment becomes final and
See Iraqi Constitution, supra n. 88, at Art. 73(1). See ibid. IHT Statute, supra n. 39, at Art. 27(2). See Iraqi Constitution, supra n. 88, at Art. 73(8). See infra n. 123, and accompanying text.
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n ~ n - a ~ ~ e a l a b l eUnder ' . " ~ Iraqi law, a judgment becomes final and non-appealable so long as a defendant is foreclosed from filing appellate papers and motions for correction of decision. Thus, because Saddam Hussein was not permitted to file any motions for correction of decision under paragraph 266 of Iraq's Criminal Procedure Code, his sentence became final and not subject to further appeal on 26 December 2006 - when the IHT Appellate Chamber issued its decision. Once the judgment became final and not subject to further appeal, the IHT was to send the investigative dossier and accompanying sentence to the Ministry of J ~ s t i c e . "According ~ to the Iraqi Criminal Procedure Code, as modified by paragraph 6 of the Iraqi Interim Government Law No. 3 of 2004, the Minister of Justice was then tasked with transferring the matter to the Prime Minister of 1raq.Il9The Prime Minister was responsible for reviewing the matter, approving the death sentence, and transferring the file to the Presidency ~ o u n c i l .Article ' ~ ~ 73(8) of Iraq's ~onstitution'~' and Iraqi Interim Government Law No. 3 of 2004"~ stipulate that the three-member Presidency Council ratify unanimously123the Prime Minister's recommendation and, pursuant to paragraph 286 of the Iraqi Criminal Procedure Code, issue a signed order stating such.Iz4The Presidency Council was then compelled to transfer the death order back to the Minister of Justice who was to issue another order specifying that all legal requirements needed for execution had taken place and specifying the date and time of punishment.'25 Only after the Minister of Justice issued this final order could an execution occur. During this administrative process, Saddam Hussein was to remain in prison.Iz6 As the date of execution approached, Iraqi law declared that he be transferred to the location where the punishment was to occur.'27 The method of execution (hanging) is set in paragraph 288 of Iraq's Criminal Procedure There
117. IHT Statute, supra n. 39, at Art. 27(2). 118. See Iraqi Criminal Procedure Code, supra n. 40, at para. 286 (stating that if an appellate court 'confirms the death sentence as issued, it will send the case file to the Minister of Justice, who is responsible for passing it on to the President of the Republic to seek the necessary decree for carrying out the sentence'). 119. See Iraqi Interim Government Law No. 3 of 2004, supra n. 50, at para. 6 (stating that paragraphs 285(B) and 286 of the Iraqi Criminal Procedure Code are modified such that the Iraqi Government may only implement a death sentence 'after approval of [the] Prime Minister and [the ratification] of [the] Presiden[cy] Council'). 120. See ibid. 121. See Iraqi Constitution, supra n. 88, at Art. 73(8) (stating that the Presidency Council 'shall .. . [rlatify death sentences issued by the competent courts'). 122. See Iraqi Interim Government Law No. 3 of 2004, supra n. 50, at para. 6. 123. See ibid., see also supra n. 88. 124. See Iraqi Criminal Procedure Code, supra n. 40, at para. 286 (stating that the 'President of the Republic issues the decree for carrying out the sentence'). 125. See ibid., (stating that if the President of the Republic 'issues the decree for implementation [of the death sentence], the Minister of Justice issues an order to that effect, including the decree of the Republic, in accordance with legal provisions'). 126. See ibid., at para. 285. 127. See ibid., at para. 288. 128. See ibid.
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were no provisions in Iraq's Criminal Procedure Code for execution to occur by any other means, such as by firing squad. On execution day, Iraqi law stipulates that Saddam Hussein be brought to the gallows.'29Iraqi law further demands that at least one judge from the IHT, one IHT Prosecutor, a representative from the Ministry of Interior, the director of the prison holding the condemned, the prison doctor, and the condemned's legal representative serve as witnesses.130The legal representative of Saddam could have requested to be excused from attending the execution.I3'
The execution itself was supposed to proceed with the director of the prison reading the contents of the death warrant to the accu~ed.'~' Iraqi law permitted Saddam Hussein to make a final statement that the judge who was present was required to r e ~ 0 r d . lOnce ~ ~ the execution was completed, the prison director and prison doctor were to certify that the condemned was dead (noting the time of death).'34 The Iraqi Criminal Procedure Code did provide Saddam Hussein with certain rights in the days leading up to execution, at the execution, and after the execution itself. In particular, paragraph 290 of the Iraqi Criminal Procedure Code prohibited the Iraqi government from carrying out the death penalty on any 'official holidays and special festivals connected with the religion of the condemned person'.'35 Further, paragraph 291 of the Iraqi Criminal Procedure Code permitted Saddam Hussein the opportunity to visit with relatives on the day before sentence was to be carried Paragraph 292 of the Iraqi Criminal Procedure Code also permitted Saddam Hussein to make necessary religious arrangements with a cleric of his religion.13' After the execution occurred, the Iraqi Criminal Procedure Code required the Iraqi government to turn the corpse over to the relatives of the condemned for burial so long as the condemned's family requested its receipt.'38 With the return of the corpse to the condemned's family, the mechanics of the death sentence end. The next section of this article will analyze whether the Iraqi government complied with the administrative requirements set forth in its laws when implementing the death sentence against Saddam Hussein.
129. See ibid. 130. See ibid. 131. See ibid. 132. See ibid., at para. 289(A). 133. See ibid., at para. 289(B). 134. See ibid., at para. 289(C). 135. Ibid., at para. 290. 136. Ibid., at para. 29 1. Saddam Hussein's daughter sought to visit Saddam Hussein in the days leading up to his execution. Mr. Hussein refused her request and instead met with his brother Watban Ibrahim Hassan al-Tikriti. See Mayhood, supra n. 27, and accompanying text. 137. See Iraqi Criminal Procedure Code, supra n. 40, at para. 292. 138. See ibid., at para. 293.
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3.
THE IRAQI GOVERNMENT DID NOT COMPLY WITH RELEVANT DOMESTIC LAW WHEN CARRYING OUT THE DEATH SENTENCE AGAINST SADDAM HUSSEIN
3.1
The IHT unfairly calculated the time frame for the defense to file their appellate papers
The first legal challenge to Saddam Hussein's execution pertains to the date the appellate process began. Specifically, the verdict was issued on 5 ~ o v e r n b e r ' ~ ~ while the judicial opinion supporting the verdict was not issued until 22 November.140 According to Paragraph 254 of the Iraqi Criminal Procedure Code, Trial Chamber 1 became obligated to transfer the entire Al-Dujail case file to the Appellate Chamber within ten days of the issuance of 'the judgment' (and thus start the appellate process 30 day time period).141Although a colorable reading of the Iraqi Criminal Procedure Code could indicate that 'the judgment' was issued with the verdict on 5 November 2006, such that Trial Chamber 1 had to transfer the case file to the IHT Appellate Chamber before 15 November 2006, a better reading of the Iraqi Criminal Procedure Code indicates that 'the judgment' was issued when Trial Chamber 1 released the judicial opinion supporting the verdict - 22 November 2006. The reason for this is simple. Saddam Hussein's defense lawyers and Al-Dujail prosecutors needed sufficient time to review the case file, ruling, and opinion so that they could prepare adequate appellate submissions. By reading the Iraqi Criminal Procedure Code such that the appellate process commenced on 5 November the IHT imposed a deadline of 5 December for the defense counsel and prosecutors to file their written submissions to the IHT Appellate Chamber. Given that the written opinion was released on 22 November 2006'~' and supplied to the defense attorneys and prosecution on 23 November 2 0 0 6 , ' ~the ~ attorneys working on the matter had at most 13 days (until 5 December) to review the judgment and to incorporate its findings into their appellate submissions. Had Trial Chamber 1 concluded that, as a matter of law, 'the judgment' was issued in conjunction with the opinion (i.e., 22 November 2006), the defense attorneys and prosecutors would have received a full 30 days (as opposed to 13 days) to review the opinion's content - comprised of approximately 300 pages of detailed factual and legal findings'44- and to incorporate it more fully into their appellate submissions. Granted, the truncated time frame to review the appellate papers applied to both the prosecution and the defense. As a result, both sides were equally prejudiced in their ability to rely upon the opinion when drafting their appellate
139. 140. 141. 142. 143. 144.
See Bums and Semple, supra n. 17, and accompanying text. See Human Rights Watch, supra n. 24 and accompanying text. See Iraqi Criminal Procedure Code, supra n. 40, at para. 254. See Human Rights Watch, supra n. 24 and accompanying text. See Receipt from Defense Attorneys, supra n. 25 and accompanying text. See Trial Chamber Judgment, supra n. 3.
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submissions. That said, however, because the Al-Dujail case was of such historic importance to the Iraqi people and because it involved capital sentences, the IHT did itself a severe disservice in issuing the verdict on 5 November 2006 (without written reasons), releasing the opinion that supported the verdict on 22 November 2006, and demanding that all parties submit their appellate papers to the Tribunal on 5 December 2006 - a mere 13 days after the opinion was issued. It was a legal error that did not need to occur and could have been easily remedied. 3.2
The appellate process was rapid, cursory, and created the appearance of executive interference
In conjunction with the IHT's decision to start the appellate process on 5 November as opposed to 22 November 2006, the Appellate Chamber failed to exercise the discretion granted to it under Iraqi law to hold additional hearings, call witnesses, or permit defense attorneys and the prosecution to present oral argument on their legal submissions to the court.'45 These failures would not have greatly impacted the appellate process - as Iraqi appellate courts do not traditionally call witnesses or conduct oral argument when rendering a decision - so long as the nine judges on the Appellate Chamber individually made a credible and determined effort to review independently the bulky and voluminous investigative and trial record before them. Indeed, the case file itself consisted of approximately 1000 pages of documents, witness statement^,'^^ and other items and the trial record consisted of multiple volumes of densely packed handwritten notes taken by court scribes, verbatim trial transcripts consisting of thousands of pages of material, video recordings of each and every trial session, and comprehensive trial motions (on matters such as the IHT's legitimacy, lex mitior, sovereign immunity, a request to recuse the Chief Trial Judge, and various other issues) that the prosecution and defense submitted to Trial Chamber 1 throughout the course of the tria1.I4' In addition to all this primary material, the nine judges on the Appellate Chamber had to review the approximately 300 page decision from the Trial Chamber that synthesized all this material and ultimately adjudicated the guilt or innocence of each defendant.14' Notwithstanding, the Appellate Chamber issued its decision on 26 December 2 0 0 6 ' ~-~approximately 42 days after receiving the case file, 34 days after receiving the opinion, and most disturbing, 23 days after receiving Saddam Hussein's
145. See Iraqi Criminal Procedure Code, supra n. 40, at para. 258(B). 146. See Human Rights Watch, 'Judging Dujail: The First Trial Before the Iraqi High Tribunal', 20 November 2006, at p. 20 n. 8 1. 147. See E.H. Blinderman, 'Judging Human Rights Watch', 39 Case Western Reserve JIL (2007) pp. 99, 127 (describing how court scribes maintained long-hand notes of all that transpired in court each day and how the videotapes of each day's sessions were converted into verbatim trial transcripts that were provided to the IHT judiciary). 148. See generally Trial Chamber Judgment, supra n. 3. 149. See generally IHT Appellate Chamber Opinion, supra n. 23.
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appellate submissions and nine days after receiving supplemental appellate submissions from Saddam Hussein, Barzan al-Tikriti, and Taha Yaseen Ramadan. In comparison, Trial Chamber 1 (composed of five judges) adjourned on 27 July 2006 and did not issue a full written opinion in the Dujail case until 22 November 2006 - approximately four months after the trial c10sed.l~~ The rapidity of the IHT Appellate Chamber's decision calls into question whether the full complement of nine appellate judges, or for that matter, any of the appellate judges carefully studied the legal and factual issues that the parties raised. It also calls into question whether the judges themselves felt that they had to issue a rapid decision confirming Saddam Hussein's execution in order to comply with political directives from the executive branch of the Iraqi government - a point discussed hrther below.151 The specter of impropriety surrounding the rapid release of the appellate decision is compounded further by the lack of comprehensive legal reasoning that was contained in the decision. The opinion itself (translated into English) was only 21 pages long - the first six pages of which simply listed the appellants' names and summarized the issues before the court.152With regard to Saddam Hussein, the Appellate Chamber rightly rejected, albeit in a cursory fashion, his legal challenges based on legitimacy, sovereign immunity, ex-post facto punishment, and lex mitior but never once tackled the detailed evidentiary issues that Saddam Hussein's defense counsel raised in their legal submissions to the ~ 0 u r t . l ~ ~ Likewise, the Appellate Chamber devoted only one paragraph of legal reasoning to the conviction of Barzan al-Tikriti (also convicted of death)154and only two paragraphs of writing to the conviction and sentence of Taha Yaseen Ramadan, which the Appellate Chamber increased from life to death.155Particularly troubling about the Appellate Chamber's analysis of Taha Yaseen Ramadan is that, although the Appellate Chamber relied upon certain legal evidence (including legal decrees from the former regime that detailed the powers of the Popular Army) to conclude that a death sentence was warranted, it did not explain in detail how his specific actions could constitute the crime against humanity of willful murder such that a more strict penalty than that which Trial Chamber 1 imposed was ~ a r r a n t e d . ' ~ ~ The lack of comprehensive reasoning in the Appellate Chamber as well as its rapid turnaround are circumstantial evidence of an even more troubling matter executive interference with the judicial process. During the course of the Appellate Chamber's deliberations, the Prime Minister of Iraq made frequent statements in-
150. See Human Rights Watch, supra n. 24 and accompanying text. 151. See infra n. 157 and accompanying text. 152. See IHT Appellate Chamber Opinion, supra n. 23, at pp. 1-6. 153. See ibid., at pp. 8-12. 154. See ibid., at p. 14. 155. See ibid., at pp. 16-17. 156. See ibid. Taha Yaseen Ramadan himself expressed puzzlement at the harshness of his sentence during trial by commenting that he could understand if he were sentenced to death for his role in the suppression of the Shiite rebellion in southern Iraq following the 1991 war but that, because he had a limited role in the Al-Dujail matter, he did not understand how the IHT could sentence him to death for his role in that crime.
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dicating that he expected to see Saddam Hussein hang for his crimes before the New Year's holiday.''' Further, the IHT President and another Appellate Judge (Munir Haddad) announced the release of the Appellate Chamber decision from the offices of the Prime Minister as opposed to making the announcement from the court itself, While the IHT's decision to announce its verdict at the Prime Minister's office and statements from the Prime Minister of Iraq calling for Saddam Hussein's execution by a set date do not prove that the Prime Minister's Office was influencing the Appellate Chamber, these events (when combined with the
rapid and cursory nature of the appellate process) created the appearance of executive interference in the judicial process such that the IHT's independence and integrity was undermined. 3.3
The administrative steps taken to execute Saddam Hussein did not comply with Iraqi law
3.3.1
Saddam Hussein was executed despite the fact that the Presidency Council did not ratzfj the death sentence
In addition to the above, the Iraqi government failed to follow proper procedures in carrying out the execution of Saddam Hussein. Instead of following the procedures provided under the law,158the President of the IHT bypassed the Minister of Justice and submitted the investigative dossier and sentence directly to the Prime Minister so that the Prime Minister could approve Saddam Hussein's execution. The Prime Minister then approached President Jalal Talabani in order to receive the required ratification for the execution to take place. On 29 December 2006, President Jalal Talabani issued a legal opinion concluding that, because Article 27(2) of the IHT Statute stripped the Presidency Council of any ability to grant a pardon or to mitigate a punishment arising out a judgment from the IHT, the Presidency Council had no authority to receive any legal decrees submitted to it from the Prime Minister or to ratify any death sentences arising out of a judgment from the IHT.'~'This legal conclusion was made without reference to the black-letter requirements set forth in Article 73(8) of Iraq's Constitution, paragraph 6 of Iraqi Interim Government Law No. 3 of 2004, and paragraph 286
157. See e.g., Nadia Abou el-Magd, 'Saddam Case: Egyptian President Uneasy at Verdict', The Advertiser, 11 November 2006, at F1 (stating that Iraqi Prime Minister Nouri al-Maliki 'expected' Saddam Hussein's death sentence to be carried out in 2006); see also L. Roug, 'Shiite Preachers Call for Saddam's Speedy Hanging', Los Angeles Times, 11 November 2006 (quoting Iraqi Prime Minister Nouri al-Maliki as claiming that Saddam Hussein's execution could take place before the end of 2006). 158. See supra nn. 118, 120 and 125 and accompanying text. 159. See N. Parker, 'Saddam Hanged: Iraq Prime Minister Signs Death Warrant Former Dictator Hands Will to Half-Brothers', The Times, 30 December 2006 (noting that President Jalal Talabani agreed that Saddam Hussein's 'hanging could go ahead without reference to the country's three-man presidency council ... because Saddam's case had been dealt with by a special tribunal and not the regular Iraqi courts').
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of the Iraqi Criminal Procedure Code stating that only the Presidency Council may ratify death sentences in 1raq.l6' Of course, it is possible to argue that President Talabani's issuance of this legal opinion constituted an implicit ratification of any actions which the Prime Minister took to effectuate the death sentence of Saddam Hussein. This perspective would certainly have merit, had all three members of the Presidency Council signed unanimously the legal opinion as required under Article 138(4) of Iraq's Constitution for the opinion to have effect.16' Unfortunately, this did not occur. Instead, the opinion itself states that President Talabani, after conducting 'deliberations in the Presidency Council', concluded that 'there is no need for approval of the decision of [the] execution of Saddam Hussein Majid and the other defendants with him'.'62 Nowhere does Vice-president Tariq Al-Hashemi's or Vice-president Adil Abdul Mahdi's signature appear on the document, thereby making it impossible to verify whether the opinion represents an unanimous and legally binding decision of the Presidency Council in accordance with paragraph 138(4) of Iraq's ~ o n s t i t u t i o n . ' ~ ~ The Prime Minister (upon receiving President Jalal Talabani's legal memorandum) then ordered Saddam Hussein executed1" notwithstanding the serious legal questions over whether President Talabani's memorandum was legally sufficient to fulfill the Presidency Council's Constitutional and statutory obligations to ratify unanimously Saddam Hussein's death sentence. The situation was made even more complex when the matter was transferred back to the Ministry of Justice for issuance of a final order certifying that all legal requirements needed for execution had taken place. Iraq's then Minister of Justice, a Sunni Arab named Hashim al-Shibli, who was on vacation at this time, declared that the Ministry would not involve itself with the execution of Saddam Hussein (in part) because of the controversy surrounding whether the Presidency Council was required to ratify Saddam Hussein's death sentence. 16' In response, the Prime Minister of Iraq removed the Minister from his position temporarily and replaced him with the Minister of Education. The Minister of Education then delegated to the Deputy Minister of Justice the authority to issue the final order certifying that all necessary measures to carry out the death
160. See Iraqi Constitution, supra n. 88, at Art. 73(8); see Iraqi Interim Government Law No. 3 of 2004, supra n. 50, at para. 6; see Iraqi Criminal Procedure Code, supra n. 40, at para. 286; see also supra nn. 120-123 and accompanying text. 161. See Iraqi Constitution, supra n. 88, at Art. 138(4). 162. See Legal Memorandum from President Jalal Talabani to Prime Minister Nouri al-Malaki (29 December 2006) (on file with author). 163. See Iraqi Constitution, supra n. 88, at Art. 138(4). 164. See F. Ajami, 'Measure for Measure - the Execution of Former Dictator Saddam Hussein', U. S. News & World Report, 15 January 2007, at p. 57 (stating that Iraqi Prime Minister Nouri al Maliki had carried the 'pen with which he signed Saddam Hussein's death warrant ... for well over a quarter century' and noting that he signed the death warrant in front of the cameras so as to send a message to his Shiite kinsmen). 165. See J. Muir, 'Iraq's Justice Minister Resigns', BBC News, 31 March 2007, at .
The execution of Saddam Hussein
177
sentence, had occurred. Thus, it was the Deputy Minister of Justice (acting upon the orders of the Minister of Education) who issued the final order that led to Saddam Hussein's execution even though paragraph 286 of Iraq's Criminal Procedure Code required that the Minister of Justice issue this order.'66 3.3.2
The execution violated paragraph 290 of Iraq 's Criminal Procedure
Code Equally disconcerting, the final order demanded that Saddam Hussein be executed in violation of paragraph 290 of the Iraqi Criminal Procedure Code that bars executions on 'any official holiday and special festivals connected with the religion of the condemned person'.'67 By way of background, 30 December 2006 was a Saturday (itself an official holiday of Iraq because it was part of the weekend) and marked the start of one of the most important special festivals in Islam (Eid a1 Adha) for ~ u n n i s . ' ~Because ' of certain discrepancies between the Shiite and Sunni Muslim calendars, the Eid a1 Adha holiday did not commence for Shiites until 31 December 2 0 0 6 . ' ~As ~ Saddam Hussein was a follower of Sunni Islam, the Eid a1 Adha holiday began for him on 30 December 2006.'~' Thus, paragraph 290 should have applied and the Iraqi govemment should have stayed his execution until the Eid a1 Adha holiday concluded. When confronted about this point of law, Judge Munir Haddad (a Shiite IHT Appellate Judge who witnessed the execution), without acknowledging that paragraph 290 barred executions on Saturday, stated that the Iraqi government had consulted with Shiite religious authorities (as opposed to authorities of the condemned's religion - Sunni Islam) and concluded that the execution could move forward on 30 December because the Eid a1 Adha holiday in Iraq did not begin until 3 1 ~ e c e m b e r . ' ~ '
166. Shortly after Saddam Hussein's execution, Hashim al-Shibli resigned from his post citing as one of the reasons for his departure differences between himself and the Iraqi govemment over the execution of Saddam Hussein. See ibid. 167. See supra n. 135 and accompanying text. 168. See J. Swain and H. Jaber Amman, 'Bungled Hanging Turns Saddam into Victim', The Sunday Times,7 January 2007 at p. 22 (stating that 'to kill Saddam on Saturday [30 December 20061 was particularly offensive to Iraq's Sunnis [as] it was the first day of their Eid holiday - it starts for Shiites the following day - and to execute Saddam on Saturday reinforced the Sunni view that the execution was an act of vengeance by Maliki's Shiite dominated govemment'). 169. See ibid. 170. See ibid. 171. See e.g., Canada Wire, 'Butcher of Baghdad is Gone Former Dictator Saddam Hussein Hanged at Dawn for Crimes Against Humanity', 30 December 2006 (quoting Judge Munir Haddad as stating that 'all the measures have been done ... there is no reason for delay' even though the Eid al Adha holiday was set to begin for Sunnis on the day of Saddam Hussein's scheduled execution). In addition, the holiday commemorates Abraham's receipt of a ram from God that Abraham sacrificed instead of his son. Thus, for Sunni Muslims throughout the world, Saddam Hussein's execution on 30 December 2006 carried with it tremendous symbolic significance.
178
E.H. Blinderman
3.3.3
The execution violated other provisions of the Iraqi Criminal Procedure Code
In the rush to push Saddam Hussein to the gallows, the Iraqi government also ignored multiple other provisions of the Iraqi Criminal Procedure Code. In particular, paragraph 288 of the Iraqi Criminal Procedure Code required that an IHT Judge, IHT Prosecutor, a representative from the Ministry of Interior, the director of the prison holding the condemned, the prison doctor, and the condemned's legal representative serve as witne~ses."~To that end, IHT Appellate Judge Munir Haddad, Munqith al-Faroon (the Al-Dujail Deputy Prosecutor), the Inspector General for the Ministry of Interior, the prison director, and a prison doctor all witnessed the execution. In addition, Mowaffak al-Rubaie (Iraq's National Security Adviser), Iraq's Minister of Education and several other individuals served as witnesses to the execution even though there were no provisions in Iraq's Criminal Procedure Code that permitted them to attend. What makes the attendance of these additional witnesses disturbing is that the Prime Minister's Office never informed a representative from Saddam Hussein's legal team of the date of execution or offered to provide logistical support to facilitate attendance so that someone representing Saddam Hussein could have witnessed the execution as permitted under paragraph 288 of the Iraqi Criminal Compounding these mistakes further, was the fact that at least one witness filmed what transpired in the execution chamber on his cell phone in violation of various provisions of the Iraqi Criminal Procedure Code and Iraqi Penal Code and circulated this footage to various press 0ut1ets.l'~Furthermore, as the room erupted into chants of revenge and Shiite revelry, Saddam Hussein was not permitted to make a final statement and was executed in the middle of his final prayer in violation of paragraph 289 of the Iraqi Criminal Procedure The Iraqi Government did permit Saddam Hussein to meet with his brother in the days prior to the execution but this visit occurred three days before his execution on 27 December 2006'"~as opposed to the day before execution as required under paragraph 29 1 of the Iraqi Criminal Procedure About the only guarantees provided to Saddam Hussein in Iraq's Criminal Procedure Code that were followed involved the participation of a Sunni cleric at the execution and the release of the condemned's corpse to Saddam Hussein's family for But
172. See supra n. 130 and accompanying text. 173. See ibid. 174. See Bums, supra n. 29 (stating that an 'illicit cellphone video [of Saddam Hussein's execution] has caused an uproar among Iraqi Sunnis and across the world, showing Mr. Hussein erect on the gallows in his black overcoat and gray beard, staring ahead, and answering back, as taunts flowed from Shiites gathered in front of the platform'). 175. See ibid.; see also supra n. 132 and accompanying text. 176. See supra n. 27 and accompanying text. 177. See supra n. 136 and accompanying text. 178. See Associated Press, 'Saddam Hussein Buried in his Home Village of Auja', Charleston Daily Mail, 1 January 2007, at 5A.
The execution o f Saddam Hussein
179
even release of Saddam Hussein's corpse to his family for burial did not occur without pressure from the United States governmenti79and only after crowds of people (carrying Munqith al-Faroon on their shoulders) danced in celebration around Saddam Hussein's body (which had been removed to the Prime Minister's office where a celebration of the execution of Saddam Hussein was underway) and peeled back his burial shroud so that others could take photographs and videotape the grisly scene.'80 4.
CONCLUSION
The above described analysis demonstrates that the Iraqi government rode roughshod over many constitutional and legal proscriptions in its haste to execute Saddam Hussein. The legal, social, and political implications of the series of events that marked Saddam Hussein's appeal and execution placed an indelible stain on what was already a markedly difficult trial. Whether these events ultimately overshadow the IHT's efforts to provide voice to the thousands of victims of Saddam Hussein's regime (and particularly those from Al-Dujail) is difficult to know now. What is known, is that for certain individuals who participated in the Al-Dujail trial and who wished for it to mark a break with the barbarism that characterized the Iraqi regime under Saddam Hussein, these events were tragic. They were not tragic because a brutal dictator of millions was summarily put to death. They were tragic because they demonstrated once again that fair and neutral justice, and more importantly, the rule of law in the new Iraq may be just as elusive as they were in the old Iraq.
179. See ibid., (stating that 'even as late as Saturday night, it was unclear where Saddam would be buried, as Iraqi politicians grappled with concerns over security and allowing Saddam's resting place to become a shrine for his loyalists. Only after US pressure did the government agree to release Saddam's copse to his tribesmen'). 180. See 2. Kasirn, 'New Saddam Hussein Execution Video', Iraq Slogger, 8 June 2007, at .
THE CASE OF TAHA YASEEN RAMADAN BEFORE THE IRAQI HIGH TRIBUNAL: AN INSIDER'S PERSPECTIVE'
William H. wiley2
1.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
2.
Historical background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
3.
Jurisdiction and substantive law
4.
Proceduralcontext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
5.
Referral of the Dujail file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
6. 6.1 6.2
Enquiry phase of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Presentation of inculpatory evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Form and content of the indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Deficiencies with respect to the allegations made pursuant to Article 15 207 Relationship of international procedure to Iraqi domestic law . . . . . . . . 209 The defence phase of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Account of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defencewitnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Closingarguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2 10 210 2 11 213 216
1. 0W. H. Wiley, 2008 2. Dr William Wiley is Director of a UK-based consultancy that specializes, inter alia,in the provision of rule-of-law projects funded by public-sector donors. In April 2006, he was appointed International Law Advisor to the Iraqi High Tribunal and assigned to the Defence Office. Dr Wiley formally remains in this position, acting since April 2008 on a pro bono basis; he is the only person to have held this appointment and all references in the text to the Defence Office advisor are, in fact, references to the author of this paper. Dr Wiley has served previously with the Crimes Against Humanity and War Crimes Section of the Department of Justice of Canada as well as the Offices of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court. He first arrived in Iraq in October 2005 with the United Nations Assistance Mission. The opinions expressed in this article are those of the author.
Yearbook of International Humanitarian Law
Volume 9 - 2006 - pp. 181-243
182
The case of Taha Yaseen Ramadan
Judgement and sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 1 Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Judgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 Command responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224 Commonpurpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Appellate proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Re-sentencing proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Concluding remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1
1.
INTRODUCTION
Taha Yaseen Ramadan Al-Jazrawi was Vice-president of Iraq from 1991 until the fall of the regime of Saddam Hussein in April 2003; he was hanged by Iraqi authorities on 20 March 2007 after an Iraqi court found him guilty of having perpetrated, during the 1980s, a number of wilful killings amounting to a crime against humani ~ The . oftentimes ~ convoluted proceedings that led to the execution of Taha Yaseen are the subject of this paper, in which it will be argued that a number of deficiencies in these proceedings served to deny the accused a fair hearing. Not the least of these shortcomings were the difficulties experienced by the Prosecution, Defence counsel and the ever-changing membership of Trial Chamber I of the Iraqi High Tribunal (hereinafter IHT) in grasping effectively even relatively straightforward questions of international criminal law (hereinafter ICL). Where these conceptual difficulties were surmounted, at least in part, the interference of the Office of the Prime Minister of Iraq undermined the fairness of the proceedings at a number of critical junctures. In light of these and other problems which will be examined in this paper, it is difficult to conclude other than that Taha Yaseen was hanged following a series of allegations that would not have given rise to his conviction outside of Iraq had the accused retained competent counsel and been tried before a panel of independent judges schooled properly in the elements of the enumerated offences as well as the legal requirements of the forms of participation set forth in the relevant Iraqi legal instrument. More generally, the case of Taha Yaseen was, and remains, symptomatic of the grievous problems plaguing trial and appellate proceedings before the IHT.
3. Prior to the drafting of the Statute of the Iraqi High Tribunal, the term 'wilful killing' was, in international law, found only in the grave breach provisions of the 1949 Geneva Conventions. The use of 'wilful killing' to describe murder as a crime against humanity would appear to be a translation error from English into Arabic which has become a permanent feature of the Arabic- and Englishlanguage versions of the Law of the Iraqi High Tribunal.
This paper will examine the broad background to the case against Taha Yaseen before discussing a number of general legal questions such as the jurisdiction of the IHT as well as the relevant substantive and procedural law. The consideration of these issues shall be followed by a critical overview of the investigation, prosecution, defence and judgement of Taha Yaseen. Particular attention will be afforded to the contents of the file that referred Taha Yaseen to trial, the evidence heard at trial, the indictment issued by the Trial Chamber hearing the case, the problems that undermined the defence of the accused, and the Trial as well as Appellate Judgements. The paper will conclude with an examination of the highly-irregular proceedings that saw the life sentence awarded to Taha Yaseen by the Trial Chamber that heard the evidence set aside in favour of a capital sentence by a re-constituted Trial Chamber acting upon the instructions of the IHT Appellate Chamber, which was itself acting under considerable political pressure fiom the Government of Iraq.
2.
HISTORICAL BACKGROUND
Prior to 1991, Taha Yaseen held a number of Cabinet posts, most notably that of First Deputy Prime Minister. Whereas Taha Yaseen emerged as a well-known and powerful figure within Iraq during a relatively early point in the life of the Baathist dictatorship, and he concomitantly enjoyed a moderately high profile in the Middle East region, few in the West had heard of Taha Yaseen prior to 2003. It seems a safe bet that despite his subsequent trial and conviction on charges of crimes against humanity, that were followed by his much-publicised execution in March 2007, the name of Taha Yaseen is still not well known even in international-legal circles. The power that Taha Yaseen held in Iraq owed much to the fact that he had assumed his first leadership position within the Baath Arab Socialist Party in 1966, that is, prior to the successhl seizure of power by the Baathists in 1968. More importantly, it was in 1966 that Taha Yaseen first met Saddam ~ u s s e i n . ~ According to one scholar, by the mid-1970s Taha Yaseen had emerged as 'Saddam Hussein's Saddam Hussein had been appointed Vice-president of Iraq at the time of the Baathist seizure of power and immediately set out to consolidate his own political base. He proved adept in this undertaking and Saddam Hussein seized the Presidency in 1979. In 1976, whilst still Vice-President, the soon-to-be President secured the appointment of Taha Yaseen to the socalled Revolutionary Command Council of the Baath Party (hereinafter RCC),~a body distinct fiom the Cabinet of Ministers (although a number of officials were members of both institutions) that ruled Iraq for all intents and purposes by decree.
4. Meeting between Taha Yaseen Ramadan and the author, 4 March 2007. 5. C. Tripp, A History ofIraq (Cambridge, Cambridge University Press 2002) p. 216. 6. Dujail Trial Transcript, 24 May 2006, p. 68.
184
The case of Taha Yaseen Ramadan
Arguably, the term 'protCgC' does not properly convey the complex nature of the relationship between Saddam Hussein and Taha Yaseen. On the one hand, Saddam Hussein and Taha Yaseen were long-standing allies in an ongoing power-political exercise from which both had much to gain - and, as events showed, a great deal to lose should this exercise fail. Such alliances were hardly unusual in Baathist Iraq; they were invariably of an opportunistic nature. What made the political alliance of Saddam Hussein and Taha Yaseen unusual was the considerable degree of trust that the two men consistently appear to have shown one another. This trust was later coupled with genuine expressions of affection. For instance, in 2005-2006, when both men were on trial for crimes against humanity, Saddam Hussein sought privately the views of Taha Yaseen on how, in the view of Taha Yaseen, Saddam Hussein had failed in his performance as the leader of Iraq. Taha Yaseen claimed to have responded frankly and told Saddam Hussein that it was folly to have appointed manifestly unqualified members of Saddam Hussein's extended family to senior positions in the Iraqi state. For his part, whilst in American custody Saddam Hussein wrote a number of poems praising his friend and political ally.7 Whilst the two men were not destined to die together, they did share a common fate. As is well known, Saddam Hussein was hanged in Baghdad by Iraqi officials on 30 December 2006. In the early morning hours of 20 March 2007, Taha Yaseen was flown on an American helicopter from an American detention facility near Baghdad International Airport to an Iraqi Ministry of Interior detention centre in Kadimiya, a Baghdad district several kilometres north of the International Zone, situated alongside the River Tigris. Upon arrival, Taha Yaseen was turned over to Iraqi custody. An IHT judge was on hand. The judge in question read a formal document noting the earlier conviction of Taha Yaseen for wilful killing as a crime against humanity and informed the prisoner that he (Taha Yaseen) was present in Kadimiya to be hanged for this offence. When he was asked if he had anything to say, Taha Yaseen responded that he was innocent of the charge alleged; the condemned man then called upon Allah to take revenge upon those responsible for his execution. The Iraqi authorities permitted the prisoner to meet with the member of his Defence team who was on hand to witness his execution in accordance with the provisions of Iraqi law.' Taha Yaseen subsequently washed himself, as would a condemned follower of the Prophet Mohammed in accordance with the provisions of his faith. After he had bathed, the Iraqi officials charged with overseeing the execution ordered Taha Yaseen to change from the traditional Iraqi dress which Taha Yaseen favoured into an orange prison jumpsuit. With his hands and feet shackled, Iraqi officials led the prisoner into a neighbouring room containing the gallows. Taha Yaseen mounted the steps reciting the ~ h a h a d aAtop . ~ the scaffold, the ex-
7. 8. after 9.
Meeting between Taha Yaseen Ramadan and the author, 4 March 2007. Para. 288, Iraqi Law on Criminal Proceedings with Amendments, Number 23 of 1971 (herein1971 Procedural Law). 'There is no God but God, and Mohammed is his Prophet.'
ecutioner placed a hood over the head of the condemned man and the noose was placed around his neck. The rope was adjusted to take into account Taha Yaseen's weight, in order that the fall should not result in his decapitation, which had happened to Barzan Ibrahim (Saddam's half-brother) two months prior when the Iraqi government had hanged him from the same scaffold.1° At the request of Taha Yaseen's counsel, who was amongst the handful of witnesses to the hanging, additional time was afforded the condemned man by the executioner to complete his prayers. At the conclusion of these prayers, the executioner released the trap door beneath the feet of Taha Yaseen at 0305 hours. Discipline held amidst the ranks of those present in the execution chamber, that is, none of those present mocked, chanted or cheered Taha Yaseen's death as had occurred when the Iraqi government executed Saddam Hussein. It was therefore without delay that after the execution the body of Taha Yaseen was separated from the noose by Iraqi officials, formally identified by American advisors to the prison in which the execution had taken place, and subsequently flown to Tiknt. In Tikrit, on the same day, the family of Taha Yaseen interred his remains in a make-shift mausoleum and cemetery that is quickly becoming the final resting place for much of the senior leadership of the erstwhile Baathist regime." Broadly speaking, Iraqi officials executed Taha Yaseen for his role in responding to a failed assassination attempt against Saddam Hussein that occurred on 8 July 1982 in the city of Dujail, which is located approximately eighty kilometres north of Baghdad in Salah al-Din Governorate. The Baathist regime responded with considerable ferocity to this attempt upon the life of the then-President, in particular, with mass arrests, torture, forcible relocations, land seizures, summary executions and a show trial followed by still more executions. These underlying acts were the focus of criminal proceedings before the Iraqi High Tribunal during the period October 2005 to March 2007, that is, the Dujail trial.12 In total, the IHT alleged that eight men, amongst them Saddam Hussein and Taha Yaseen, were criminally liable for various crimes against humanity.13In the event, seven of the
10. Following the public-relations disaster that was occasioned by the botched execution of Barzan Ibrahim, the Iraqi government retained the services of foreign experts to prepare Iraqi executioners for subsequent hangings. The experts in question - who were not present during the execution of Taha Yaseen, which was a purely Iraqi undertaking instructed the Iraqi executioners in, amongst other things, the necessity of calculating the fall of the condemned man in accordance with his body weight. According to one witness to the execution of Taha Yaseen, Iraqi officials weighed the prisoner shortly before his execution and the rope that was used to hang him had already been marked in accordance with different body weights. Additionally, a chart showing weight-drop ratios was appended to the wall next to the scaffold. 11. On 22 March and 28 March 2007, the author was provided with detailed and essentially matching accounts of the execution of Taha Yaseen by two witnesses to the hanging. Neither witness can be identified for security reasons. 12. Case liJ First12005 (Dujail). 13. The names of the accused and the appointments which they held in 1982 are as follows: Saddarn Hussein, President of Iraq; Banan Ibrahim Al-Hasan, Director of the Intelligence Service (Mukhabarat); Awad Hamad Al-Bandar, President of the Revolutionary Court; Taha Yaseen Ramadan, First Deputy Prime Minister and Commander of the Popular Army; Mohammed Azzawi Ah, -
186
The case of Taha Yaseen Ramadan
eight accused were found guilty by Trial Chamber I of numerous acts proscribed by ICL; one man was acquitted by the Trial Chamber on the grounds of insufficient evidence.14Of the seven persons convicted, the Trial Chamber sentenced four men to death; Iraqi authorities executed them in December 2006 (Saddam Hussein), January 2007 (Barzan Ibrahim and Awad Hamad) and March 2007 (Taha ~aseen).''The same Trial Chamber sentenced three men to terms of imprisonment of fifteen years.'6
3.
JURISDICTION AND SUBSTANTIVE LAW
The IHT has its own statute" (hereinafter IHT Statute) and Rules of ~ r o c e d u r e ' ~ (hereinafter IHT Rules). Article 1 of the IHT Statute establishes that the Tribunal shall enjoy jurisdiction over crimes perpetrated no earlier than 17 July 1968, that is, the date upon which the Baath Arab Socialist Party, under the leadership of Ahmad Hasan al-Bakr, seized power in Iraq. Saddam Hussein formally succeeded Ahmad Hasan as President of Iraq and Chairman of the RCC in 1979. The Baathist regime collapsed in April 2003 and the temporal jurisdiction of the Tribunal does not extend beyond 1 May 2003. Succinctly stated, the IHT can exercise jurisdiction over any person who was resident in Iraq during the period 17 July 1968 through 1 May 2003, where this person is alleged by the IHT to have violated Iraqi penal law or ICL. The only effective limitation upon the exercise of this jurisdiction is the provision that there be no violation of the principle nullum crimen sine lege. Moreover, the residency requirement effectively precludes the investigation and prosecution by the IHT of cases involving, for instance, Iranian or American forces that were involved in hostilities in and over Iraq at various times during the period 1980 through April 2003. Article 1 of the IHT Statute additionally affords the Tribunal jurisdiction over Iraqi as well as non-Iraqi residents of Iraq who are alleged by the IHT to have perpetrated, in Iraq or elsewhere, one or more of the crimes enumerated in Articles 11, 12, 13 and 14 of the IHT Statute. Articles 11, 12 and 13 of the IHT Statute proscribe, respectively, genocide, crimes against humanity and war crimes. With limited exceptions, Articles 11, 12 and 13 of the IHT Statute are structured and worded identically to Articles 6, 7 and 8 of the Rome Statute of the International Criminal Court (hereinafter ICC). Article 15 of the IHT Statute sets forth the
handyman and local (Dujail) Baath Party member; Muzhir Abdallah Kadhim, telephone operator and local (Dujail) Baath Party member; Ali Dayih Ali, schoolteacher and local (Dujail) Baath Party member; and Abdallah Kadhim Ruwaid, farmer and local (Dujail) Baath Party member. 14. Mohammed Azzawi was acquitted. 15. Saddam Hussein, Barzan Ibrahim, Awad Hamad and Taha Yaseen. 16. Muzhir Abdallah, Ali Dayih and Abdallah Kadhim. 17. Official Gazette of the Republic of Iraq, Law of the Iraqi High Tribunal, 18 October 2005. 18. Official Gazette of the Republic of Iraq, Rules of Procedure and Gathering of Evidence with Regard to the Iraqi High Tribunal, 18 October 2005 (hereinafter IHT Rules).
KH. Wiley
187
modes of individual criminal responsibility provided for by ICL, including command and superior responsibility, and Article 15 does not deviate substantially from the law set forth in Articles 25 and 28 of the Rome Statute. Article 14 of the IHT Statute, which is not derived from any international legal instrument, gives the Tribunal the authority to investigate and prosecute acts proscribed elsewhere by Iraqi penal law, for instance, interference in the affairs of the judiciary, the wastage of Iraqi national resources, and the threat or resort to war by Iraq against another Arab State. Article 14(4) affords the Tribunal jurisdiction over any other crime punishable under Iraqi law at the time of its commission. In particular, the relevant sub-paragraph provides that the Tribunal is competent to hear a case where the Tribunal finds that an element of any of the crimes enumerated in Articles 11, 12 and 13 is missing, but the Tribunal nonetheless establishes that the act in question constituted a crime punishable under Iraqi law at the time of its commission. The first two cases that the IHT investigated and heard - that is, Dujail and ~ n f a l -' ~ did not give rise to allegations of offences beyond those set forth in Articles 11, 12 and 13. To date, IHT judges and prosecutors, in addition to counsel appearing for the Defence, have struggled mightily with the substantive law found in Articles 11, 12, 13, and, most especially, in Article 15 of the IHT Statute. This problem will be examined in detail elsewhere in this paper because the failure to grasp effectively the elements of the offences and in particular the legal requirements of the forms of participation, set forth respectively in Articles 12 and 15, had a deleterious influence upon the case of Taha Yaseen and his co-accused. Likewise, continuing problems in interpreting correctly the elements and legal requirements of Articles 11, 12, 13 and 15 have plagued other cases, most notably (to date) Anfal. Problems of a much less severe, albeit similar qualitative nature, were witnessed at the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY) and the International Criminal Tribunal for Rwanda (hereinafter ICTR) during the early life of the ad hoc Tribunals. In The Hague and in Arusha, jurists with long service in domestic jurisdictions struggled with aspects of ICL, owing either to sometimes limited jurisprudential guidance or to the unfamiliarity of the jurists concerned with such jurisprudence as was available. The problems that the jurists employed by (or otherwise appearing before) the IHT experienced are explained in large part by the fact that prior to the fall of the Baathist regime Iraqi law faculties
19. Case 1IJ SecondROO6 (Anjal). The Anfal trial commenced in August 2006; the Trial Judgement was rendered in June 2007 and the Appellate Judgement in September 2007. During the trial, seven accused (the number of accused was reduced to six following the execution of Saddam Hussein) were alleged to have perpetrated genocide, crimes against humanity and war crimes during the course of military and security operations undertaken in the Kurdish region of Iraq during the period February through August 1988. The highest-profile accused in Anfhl, following the execution of Saddam Hussein (who was a defendant in Anfal), was the cousin of the former President, Ali Hasan Ah, popularly known as 'Chemical Ah.' Whilst considerable evidence attesting to the ruthlessness of Ali Hasan was adduced during Anfal, his nickname is a misnomer to the extent that other evidence suggested strongly that 'Chemical Ali' had no authority to order military attacks involving chemical weapons.
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offered no instruction in ICL. For all intents and purposes, this field of law was unknown in Iraq prior to the creation of the IHT. Since 2004, the largely American-led efforts to improve the levels of ICL knowledge within the legal profession in Iraq, geared specifically towards the proper functioning of the IHT, have largely come to grief. These efforts have been undermined by five major problems: (1) the 10,000 page collection of relevant reading materials in the Arabic language, whilst not in every respect comprehensive, has in the main not been studied by the IHT judges, prosecutors and defence counsel, despite its ready availability; (2) the younger Iraqi jurists on staff at the IHT, whom one might expect would be well disposed towards ICL, have nonetheless received no training in the substantive law; (3) many of the judges and prosecutors involved in IHT proceedings received evidently inadequate training and continue to learn on the job, that is, during trials where they might call for and award capital sentences - and have actually awarded capital sentences to seven of the fourteen accused tried during Dujail and Anfal; (4) a severe shortage of international advisors with practical experience in the application of the substantive law;20and (5) prior to the conclusion of the Dujail and Anfal trials, no ICL training was afforded to defence advocates, despite an evident American preparedness to facilitate ICL instruction for this group. These considerations, combined with the evident willingness of the Iraqi political executive to interfere directly in the administration of justice - a matter which likewise will be taken up below - harmed irrevocably the value of the Dujail and Anfal Trial and Appellate Judgements and dampened the early enthusiasm witnessed within the Iraqi legal profession for the study of ICL.
4.
PROCEDURAL CONTEXT
Iraqi law governing investigations and other legal proceedings is similar to the relevant French law from which it is derived. As has already been noted, the IHT has its own Statute and Rules of Procedure. However, since the establishment of the IHT, investigative and adjudicative proceedings at the Tribunal have more
20. The IHT Rules provide at, inter alia, Rule 21 for the appointment of non-Iraqi advisors and experts to the Investigative Magistrates, the Trial Chambers, the Appellate Chamber, the Prosecution and the Defence Office. Through the Dujail (October 2005 to November 2006) and Anfal (August 2006 to June 2007) trials, three foreign experts with experience in the field of ICL agreed at various times to assist the IHT on a full-time basis in Baghdad: two of the three advisors had been employed by, or had otherwise appeared before, the ICTY and the ICTR. The third had at different times been employed by both of the ad hoc Tribunals and the ICC. Two of the three experts were assigned to the Trial Chambers; the third (i.e., the author of this paper) has worked exclusively with Defence counsel. No experts with substantial ICL experience have yet been made available on a full-time basis to the Investigative Judges, the Appellate Chamber and the Prosecution. At no time during Dujail and Anfal were more than two foreign advisors employed at any one time. For months at a time, there was frequently only one ICL expert on hand to assist the IHT. Aside from budgetary constraints, the shortage of expert ICL advisors has tended to reflect the difficulties of living and working in Baghdad under the prevailing security conditions.
often conformed to the expansive provisions of the amended 1969 Penal code2' (hereinafter Penal Code) and most especially the 1971 Law on Criminal Proceedings with ~ m e n d m e n t (hereinafter s~~ 1971 Procedural Law), to which reference is made in Articles 16, 17,22,24 and 30 of the IHT Statute. IHT proceedings conducted to date reveal that insufficient thought was given to the compatibility of the legal instruments creating the IHT as a court to investigate, prosecute and judge alleged violations of substantive ICL, on the one hand, with the provisions of the 1969 Penal Code and 197 1 Procedural Law, on the other. The deleterious effect of this incompatibility has been witnessed in particular during the preparation of indictments, sentencing deliberations and appellate proceedings. These deficiencies have, in turn, given rise to the wholly incorrect impression, in particular amongst a large number of jurists, in Iraq and elsewhere in the Middle East, that the IHT was created by the Coalition Provisional Authority with the sole purpose of facilitating speedy trials as well as the awarding of capital sentences that Iraqi officials might in turn carry out quickly. The more important point which became obvious during the proceedings against Taha Yaseen and that will therefore be examined at some length in this paper - is that the laws establishing the IHT, in trying to meld substantive ICL with Iraqi-domestic procedural law, fail to take into account sufficiently (1) the need to inform clearly an accused person of the case he must answer, (2) the rights of appeal provided for in the 1971 Procedural Law, and (3) the complex matter of how to sentence a man convicted of an international crime under the terms set forth in domestic laws that make no provision for international crimes. Equally as important is the fact that the IHT has undertaken proceedings in the context of severe political-sectarian violence. Divorced from this context - which must be understood as a purely theoretical possibility over the foreseeable future proceedings before Iraqi courts differ significantly from the procedures adopted by international criminal courts as well as the procedures followed in the adversarial systems of the United Kingdom and other jurisdictions that Anglo-American legal traditions have strongly influenced. In particular, five professional trial judges conduct all trial proceedings before the IHT. Each panel of five judges elects from amongst themselves a presiding judge.23 There are two IHT Trial Chambers as well as an Appellate Chamber consisting of nine members; accused persons and those whom the IHT convicts of a crime cannot seek relief beyond the Trial and Appellate Chambers of the IHT. Whilst all the judges who sit on the Trial and Appellate Chambers are trained jurists, a significant number of the judges whom the IHT employs did not serve on the Bench prior to 2003. Political parties active in the nascent democracy after 2003 selected all of the judges to serve on the IHT in the first instance (i.e., in
2 1. Iraq, Ministry of Justice, Statutory Notice STS 25 1188, Law No 111, Penal Code, 1969 with amendments (hereinafter 1969 Penal Code). 22. 1971 Procedural Law. 23. Art. 3(4)(b), IHT Statute.
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2004). As most ethnic-Sunni political leaders were at that time boycotting the electoral process, the composition of the Trial and Appellate Chambers through the first two trials was, and remains, overwhelmingly male and ethnic-Shia. It will however be noted that there is a modest representation of Sunni-Arabs on the Bench and the presence as well of Iraqi ethnic-Kurdish jurists who are able to cope with the working language of the Tribunal, that is, Arabic. Under Iraqi criminal procedural law, the influence and authority of the judge(s) hearing a given case - and, in particular, the authority of the presiding judge - is considerable. For instance, complainants, witnesses and the accused - where the latter opt not to exercise their right to silence24- can be questioned and crossexamined only by and through the presiding judge;25 and the judges presiding over IHT trials have shown no hesitancy to question, sometimes forcefully, persons appearing on the witness stand or in the prisoners' box. Where others (i.e., Complainant, Prosecution, Defence counsel) posed questions through the Judges presiding during Dujail and Anfal, the Judges presiding frequently reformulated and even rejected outright those questions deemed by the Judges as irrelevant or otherwise unfruitful.26Affording judges arbitrary powers to ensure timely and orderly proceedings is unremarkable. However, during Dujail and Anfal, the goodfaith exercise of these powers by the Judges presiding frequently proved to be problematical owing to the Judges' imperfect grasp of the elements of a given offence and the legal requirements of the forms of participation set forth in the IHT Statute. For example, all four of the Judges presiding at various times during the aforementioned trials had a difficult time seeing the relevance of certain forms of contextual evidence, for instance where the Defence introduced testimony and documentary evidence in an effort to distinguish between attacks upon civilians
24. 'A rehsal [by the defendant] to answer will be considered as evidence against the defendant' (para. 179, 1971 Procedural Code). This provision was suspended by the Coalition Provisional Authority (hereinafter CPA) shortly after its establishment. Moreover, the suspension remains in force and the IHT Statute at Art. 19(4)(Q provides for the right to silence, without prejudice to the accused. Despite these protections, persons appearing before IHT judges, during investigative as well as trial proceedings, have in the main rejected the advice of counsel to remain silent. It would appear that this advice is invariably rejected on the grounds that most of the persons suspected by the IHT of criminal wrongdoing are convinced of their innocence. For his part, Saddam Hussein, when called before IHT Investigative Magistrates on numerous occasions following his capture, almost always rehsed to answer directly the questions put to him. His approach to investigative hearings stood in marked contrast to his verbosity during the Dujail trial, where he spoke freely and made a number of admissions which proved harmful to his own cause and sometimes that of his co-accused. 25. Iraqi law provides: 'The witness gives his testimony orally and it is permissible to intempt him during its delivery. [. . .] The court may ask any questions necessary in order to clarify the facts after completion of the testimony. The public prosecutor, complainant, civil plaintiff, a civil official and the defendant may discuss the testimony via the court and ask questions and request clarifications to establish facts' (para. 168(b), 1971 Procedural Law). 26. 'The court may prevent the parties and their representatives [from] speaking at undue length or speaking outside the subject of the case [...I' (para. 154, 1971 Procedural Law). Presiding Judges at the IHT have tended to interpret this provision in broad terms.
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per se and attacks upon prima facie military targets that had given rise to collateral civilian casualties. The initial phase of an Iraqi criminal trial is only superficially analogous to a prosecution case-in-chief. On the whole, the first phase of an Iraqi trial is more akin to an enquiry than comparable to a prosecution in, say, an English court. A trial cannot commence in an Iraqi court until the chief investigative magistrate of that court prepares an order of referral. This order of referral accuses a prisoner of one or more crimes and sends that prisoner for trial. At the outset of the trial, the judge presiding asks the prisoner to state whether he or she is guilty of the offence(s) alleged in the order of referral. The entering of a plea at the outset of a trial tends to confuse foreign observers, at least where the latter hail fi-om systems which are adversarial in nature, in light of the fact that Iraqi courts do not formally charge or otherwise indict the person entering the plea prior to the commencement of the proceedings. Rather, Iraqi trials open with an enquiry phase, the purpose of which is to assist the trial judge(s), who will have already reviewed the referral file, in determining whether formal charges are warranted. This determination is made on the strength of the evidence that the prosecution presents and after the court hears from the accused, should the latter choose to waive his or her right to silence. Whilst this phase of Iraqi criminal proceedings is a good deal more involved than grand jury hearings in the United States or committal proceedings in the United Kingdom, it should not be confused with a prosecution in the strict sense of that word. Proceedings in Iraqi courts are complaint driven, that is, one or more complainants must come forward to initiate an investigation.'' This has the effect of placing the victim at the centre of the judicial process in Iraq, to the extent that the vast majority of complainants are the victims of crime. Under Iraqi law, complainants (whose complaints gave rise to the investigation and, ultimately, the trial) testify first.28There would seem to be no concept in Iraqi law of The People, let alone the Head of State, undertaking to prosecute an alleged wrongdoer. In keeping with Iraqi procedure, during the opening phases of Dujail as well as Anfal, the Court, generally at the behest of the Prosecutor, summoned complainants in large numbers. Once in the witness box, the presiding Judge asked the individual complainants why he or she was present before the court and against whom he or she was complaining. Without exception in Dujail and Anfal, the complainants considered themselves to be victims on the grounds of their claims that either the complainant or a member of his or her family had been victimised by one or more of the accused. In most cases, a complainant would conclude his or her testimony with a request for compensation, rendering the complainant at once a complainant as well as a civil plaintiff. During both the Dujail and Anfal cases, virtually all of the oral evidence heard prior to the issuance of formal charges was of the nature of complainant-victim
27. Para. I(a), 1971 Procedural Law. 28. Ibid., para. 167.
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testimony. Expert-witness testimony was limited to that of Iraqi handwriting experts that the Trial Chamber consulted when several of the accused contested the authenticity of their signatures on a handful of documents.29Documentary evidence generated contemporaneously - that is, at the same time as the underlying acts - was introduced by the Prosecution in limited quantities during the Dujail proceedings, creating a situation where the so-called crime base was explored by the Prosecution as well as the Defence with some care, but the political and institutional context in which the underlying acts took place was, in the main, ignored. As will be touched upon, below, IHT investigators and prosecutors either failed to discover or ignored evidence linking three of the four higher-level accused in Dujail (i.e., Saddam Hussein, Barzan Ibrahim and Taha Yaseen) to criminal acts that subordinates ostensibly perpetrated. The paucity of contextual and linkage evidence in Dujail mirrored certain of the early efforts of the Offices of the Prosecutor of the Yugoslavia and Rwanda Tribunals. However, the near absence of contextual and linkage evidence in Dujail was particularly unwelcome because it was difficult from the start of the trial to envision an acquittal of certain of the accused following upon even an inept presentation of the evidence by the IHT Prosecutor. Indeed, it was difficult from the start of Dujail to envision anything less than a sentence of death for certain of the accused. Iraqi procedural law provides that where 'it appears to the court [...I that the evidence indicates that the defendant has committed the offence being considered, then he is charged [by the court] as appropriate.'30 Conversely, where the court determines that the evidence does not warrant formal charges, the court may order ~' the court determines that one or more charges the release of the a c ~ u s e d . Where are warranted, the court prepares an indictment that it then reads to the accused. In turn, the court asks the accused to enter a plea.32Where the accused chooses to enter a plea of not guilty to the charge(s), the trial resumes with the hearing of witnesses for the Defence. Following the presentation of the Defence case, the prosecution and the defence make closing arguments, and the accused is given a final opportunity to address the court. In accordance with the 1971 Procedural Code, '[tlhe end of the trial is then announced and the court issues its verdict in the same session or in another session held soon In its judgement, a court may find an accused guilty of the offence(s) as charged, not guilty, and not guilty by reason of diminished r e ~ ~ o n s i b i l i t y . ~ ~
29. The experts in question were identified by the Tribunal but not examined by the Trial Chamber nor made available in court for cross-examination. Additionally, the identities, qualifications and modus operandi of the experts were not disclosed to the Defence. 30. Para. 181(c), 1971 Procedural Law. 3 1. Ibid., para. 181(b). 32. Ibid., para. 181(c). 33. Ibid., para. 181(d) and (e). In the event, the Dujail Trial Judgement was handed down approximately three months after the presentation of final arguments. 34. Ibid., para. 182.
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REFERRAL OF THE DUJAIL FILE
On 13 July 2005, the then-Chief Investigative Magistrate of the IHT, Judge Ra'id Juhi, referred the cases of Taha Yaseen, Saddam Hussein and the six others accused in Dujail to Trial Chamber I. The referral file totalled approximately 1,100 pages; it consisted in the main of administrative paperwork that the investigative magistrates had generated themselves, in addition to the statements of witnesses, complainants and the accused. The Chief Investigative Magistrate included a modest collection of documentation that various organs of the Baathist regime had generated in the days, weeks and months following the assassination attempt of 8 July 1982. This collection amounted to less than 100 pages. It later became apparent that IHT investigators as well as the Prosecution had found these documents in a large collection of contemporaneously-generated materials relevant to Dujail, totalling no less than 10,000 pages. The Prosecution failed to disclose this collection to the Defence. When the international Defence Advisor found the time to review the entire collection only after the conclusion of the Dujail trial, it became clear that the collection had been exploited in a selective - or inept - manner.35 The referral of the eight suspects to Trial Chamber I was made in accordance with the provisions set forth in the 1971 Procedural Law, in particular on the grounds that the Chief Investigative Magistrate had found 'sufficient evidence for a trial'.36The letter of referral indicated briefly that the file contained evidence that the former Government of Iraq had executed 143 civilians. It would appear that the Chief Investigative Magistrate was of the view that these executions constituted part of the response of the Baathist regime to the assassination attempt of 8 July 1982, although he did not indicate as much clearly in the letter of referral. What the letter of referral did allege is that the former Iraqi regime had confiscated the property of a further 399 relatives of the aforementioned 143 victims. The letter of referral additionally claimed that officials of the Baathist regime had forcibly removed these same 399 persons from Dujail to Al-Muthana, a desolate patch of desert near the border with Saudi Arabia, for a period of four years.37The Chief
35. Shortly before the conclusion of the Dujail trial proceedings, United States Department of Justice (hereinafter US DOJ) personnel serving with the American advisory group created to assist the IHT, the Regime Crimes Liaison Office (hereinafter RCLO), disclosed these materials to the author of this paper. This disclosure was made to the author in his capacity as International Law Advisor assigned by the IHT to assist the Defence, on the condition that the documents would not in turn be disclosed to a third party without the approval of the RCLO. The materials were accepted by the author in the hope that there would be sufficient time to review them prior to the submission of closing arguments. In the event, the disclosure proved to be largely pointless. Aside from the fact that the Advisor in question was then busy assisting with the preparation of closing briefs, owing to the boycott of the trial by retained counsel, the documents were in the original Arabic and the Advisor did not have a full-time language assistant on hand to go through the collection. The result was that it proved possible to review and disclose to Defence counsel only a handful of the documents contained in this collection. 36. Para. 130(b), 1971 Procedural Law. 37. Judge Ra'id Juhi to Tribunal (English translation), 13 July 2005, IST.A5886.049.002 ,003. -
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Investigative Magistrate further maintained that these and other underlying acts had been of a widespread or systematic nature and, as such, constituted crimes against humanity. More specifically, the letter of referral alleged that Taha Yaseen and his co-accused had violated the following Articles of the IHT Statute: 12(l)(a), wilhl killing; 12(l)(d), deportation or forcible transfer of population; 12(l)(e), imprisonment or other severe deprivation of physical liberty in violation of fundamental norms of international law; and 12(l)(f), torture. Additionally, it was asserted in the letter of referral that the accused were individually criminally liable for the aforementioned crimes in accordance with the provisions of Article 15(2) of the IHT Statute. No specificity was provided in the letter of referral or elsewhere in the file with respect to the particular mode of criminal liability applicable to the individual accused with respect to the alleged perpetration of any given underlying act. On 5 October 2005, counsel for Taha Yaseen appealed the referral of the case of their client. In particular, counsel retained by Taha Yaseen sought relief from the Appellate Chamber of the IHT on the grounds that the investigation had been in~ufficient.~' The Defence likewise pleaded the IHT had not afforded counsel for the accused access to the investigative file during the investigation. It is unknown whether the Chief Investigative Magistrate or officials in his office had in fact denied the Defence access to the investigative file during the investigation; however, the Defence claims with respect to the quality and quantity of the evidence were correct, that is, the evidence contained within the referral file was arguably insufficient with respect to the allegations made against Taha Yaseen and most, if not all, of his co-accused. Additionally, the referral file was abominably organised by IHT investigators and it proved difficult to follow; the Trial Chamber later observed in its Judgement that the jumbled nature of the referral file had complicated the proceedings.39In the event, the Appellate Chamber of the IHT rejected the Defence appeal on the grounds that it had been filed outside of the temporal window provided for by lraqi law.40This finding, although lawful, was not one that the Appellate Chamber had been compelled to make. Moreover, it marked the first in a pattern of judgements and decisions that saw the Appellate Chamber make sharp compromises designed to ensure that justice was dispensed quickly and in a manner that did not hold the Prosecution to the same standards as the Defence. As will be discussed at more length below, following the Dujail trial the IHT Appellate Chamber accepted the Prosecution appeal of the life sentence awarded to Taha Yaseen, despite the fact that it had been submitted outside of the
38. lraqi law provides that where 'the act is punishable by law and the [investigative] magistrate finds that there is sufficient evidence for a trial, a decision is issued to transfer the accused to the appropriate court' (para. 130(b), 1971 Procedural Code). As far as can be determined, the meaning of 'sufficient' set forth in para. 130(b) is not codified in Iraqi law. 39. Case liJ FirsV2005, Dujuil, Trial Judgement, undated (circa 22 November 2006) p. 3. All page references are to the corrected English translation. 40. Case liJ FirsV2005, Dujail, Appellate Chamber decision, 9 October 2006, IST.A5886.051.001 - ,002.
time allowed by the 1971 Procedural codeU4'More importantly, the same Chamber agreed with the Prosecution, on the basis of the Prosecution appeal filed outside of the time limit, that a capital sentence should be given to Taha ~ a s e e n . ~ ~
6.
ENQUIRY PHASE OF THE TRIAL
6.1
Introduction
The trial of Taha Yaseen and his seven co-accused commenced on 19 October 2005 in a special courthouse prepared for this purpose in the International Zone in Baghdad. In accordance with the 1971 Procedural Law, the trial opened with the summoning of the accused and their formal identifi~ation.~' The proceedings of 19 October proved chaotic insofar as several of the accused were uncooperative, to the extent that they demonstrated in sometimes verbose terms their unwillingness to accept the jurisdiction of the IHT. Saddam Hussein and his half-brother, Barzan Ibrahim, were especially troublesome. For his part, Taha Yaseen did not attempt to disrupt the proceedings; when asked to respond to the allegations contained in the order of referral, Taha Yaseen answered simply that he was ' ~ n n o c e n t ' .Whilst ~~ certain accused frequently disrupted the proceedings during Dujail, Taha Yaseen consistently avoided histrionics, and, in the main, he refrained from making political speeches. A far greater threat to the proceedings than the courtroom antics of a number of the accused was the pervasive lawlessness that gripped large parts of Iraq, including Baghdad, by October 2005. On the evening of 20 October, armed men entered the Baghdad office of one of the Defence counsel appearing in Dujail, Sa'doon Enter Al-Jenabi, and kidnapped him. At the time of his seizure, the victim represented the accused Awad Hamad, the erstwhile President of the Revolutionary Court, a judicial institution closely identified with the Baathist dictatorship. The kidnapping of Sa'doon Enter was carried out by the perpetrators in full view of hundreds of citizens milling about the busy commercial street outside the office of the victim. Several hours following his kidnapping, Sa'doon Enter was murdered; persons unknown recovered his body on the morning of 21 October near the AlQudos Mosque in the Aur district of Baghdad, an area popularly known as the Crossing Point of the Dead because the bodies of the victims of the sectarian vio-
41. Para. 252(a), 1971 Procedural Law. The IHT Rules at Rule 68 set forth that appellate proceedings and time limits shall be in accordance with the provisions of the 1971 Procedural Law. 42. In addition, following the release of the Trial Judgement in Anfal, the Appellate Chamber signalled to counsel for those convicted in that case that the Appellate Chamber would expand the customary thirty-day window for the filing of appeals. 43. Para. 167, 1971 Procedural Law. 44. Dujail Trial Transcript, 19 October 2005, part 1, p. 5
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lence gripping Baghdad were commonly dumped there.45The photographs taken of the body of the victim on 2 1 October in a Baghdad mortuary show the hands of Sa'doon Enter secured behind his back with handcuffs as well as indications of a severe beating about the head. It appeared that a power tool had been used to drill holes through parts of the victim, presumably prior to his e x e ~ u t i o n . ~ ~ Less than three weeks later, on 8 November 2005, unknown gunmen ambushed two of the three lawyers defending Taha Yaseen Ramadan whilst the victims were travelling in a car near the premises of the Iraqi Lawyers' Union (the equivalent of a national Bar Association). The attack killed Adel Al-Zubeidi; a bullet struck his colleague, Thamer Al-Kahazai, in the head. Miraculously, Thamer Al-Kahazai was not severely wounded; and, shortly thereafter, he fled Iraq and his representation of Taha Yaseen came to a de facto conclusion. This left Taha Yaseen with one remaining lawyer, an Iraqi national who cannot be named in this paper for security reasons. During the course of the trial proceedings in Dujail, Taha Yaseen retained three additional lawyers: a second Iraqi, who likewise cannot be named; an Egyptian national, Mohammed Moneeb Jinidi; and a Lebanese lawyer with close prewar ties to the regime, Bushra ~ h a l i l . ~ The ' new team assembled to represent Taha Yaseen would survive Dujail, although a Shia death squad kidnapped and killed a lawyer representing Saddam Hussein later in the trial, that is, in June 2006. Finally, persons unknown kidnapped and presumably killed - a body has never been found - a fourth lawyer during the appellate phase of Dujail. In total, four of the eight accused would each see one member of their legal team killed during the combined trial and appellate phases of Dujail. During the same period, political factions murdered other employees of the IHT as well as members of the families of IHT jurists and accused.48 6.2
Presentation of inculpatory evidence
Prosecutor Jaffer Al-Moussawi conceded in his opening argument that during a visit of then-President Saddam Hussein to the city of Dujail on 8 July 1982,
45. Meeting between Salam Enter Sa'doon and the author, Baghdad, 23 November 2005. Salam Enter was the son of the victim Sa'doon Enter Al-Jenabi. A major in the Iraqi police, Salam Enter was murdered by persons unknown several months following the death of his father. 46. Morgue photographs of Sa'doon Enter (provided by Salam Enter and in the possession of the author). 47. Immense amounts of time were wasted on the telephone trying to reach the family of Taha Yaseen in an effort to determine who represented him at any given time or, at any rate, in an effort to determine who was being paid to represent Taha Yaseen at any given time. A second problem during the Dujail and Anfal trials was that a given lawyer would often represent more than one accused in the same proceedings. The author of this paper made numerous and ultimately unsuccessful efforts to put a stop to this confusing and unproductive practice. 48. Amongst those killed were the brothers of the presiding Judge in Anfal, the co-Prosecutor in Dujail and one of the accused in Anfal. During the summer of 2007, the wife of the IHT duty counsel who presented closing arguments on behalf of Saddam Hussein was kidnapped and murdered by a Shia death squad that objected to the role played by the victim's husband during the Dujail trial. -
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would-be assassins fired shots at the presidential motorcade from an orchard alongside the road upon which the motorcade was travelling.49According to the Prosecutor, Saddam Hussein and the remainder of his party left Dujail shortly thereafter. Several hours later, Iraqi security forces arrived in the city and attacked the orchard from which the shots had been fired at the presidential motorcade. It was the Prosecutor's theory that, at roughly the same time, Barzan Ibrahim, a halfbrother of Saddarn Hussein who was then the head of the civilian Intelligence Service (Mukhabarat),met with Saddam Hussein at a farm near Baghdad. Following this meeting, Saddam Hussein dispatched Barzan Ibrahim to Dujail to oversee the response of the State military, intelligence and security organs to the assassination attempt.50Mass arrests commenced on the same day (i.e., 8 July 1982); nearly seven-hundred suspects - most of them women and children - were detained. According to the Prosecutor, the bulk of the arrests were made over a three-day period following the assassination attempt. The Prosecutor alleged in his opening statement that the prisoners were transferred, shortly after their arrest, en masse to AlHakimiyah, a Mukhabarat facility in Baghdad which included a prison. Later, Iraqi authorities separated 148 men from the other prisoners; the remaining detainees, numbering nearly four-hundred persons (principally women, children and elderly men), were deported by Iraqi security forces to a military camp in the desert near the border with Saudi Arabia, where they languished for several years in internal exile. The security and, or in the alternative, intelligence forces interrogated and evidently tortured the men imprisoned in Baghdad; forty-six of the prisoners died in pre-trial custody. The Revolutionary Court, under the presidency of the accused Awad Hamad, condemned all of the 148 men - including those who had already perished - following a brief show trial in 1984. It was the IHT Prosecutor's view that the documentary record showed that those of the 148 men who had not already died in custody were subsequently hanged.51 The complainant and documentary evidence adduced during the forty trial sessions during the period October 2005 through July 2006 supported the broad outline of the Prosecution case. For the purposes of this article, what remains to be determined is the nature of the inculpatory evidence concerning Taha Yaseen per se. In his opening address on 19 October 2005, the Prosecutor alleged that on the day of the assassination attempt, Saddam Hussein telephoned Taha Yaseen and ordered the latter to report to the Council of Ministers' building where Taha Yaseen was to chair a meeting of senior General Security Directorate and Mukhabarat personnel. According to the Prosecutor, the purpose of the meeting had been 'to study the security situation in Dujail and to take all necessary steps' in response to the assassination attempt perpetrated earlier that day.52The Prosecutor further
49. 50. 51. 52.
Opening address of the Prosecutor, Dujail Trial Transcript, 19 October 2005, part 2, pp. 3-4 Ibid., p. 5. Ibid., pp. 6-10. Ibid., p. 5.
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alleged that the following day - that is, on 9 July 1982 - Taha Yaseen had travelled to the Baath Party headquarters in Dujail, where he met with Barzan Ibrahim, the head of the Mukhabarat, who was co-ordinating in situ the response of the State to the assassination attempt. The Prosecutor also alleged that on 10 July 1982, Saddam Hussein had ordered Taha Yaseen to chair a commission, whose members included the head of the General Security Directorate and the Office Director of the Mukhabarat. The commission's role was to examine the longer-term response of the State to the assassination attempt. According to the Prosecutor, this commission later recommended the forcible transfer of nearly four-hundred citizens of Dujail to a place of internal exile as well as the destruction of the agricultural lands that ringed Dujail. Finally, the Prosecutor claimed that Taha Yaseen had personally overseen the destruction of the agricultural lands in question. During the opening weeks of the trial, the Prosecutor produced a number of complainants, witnesses and documents that he claimed supported the case against Taha Yaseen outlined in his opening address. The view taken here is that the evidence that the Prosecutor adduced did not support the claims that he made in his opening statement. During the trial, the Prosecutor failed in the main to present sufficient evidence to satisfy all of the elements of the alleged offences and in particular the legal requirements of the ostensible forms of participation. By the conclusion of Dujail, the only evidence that the Prosecutor had presented that was suggestive of criminal misconduct involving Taha Yaseen concerned the destruction of the orchards surrounding Dujail. The contention that Taha Yaseen had chaired one or more committees tasked with co-ordinating the response of the State organs to the assassination attempt found support in the written and oral testimony of two individuals. In particular, during a hearing convened prior to the trial, Barzan Ibrahim informed an IHT investigative magistrate that Saddam Hussein had formed a committee under the chairmanship of Taha Yaseen at an indeterminate point following the assassination attempt in Dujail. Barzan Ibrahim's Office Director, Mohammed 'Alewi, represented Barzan Ibrahim on this committee. The record of the aforementioned investigative hearing suggests that Barzan Ibrahim told the investigative magistrate that Mohammed 'Alewi had informed Barzan Ibrahim that the committee resolved to raze the orchards surrounding Dujail. Barzan lbrahim is recorded as having stated during the same investigative hearing that he possessed no knowledge of whether the former Iraqi government compensated those who had lost their orchards. Likewise, Barzan lbrahim indicated that he did not know if the committee in question had made recommendations concerning the forcible displacement of several hundred citizens of Dujail to a place of internal exile.53 Ostensibly more damning was the evidence that the witness Waddah Isma'il Khalil proffered prior to the start of the Dujail trial. In 1982, Waddah Isma'il had been the Director of Investigations in the Mukhabarat. During a hearing convened
53. Record of the investigative hearing of Barzan Ibrahim Al-Tikriti, 25 January 2005, IST. A5881.001.030 - .036.
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on 27 January 2005, Waddah Isma'il, who was then in American custody, told an IHT investigative magistrate that Saddam Hussein had formed a committee under the chairmanship of Taha Yaseen and that Mohammed 'Alewi had represented the Mukhabarat. According to Waddah Isma'il, the committee in question had recommended the destruction of the agricultural lands around Dujail to a radius of one to three kilometres. Additionally, the committee had advised that the former Iraqi government send an unspecified (by Waddah Isma'il) number of persons into internal exile at Nugrat Salman, near the border with Saudi ~ r a b i a . ~ ~ The Judge (then) presiding during Dujail later questioned Waddah Isma'il under somewhat unusual circumstances. On 23 October 2005, the Trial Chamber, along with the Prosecutor, travelled to a prison infirmary to hear the evidence of Waddah Isma'il, who was by this date terminally ill. Defence counsel, whose ranks were in disarray owing to the appearance forty-eight hours earlier of the badly-beaten body of Sa'doon Enter, refused to attend the hearing. In addition, none of the accused was present. From his deathbed, Waddah Isma'il proffered information that differed on a number of key points from that recorded in his earlier statement. In particular, the witness testified that Taha Yaseen had not played a role in the response to the assassination attempt of 8 July 1982 until approximately one month after the fact. According to the witness, it was only at this juncture that the committee that was central to the Prosecution case against Taha Yaseen had come to life. Waddah Isma'il told the extraordinary sitting of the Dujail Trial Chamber that the 'main role' of the committee, 'as I remember, was to destroy the orchards in Dujail and Balad. The second role pertained to the detained families, and I don't know the details on that.' Later on the same day, Waddah Isma'il informed the Trial Chamber that 'I don't remember the details included in the proposals of the committee headed by Taha Yaseen ama ad an. 'j5 If the significant changes in the account of Waddah Isma'il between January and October 2005 with respect to the involvement of Taha Yaseen in the underlying acts troubled the Prosecutor, he did not publicly concede as much. However, it quickly became evident to those observing the trial that the Prosecution was, as the trial proceeded, in search of an alternate prosecutorial theory that would justify the continued presence of Taha Yaseen in the prisoners' box. The Prosecution called several complainants during the trial in an effort to demonstrate that Taha Yaseen had been present in Dujail in the immediate - or nearimmediate - aftermath of the assassination attempt. In particular, two complainants claimed during their appearances before the Trial Chamber to have seen Taha Yaseen in Dujail on 9 July 1982. One of the complainants had been serving in Dujail at that time as a rank-and-file member of the Baath Party militia known as
54. Record of the investigative hearing of Waddah Isma'il Khalil, 27 January 2005, IST. A5885.064.003 - ,017. 55. The testimony in question was recorded and subsequently read into the record during the second session of the Dujail trial, that is, on 28 November 2005. See testimony of the witness Waddah Isma'il Khalil as read into the record, Dujuil Trial Transcript, 28 November 2005, pp. 15-17.
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the Popular ~ r mAnother ~ . ~complainant, ~ a female who had been approximately thirteen years of age in July 1982, claimed during the trial to have recognised Taha Yaseen as one of the persons present at the Dujail Baath Party headquarters when she had been detained, along with the remainder of her family, on 9 J U ~ ~TWO .~' other complainants, whose earlier statements to IHT investigators were read into the record during the trial, testified that they had heard that Taha Yaseen had been present in Dujail shortly after the assassination attempt, and, for reasons that were not explained, these same complainants maintained that Taha Yaseen otherwise shared responsibility for the mass arrests that followed.58In light of the absence of these latter two complainants from the courtroom, the Defence was unable to cross-examine them.59 As will be discussed at more length later in this paper, it appears that what ultimately sent Taha Yaseen to the scaffold was the interference on more than one occasion of the executive branch of the Iraqi government in the Dujail proceedings. The more immediate evidentiary justification for the finding of his criminal culpability was not, in the main, testimony alleging Taha Yaseen's presence in Dujail shortly after the assassination attempt, nor was it testimony claiming that the accused had served on a quasi-security committee concerned with the razing of orchards and the forcible relocation of Dujail to a military camp in the desert. Rather, the Trial Chamber took particular cognisance of the role that the Popular Army had allegedly played in the wider response of the state to the attack upon the presidential motorcade. It will be noted below that Taha Yaseen admitted with some pride during his trial that he had been the Commander of the Popular Army throughout the 1980s. Likewise, none of the parties to the litigation disputed the fact that a small Popular Army garrison had been situated in Dujail prior to the assassination attempt and that this garrison had remained in Dujail during the campaign of arrests and other acts undertaken in response to the attempt upon Saddam Hussein's life. According to the testimony of various complainants, Defence witnesses and the accused themselves, the presence of a small Popular Army garrison in Dujail was wholly unremarkable. More to the point, based on the testimony of various complainants, witnesses and a number of the accused, it seems that in 1982 most urban centres of any size in Iraq would have had a Popular Army garrison of some sort on hand to guard municipal buildings and other structures that might be subject to attack. In this context it will be recalled that in 1982, Iraq had been at war with Iran for two years.
56. Testimony of third witness (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, p. 36. 57. Testimony of first complainant (heard on the day), Dujail Trial Transcript, 22 February 2006, p. 7. 58. Testimony of the fifth and eleventh complainants (heard on the day), as read into the record, Dujail Trial Transcript, 13 February 2006, pp. 14 and 21-22, respectively. 59. It is unclear why a large number of statements were read into the trial record in the absence of the complainants, who were never presented by the Prosecution for cross-examination.
KH. Wiley
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During the trial, numerous allegations were made concerning the involvement of the Popular Army in the underlying acts that were central to the proceedings. One complainant asserted repeatedly, although with little in the way of detail, that the Popular Army unit based in Dujail had participated in the clearance of the orchards from which the shots had been fired at the presidential motorcade on 8 July 1982.~' This complainant and others testified that Iraqi government forces had killed several men hiding inside the orchard during the attack. However, no party to the litigation ever determined conclusively whether the dead had participated in the assassination attempt or if they were, conversely, simply deserters from military service keen to avoid the frontlines in the ongoing war with Iran. Indeed, it became apparent during the trial that substantial, if unknown, numbers of men were living in hiding from the authorities in the orchards surrounding Dujail. These deserters presumably survived in the orchards with the knowledge and assistance of elements of the population of Dujail, although no evidence was adduced at trial that suggested that this presumption had influenced the response of the governmental authorities to the assassination attempt of 8 July 1982. Far more damaging to Taha Yaseen were the claims of a number of complainants to the effect that the complainants, along with members of their families, had been detained by Baath Party and General Security Directorate officials who were accompanied during the arrest operations by personnel serving with the Popular Army garrison in ~ u j a i l . The ~ ' testimony to this effect was short on detail although the Trial Chamber later relied heavily upon it in explaining its decision to convict Taha Yaseen on the charge of having committed the crime against humanity of wilful killing. Other testimony heard at trial suggested that Popular Army personnel were present during the razing of the orchards surrounding the Whilst satellite imagery included in the referral file leaves little doubt that the orchards surrounding Dujail were uniformly destroyed to an approximate depth of two to three kilometres, neither the Prosecution nor the Defence adduced evidence during the trial that made it clear beyond all doubt when the clearances had taken place.63 Despite the insignificance of the allegation concerning the destruction of agricultural lands in light of the related claims of, inter alia, torture and wilhl killing, the question of whether or not Taha Yaseen had been physically present during the razing of Dujail's orchards became a much-disputed fact during the trial. It evi-
60. Testimony of fifth complainant (heard on the day), Dujail Trial Transcript, 6 December 2005, pp. 69-70,75,77, 80-81. 61. Testimony of first complainant (heard on the day), Dujail Trial Transcript, 29 January 2006, part I , p. 20; testimony of second complainant (heard on the day), Dujail Trial Transcript, 1 February 2006, part 1, p. 25; testimony of first and second witnesses (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, pp. 10-11 and 24 (respectively). 62. For instance, see testimony of third witness (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, pp. 38-47. 63. Dates on the satellite imagery found in the referral file would suggest that the orchards were razed at an unknown point between 25 September 1982 and 3 1 July 1983.
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The case of Taha Yaseen Ramadan
dently had become commonly accepted in Dujail at some point after 1982 that Taha Yaseen had personally supervised the destruction of the orchards. No fewer than eleven complainants and witnesses called by the Prosecution claimed that they had heard that others had seen Taha Yaseen in Dujail at the time the orchards were razed.h4Only two individuals identified by the Prosecutor claimed to have seen Taha Yaseen in Dujail at the time that the orchards were razed: a former member of the Popular Army who had been serving in Dujail in 1 9 8 2 ~and ~ a farmer who gave a brief statement to investigators that was read into the record in the absence of the complainant.66Finally, a single complainant claimed during DujaiI that in October 1982 she had been shown a video of the destruction of the orchards surrounding Dujail. According to the complainant, at the time that she was shown the video she was recovering in a prison infirmary from injuries received whilst being tortured by intelligence service personnel in the detention facility in which she was then being held. The complainant claimed to have seen Taha Yaseen in the said video.67 Where the destruction of the orchards surrounding Dujail was concerned, the Prosecutor adduced additional evidence much of which could in part be interpreted in a manner favourable to the accused. For instance, on 24 April 2006, the Prosecutor played an audio recording, without warning to the Defence, on which two men could be heard speaking about the destruction of agricultural lands in Dujail as well as in the nearby city of Balad. The exchange between the speakers was exculpatory to the extent that the recording created the impression that the Iraqi authorities were then undertaking the land clearances in accordance with an urbanisation plan that was not of an ad hoc nature. The Prosecutor indicated that the voices on the tape were those of Saddam Hussein and Taha Yaseen, with the latter being the official who appeared from the recording to be responsible for the urbanisation scheme. Support for arguments that the destruction of the orchards of Dujail was related to an urbanisation scheme could be found elsewhere, for in-
64. Testimony of third complainant (heard on the day), Dujail Trial Transcript, 6 December 2005, part 2, p. 59; testimony of first complainant (heard on the day), Dujail Trial Transcript, 7 December 2005, part 2, p. 18; testimony of first and second complainants (heard on the day), Dujail Trial Transcript, 2 1 December 2005, pp. 37-38 and I61 (respectively); testimony of fifth complainant (heard on the day), Dujail Trial Transcript, 22 December 2005, part 2, p. 36; testimony of third complainant (heard on the day), Dujail Trial Transcript, 29 January 2006, part 2, p. 14; testimony of second complainant and third witness (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, pp. 6 and 28 (respectively); testimony of the eleventh complainant (heard on the day), as read into the record, Dujail Trial Transcript, 13 February 2006, pp. 21-22; testimony of the first and second complainants (heard on the day), Dujail Trial Transcript, 22 February 2006, pp. 8 and 52 (respectively). 65. Testimony of third witness (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, p. 47. 66. Testimony of witness, a read into the record, Dujail Trial Transcript, 6 March 2006, part 2, p. 3. 67. Testimony of first complainant (heard on the day), Dujail Trial Transcript, 1 February 2006, part 2, p. 15. This was the only witness who suggested that the destruction of the orchards of Dujail had been filmed with a video camera. Whilst this claim is plausible, it will be kept in mind that videorecording technology was very much in its infancy in 1982 and it is dificult to accept that the technology, if available, was used as an educational tool for political prisoners.
stance, in the statement of an erstwhile municipal land surveyor." In addition, on 28 February 2006, the Prosecutor introduced into evidence a RCC decree dated 14 October 1982 that directed the expropriation of land in the Balad and Dujail areas.69Whilst the Prosecutor claimed that this document supported his allegations concerning the unlawhl nature of the land expropriations, on the grounds that provision was made in the document for expropriation without compensation in certain circumstances, these circumstances were not set out in the document. The accused would later claim that numerous landholders in the Dujail area had not possessed clear title to the lands that they were farming and that in such cases it had not been possible for the State to offer compensation.
7.
INDICTMENT
7.1
Introduction
The Prosecution case against Taha Yaseen was built, in the main, around complainant and victim-witness testimony, much of which was of the nature of hearsay. Evidence concerning the de facto and de jure authority that Taha Yaseen had possessed in his capacity as Deputy Prime Minister - and, in particular, in his capacity as head of the Popular Army - was not introduced in the form of contemporaneously-generated documentation and, or in the alternative, by means of expertwitness testimony.70 The Prosecutor's heavy reliance upon hearsay testimony from complainants and victim-witnesses to establish a link between the crime base and the accused, who was a high-ranking official with no obvious personal or professional relationship to the peasantry of Dujail, is noteworthy on a number of grounds. Firstly, Iraqi law provides that a complainant or witness must testify 'based on facts which the witness is able to recall through one of his senses'." In a scholarly commentary on Iraqi law, the President of the IHT at the time of the Dujail trial suggested that whereas hearsay evidence was admissible, a court must examine it with consider-
68. Statement of the witness (unidentified for security reasons), undated (circa 2005), IST. A5882.072.001 - ,005. 69. Trial Transcript, 28 February 2006, p. 12; Revolutionary Command Council Order Number 1283, 14 October 1982, IST.Al655.040.001 - ,002. 70. This deficiency was correctly highlighted in Marieke Wierda and Miranda Sissons, 'Dujayl: Trial and Error?' International Center for Transitional Justice briefing paper, November 2006
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The case of Taha Yaseen Ramadan
able care.72Secondly, the large volume of hearsay testimony alleging in particular the presence of Taha Yaseen at the razing of the orchards suggested strongly that the witnesses had been refreshing the memories of one another nearly twenty-five years after the fact. In this context, it is important to note that the complainants all hailed from the same relatively small city; almost without exception they had fallen victim to the repressive policies of the Baathist regime imposed upon Dujail following the assassination attempt of 8 July 1982. It is also worth noting that during the trial American officials transported the complainants and witnesses in groups of up to twenty persons to Baghdad where they were housed together in a secure location under United States control in the International Zone - sometimes for as long as two weeks - prior to giving their testimony. This, together with the fact that all trial sessions were televised throughout Iraq at least twice on the same day as any given session (i.e., with a half-hour tape delay and again later in the evening), rendered it likely that as the trial progressed the vast majority of complainants and witnesses were aware of the underlying acts that were of especial interest to the Trial Chamber, to the Prosecution and to the Defence. The Trial Chamber and counsel for the accused could have undone much of the harm that these problems caused through careful questioning. However, the examination of complainants and witnesses by the Trial Chamber, and their cross-examination by Defence counsel was, in most cases, grossly inadequate. This unhappy state of affairs reflected first and foremost the IHT Investigative Magistrates' still nascent understanding of both the elements of the crimes and the legal requirements of the forms of participation alleged in the letter of referral. 7.2
Form and content of the indictment
This ignorance became even more profoundly evident when the eight accused were individually indicted on 15 May 2006, nearly seven months after the start of Dujail. Taha Yaseen and the other seven suspects were alleged to have perpetrated various crimes against humanity enumerated in Article 12 of the IHT Statute. In particular, Trial Chamber I claimed that Taha Yaseen was criminally responsible for acts contrary to Article 12(l)(a), (d), (e), (f), (i) and (j),that is, the crimes against humanity of wilful killing, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental norms of international law, torture, enforced disappearance of persons, and other inhumane acts of a similar character intentionally causing great suffering or serious injury to the body or to the mental and physical health. Trial Chamber I further alleged that Taha Yaseen was individually criminally liable for the aforementioned offences under the provisions of Article 15(2)(a) (individual or joint perpetration), 15(2)(b) (ordering), l5(2)(d) (common purpose), and 15(4) (com-
72. J.M. Mustafa, Investigation and Confirmation in Criminal Law (Baghdad, Al-Zaman 2004) p. 151. The volume in question was published in the Arabic language; an unofficial English translation was commissioned by the RCLO for the use of American and other advisors to the IHT.
mand or superior re~~onsibility).~~ Whilst the offences and forms of participation alleged in the indictment followed closely the claims made in the letter of referral in July 2005, it is noteworthy that the referral had not alleged criminal command responsibility pursuant to Article 15(4) of the IHT Statute. The indictments of Taha Yaseen and the other seven accused in Dujail followed a common format: a narrative of approximately one and one-half pages in length noted the position(s) that the accused had held in July 1982 before proceeding to outline the crime base, that is, the preliminary findings of the Trial Chamber with
respect to key underlying acts such as the assassination attempt upon Saddam Hussein, the subsequent mass arrests, the torture of many of those arrested, the deaths in custody of a number of the detainees, the forcible relocation of others, the trial and execution of still others and the seizure and destruction of agricultural lands. In the absence of specific counts in the indictment, it is difficult to determine whether the Trial Chamber considered the contents of the aforementioned narrative to be material facts or evidence. Put another way, the Trial Chamber did not incorporate into the narrative the Article 12 charges and the allegations concerning the individual criminal liability of the accused pursuant to Article 15 of the IHT Statute. Rather, the Trial Chamber set forth the allegations made pursuant to Articles 12 and 15 at the end of each indictment, almost by way of a conclusion. The upshot of all this is that the contents of the narrative were in no case tied clearly to any of the particular charges or alleged modes of criminal liability. Likewise, at no point in the indictments of Taha Yaseen and his co-accused did Trial Chamber I state clearly the alleged mode of criminal liability with respect to any given enumerated offence. Counsel for the accused did not challenge the form of the indictments of Taha Yaseen and his co-accused, mainly because of indifference as well as the near total ignorance on the part of Defence counsel of the substantive ICL and procedure. This oversight might also be explained by the fact that the indictments issued in Dujail were expansive in comparison to pre-war as well as current Iraqi standards. The 1971 Procedural Law provides that indictments must inform the accused person of the place and time of the commission of the offence, describe the offence, name the victim and provide details concerning how the offence was committe~l.'~ Similar provisions are found in the IHT Statute, which states that the IHT must inform an accused person in detail of the content, nature and cause of the charge(s) against him.75It was clear at the time that the Dujail indictments were issued by Trial Chamber I that the Trial Chamber had made a good-faith effort to meet these requirements and, in the process, it might be said that the Trial Chamber conformed to the demands of Iraqi law. However, difficulties arose because the relevant Iraqi criminal procedural law, including the IHT Rules setting out the re-
73. Indictment, Taha Yaseen Ramadan, issued by IHT Trial Chamber I, 15 May 2006. 74. Para. l87(a), 197 1 Procedural Law. 75. Art. 19(4)(a), IHT Statute.
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The case of Taha Yaseen Ramadan
quisite form and content of indictments, is manifestly unsuited to litigation arising from alleged violations of ICL. Whilst the indictment of Taha Yaseen arguably conformed to the requirements of Iraqi law, there can be no doubt that its form and content did not meet international standards. The result was that the accused was insufficiently informed by the indictment of the case he was meant to answer. Viewed from the perspective of a large body of findings by the Trial and Appellate Chambers of the ad hoc Tribunals, the deficiencies in the form of the indictment of Taha Yaseen are too numerous to cite in toto. Simply put, the minimum requirement identified by international tribunals that an indictment 'must fairly apprise the accused of the nature of the case against him, and place him in possession of its broad outlines and the facts which constitute his responsibility'76was not met. It will be recalled that a suspect can be indicted under Iraqi law only by the presiding judge following the presentation by the Prosecutor of all extant inculpatory evidence concerning the suspect. In light of this requirement, it was impossible to understand when the indictments were issued - and it remains difficult to grasp even upon reflection - why certain material facts (or something akin thereto) were pleaded by the Trial Chamber in the indictment of Taha Yaseen. For instance, it was alleged by Trial Chamber I that 'detainees were subject to torture by intelligence officers under your direct orders'. The Prosecution made no such allegation during the trial and the Prosecutor adduced no evidence in support of this factual allegation. Elsewhere in the indictment the Trial Chamber asserted that 'the bodies of the dead were hidden and not returned to their families, and the fates of several others remain unknown'. This allegation was presumably the foundation of the charge of enforced disappearance, contrary to Article 12(l)(i). However, at no time during the enquiry phase of the trial, or, for that matter, at any point during the trial, did the Prosecution adduce evidence that suggested that Taha Yaseen had been party to such a crime. The more important point is this: these and other grievous errors in the indictment had the effect of forcing counsel for Taha Yaseen to expend resources in defending their client against allegations that the Trial Chamber should have known lacked substantiation. Whereas the Appellate Chamber of the ICTR, amongst other international adjudicative panels, had warned against this it would have been too much to expect the Dujail Trial Chamber to have known as much in light of the fact that the ICL training provided to the members of the Dujail Trial Chamber had not focussed upon the niceties of international criminal procedure. In the main, the training that had been organised for the IHT
76. Prosecutor v. Brdanin and Talid, Decision on Objections by Radoslav Brdanin to the Form of the Amended Indictment, Trial Chamber, ICTY, para. 13. In a similar vein, see Prosecutor v. Pavkovid and Others, Decision on Vladirnir LazareviC's Preliminary Motion on Form of Indictment, Trial Chamber, ICTY, para. 5; Prosecutor v. Semanza, Trial Judgement, ICTR, para. 44; Prosecutor v. Krnojelac, Trial Judgement, ICTY, paras. 130-13 1; and Prosecutor v. KupreikiC, Appeals Judgement, ICTY, paras. 88, 92. 77. This is the author of this paper's reading of Prosecutor v. Rutaganda, Appeals Judgement, ICTR, para. 303.
WH. Wiley Judges by the United States Department of Justice Regime prior to Dujail considered only substantive ICL. 7.3
207
Crimes Liaison Office
Deficiencies with respect to the allegations made pursuant to Article 15
The allegation found in the indictment that there existed aprima facie link between Taha Yaseen and organs of the Baathist regime such as the Mukhabarat with which the accused had enjoyed no formal connection created confusion within the ranks of the Defence (or, at any rate, in the mind of the International Law Advisor as. this confusion stemmed signed by the IHT to assist the ~ e f e n c e ~In~ )particular, from the fact that the Prosecution had made little if any effort to link the crime base presented during the enquiry phase of the trial either to Taha Yaseen or to the formal offices that Taha Yaseen had held during the 1980s, that is, the offices of First Deputy Prime Minister and Commander of the Popular Army. This deficiency reflected the broader problems that the trial and appellate judges assigned to the IHT had (and continue to have) in understanding the modes of individual criminal liability provided for in ICL that are also set forth in Article 15 of the IHT Statute. The limited understanding of Article 15 shown by Trial Chamber I during Dujail was reflected in the failure to plead in the indictment material facts relevant to the allegations that Taha Yaseen was criminally responsible for all of the Article 12 offences enumerated in the indictment under the provisions of (with respect to each enumerated crime) Article 15(2)(a), (b) and (d) as well as Article 15(4). It must be granted that the jurisprudence of the ad hoc Tribunals lends support to the decision of the Dujail Trial Chamber to plead more than one mode of criminal liability in the indictment of Taha ~ a s e e nHowever, .~~ as the Appeals Chamber found in Aleksovski, 'it is preferable [to] indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged'.'' Likewise, in BlaSkid the ICTY Appeals Chamber noted that the particular forms of participation must be pleaded 'with respect to each incident under each count.'81 Regardless, Trial Chamber I could not do this in Dujail because, in drafting the indictments of Taha Yaseen and his co-accused, the Trial Chamber had failed to include individual counts in the indictment(s). The non-conformity of the indictment of Taha Yaseen to international standards was egregious where the allegations of individual criminal responsibility set forth in Article 15(2) of the IHT Statute were concerned. For instance, a form of participation akin to conspiracy was alleged in the indictment by the reference to Article 15(2)(d). However, the related requirement that the ICTY Appeals Chamber identi-
78. The author of this paper. 79. Prosecutor v. KvoEka, Appeals Judgement, ICTY, para. 29. 80. Prosecutor v. Aleksovski, Appeals Judgement, ICTY, para. 17 1, n. 3 19. See also Prosecutor v. Kmojelac, Appeals Judgement, ICTY, paras. 134, 138. 81. Pro.recutor v. BlaSkiC, Appeals Judgement, ICTY, para. 226.
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The case of Taha Yaseen Ramadan
fied in SimiC that 'joint criminal enterprise must be specifically pleaded in an indictment' was not met.82Additionally and most significantly, in light of the later findings of the Dujail Trial Chamber in its Judgement, the indictment of Taha Yaseen failed to plead the minimal material facts necessary to support allegations of criminal command responsibility. Drawing upon a number of earlier decisions and judgements, the ICTY Appeals Chamber in BlaikiC summarised these minimal requirements as follows: (a) (i) that the accused is the superior of (ii) subordinates sufficiently identified [in the indictment], (iii) over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct - and (iv) for whose acts he is alleged to be responsible. (b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates, and (ii) the related conduct of those others for whom he is alleged to be responsible. The facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior [. . .I. (c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them."
The failure of Trial Chamber I to meet these minimal requirements was, in turn, compounded by the fact that the indictment did plead material facts concerning the conduct but not the identity of persons who had allegedly been subordinate to the accused at the time the underlying acts were perpetrated.84As the Trial Chamber found in Milutinovid, the 'failure to plead the identity of the physical perpetrators prejudices the Accused's ability to prepare a defence'.85 Additionally, there were no pleadings in the indictment of Taha Yaseen (and, indeed, the Prosecution adduced no relevant evidence during the trial) concerning the accused's mens rea at the time of the perpetration of the underlying acts. This omission ran counter to a considerable body of international jurisprudence setting out the requirement that material facts relevant to the mens rea of an accused person must be pleaded,
82. Prosecutor v. Simid and Others, Appeals Judgement, ICTY, para. 22. See also Prosecutor v. Brdanin and TaliC, Decision on Objections by Momir TaliC to the Form of the Amended Indictment, Trial Chamber, ICTY, para. 12. 83. Prosecutor v. BIaSkid, Appeals Judgement, ICTY, para. 218. 84. Ibid., para. 21 6. 85. Prosecutor v. Milutinovid and Others, Decision on Defence Motions Alleging Defects in the Form of the Proposed Amended Joinder Indictment, Trial Chamber, ICTY, para. 10.
directly or by inference, criminal responsibility.86 7.4
in those portions of an indictment alleging individual
Relationship of international procedure to Iraqi domestic law
The extent to which the aforementioned failure to conform to international standards ought to have concerned the Trial Chamber - that it will be recalled was the source of the indictments is something that remains to be seen. The IHT Trial and Appellate Chambers have never resolved the extent to which the findings of international criminal tribunals - in particular, the ICTY and the ICTR - are binding upon the IHT. The IHT Statute provides merely that '[iln interpreting Articles 11, 12 and 13 of this Law, the Trial Chamber and Appellate Chamber may resort to the (relevant) decisions of international criminal tribunal^.'^^ Whilst the Dujail Trial Chamber had a good deal of jurisprudence from international courts made available to it during pre-trial training sessions as well as in the form of briefs prepared by the Defence Office, the Judgement that the Dujail Trial Chamber later delivered suggested that the relevant international jurisprudence had, in the main, not been a significant factor during deliberations. Where the indictment of Taha Yaseen in particular was concerned, it appeared that Trial Chamber I did not consider itself to be under any obligation in drafting judgements rooted in substantive ICL, to conform to the procedural requirements identified by the ad hoc ~ribunals.@ In light of (1) the lower threshold that the relevant domestic law imposed (and continues to impose) upon the trial chambers of the IHT concerning the drafting of indictments, and (2) absent an obligation upon the same trial chambers to conform to international standards in the drafting of indictments alleging ICL violations, it is difficult to see how the IHT could (and can in future) afford accused persons the requisite measure of fairness at this important juncture of IHT proceedings. Whereas the Dujail Trial Chamber met the strict procedural requirements set forth in Iraqi law when indicting Taha Yaseen, the requirements of fair notice to the accused, that a large number of international decisions and judgements have identified as fundamental, were not met. The result was a charging instrument that was in accordance with the applicable Iraqi law but that was grossly insufficient as a means of informing the accused of the case that he was expected to answer. -
i
7
86. For instance, see Prosecutor v. BlaSkid, Appeals Judgement, ICTY, para. 219; Prosecutor v. PavkoviC and Others, Decision on Vladimir LazareviC's Preliminary Motion on Form of Indictment, Trial Chamber, ICTY, para. 8; Prosecutor v. MeakiC and Others, Decision on DuSko KnezeviC's Preliminary Motion on the Form of the Indictment, Trial Chamber, ICTY, p. 4. 87. Art. 17(2), IHT Statute. 88. This was most certainly the case during Anfal, where the Defence objected to indictments which had even more severe deficiencies in their form and content than had been witnessed during Dujail. In the event, Trial Chamber I1 did not respond to the relevant Defence submission(s).
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The case of Taha Yaseen Ramadan
8.
THE DEFENCE PHASE OF THE TRIAL
8.1
Introduction
In the Dujail Judgement, Trial Chamber I observed that it had 'noticed during the trial's hearings that the defence panel more than once set out to create conhsion and disorder inside the c o u r t r ~ o m ' Additionally, .~~ the Trial Chamber noted 'with regret and alarm [. ..] the obvious perjury of some of the defence's witnesses and the possible collusion [. ..] between some of the defence attorneys and those witnes~es'.~' Trial Chamber I was correct in its assertion that counsel for some, but not all, of the accused had sought on a number of occasions to disrupt the proceedings. Several (but not all) of the lawyers representing Saddam Hussein and Barzan Ibrahim had indeed been party to a ham-fisted scheme to mislead the Trial Chamber through the provision of false testimony. This led to the detention of four Defence witnesses upon the orders of the presiding Judge. These witnesses subsequently confessed to an Iraqi judge, and later to foreign personnel assigned to the IHT, that agents as well as counsel acting on behalf of certain of the accused had told the witnesses to testify during trial to facts that the witnesses either knew nothing about or that the witnesses knew were false. Iraqi Police serving in the IHT building arrested at least one of these witnesses when the latter was still in the possession of briefing notes that had quite clearly not been prepared by the witness in his own hand. The subsequent investigation into the alleged perjury determined that a person other than the witness had prepared the notes, that the witness had taken the notes into the witness box when he went to testify during Dujail, and that during his (false) testimony the witness had consulted the instructions given to him by
other^.^' It became apparent following the trial that instructions given by Saddam Hussein to his counsel to mount what Saddam termed a 'political defence' were one of the roots of these disruptive and occasionally unlawful Defence tactics.9zThe 'political defence' instruction, in turn, gave rise to innumerable rows in the courtroom and sometimes distasteful behaviour on the part of a small number of Defence
89. Dujail,Trial Judgement, p. 11. 90. Ibid., pp. 11-12. 91. Foreign advisors to the IHT subsequently arranged the release of the four detained witnesses and offered them passage from Iraq for their own safety. Upon their arrival in Damascus, Syria, the witnesses claimed (at a press conference that counsel for Saddam Hussein had arranged) that they had been tortured by Iraqi security officials whilst in custody. These claims were manifestly false as foreign advisors to the IHT, including the author of this paper, monitored throughout the brief detention and questioning of the witnesses. 92. Meeting between Saddam Hussein Al-Tikriti and the author, 26 November 2006. Rule 21(3) of the IHT Rules sets forth that non-Iraqi experts assigned to the Defence Office 'may not take any action that would stem from an attorney-client relationship with a suspect or an accused, including representing a suspect or accused person in any proceedings before the IHT'. The point that the author wishes to make is that he did not at any time enter into a de jure or defacto attorney-client relationship with Saddam Hussein or any other accused before the IHT.
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counsel. For instance, during one trial session, Bushra Khalil, who was representing Taha Yaseen, unfurled a poster portraying detainee abuse at American hands at Abu Ghraib prison. She escaped incarceration for contempt only through the intercession with the Trial Chamber of certain of the foreign advisors to the I H T . ~ ~ Nonetheless, this same lawyer, when allowed back into court some weeks later, proceeded to lose her temper straightaway when the presiding Judge admonished Bushra Khalil for her earlier behaviour. This culminated in another shouting match during which Bushra Khalil removed her lawyer's robe and threw it at the Bench. She was again fortunate to escape arrest, although on this occasion the IHT barred Bushra Khalil from Dujail as well as the IHT courthouse. Suffice it to say that the courtroom behaviour of Bushra Khalil did nothing to advance the defence of her client. Whilst the remainder of the legal team representing Taha Yaseen observed the dictates of courtroom decorum, in preparing the defence of their client they failed to focus squarely upon both the elements of the crimes and the legal requirements of the forms of participation alleged in the indictment. Whether they were properly behaved or not, for all intents and purposes Taha Yaseen's retained counsel did little if anything to proffer a meaningful defence. 8.2
Account of the accused
In contrast to his counsel, Taha Yaseen proved to be an articulate, if not in every instance effective, advocate in his own defence. He displayed an intuitive grasp of the weaknesses of the Prosecution case and seemed to sense where the evidence posed a threat to him. When the Trial Chamber afforded Taha Yaseen the opportunity to speak, in particular during the enquiry phase of the trial (in keeping with Iraqi criminal trial procedure94),he energetically rejected the allegations made by the Prosecutor. The accused was particularly adamant that he had not served on a security committee charged with responding to the assassination attempt in Dujail and he asserted repeatedly that 'I was not given an official assignment in this case. He [Saddam] did not give me any orders.'95To buttress these claims, Taha Yaseen sought to discredit their principal source, that is, the Prosecution witness Waddah Isma'il. Taha Yaseen correctly pointed out at several points during the trial that Waddah Isma'il had been inconsistent in his account of the role allegedly played
93. Whilst in the International Zone, Defence counsel were (and shall remain at least until the autumn of 2008) under the protection of United States forces. American officials assisting the IHT would not permit the incarceration of IHT Defence under any circumstances whilst counsel were under United States protection. This policy saved a number of Defence counsel appearing before the IHT from incarceration on the grounds of outlandish courtroom behaviour. Moreover, at least one other privately-retained Defence lawyer avoided detention notwithstanding information that the lawyer in question was closely associated with ethnic-Sunni militia then fighting American forces in western Iraq. 94. Para. 167, 1971 Procedural Law. 95. Testimony of Taha Yaseen, Dujail Trial Transcript, 13 March 2006, p. 110.
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by Taha Yaseen in the repression of the population of Dujail. He additionally claimed that Waddah Isma'il, who was terminally ill, had been promised by unnamed Iraqi and American officials that he would be released from custody in exchange for his testimony.96 The accused never substantiated this allegation, which may have been made with an eye to his political constituency. However, Taha Yaseen was substantially correct in observing that, when interviewed on his deathbed by the presiding Judge on 23 October 2005, Waddah Isma'il had indicated that his earlier and most damaging claims concerning Taha Yaseen were of the nature of hearsay.97 More generally in his own defence, Taha Yaseen pointed out that in his capacity as First Deputy Prime Minister he had enjoyed no formal relationship with the security forces.98According to the accused, he had known nothing about the assassination attempt until Saddam Hussein had telephoned him (Taha Yaseen) at his home with the news several hours after the attack. Saddam Hussein hrther indicated during this conversation, or so Taha Yaseen claimed, that if he (Taha Yaseen) was interested in learning more about what had occurred, the information could be gleaned from security oficials at the National Assembly. Taha Yaseen testified that he had duly travelled to that location where he was briefed by Fadhil Al-Barak and others. Fadhil Al-Barak was at that time the head of the General Security Directorate. According to the accused, his (Taha Yaseen's) advice had neither been sought nor proffered during his visit to the National Assembly; and, in his testimony, Taha Yaseen stated that during subsequent meetings with Saddam Hussein, the Dujail assassination attempt, and the response of the regime thereto, had never been menti~ned.~~ Taha Yaseen likewise rejected or otherwise qualified other aspects of the Prosecution case against him, for instance, he asserted that he had not visited Dujail in the immediate aftermath of the assassination attempt.Io0He similarly dismissed claims that he had personally supervised the destruction of the orchards surrounding Dujail, characterising assertions to the contrary as nonsensical in light of the senior appointments that he had held at the time that the orchards were razed.lO' However, Taha Yaseen did take responsibility for the destruction of the orchards in Dujail. In particular, he claimed that the land clearances had been part of a region-wide urbanisation project, that encompassed as well the nearby city of Balad. According to Taha Yaseen, both prior to and after the assassination attempt in Dujail, he had overseen numerous urban renewal projects of this nature through-
96. Ibid.,pp. 117-119, 124, 126-128. 97. Ibid., p. 124. 98. Ibid., p. 119. 99. Ibid., pp. 120-121, 133. Fadhil Al-Barak was later executed by the Baathist regime for reasons unrelated to the Dujail incident. 100. Ibid., p. 117. 101. Ibid., p. 119; remark by Taha Yaseen, Dujail Trial Transcript, 22 December 2005, part 3, p. 10.
out 1raq.Io2The accused maintained that whereas the State had expropriated the land to facilitate the completion of these projects, the landowners were in every case compensated for their losses - in Dujail and elsewhere.Io3Put another way, Taha Yaseen argued that there was nothing unlawhl about the expropriation and destruction of the orchards surrounding Dujail, and that these expropriations and destruction had been wholly unrelated to the attempt upon the life of Saddam Hus-
sein. The question of whether the destruction of the orchards of Dujail constituted a criminal act was largely irrelevant. Insofar as the Trial and Appellate Judgements in Dujail can be understood in translation, what ultimately cost Taha Yaseen his life was his association with the Popular Army, that is, his command of the Baath Party militia. During the trial, Taha Yaseen remained largely silent on the role, if any, played by Popular Army personnel in Dujail in the hours and days following the assassination attempt. However, the accused did concede early in the trial, as it turned out somewhat unwisely, that he was 'very proud of being [sic] the head of the most powerfbl army in the Arab world, the one that defeated the 1ranians'.Io4 Later during the trial, the accused asserted that whereas it had fallen to him to mobilise Popular Army units, he had not had anything to do with the deployment of Popular Army units in Dujail or elsewhere.lo5The transcript of the trial suggests that neither the Prosecutor nor the Trial Chamber pursued this particular point, that is, the question of whether or not Taha Yaseen, in his capacity as Commander of the Popular Army, had enjoyed operational control over individual units. Nor did the Prosecutor and the Trial Chamber pursue the assertion made by Taha Yaseen that he could not have known about 'little things', that is, the actions of individual units. In particular, the accused argued that '[gluarding is a local duty, so I do not have to know about it. In every army, there are Commanders and officers with the authority to perform their duty on their own without notifying the general Commander for every little thing.'lo6
8.3
Defence witnesses
In the first instance, counsel retained by Taha Yaseen proposed to call only two witnesses on behalf of their client: Saddam Hussein and the half-brother of Saddam, Barzan Ibrahim. It was the aim of counsel to have Saddam Hussein and Barzan Ibrahim testify that Taha Yaseen had not had anything to do with the re-
102. Remarks by Taha Yaseen, Dujail Trial Transcript, 24 May 2006, pp. 136-139; remarks by Taha Yaseen, Dujail Trial Transcript, 13 June 2006, part 2, pp. 19-20. 103. Testimony of Taha Yaseen, Dujail Trial Transcript, 13 March 2006, p. 121-122. 104. Remarks by Taha Yaseen, Dujail Trial Transcript, 22 December 2005, part 3, p. 10. 105. Testimony of Taha Yaseen, Dujail Trial Transcript, 13 March 2006, p. 120. 106. Ibid., p. 148.
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sponse of the regime to the attempt upon the life of the-then president.'07 Whilst Saddam Hussein and Barzan Ibrahim eventually spoke on behalf of Taha Yaseen, they did not formally do so as witnesses, the presiding Judge having rejected the idea at the outset that persons accused in a trial could testify on behalf of another accused in that same process.'08 In the event, counsel for Taha Yaseen called only one witness, that is, another half-brother of Saddam, Sab'awi Ibrahim, who was then held in the same prison facility as those accused in Dujail. The relevance of the testimony of Sab'awi Ibrahim was never apparent and no reference was made to his testimony in the Trial ~ u d ~ e m e n t . " ~ A number of witnesses for the other accused, as well as several co-accused, spoke in support of Taha Yaseen. During the trial and prior to the issuance of the indictments, Barzan Ibrahim claimed that he had never told IHT investigators that Taha Yaseen had headed a security ~ornmittee."~ Saddam Hussein, in an act of selflessness that was likely unhelpful, testified that '[alnything comrade Taha Yaseen Ramadan says is true and you can disregard anything I say if it contradicts what he says'."' The testimony of Tariq Aziz, the erstwhile Foreign Minister, was presumably of more relevance to the extent that Tariq Aziz proffered a modicum of contextual evidence - an exceedingly unusual occurrence during Dujail. In particular, Tariq Aziz noted that when Taha Yaseen had been First Deputy Prime Minister, a post that Tariq Aziz later held, he (Tariq Aziz) had been Second Deputy Prime Minister. During his testimony, Tariq Aziz made a number of potentially important assertions. For instance, he testified that the formal duties of the First Deputy Prime Minister had been unrelated to the functions performed by the security services (in particular the General Security Directorate) and a First Deputy Prime Minister was not possessed of the 'official authority to interfere' in security matters. Tariq Aziz added that he knew nothing of Taha Yaseen nor any other member of the RCC having been assigned extraordinary tasks arising from the assassination attempt. Finally, Tariq Aziz noted that Taha Yaseen, in his capacity as First Deputy Prime Minister, had in the main been responsible for urban renewal projects across 1raq.'12For their part, the lower-ranking co-accused of Taha Yaseen testified that Taha Yaseen had not been present in Dujail, or at any rate the witnesses stated that they had not seen him in Dujail in the hours and days following the assassination attempt.'13
107. The International Law Advisor assigned by the IHT to assist the Defence (i.e., the author of this paper) suggested that counsel choose from several alternative routes to the same objective, although this advice was rejected. 108. Dujail Trial Transcript, 17 May 2006, part 2, p. 11. 109. Testimony of Sab'awi Ibrahim, Dujail Trial Transcript, 13 June 2006, part 1, pp. 44-59, and part2, pp. 1-13. 110. Testimony of Barzan Ibrahim, Dujail Trial Transcript, 15 March 2006, part 2, p. 9. 111. Testimony of Saddam Hussein, Dujail Trial Transcript, 5 April 2006, part 1, p. 17. 112. Testimony of Tariq Aziz, Dujail Trial Transcript, 24 May 2006, pp. 50,70, 156-157, 159. 113. Testimony of Mizhir 'Abdallah and Ali Dayih, Dujail Trial Transcript, 12 March 2006, part 1, pp. 34, 60.
When examining witnesses called by others accused in Dujail,counsel for Taha Yaseen focussed virtually all of their energies upon the question of whether their client had been physically present during the destruction of the orchards of Dujail. The near fixation of Defence counsel on this question was at first glance illogical to the extent that a conviction on the relevant charge would at worst (from the perspective of Taha Yaseen) have given rise to a modest custodial sentence. However, the energies expended by the Defence in rejecting Prosecution claims that Taha Yaseen had been physically present during the destruction of the orchards became understandable when trial observers kept in mind that the Iraqi jurists participating in Dujail possessed only a limited understanding of the legal requirements of the forms of participation set forth in Article 15. More to the point, no party to the litigation displayed more than a basic understanding (and some not even that) of the fact that accused persons who had held senior political or military appointments could be convicted only after the Prosecutor had adduced sufficient evidence - that is, 'linkage evidence' connecting the accused to the underlying acts (i.e., the crime base) in accordance with all the legal requirements of one or more of the forms of participation set forth in Article 15 of the IHT Statute. There is no requirement for a Prosecutor to demonstrate that an accused person was in immediate physical proximity to the scene of the alleged crime for there to be a finding of individual criminal responsibility. Conversely, it does not automatically follow upon proof of physical proximity that an accused person is criminally liable. In the main, these considerations escaped most of the jurists involved in Dujail. The actions of the Trial Chamber, the Prosecution and the Defence did suggest that all three bodies possessed the capacity to deal with cases where simple murder, theft and other domestic crimes were alleged, that is, crimes where the accused was the physical author of the underlying act. However, all of the Iraqi jurists who participated in Dujail,as well as most of the foreign counsel retained by the accused, struggled mightily with the question of how an accused person might be tied to (or, in the case of the Defence, distanced from) underlying acts that had not occurred in immediate physical proximity to the a c ~ u s e d . "There ~ was in the main very little indication during the trial that any of the retained Defence counsel who appeared in Dujail grasped the rudiments of the forms of participation set forth in Article 15. This seems to be the most likely explanation for the inordinate amount of energy that was expended by retained counsel on the question of whether or not Taha Yaseen had been physically present in Dujail when the orch-
114. For instance, the Trial Judgement, in reviewing the Defence of Taha Yaseen, focussed heavily upon testimony concerning the question of whether Taha Yaseen had been present in Dujail immediately after the assassination attempt and, or in the alternative, during the destruction of the orchards. No reference was made to the exculpatory linkage evidence proffered by Tariq Aziz, as modest as it was. However, the Trial Judgement did take note of a Defence witness who had testified that the Popular Army unit in Dujail had been involved in the search of the orchards for the would-be assassins. See Dujail,Trial Judgement, 36 pp. 209-21 1.
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ards were razed."' Simply put, while counsel for Taha Yaseen were able to grasp the root of these allegations, they did not appear to understand how their client could be accused of responsibility for underlying acts that had been perpetrated by others at considerable physical distance from their client. Occasionally, this near obsession with the issue of the destruction of the orchards came together with the collective ignorance of the law set forth in Article 15 to give rise to tragi-comic moments. For instance, at one point during the trial Saddam Hussein intervened on behalf Taha Yaseen, proclaiming 'I bulldozed Dujayl's orchards, so why are you after Taha Yaseen Ramadan [. ..] and arguing about this and that?'li6 If he had to intervene in such a manner - as the erstwhile President was wont to do, to the detriment of his own cause as well as that of whomever it was that Saddam Hussein was trying to assist - Saddam Hussein would have done better to have spoken to the formal responsibilities of a First Deputy Prime Minister and the former Commander of the Popular Army. For their part, counsel for Taha Yaseen remained silent on these questions throughout the trial. The Defence did not adduce evidence concerning Taha Yaseen's erstwhile role as Commander of the Popular Army. Aside from the testimony proffered by Tariq Aziz, the formal responsibilities of a First Deputy Prime Minister were not examined, either through witness testimony or by means of documentary evidence. This oversight would prove most unfortunate for Taha Yaseen."' 8.4
Closing arguments
On 19 June 2006, the Prosecutor read his closing argument during the course of which he levelled various allegations against seven of the eight a c c ~ s e d , "includ~ ing Taha Yaseen. In particular, the Prosecutor maintained that there was sufficient proof l 9 that Taha Yaseen had chaired a security meeting at the National Assembly building on the day of the assassination attempt; that Taha Yaseen had been present
115. For instance, see testimony of Ali Dayih, Dujail Trial Transcript, 12 March 2006, part 1, pp. 60-61, part 2, p. 15; testimony of Mohammed Azzawi, Dujail Trial Transcript, 13 March 2006, pp. 8-9, 49-50; protected witness testimony, Dujail Trial Transcript, 15 May 2006, pp. 151-152; protected witness testimony, Dujail Trial Transcript, 16 May 2006, part 1, pp. 24, 46, part 2, p. 41; protected witness testimony, Dujail Trial Transcript, 17 May 2006, part 1, p. 19; testimony of Mohammed Ziman 'Abd-al-Razaq, 29 May 2006, Dujail Trial Transcript, part 2, pp. 21-24; testimony of Mahmoud Diyab, Dujail Trial Transcript, 29 May 2006, part 3, pp. 33-35. 116. Remark of Saddam Hussein, Dujail Trial Transcript, 1 March 2006, part 2, pp. 17-18. 117. This oversight could have been avoided to the extent that counsel for Taha Yaseen were advised repeatedly by the author of this paper to find and examine, as a minimum, whatever laws and decrees would have shed light upon the formal authority that had been enjoyed by their client in July 1982. 118. The Prosecutor called for the acquittal of the accused Mohammed Azzawi on the grounds of insufficient evidence. 119. The requisite level of proof for a conviction under Iraqi criminal law is proof 'to a degree of moral certainty'. According to Iraqi jurists, including a number of IHT Judges, this requirement is akin to 'proof beyond a reasonable doubt'. Guidance on the Iraqi standard of proof can be found in J.M. Mustafa, Criminal Procedure Law (Baghdad, Al-Zaman 2004) pp. 143-144. The volume in question
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in Dujail in the hours and days following the assassination attempt; that Popular Army personnel, under the overall command of Taha Yaseen, had participated in the effort to flush the alleged would-be assassins from the orchards surrounding the city; that Popular Army personnel, under the overall command of Taha Yaseen, had participated in the campaign of mass arrests undertaken shortly after the assassination attempt; and that Taha Yaseen had subsequently ordered, and personally
overseen, the punitive destruction of the orchards surrounding ~ujai1.l'~ It was the view of the Prosecutor that the evidence warranted the conviction of the accused for the Article 12 crimes enumerated in the indictment. The Prosecutor did not touch upon the Article 15 basis for the alleged guilt of Taha Yaseen. He did, however, call for a sentence of death.'" The trial was thereupon adjourned to 10 July to give counsel for the accused time to prepare their closing arguments. At approximately 0700 hours on 21 June 2006, armed men claiming they were police officers and carrying what appeared to be police identification appeared at the home of one of the lawyers for Saddam Hussein, Khamees Al-Ubaidi, who was resident in Baghdad outside of the International Zone, that is, in the so-called Red Zone. Those who had arrived at the house informed Khamees Al-Ubaidi and his spouse that the Defence lawyer was wanted for questioning at the Ministry of Interior, whereupon he was taken away by the armed men. The bullet-ridden body of Khamees Al-Ubaidi was discovered several hours later in a Baghdad street. A number of days later, a video recording of the final moments of the life of the victim appeared on various websites.lZ2 Khamees Al-Ubaidi had consistently refused to take advantage of the security arrangements that had been made available to counsel for the accused in the wake of the earlier killings of Defence counsel; the victim had been warned by American officials serving with the RCLO that his habit of returning to his home in Baghdad between trial sessions was highly inadvisable. As was (and remains) so often the case in Baghdad, the worst-case scenario came to pass. The loss was particularly tragic to the extent that Khamees Al-Ubaidi had a number of young children. The colleagues of the victim - that is, other counsel for Saddam Hussein seized upon the demise of Khamees Al-Ubaidi as the pretext for another boycott of the trial proceedings. It quickly became clear that counsel for Taha Yaseen and Awad Hamad were not wholly in agreement with this latest boycott. There were a number of reasons for this. Some of the reasons were personal, for instance, Awad Hamad was represented by a family member. In other cases, initial resistance to the boycott was motivated by financial considerations. In particular, counsel for Taha Yaseen had been paid half of their fees at the outset of the trial;
was published in the Arabic language; an unoficial English translation was commissioned by the RCLO for the use of American and other advisors to the IHT. 120. Closing Argument of Prosecutor Jaffer Al-Moussawi, 19 June 2006 (English translation), pp. 2-3,5, 12-13. 121. Ibid., pp. 17-18. 122. Out of respect for the family of the deceased, reference will not be made to the websites upon which the video was posted.
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it was understood by the individual members of the Defence team that they would receive the balance of their remuneration where they remained present on the Defence team at the conclusion of Dujail. At an early point during this latest boycott, a retained Defence lawyer informed the International Law Advisor assigned to the Defence that counsel retained by various accused who faced financial loss in the event that they joined the boycott were being compensated from funds under the control of the family of Saddam Hussein. The same Advisor was informed by other retained Defence counsel that they had been forced into joining the boycott by implicit threats received from their colleagues on the Defence team of Saddam Hussein. Determining whether counsel for Taha Yaseen would appear despite the Saddam-ordered boycott proved tortuous. One of the lawyers for Taha Yaseen, who was working on a split-fee basis, had initially been overlooked when compensation was offered by the family of Saddam Hussein to Defence counsel facing financial loss if they joined the boycott. As the individual who had been overlooked expected to be paid a substantial (by Iraqi standards) sum of money if he was present in court at the end of the trial, the Defence lawyer in question informed the International Law Advisor assisting the Defence that he (the lawyer retained by Taha Yaseen) would indeed be present during Defence closing arguments. At the same time, the Defence lawyer made it clear that he would not be putting forward a closing argument on behalf of his client. Appearing and proffering no defence was apparently this individual's solution to the difficulty of attempting to conform to the boycott demanded by Saddam Hussein whilst ensuring that the Defence lawyer was paid by his client in accordance with their earlier agreement concerning remuneration. The Advisor assigned to the Defence greeted the lawyer's proposal with a good deal of heated discussion about professional ethics; ultimately, the crisis ended when the man in question was compensated sufficiently by the family of Saddam Hussein that he departed from Baghdad, leaving to others the last-minute defence of his client on charges that carried the death penalty. Upon the departure of the last remaining lawyer retained by Taha Yaseen, a court-appointed lawyer assumed responsibility for the representation of the accused. In response to earlier Defence boycotts during Dujail, the IHT had retained a number of Iraqi lawyers that it thereupon assigned to the Defence Office as duty or standby counsel. This creation of a pool of duty counsel had been designed (1) to lessen the incentive of retained counsel to engage in boycotts and (2) to ensure that the trial continued notwithstanding any walk-outs on the part of retained counsel. To this point in the trial, neither the efforts of the Prosecution nor those of counsel retained by Taha Yaseen had conformed to the standards hoped for by the various foreign advisors to the IHT, including the author of this paper, who had approached Dujail as a rule-of-law project and were keen to ensure due process to the extent possible under the conditions prevailing in Iraq. In the wake of the latest boycott, it was the view of the International Law Advisor assigned by the IHT to the Defence that there was little that could be done by duty Defence counsel for Taha Yaseen at the eleventh hour - that is, on the eve of closing arguments - other than to try to argue that the elements of the alleged crimes and the
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legal requirements of the forms of participation had not been proved by the Prosecution to the necessary degree for a conviction. Fashioning such an argument was no easy task in light of the form of the indictment, which did not lend itself readily to a Defence closing brief that might pick away at unproved material facts as well as the Prosecution's failure to demonstrate to the requisite level of proof the elements and legal requirements required for a conviction on any given count. As has already been discussed at some length above, the indictment of Taha Yaseen was largely bereft of material facts and contained not a single count. The International Law Advisor assigned to the Defence additionally perceived at the time that these problems were likely to be exacerbated by the fact that the Trial Chamber remained largely unfamiliar with the substantive law found in Articles 12 and 15. On top of all this, there was at this juncture no trial transcript and it was therefore difficult to determine with complete certainty what evidence had been adduced during the In the few days available to it - which amounted to less than one week - the team assembled to prepare a closing argument on behalf of Taha Yaseen did what it could under the prevailing circumstances. The refusal of the accused to instruct counsel appointed in the absence of the lawyers whom Taha Yaseen had retained and paid to represent him amplified this disadvantageous ~ i t u a t i 0 n . lTo ~ ~avoid additional ethical difficulties, the foreign advisors assigned to assist Trial Chamber I undertook with the presiding Judge to have replacement counsel for Taha Yaseen and the other accused who were without retained representation designated as amici curiae. However, Judge Raouf Rashid, who had already imposed duty counsel upon the accused abandoned by their retained counsel, rejected this initiative on the grounds that no such provision existed under Iraqi law. Faced with a choice between leaving Taha Yaseen wholly unrepresented in the face of a capital sentence and presenting arguments that the accused had not approved, Iraqi counsel employed by the IHT Defence Office determined that it was in the best interests of the accused to press on with the preparation of closing arguments. In the time available, amounting to less than one week, a modest 15,000 word argument was f a ~ h i 0 n e d . IThis ~ ~ argument conceded the occurrence of most of the underlying acts alleged by the Prosecution. However, the Defence closing
123. The first portion of the Dujail transcript to become available to the Defence Office (or any other organ of the IHT) appeared only several days prior to the conclusion of the Defence closing arguments, that is, the transcript arrived too late to permit the systematic review and exploitation of its contents. 124. On the rehsal of Taha Yaseen to accept and instruct replacement counsel, see remarks by Taha Yaseen, Dujail Trial Transcript, 27 July 2006, part 2, pp. 32-33. 125. In a six-week period, duty counsel prepared - without prior warning - closing arguments for all eight of the accused, totalling roughly 100,000 words. Shortly before the conclusion of the Defence phase of Dujail, the ICC provided the IHT Defence Office with the so-called Case Matrix, in accordance with a standard Case Matrix Understanding which was signed by both parties. The Case Matrix is a tailor-made case-management application for use in core international criminal cases. In addition to a law-based database structure for evidence, the Case Matrix has unique legal information services, including comprehensive commentaries on substantive ICL and the means of proof.
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brief maintained that the evidence presented at trial had been insufficient to link the accused Taha Yaseen to the crimes alleged in the charging instrument, in light of the elements of the offences as well as the legal requirements of the modes of individual criminal liability alleged in the indictment. Whilst the said argument conceded the role of the accused in the razing of the orchards around Dujail, it was submitted by the Defence that this process of destruction had not been punitive in nature but had instead constituted a necessary phase in an urban-renewal process that the former government of Iraq had planned prior to the assassination attempt upon the life of the then-President. In presenting the closing Defence brief for Taha Yaseen, replacement counsel expended rather more effort in rebutting the allegations made with respect to the Popular Army and its ostensible role in the perpetration of the underlying acts. On the one hand, this endeavour proved to be difficult in the absence of a transcript, that is, replacement counsel experienced a great deal of difficulty identifying the sources of specific allegations in order to demonstrate that they were deficient in one way or another. On the other hand, duty counsel had no trouble pointing to the absence of evidence that, in the view of the Defence, the Prosecutor ought to have introduced in support of his submission that the accused had enjoyed de jure as well as de facto control over the small Popular Army garrison based in Dujail in July 1982. References were made throughout the argument to the jurisprudence of the Yugoslavia and Rwanda Tribunals that the duty counsel considered to be relevant to the Defence argument.Iz6 Several weeks after the submission of closing arguments by replacement counsel, retained counsel for Taha Yaseen signalled their satisfaction with the arguments put forward by duty counsel on behalf of their client. Shortly thereafter, during a chance meeting with the International Law Advisor assigned to the Defence, retained counsel complained bitterly that the foreign Advisor had been remiss in not supporting the boycott of retained counsel, which it had allegedly been the Advisor's duty to buttress. At roughly the same time - that is, several days before the Trial Chamber pronounced sentence - counsel retained by Taha Yaseen presented the Trial Chamber with a written submission of their own. This submission focussed in the main upon the alleged unconstitutionality of the IHT and other procedural irregularities witnessed during the trial. In its brief, the Defence ignored the substantive law relevant to the case of Taha Yaseen. The underlying acts presented by the Prosecutor were not, in the main, disputed. Instead, retained counsel argued that the response of the Baathist regime to the assassination attempt of 8 July 1982 constituted a proportionate response to an attempt upon the life of the then Head of state.lZ7
126. Iraqi High Tribunal Defence Office Submission Concerning the Accused Taha Yaseen Ramadan, 27 July 2006. 127. Untitled final brief submitted by retained counsel (signed Mohammed Moneeb Jinidi), 16 October 2006 (submitted on or about 5 November 2006).
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JUDGEMENT AND SENTENCE 9.1
Sentencing
The Trial Chamber passed judgement on Taha Yaseen and his co-accused in Dujail on 5 November 2006. Trial Chamber I found Taha Yaseen guilty of having perpetrated a number of crimes against humanity, in particular wilfbl killing, forcible transfer of population, imprisonment or other forms of severe deprivation of physical liberty, torture and other inhumane acts. The Trial Chamber found him not guilty of the crime against humanity of enforced disappearance. In its brief oral judgement, the Trial Chamber indicated that Taha Yaseen was individually criminally liable for the aforementioned crimes by virtue of 'Article 15(1), (2), (3), (4) and (5)'.lZ8Succinctly put, the Trial Chamber indicated on 5 November 2006 that Taha Yaseen was individually criminally liable for several crimes against humanity, in each instance by virtue of every form of individual criminal liability, including command and superior responsibility, provided for in ICL and set forth in the IHT Statute. The Trial Chamber sentenced Taha Yaseen during the same hearing. Iraqi law provides for an individual sentence for each crime; whilst Taha Yaseen escaped a capital sentence, the Trial Chamber sentenced him to life imprisonment for the crime against humanity of wilful killing. In light of the strength (or, rather, the lack thereof) of the inculpatory evidence presented at trial, the findings with respect to Taha Yaseen are best understood in the context of a change in the composition of the Trial Chamber that the Prime Minister's Office demanded approximately one week prior to 5 November. This demand had been occasioned by a report made to the Iraqi Prime Minister's Office by an IHT jurist who cannot be identified for security reasons. In particular, the individual in question reported that Saddam Hussein was unlikely to be awarded a capital sentence by Trial Chamber I and that less-than-draconian findings would be made with respect to a number of the other accused, including Taha Yaseen. IHT officials undertook to satisfy the orders of the Prime Minister's Office by removing one of the Dujail panel members who was thought to be favourably disposed towards the accused. In particular, these same officials requested of the Judge in question that he retire on the grounds of ill health. The Judge initially protested that he was in good health, although these protests ceased when more senior justice officials threatened the Judge with severe administrative sanctions if he did not step down.'29The subsequent deliberations of the re-constituted Trial Chamber -
128. Dujail Trial Transcript, 5 November 2006. 129. The Judge in question cannot be named for security reasons. He was informed that in the event that he did not step down on the grounds of ill health, he would be subjected to de-Baathification proceedings, found guilty of having been a Baathist and suffer the loss of his pension. The more immediate threat in the event of his dismissal would be the certain loss of his government apartment and the concomitant security that this apartment afforded - in the International Zone. As a former IHT Judge - and, in particular, as a former member of the Trial Chamber which had sat in judgement of
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the last-minute replacement, Ali Hasan Al-Kahatji, having not heard any of the evidence - very nearly led to a majority on the Trial Chamber securing a capital sentence for Taha Yaseen. In the event, the life sentence awarded to Taha Yaseen on 5 November constituted something of a compromise between the hardliners on the Trial Chamber and those inclined to award Taha Yaseen a relatively short custodial sentence. Several weeks after sentence had been passed, the IHT Appellate Chamber ordered Trial Chamber I to award Taha Yaseen a capital sentence in light of his conviction on the charge of wilful killing as a crime against humanity. Thus, a process that was highly imperfect owing to the unfamiliarity of the legal profession of Iraq with ICL, was, in late-October 2006, further compromised by the direct intervention in Dujail of the Iraqi executive, in particular, the Office of Prime Minister Nouri ~ l - ~ a l i k i .This ' ~ ' issue will be taken up at more length, below. 9.2
Judgement
Trial Chamber I issued its legal reasons for the findings of guilt and the sentences read on 5 November on or about 22 November 2006, that is, as soon as the full Judgement, totalling approximately 300 single-spaced pages, was ready. The considerable delay in the issuance of the full Judgement gave rise to renewed questions in the public realm concerning why Trial Chamber I had handed down sentence on 5 November. Less charitable voices in the public realm suggested that American officials in Baghdad and, or in the alternative, Washington, anticipating that the IHT would award Saddam Hussein a capital sentence, were keen to see this sentence pronounced prior to the United States mid-term elections slated for 07 November. The more immediate problem for the Defence was that Iraqi law provides only thirty days for the exercise of the right of appeal.I3' Put in other words, the accused who were pronounced guilty by Trial Chamber I on 5 November three of whom had been sentenced to hang - were compelled to submit their appeals no later than 5 December, even though the men convicted by the Dujail Trial Chamber had been in possession of the full Judgement for no more than a fortnight. The Judgement issued on 22 November reflected the limited ICL capacity as well as the political currents at work throughout the trial: the Trial Chamber showed its ability to deal adequately with factual matters, in particular relating to
Saddam Hussein any move to the Red Zone would assuredly give rise in short order to the murder of the individual in question. 130. A number of senior officials of the Prime Minister's Office were present in the Distinguished Visitors' Gallery of the courtroom on 5 November 2006. Arabic-speaking colleagues of the author of this paper reported at the time that these officials had been openly taken aback by the fact that Taha Yaseen did not receive a capital sentence. One official of the Prime Minister's Office was heard to promise another that 'the matter would be taken care of'. These same individuals found occasion for a raucous display of approval several minutes later when Saddam Hussein was sentenced to death. 131. Rule 68(b), IHT Rules; paras. 224(d), 249(a) and 264(a), 1971 Procedural Law. -
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the crime base, where these factual matters were viewed by the Trial Chamber in isolation from the individual accused; at the same time, the jurists sitting in judgement of the accused signalled their final failure to grasp the legal requirements for any given finding of individual criminal responsibility. Most disappointingly, the Judgement suggested strongly, at least where Taha Yaseen was concerned, that the Trial Chamber was prepared to ignore the fundamental weaknesses in the Prosecution case with respect even to purely factual matters, for instance, the question of whether Taha Yaseen had chaired a security committee of one form or another. Near the outset of its Judgement, the Trial Chamber expressed its view that 'the former regime committed a wide-scale assault against Al-Dujail's residents in retaliation for the attempt to assassinate the then Head of State, the defendant Saddam Hussein'. In particular, it was held that 'roughly 543 individuals were killed, evicted or displaced' in response to the assassination attempt. The Trial Chamber noted in particular that the 'large number of detainees exceeded the limited number of seven or eight individuals who took part in the [assassination] attempt', that the Judgement found to have been 'an opportunistic crime' rather than pre-meditated.132At the same time, it was evident from the outset of the Judgement that individual members of the Trial Chamber had experienced difficulty in understanding clearly the modes of individual criminal liability provided for in Article 15 of the IHT Statute. Confusion between the members of the Trial Chamber over the legal requirements of the various forms of participation set forth in Article 15 likely explains in part the remark - made in the absence of any dissenting opinions in the Judgement - that 'the members of the Trial Chamber have agreed to convict the defendants who have been charged, although the opinions of some members differed from those of others with regard to grounds of conviction and the legal reasons thereto. The degree to which the Trial Chamber found consensus on the question of the factual allegations against Taha Yaseen is unknown. In its Judgement, the Trial Chamber held that at the time of the assassination attempt in July 1982, Taha Yaseen had been Commander of the Popular Army, Deputy Prime Minister and a member of the R C C . ' ~NO ~ party to the litigation had disputed these facts during the trial. Somewhat more contentious was the finding of the Trial Chamber that Taha Yaseen had chaired 'the committee formed by order of the defendant Saddam Hussein on the first day of the incident, whose membership comprised the director of the office of the Intelligence Service chief, Mohammed 'Alewi, the defendant Barzan Ibrahim, and the General Security Director, Fadhil ~ l - ~ a r a k . " ~ ~ Additionally, the Trial Chamber held that the Popular Army unit based in Dujail at
132. 133. 134. 135.
Dujail,Trial Judgement, pp. 15-16. Tbid., p. 47. Ibid., p. 2 16. Ibid., p. 225.
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the time of the assassination attempt had participated in the attack upon the orchard from which the shots had earlier been fired at the convoy of Saddam ~ u s s e i n . ' ~ ~ It is not clear from the Judgement if the Trial Chamber considered criminal this attempt to capture and, or in the alternative, kill the alleged would-be assassins. However, as has already been indicated the Trial Chamber was clear in its Judgement that the large-scale arrests occasioned in Dujail by the assassination attempt had been unlawful. It was the further finding of the Trial Chamber that the Popular Army unit based in Dujail at the time of the assassination attempt had worked alongside army and security forces in 'laying siege to the town', 'raiding homes' and arresting 'Dujail's families'.'37 The Judgement characterised the campaign of arrests as having been of a 'large-scale and systematic' nature and found that the Popular Army had played a major role therein.138In summary, the Trial Chamber found that Popular Army personnel in Dujail had taken part 'in the arrest, beating and incarceration of a great number (in the hundreds) of victims'.'39 In light of the seriousness of these findings - that ultimately gave rise to the execution of Taha Yaseen - the additional finding of 22 November, that Saddam Hussein had ordered Taha Yaseen to raze the orchards of Dujail and that this order was carried out, was of little consequence.'40 9.3
Command responsibility
It cannot be determined with absolute certainty from the Judgement of 22 November 2006 the grounds upon which the Trial Chamber held Taha Yaseen to be individually criminally responsible for the underlying acts in Dujail. It can be stated with some confidence that the Trial Chamber found that Taha Yaseen was criminally liable at least in part on the grounds of command responsibility as provided for in Article 15(4) of the IHT statute.14' The Trial Chamber took particular cognisance of the fact that Taha Yaseen had been the Commander of the Popular Army at the time of the Dujail incident and reasoned as follows: [...] there was between him [Taha Yaseen] and Popular Army members a superior-subordinate relationship. The immediate subordinate of the defendant Taha Yaseen in Dujayl was Ahmed Ibrahim Hassoun al-Samara'ee (Abu Nabil), given that he was the [Baath] Party chief in that region, and thus the leader of Dujail's Popular Army in Dujail
136. Ibid., p. 16. 137. Ibid., p. 212. 138. Ibid., pp. 215-216. 139. Ibid., p. 225. 140. Ibid., p. 15. 141. The relevant provision of the IHT Statute reads as follows: 'A superior is not relieved of criminal responsibility for crimes committed by his subordinates, if he knew or had reason to know that the subordinate had committed, or was about to commit such acts, and the superior failed to take the necessary and reasonable measures to prevent such acts or to refer the matter to the competent authorities for investigation and prosecution' (Art. 15(4), IHT Statute).
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[sic], issuing orders to Popular Army members there. These orders included the perpetration of crimes against humanity. Further, the defendant Taha Yaseen Ramadan was the Popular Army's supreme Commander and as such had extensive powers that were similar to those of the Minister of Defence. He was also a member of the Baath Party Regional Command, and the Party leaders in Dujail, who were perforce Popular Army leaders in the region. The said leaders reported to him given that he was their Commander, and they also reported to the members of the Party's Regional Command, which included the defendant Taha. The defendant Taha Yaseen was thus the senior leader o f
those Party members in Dujail, and he was their chief given that they were members of the Popular Army, which was headed by the defendant Taha Yaseen. It is thus established, based on the above, that the underlings who perpetrated the crime were de jure and de facto under the authority and control of the leader (the Popular Army's Supreme Commander), the defendant Taha Yaseen Ramadan. Those underlings committed the crime (illegal arrest and incarceration of Dujail's residents), if not by direct orders from the defendant Taha Yaseen, at least with his implicit consent, as he overlooked their actions and failed to exercise proper control over them. Likewise, the defendant Taha Yaseen knew, or at least there were reasons that implied that he was cognisant, that his subordinates were perpetrating or about to perpetrate those crimes, including the arrests and then imprisonment of the victims amongst Dujail's population, and that he did not do anything to prevent their perpetration.'42 These findings came as a disappointment to the Defence. In the closing arguments presented by duty counsel on behalf o f Taha Yaseen, duty counsel, confident that the Prosecution had failed to make a case for criminal command responsibility, laid out in some detail, with a wealth of relevant jurisprudence, the legal requirements for a finding o f criminal liability pursuant to the provisions of Article 1 5 ( 4 ) . ' ~In~ its Judgement, the Trial Chamber ignored these arguments and, more importantly, the jurisprudence mustered in support thereof, O n the very few occasions where the Dujail Trial Chamber turned in its Judgement to the jurisprudence of the ICTY for support in interpreting Article 15(4), the Trial Chamber misinterpreted the legal requirements for a finding of criminal com-
142. Dujail,Trial Judgement, pp. 219-220 (quotation), 226-228. 143. Para. 85, Defence Office Submission, supra n. 126. This paragraph argued as follows: There are seven principal legal requirements for a finding under Article 15.4 that an accused is responsible in law for the criminal actions of his subordinates: a. a crime within the jurisdiction of the Tribunal was committed; b. there existed between the accused and the persons who committed the crime a superior-subordinate relationship; c. the subordinates who committed the crime were under the effective authority and control of the superior; d. the crime was committed by these subordinates as a result of the failure of the suspect to exercise control properly over them; e. the superior either knew, or had reason to know, that his subordinates were committing or about to commit such crimes; f. the crimes concerned activities that were within the effective responsibility and control of the superior; and g. the superior failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit that matter to the competent authorities for investigation and prosecution.
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mand responsibility or otherwise grasped these legal requirements in an incomplete manner. For instance, reference was made in the Dujail Judgement to the , particular paragraph 418 of that ICTY Trial Judgement in KordiL and ~ e r k e zin Judgement. The passage in question, that was reproduced in the closing argument filed by duty counsel on behalf of Taha Yaseen, holds that the starting point for any enquiry into alleged criminal command responsibility, will be the official position held by the accused. Actual authority however will not be determined by looking at formal positions only. Whether de juve or de facto, military or civilian, the existence of a position of authority will have to be based upon an assessment of the reality of the authority of the accused.'44 As has already been noted, the Trial Chamber in Dujail took cognisance of the formal positions held by Taha Yaseen in July 1982. However, it would be stretching the bounds of credulity to suggest that 'the reality of the authority of the accused' in his capacity as Commander of the Popular Army was examined in any detail by the Trial Chamber during the trial, or, for that matter, in the Dujail Trial Judgement. What is altogether clear from the Trial Judgement is that the Trial Chamber assumed (rather than inferred from the evidence) the de facto authority of Taha Yaseen over the Popular Army unit in Dujail in July 1982. For instance, the Trial Chamber opined: [. . .] Ahmed Ibrahim, who was the senior Baath Party official in Dujail, was perforce one of the senior members of Dujail's Popular Army, and thus must have had ties [emphasis added] with the then Commander of the Popular Army, the defendant Taha Yaseen Ramadan. Given that the defendant Taha Yaseen was a member of the Regional Command of the Baath Party, and Ahmed Ibrahim was the senior Baath Party official in Dujail, the latter must thus be connected [emphasis added] with the defendant Taha Yaseen Ramadan in one way or another due to his position.145
For this and like reasons, it is difficult to conclude that the Dujail Trial Chamber made a proper consideration of the de facto command authority of Taha Yaseen. Most certainly, no such examination can be found in the 140,000-word Trial Judgement. It is likewise arguable that Trial Chamber I did not properly examine the nature of the de jure authority of Taha Yaseen, in particular in his capacity as Commander of the Popular Army. It has already been noted that during the trial the accused Taha Yaseen suggested that his formal authority had been limited to overseeing recruiting and training efforts. There was no evidence presented during the trial that can be said to have been at odds with this assertion. In the event, the Trial Chamber in its Judgement produced what it considered to be evidence that rebutted
144. Prosecutor v. KordiC and Cerkez, Trial Judgement, ICTY, para. 41 8 145. Dujail, Trial Judgement, p. 195.
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the assertion of Taha Yaseen. More to the point, reference was made in the Trial Judgement to documentation that was neither seen nor discussed during the trial by any of the parties to the proceedings. For instance, in its Judgement the Trial Chamber cited a 1980 resolution of the RCC that, according to the Trial Chamber, vested the Commander of the Popular Army with the same disciplinary powers enjoyed by the Minister of Defence pursuant to the 194 1 Military Trial Procedures Law. It is unclear whether the Trial Chamber had read the relevant laws correctly on the grounds that none of the documents to which reference was made were ever produced for examination by either the Prosecution or the Defence. There is no requirement in Iraqi procedural law that a judge must disclose evidence that he has secured on his own volition. This would suggest that the law does not anticipate trial judges undertaking investigations during their deliberations. What is beyond dispute is that Iraqi law does not permit the rendering of a judgement 'on the basis of his [the judge's] personal knowledge'. Additionally, a 'court is not permitted, in its ruling, to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing'.'46 Despite these provisions, the Dujail Trial Chamber concluded on the basis of materials that had not been seen by either the Prosecution or the Defence that 'Taha Yaseen was able to take all appropriate legal measures to question and then to hold accountable Popular Army members.' Put another way, the Trial Chamber found that in July 1982 Taha Yaseen had enjoyed the authority to punish Popular Army personnel who had perpetrated unlawful acts on the basis of evidence that Trial Chamber I would appear to have secured on its own i n i t i a t i ~ e . ' ~ ~ In the main, the Trial Judgement ignored the legal requirements for a finding of criminal command responsibility as they were identified by duty counsel assigned by the presiding Judge and the Defence Office to make closing arguments for Taha Yaseen. Where these legal requirements were considered at all for instance, the question of whether the subordinates who committed the crime were under the effective authority and control of a superior - the examination was, by the standards established by the Trial and Appeals Chambers of the ICTY and the ICTR, wholly inadequate. -
9.4
Common purpose
The Dujail Trial Chamber likewise found that Taha Yaseen had been party to a 'joint criminal act"48 pursuant to Article 15(2)(d) of the IHT Statute, which is taken almost verbatim from Article 25(3)(d) of the Rome Statute of the Intemational Criminal The Defence had maintained in its closing argument that
146. Para. 2 12, 1971 Procedural Law. 147. Dujuil, Trial Judgement, pp. 216-21 7. 148. Trial Chamber Judgement, 22 November 2006, p. 2 19. 149. Article 15(2)(d) of the IHT Statute, and Article 25(3)(d) of the Rome Statute provide, using precisely the same wording, for a finding of individual criminal responsibility where a person: In any other way contributes to the commission or attempted commission of such a crime by a group.
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the Trial Chamber should refrain from an application of Article 15(2)(d) on the grounds that there was as yet no jurisprudence examining this mode of criminal liability; the Defence added that the scholarly commentary on this provision of the Rome Statute which was then available evinced considerable uncertainty as to its precise meaning.'50 The Trial Chamber found this argument to be insufficient, to the extent that it would appear from the Trial Judgement to have been ignored. Rather, Trial Chamber I opted for an unusual finding, that is, the Trial Chamber held that Taha Yaseen was criminally liable on the grounds of criminal command responsibility as well as common purpose. The Trial Chamber reconciled the two modes of individual criminal liability as follows: While defendant Taha Yaseen Ramadan claimed during the court hearings that he was not cognisant of what went on in Dujail, he had good reasons to know. As a member of the (dismantled) Revolutionary Command Council, as Deputy Prime Minister, as a ranking member of the Baath Party Regional Command, as the Popular Army Commander, and as the head of the committee that was formed by order of defendant Saddam Hussein hours after the meeting, which committee convened at the National Assembly under his chair, he must have known. These very senior positions that the defendant Taha Yaseen held enabled him to quite easily know about all that was taking place in Dujail. This can be the only logical and reasonable conclusion. One way or another, he knew what was going on without taking any measures to prevent the occurrence of such crimes or [without taking] any measures to hold accountable those who perpetrated the said crimes once they had occurred. Based on the above, it is quite obvious that there was a joint criminal act in which the defendant Taha Yaseen Ramadan played an important role and that there was joint criminal intent. The defendant Taha Yaseen's very important and premeditated [emphasis added] participation aimed to bolster the criminal activities of the Party, intelligence and security agencies, and to foster the criminal objectives of the Baath Party ruling regime, headed by the defendant Saddam Hussein. For these reasons, the defendant Taha Yaseen Ramadan is criminally liable [...] pursuant to Article 15(2)(d) [ . . . I . ' ~ '
It seems to have been the view of the Trial Chamber that, inter alia, where an accused person is found to have been aware that crimes were being perpetrated by his peers, then that same accused person might be found to have shared the objec-
of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group, to commit the crime. 150. Para. 68, Defence Office Submission, supra n. 126. 151. Dujail,Trial Judgement, p. 2 19.
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tives of those intent on perpetrating criminal acts. At any rate, this was suggested by a passage in the Trial Judgement that held that 'Taha Yaseen was aware that the other participants intended to commit such crimes [...] and he wanted thus to realise these crimes'. The Trial Chamber added that '[wle ought to say here that the intent of some of the participants in the joint criminal act may be direct, while the intent of another participant in the same joint criminal act may be probable (indirect), although this has the same legal ~ a I u e ' . " ~ At other junctures, the reasoning of the Trial Chamber can be difficult t o follow, for instance, where the Trial Chamber attempted to explain its finding that Taha Yaseen was criminally liable for the crime against humanity of wilful killing pursuant to the provisions of Article 15(2)(d) of the IHT Statute: [. . .] even if direct criminal intent is not present with respect to the defendant Taha Yaseen Ramadan as far as slaying those victims, most certainly he harboured a probable (indirect) criminal intent to slay them [. . .] Even if the defendant Taha Yaseen Ramadan had no probable criminal intent to murder the victims, although the Tribunal is firmly convinced that at the very least he had such intent, the defendant Taha Yaseen Ramadan is criminally liable for the probable crimes that were perpetrated by Popular Army personnel when they arrested and detained many Dujail residents [.. .] by reason of Article 15(2)(d) [ . . . I . " ~
Here and elsewhere in the Dujail Trial Judgement, the Trial Chamber proffered insufficient reasons for ascribing criminal responsibility to Taha Yaseen pursuant to the provisions of Article 15(2)(d).IS4Indeed, the legal reasoning found in the Trial Judgement suggests strongly that the Trial Chamber misunderstood the legal requirements for any finding pursuant to the said Article. Article 15(2)(d) has its roots in the International Convention for the Suppression of Terrorist ~ o m b i n ~ s Common ."~ purpose, as a legal concept, is frequently confused by scholars and ICL practitioners alike with the three forms of joint criminal enterprise (hereinafter JCE) applied by the Yugoslavia and Rwanda Tribunals; the language found in the Dujail Trial Judgement (e.g., 'joint criminal act', 'joint criminal intent') indicates that the Dujail Trial Chamber erred along these lines. Notwithstanding its evident examination of the JCE-related jurisprudence of the ICTY
152. Ibid., p. 222. 153. Ibid., pp. 226 (quotation), 232. 154. There are six legal requirements that must be satisfied prior to any finding of individual criminal responsibility pursuant to Article 15(2)(d) of the IHT Statute: 1. a group of persons was involved in the commission or the attempted commission of a crime enumerated in the Statute; 2. the group of persons had a common criminal intent to commit or attempt to commit such a crime; 3. this activity or purpose involved the commission of a crime; 4. the accused contributed to the commission or the attempted commission of the crime; 5. the accused intended to contribute to the commission or the attempted commission of the crime; and 6. the accused had the aim of furthering the criminal activity or criminal purpose of the group or the accused knew that the group intended to commit the crime. 155. UN Doc. AIRESl521164 (1998)
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and the ICTR, the Dujail Trial Chamber does not appear to have grasped that JCE and common purpose are distinct modes of liability. In particular, JCE is akin to conspiracy; evidence of a contribution to the crime is not required. Put another way, JCE is a form of participation, rather than a form of perpetration; the reasons proffered by the Dujail Trial Chamber in support of its finding of Article 15(2)(d) liability in the case of Taha Yaseen were broadly consistent with the sort of legal reasons that might be advanced by judges in the ad hoc Tribunals in support of a finding of participation in a joint criminal enterprise. However, unlike JCE, common purpose constitutes a form of complicity; as such, Article 15(2)(d) logically requires that sufficient evidence be adduced to demonstrate that the accused contributed to the commission (or to the attempted commission) of the crime with 'the aim of furthering the criminal activity or criminal purpose of the group'. The view taken here is that in the case of Taha Yaseen, insufficient evidence in support of this legal requirement was available to the Dujail Trial Chamber. As has already been suggested elsewhere in this paper, the evidence pointing to Taha Yaseen's participation in, for instance, the planning of the response of the Baathist regime to the assassination attempt of 8 July 1982 was both limited in its scope and contradicted by other evidence. As the Defence maintained in its closing brief, the precise meaning of the legal requirements of Article 15(2)(d) are difficult to determine in the absence of relevant jurisprudence. Put another way, Article 25(3)(d) of the Rome Statute has yet to be applied by the ICC. Perhaps for this reason, the Dujail Trial Chamber looked for assistance to the findings concerning JCE that had been made by the Trial and Appellate Chambers of the ICTY and the ICTR. The Dujail Trial Chamber was wrong to do so, principally because the forms of JCE applied by the ad hoe Tribunals constitute forms of participation rather than perpetration; under these circumstances, JCE cannot serve as a proper guide to the correct interpretation of common purpose - and most especially to the subjective legal requirements of Article 15(2)(d). More to the point, in confusing common purpose with JCE, the Dujail Trial Chamber buttressed its legal justification for the finding that Taha Yaseen was guilty of the crime against humanity of wilful killing. In so doing, the Trial Chamber unwittingly assisted the IHT Appellate Chamber in the Appellate Chamber's misguided, but ultimately successful effort to ensure that Taha Yaseen would be executed for the crimes perpetrated by others following the attempted assassination of Saddam Hussein at Dujail.
10.
APPELLATE PROCEEDINGS
Counsel retained by Taha Yaseen reappeared at the time of the conviction of their client and appealed the findings as well as the sentence(s) awarded to Taha Yaseen by the Trial Chamber. The appellate brief filed by retained counsel alleged a number of procedural errors; the substantive ICL that formed the basis of the conviction of their client was not touched upon. However, the Defence appellate brief was not without merit, in light of the evident difficulty that the Trial Chamber and
the Prosecutor had experienced in conforming in every instance to the requirements of Iraqi procedural law.'" In their appellate brief, counsel retained by Taha Yaseen did not examine in any detail the disclosure of evidence to the Defence - an exercise which was so fraught with error that it arguably constituted the most grievous of the various procedural irregularities witnessed both prior to and during Dujail. Counsel for Taha Yaseen appeared to be unaware that by the conclusion of the trial they had received less than 200 o f the no less than 10,000 pages of documents that evidence handlers had
identified as being of possible relevance to the Dujail case.'" This state of affairs was all the more serious for the fact that the Prosecutor had enjoyed access to the entire documentary collection since prior to the trial. Worse still, the Prosecution mined this collection during the course of Dujail and managed to produce additional inculpatory materials relevant to the cases of a number of the accused. It is an axiom of international(ised) criminal proceedings that, even where a good-faith effort towards full disclosure is made by prosecutors, the process of disclosure will inevitably prove to be haphazard where an investigation giving rise to a criminal prosecution continues into the trial itself, Dujail was no exception to this rule. The roughly 100-page collection of contemporaneously-generated documents that had been disclosed with the referral file prior to Dujail was supplemented piecemeal during the course of the trial by the Prosecution, confusing not only the Defence, but also the Trial Chamber. The Trial Chamber would later observe in its Judgement that a 'huge [sic] volume of documents and papers [. . .] were submitted to the Tribunal in an uncoordinated manner'.'" The Trial Chamber additionally noted: There is not just one file pertaining to the case, but many. In addition, there are scores of papers, resolutions, and orders that are to begin with not co-ordinated or connected [.. .] This created a problem for the investigation, and this problem affected the Tribunal's proceedings [. . .] Furthermore, the Public Prosecution Panel, despite its continued and serious efforts, was affected one way or another by this problem in terms of presenting to the Tribunal the documents, the CDs [ i.e., audio recordings], and the successive documents from one hearing session to another. This is due to the accumulation of scattered papers and documents that were not on hand or available in order to be studied and examined in the first place. 159
156. Untitled defence appeal brief, 3 December 2006, signed by Bushra Khalil, Mohammed Moneeb and one lawyer who cannot be named for security reasons. 157. Prior to the start of Dujail, the Secure Evidence Unit (SEU), which was under RCLO control, employed a number of staff fluent in the Arabic and English languages. The head of the SEU used this staff to review all materials in the possession of the unit and to determine the relevance of a given document to a particular case file. This information was entered into an SEU database and it was therefore possible prior to the start of Dujail to identify electronically all materials which were believed to be relevant to that case. 158. Dujail, Trial Judgement, p. 3. 159. Ibid., p. 11.
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The case of Taha Yaseen Ramadan
What the Trial Chamber might have added, but did not, was that this oversight was particularly inexcusable as the botched disclosure could not be blamed upon a nascent Iraqi understanding of substantive ICL and international procedure. Rather, the rules governing disclosure were clearly set out in the relevant Iraqi legal instruments, including the IHT The disclosure problems stemmed from two factors. Firstly, the volume of documentary materials of relevance to Dujail, whilst exceedingly modest compared to the volumes of documentary evidence disclosed during many international(ised) criminal trials, far and away eclipsed anything seen by the legal profession in Iraq prior to Dujail. Not only were the Iraqi officials assigned to the investigative and prosecution offices of the IHT professionally ill-equipped for the undertaking of a thorough analysis of a documentary collection in excess of 10,000 pages, difficulties were likewise experienced in managing the modest collection of fewer than 200 documents that the Chief Investigative Magistrate and the Prosecutor had turned over piecemeal to the Defence. Secondly, as became apparent only during the trial, insufficient provision had been made at the time of the establishment of the IHT for a records-management system, or something akin thereto.16' An exceedingly efficient evidence unit had been set up by the Coalition Provisional Authority in late 2003, under the guidance of evidence handlers previously employed by the ICTY. It was funded by the RCLO and operated largely independently of the I H T . ' ~During ~ the trial, the evidence unit attempted to manage the documentation introduced into evidence as well as other materials generated by the Trial Chamber and the parties to the litigation. This effort failed, apparently because Tribunal officials did not consistently provide copies of adduced evidence and other trial records to the evidence unit personnel who were on duty in the courthouse throughout Dujail. The result was that at any given time prior to and during the trial, none of the persons most concerned with the investigation and the trial - the accused, their counsel, the Chief Investigative Magistrate, the Trial Chamber, the Prosecution, the Defence Office, and the foreign advisors to the various organs of the IHT - was able to determine with complete certainty what evidence was to hand. This state of affairs was particularly distressing to the foreign
160. Rules 40-43, IHT Rules. 161. The IHT Rules provide that the IHT Director of Administration should 'preserve all records of the trial' (Rule 53(1), IHT Rules). Precisely how this should be done, and with what resources, is not specified in the IHT Rules. The 1971 Procedural Law is silent on this matter. As far as can be determined, prior to the formation of the IHT it was Iraqi practice that the clerks assigned to a given ma1 or appellate chamber would manage the records as well as the evidence relevant to any given proceedings. This system presumably worked well in the absence of large documentary disclosures and where trials tended to be of short duration. Improvements were made prior to the start of, and during, the Anfal proceedings, although the system remains highly and inappropriately - dependent upon foreign advisors as well as United States Department of Justice paralegals seconded to the RCLO. 162. Rule 26 of the IHT Rules sets forth that the 'unit responsible for collecting evidence and information' is 'affiliated to the Tribunal'. It is the view of the author that the SEU was (1) not under the defacto control of the IHT and that the use of the word 'affiliated' in the IHT Rules constituted no claim to dejure control. -
advisors seconded to the IHT, or otherwise working alongside the Iraqi jurists concerned with Dujail. Succinctly stated, the foreign experts retained to proffer advice on questions of ICL were not well placed to advise their Iraqi counterparts on the application of the substantive law where the foreign experts were unable to determine in a timely manner, if at all, what evidence had been put before the Trial Chamber. There is no legal justification for the non-disclosure of the entire Dujail collection to the Defence.lh3The view taken here is that the Dujail Prosecutor should have disclosed the 10,000 or more pages of materials prior to the trial in accordance with the obligations that the IHT Rules placed upon the rosec cut or.'^^ Notwithstanding this omission, the Prosecutor appealed the sentence of life imprisonment awarded to Taha Yaseen on the grounds that it was 'not severe enough'. The IHT did not provide counsel for Taha Yaseen with a copy of the Prosecution appeal of the sentence awarded to their client, although according to the Appellate Chamber Judgement of 26 December 2006, the Prosecutor had filed his appellate brief only on 13 ~ e c e m b e r .If' ~this ~ observation is correct, the Prosecutor submitted his appeal outside of the permissible thirty-day period following the Judgement rendered on 5 ~ 0 v e m b e r . However, l~~ unlike the Defence's October 2005 appeal of the order of referral, the Appellate Chamber did not summarily dismiss the Prosecution appeal on the grounds that it had been filed after the deadline. It will be recalled that Trial Chamber I convicted seven of the eight accused in Dujail (including Taha Yaseen) of various crimes; all of those who were convicted were found to have perpetrated wilful killing as a crime against humanity. The Trial Chamber acquitted the eighth prisoner, Mohammed Azzawi, a low-level Baathist and resident of Dujail, of all charges. The seven men convicted on a total of twenty-five charges of crimes against humanity in the 300-page Trial Judgement appealed their convictions as well as the sentences that they had been awarded. The Trial Chamber had sentenced three of those convicted to death.I6' The Appellate Chamber of the IHT -that is the only appellate body to which persons accused before the IHT have rec~urse'~' - responded to all of the various appeals with a seventeen-page (in the original Arabic) judgement of less than 8,000 words. The
163. See Rule 43 ('Matters not Subject to Disclosure'), IHT Rules. 164. Ibid., Rule 40. 165. Case IIJ Firstl2005, Dujail, Appellate Judgement, 26 December 2006, p. 7. All page references are to the corrected English translation. 166. The 1971 Procedural Law provides that: [.. .] the Court of Cassation may, either of its own accord or in response to a request from the public prosecutor or anyone else connected with the case, ask for the file on any criminal case to check the provisions and rulings issued on it, as well as the procedures and orders. In this case, it has the authority stipulated in this decision to consider an appeal, although it may not reverse a finding of not guilty or increase the severity of a penalty, unless it is requested so to do within 30 days from the date of issue of the judgement or ruling (para. 264(a), 1971 Procedural Law). 167. Saddam Hussein, Barzan Ibrahim and Awad Hamad. 168. The right to appeal a cassation decision, found in the 1971 Procedural Law at paras. 266-269, is not provided for in the Statute and Rules of the IHT.
234
The case of Taha Yaseen Ramadan
Appellate Chamber issued its Judgement dismissing all Defence (but not Prosecution) appeals on 26 December 2006. The brevity of the document, along with the fact that the findings were announced by two members of the Appellate Chamber at a press conference convened at the Office of the Prime Minister, gave rise to suspicions both within the IHT and in the public realm that political pressure had been brought to bear upon the Appellate Chamber to facilitate the execution of Saddam Hussein at the earliest possible date. Particular cognisance had already been taken by international observers of televised predictions, made on 7 and 8 November 2006 by Prime Minister Noun Al-Maliki, that Saddam Hussein would be hanged by Iraqi officials before the end of that year.169In the event, Saddam Hussein was executed in an Iraqi detention centre on 30 December 2 0 0 6 . ' ~ ~ It is difficult to envision how all nine justices of the Appellate Chamber could have found themselves in a position, in the time available between the receipt of the appellate briefs (i.e., circa 3 December) and the date upon which the Appellate Chamber issued its Judgement (i.e., 26 December), to review fully the cases of each of the seven men who had filed appeals. Iraqi law requires that an appellate body review not only all appellate briefs, but also the referral file and the evidence that has been presented at trial by the Prosecution and the Defence. In Dujail, these materials were supplemented by the lengthy transcript of the proceedings that the American advisory group, the RCLO, had ordered prepared at the conclusion of the trial - something which it is believed had never been done by (or for) an Iraqi court.17' The total volume of documentation in question ran to thousands of pages; when it was catalogued by the Trial Chamber for formal submission to the Appellate Chamber, the materials filled twenty binders - not including several thousand pages of transcripts. It will additionally be noted that only one complete copy of these materials was made available to the nine Justices of the Appellate Chamber.'12 It cannot be said whether the nine Justices worked frantically during the time available to them, or whether they worked at all. What is clear is that the Appellate Judgement proffered a number of findings with respect to the case of Taha Yaseen. In particular, it was held that Taha Yaseen had, inter alia, commanded the Popular Army, had served as Deputy Prime Minister, and had been a 'member of the security forces'. The Appellate Chamber also found that 'members of the Popular Army and the Party in Dujail had participated in an effective manner [sic] in arresting victims, the civilian population of Dujayl'. For the Appellate Chamber, it followed from this, that 'being the General Commander of the Popular Army, he
169. 'Iraqi PM on Saddam and the future', at ~http://news/bbc.co.uk/2/hi1middle-eastl6126532. stm>; 'Iraqi president predicts the hanging of Saddam by year's end', at
[Taha Yaseen] enjoyed wide
authority over those who are [sic] members of the [Popular] ~ r m ~ ' The . " ~Appellate Chamber took particular cognisance of the documentary evidence introduced in the Trial Judgement, that, according to the Trial Chamber and subsequently the Appellate Chamber, illustrated the measure of authority possessed by Taha Yaseen over Popular Army personnel. In particular, the Appellate Chamber found that Taha Yaseen, had the authority to form investigative commissions and to delegate all authorities to the commission. Moreover, the Popular Army General Commander had Chiefs of Staff under his command. This means that he was able to move the sections under his command to any location and to assign tasks [. ..] It is clear from the above mentioned that [Taha Yaseen possessed] the legal authority to act. His failure to act is enough to hold him criminally responsible for actions committed by his subordinates. He did not stop the misconduct or he neglected to take appropriate action against the perpetrators. He did not investigate the activities of perpetrators and did not hold any perpetrators responsible. Thus, because [Taha Yaseen] had actual authority over his subordinates by virtue of his position, he knew of the systematic and wide-ranging attacks in which his forces in the Popular Army had participated against the citizens of Dujail. He was silent during the meeting in which he confessed to those illegal acts [sic]; he would in this way have participated in a direct way with the purpose of reinforcing his criminal activity. Based on the aforementioned, it has been established that his subordinates who had committed crimes against the victims of (the people) of Dujail were subordinated to their Commander, both legally and actually (i.e., in practice) and that they themselves committed one crime after another; even had they not been under his actual command, then they were at least through his implicit consent and his condoning of their acts and his control of those acts without taking the necessary and reasonable measures within his authority to prevent the commiting of the crimes, or for exposing their accountability to the legal authorities to be investigated. [.. .] All of the aforementioned constitutes adequate evidence for his con~iction."~ Without further elaboration, let alone reference to supporting jurisprudence of the ICTY, and, or in the alternative, the ICTR, the IHT Appellate Chamber upheld the finding of the Trial Chamber that Taha Yaseen was guilty of the charge of w i l h l killing as a crime against humanity. Whilst the Appellate Judgement appeared to suggest that the reasons for its finding were rooted in the law of command responsibility, the Appellate Judgement itself cited the grounds for the individual criminal liability of Taha Yaseen as Article 15(1), (2), (3) and (4), that is, every mode of individual criminal liability provided for by ICL and the IHT statute."' The Appellate Chamber additionally ordered that the case file be returned to the Trial Chamber 'for the purpose of strengthening the penalty against him [Taha Yaseen]
173. Dujail, Appellate Judgement, pp. 16-17. 174. Ibid., pp. 17-18. 175. Ibid.,p. 20.
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The case of Taha Yaseen Ramadan
and raising it to the appropriate legal limit'.'76 In other words, the Appellate Chamber directed the Trial Chamber to re-sentence Taha Yaseen to death.
11.
RE-SENTENCING PROCEEDINGS
As has already been noted, Iraqi officials hanged Saddam Hussein on 30 December 2006; his co-defendants, Awad Hamad and Barzan Ibrahim, were hanged in the same detention centre on 15 January 2007. Whilst putting Barzan Ibrahim to death, the Iraqi executioners severed the head of Barzan Ibrahim from his body after having failed to calculate correctly the length of the fall necessary to break the condemned man's neck. The following day (i.e., 16 January 2007), the spokesman for the Tribunal convened a press conference during which it was announced that Taha Yaseen would be re-sentenced on 25 January. Counsel for Taha Yaseen were never formally told by the IHT that they were to appear in court on 25 January. The International Law Advisor assigned to the Defence, formally an employee of the IHT, learned of the renewal of proceedings against Taha Yaseen through news articles posted on the internet. One online edition of a newspaper observed, with presumably unintentional black humour, that the sentence of Taha Yaseen would be 'upgraded' to death by hanging.'77 The President of the IHT, Judge Aref Abdul Razzak, took the decision to proceed with the re-sentencing of Taha Yaseen; it showed every appearance of having been rushed. It will be recalled that the Appellate Chamber in its Judgement had referred the matter back to Trial Chamber I; Iraqi law had compelled the Appellate Chamber to proceed in this manner because under Iraqi law cassation panels do not have the authority to increase sentences. In January 2007, the problem facing IHT President Aref Abdul - which he may well have seen as an opportunity - was that at least two of the key members of Trial Chamber I were not present in Iraq, that is, they were abroad on an extended vacation. For instance, the presiding Judge, Raouf Rashid, was in the United Kingdom; the only judge to have sat through the entire trial, and who can be regarded as the architect of the original conviction of Taha Yaseen, had temporarily decamped to another western country. The President of the IHT did not contact either man with the news that the re-sentencing would proceed; nor did the President request that either man return to Baghdad to participate in the re-sentencing process. When the announcement was made on 16 January that Taha Yaseen would be re-sentenced on 25 January, the composition of Trial Chamber I (in the absence of those who had heard Dujail) had not yet been determined by the President of the IHT. Ultimately, a sufficient number of judges was found to re-constitute the fivejudge panel, although none of those appointed to the reconstituted Trial Chamber I had sat through the Dujail proceedings in their entirety. Ali Hasan Al-Kahatji, the
176. Ibid. 177. The online newspaper in question was the Indianapolis Star.
newly-appointed Judge, had been appointed to Trial Chamber I by the IHT President only several days before the verdicts were handed down on 5 November 2006. It will further be recalled that Judge Ali Hasan had replaced the member of the Dujail Trial Chamber whom the Office of the Prime Minister had used justice officials to force into retirement. It was the view of Taha Yaseen, his counsel, the foreign advisors to the IHT (amongst them the Intemational Law Advisor assigned to the Defence) and others who had been following the proceedings of the IHT since the start of Dujail, including a number of foreign service officers as well as international-governmental and non-governmental organisation personnel in Baghdad and elsewhere, that the developments in the case of Taha Yaseen in January 2007 were more of a political nature than they were juridical. Fearing a miscarriage of justice - that is, the execution of a man on grounds not justified in law - the various interested parties approached the problem from different positions. Several foreign nationals with diplomatic accreditation in Iraq raised the case of Taha Yaseen with the President of the IHT. They requested his assurance that all applicable Iraqi and international laws would be adhered to in any reconsideration of the original sentence of life imprisonment. This assurance was given. Elsewhere, and publicly over the succeeding weeks, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, the UN Special Chairperson-Rapporteur of the Working Group on Arbitrary Detention, and representatives of non-governmental organisations such as Human Rights Watch, Amnesty International and the International Center for Transitional Justice issued statements calling upon Iraq to conform to her international obligations, in particular where the application of the death penalty was ~oncerned."~ Counsel retained at this juncture by the family of Taha Yaseen, supported by the Advisor to the Defence and with the approval of Taha Yaseen, resolved in the first instance to attempt to forestall the re-sentencing expected on 25 January. To this end, counsel challenged elements of the Appellate Judgement of 26 December 2006. A so-called Request for Correction was duly filed with the IHT Appellate Chamber - the only body to which the Defence could appeal the Appellate Judgement under Iraqi law - on 24 ~anuary."~ This recourse to appeal was purely a
178. For a sample of the interventions by international- and non-governmental organisations, see Leandro Despouy, United Nations Special Rapporteur on the Independence of Judges and Lawyers, and Leila Zerrougui, United Nations Chairperson-Rapporteur of the Working Group on Arbitrary Detention, 'Human Rights Experts Reiterate Concern over Death Sentences Imposed by Iraqi High Tribunal,' 24 January 2007; Amnesty International USA, Public Statement MDE 14100712007, 'Iraq: Amnesty International concerned about possible death sentence for former vice-president Taha Yaseen Ramadan,' 09 February 2007; Human Rights Watch and the International Center for Transitional Justice, 'Iraq: Don't add Death Penalty to Dujail Sentence. Increased Punishment Would Exacerbate Flawed Judicial Process,' 12 February 2007; Kuwait News Agency, 'Kuwait calls on Iraq to halt death execution of Saddam's ex-deputy,' 17 March 2007; Terry Davis, Secretary General of the Council of Europe, 'Stop Executions in Iraq,' 20 March 2007. 179. Request for a Correction of Legal Errors in, or Arising from, the Judgement of the Appeals Chamber dated 26 December 2006, Defence filing with IHT Appellate Chamber, 24 January 2007.
238
The case of Taha Yaseen Ramadan
delaying tactic designed to buy time for those in diplomatic, international-governmental and non-governmental organisation circles who had agreed to address the re-sentencing issue in the public realm, and, or in the alternative, with senior Iraqi judicial and political officials. For their part, counsel focussed upon purely legal issues - after Taha Yaseen instructed that they should do so - and the sort of Defence histrionics that trial observers had witnessed earlier in Dujail did not reappear. Whilst it is difficult to say whether the failure of the 'political defence' of Saddam Hussein had constituted a lesson-learned for counsel retained by Taha Yaseen, the fact is that these lawyers put forward legal arguments that avoided reference to the assumed political components of the case. In particular, the request for correction that counsel for Taha Yaseen filed on 24 January was rooted squarely in the peculiarities of Iraqi procedural law, most notably the requirement that a court of cassation (in this case the IHT Appellate Chamber) is compelled by the said law to explain the grounds for any request that a higher sentence be awarded by the court that had passed sentence in the first in~tance.''~ The Appellate Judgement issued on 26 December 2006 proffered no reasons for the re-sentencing request. The Defence appeal likewise observed that a file returned to a lower court for re-sentencing must be reviewed by the same judge or panel that had issued the verdicts in the first instance.I8' Counsel for Taha Yaseen noted that this was hardly possible in this case, at least in January 2007, owing to the absence of two of the Dujail judges on extended vacations outside of Iraq. When Trial Chamber I convened on 25 January, the session lasted for no more than two minutes, that is, only long enough to adjourn until 12 February 2007. No reasons were given for the adjournment. The adjournment was, however, welcomed by the Defence to the extent that it afforded counsel for Taha Yaseen additional time to prepare more comprehensive arguments against the awarding of a capital sentence. Counsel for Taha Yaseen filed these arguments with Judge Ali Hasan and the remainder of the newly-constituted Trial Chamber I on the morning of 12 ~ e b r u a r ~ . " ~ Referring to the provisions of Iraqi-domestic as well as international law, counsel for Taha Yaseen proffered six principal arguments in support of their contention that their client should not be awarded a capital sentence: (1) Trial Chamber I ought not to address the re-sentencing issue until such time as the Appellate Chamber had ruled upon the Defence submission to the Appellate Chamber dated 24 January 2007;"~ (2) neither Iraqi-domestic nor international law imposed upon Trial Chamber I an obligation to raise the sentence of Taha Yaseen, in accordance with the request made by the Appellate Chamber in its Judgement of 26 December 2006; (3) three of the five members of Trial Chamber I, as composed on 12 Febru-
180. Para. 259(b), 1971 Procedural Law. 181. Ibid., para. 263(a). 182. Request to Confirm or Reduce the Sentence of Trial Chamber One Issued on 5 November 2006 or in the Alternative to Delay Proceedings until the Appellate Chamber Reviews the Request for Correction, Defence filing with IHT Trial Chamber I, 12 February 2007. 183. Request for a Correction of Legal Errors, supra n. 179.
ary 2007, had not been present during any of the evidentiary proceedings concerning the case of Taha Yaseen; (4) in considering the re-sentencing of Taha Yaseen, Trial Chamber I was bound by Iraqi-domestic law as well as the relevant provisions of ICL and scholarly opinion; (5) Trial Chamber I was correct in imposing a sentence of life imprisonment upon Taha Yaseen in light of its finding of criminal command responsibility for the crime against humanity of wilfid killing on the grounds that the mental requirement for a finding of criminal command responsibility was (and remains) akin to negligence, rather than recklessness or another mens rea amounting to criminal intent; and (6) additional evidence had been uncovered, and attached to the Defence submission, that in the submission of the Defence called into question the findings of the Trial and Appellate Chambers to the effect that Popular Army personnel had participated in attacks upon the civilian population of Dujail and were otherwise under the de facto authority of Taha Yaseen. ' X4 In addition to this Defence filing, the Trial Chamber had before it a highly unusual submission, that is, an amicus brief filed on 8 February 2007 by the United Nations High Commissioner for Human Rights, Madame Louise Arbour. In the said brief, the High Commissioner, a former Supreme Court of Canada Justice and prior to that the Prosecutor of the ud hoc Tribunals in The Hague and Arusha, argued at considerable length that the application of the death penalty in the case of Taha Yaseen would be inconsistent with the obligations of Iraq under international law.l 85 Trial Chamber I had scheduled the session of 12 February 2007 to commence at 10:OO hours. In the event, the proceedings got underway only several hours later. Initial delays were caused by an aborted effort on the part of one faction of the Trial Chamber to engineer the arrest of one of the members of the legal team of Taha Yaseen, on the (spurious) grounds that the lawyer in question had forged his legal qualifications.'86Additionally, the President of the IHT, Judge Aref Abdul, appeared in the courthouse, which is located several kilometres from the IHT President's office. The arrival of Judge Aref Abdul was followed by what seemed to onlookers to be a heated meeting between the President, Judge Ali Hasan and the Judge presiding over Trial Chamber 11, Mohammed Orabi Majeed Al-Khalifa, that was then hearing ~nfal.'~'The various delays gave a governmental official who was present in the courthouse - the liaison officer from the Office of the Prime Minister to the IHT, who was additionally responsible for the organisation and
184. General Security Directorate to First Deputy Prime Minister, 20 July 2007, IST. A4018.011.004 - ,010.
185. Application for Leave to Intewene as Amicus Curiae and Application in Intervention as Amicus Curiae of United Nations High Commissioner for Human Rights, 8 February 2007. 186. The lawyer in question, who cannot be identified for security reasons, had been appearing before the IHT since October 2005 and his qualifications had never been called into question. Suffice it to say that all members of the Defence team of Taha Yaseen as constituted on 12 February 2007 were qualified to appear before the IHT. 187. The discussion was witnessed, but not heard, by at least two dozen individuals.
240
The case of Tuha Yaseen Ramadan
facilitation of death sentences awarded by the IHT - the opportunity to greet the members of Trial Chamber I prior to the start of the proceedings.'88 When the session did commence, Judge Ali Hasan informed counsel for Taha Yaseen both that the Trial Chamber had studied their arguments during the morning delay and paradoxically that counsel for the accused had filed the arguments 'too late' for consideration by Trial Chamber I. The presiding Judge added that the request for a correction in errors in the Appellate Judgement of 26 December 2006, which Defence counsel had filed with the Appellate Chamber on 24 January 2007, had been rejected by the Appellate Chamber at a juncture which Judge Ali Hasan did not specify.ls9 The presiding Judge did not permit counsel to make oral arguments; Judge Ali Hasan made no reference to the amicus brief filed by the United Nations High Commissioner for Human Rights. The Trial Chamber invited Taha Yaseen to speak, but when the prisoner began to read from a statement that he had prepared, in which he professed his innocence, Taha Yaseen was cut off by Judge Ali as an.'^' The Trial Chamber then retired to consider its verdict. After a break of about thirty minutes, during which the members of the Trial Chamber were seen in the company of non-IHT employees'91 taking tea and cakes, the proceedings resumed whereupon Trial Chamber I sentenced Taha Yaseen to death. The Trial Chamber issued a written order informing the Ministry of Justice of the change of sentence later on the same day, although Trial Chamber I proffered no reasons, in this order or elsewhere, for its decision to award a capital sentence.'92 On 11 March 2007, Taha Yaseen exercised his right to appeal the revised sent e n ~ e .Seven ' ~ ~ grounds for appeal were raised: (1) the Appellate Chamber had not issued reasons for its dismissal (delivered orally, through Trial Chamber I) of the Defence filing dated 24 January 2007; (2) recent events had created an impression of political interference in the process of re-sentencing that had called the administration of justice into disrepute; (3) the Appellate Chamber had erred in not informing Trial Chamber I that Trial Chamber I was not compelled by Iraqi law to increase the sentence against Taha Yaseen, despite the referral of the file to Trial Chamber I in its Appellate Judgement of 26 December 2006; (4) Trial Chamber I, as constituted on 12 February 2007, was not permitted by Iraqi law to re-sentence Taha Yaseen because there was no compelling reason that all of the judges who had heard the evidence were not present; (5) in considering appropriate sentence for the crimes perpetrated by Taha Yaseen, the Appellate Chamber was bound by Iraqi-domestic law as well as the relevant provisions of ICL and scholarly opinion;
188. 'From Hollywood actor to execution overseer', The Seattle Times, 2 1 March 2007. 189. Request for a Correction of Legal Errors, supra n. 179. As far as can be determined, the Appellate Chamber never made written or oral public reference to the brief in question. 190. A transcript of the 12 February 2007 proceedings was not prepared although a video and sound recording of the session is available. 191. The individuals in question cannot be identified for security reasons. 192. IHT Trial Chamber I to Ministry of Justice, General Directorate of Prisons, 12 February 2007. 193. Appeal of the Sentencing Order Issued by Trial Chamber One on 12 February 2007, Defence filing with IHT Appellate Chamber, 11 March 2007.
KH. Wiley
241
(6) a sentence of life imprisonment was the maximum permissible punishment in the case of Taha Yaseen in light of the findings of the Trial and Appellate Chambers of criminal command responsibility, in particular, on the grounds that the mental requirement for a finding of criminal command responsibility is akin to negligence, rather than recklessness or another mens rea amounting to criminal intent; and (7) additional evidence uncovered by the Defence was of an exculpatory nature and had not been considered by Trial Chamber I during the re-sentencing hearing nor during its deliberations. In the event, these arguments were ignored. In its one-page Judgement, issued on 15 March 2007, the IHT Appellate Chamber upheld the sentence of death by hanging. In particular, the Appellate Chamber noted, it appears that the Trial Chamber followed the decision of the Appellate Chamber [of 26 December 20061 and thus, their decision to intensify the punishment against the convicted person Taha Yaseen Ramadan and the reasons for this were correct and they are in compliance with the law and the decision [of the Appellate Chamber] is to approve the sentence and reject all appeals.'94
The signature of the President of the IHT, Judge Aref Abdul, the Judge presiding over the Appellate Chamber, followed this passage, effectively closing the case of Taha Yaseen. Taha Yaseen Ramadan was hanged by Iraqi officials five days later.
12.
I
CONCLUDING REMARKS
The proceedings against Taha Yaseen were undertaken in an environment characterised by a profound ignorance of the relevant ICL on the part of the Iraqi jurists involved in the Dujail investigation and trial. This ignorance came together with a dizzying array of procedural difficulties, most notably the failure of the Prosecution to disclose to the Defence and the Trial Chamber anything more than a minute fraction of the extant evidence that RCLO evidence handlers had identified as being of potential relevance to the Dujail investigation and trial. A fair trial for Taha Yaseen and his co-accused was not possible absent a full examination of all extant evidence by Iraqi jurists who were possessed of a thorough understanding of the elements and legal requirements of the core international crimes and forms of participation alleged in the indictment. In the event, this did not occur. That noted, these grievous shortcomings were a good deal less apparent during the trial than they have come to appear in retrospect. This is presumably a function of the fact that the trial took place in an environment characterised by severe political and sectarian violence that touched upon every aspect of the Dujail proceedings. More often than not, the high levels of violence, and the impact of this violence upon
194. Case lIJ First/2005, Dujail,Appellate Judgement, 15 March 2007, p. 1.
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The case of Taha Yaseen Ramadan
both jurists and witnesses, diverted the attention of all concerned from questions of evidence and law towards issues of security and logistics. The impact upon Dujail of the political and sectarian violence gripping Iraq should not be confused with the use of the IHT by Iraqi politicians as a political football, or worse, as a forum in which old scores might be settled. Saddam Hussein's decision to mount a so-called 'political defence' was disastrous for a number of the accused, not the least of which was himself. Saddam Hussein's use of Dujail as a platform from which he might make his case for a re-assumption of power over Iraq - which, in his hubris, he thought possible until only shortly before his execution - badly compromised the efforts of counsel for the lesser accused (i.e., the four prisoners hailing from Dujail) to mount an effective defence of their clients. Additionally, the political antics of several counsel for the erstwhile highranking accused, including one of the lawyers retained by Taha Yaseen, combined with these lawyers' profound ignorance of ICL, served to ensure that their clients received no meaningful defence. Leaving aside the closing argument cobbled together at the eleventh hour by a replacement team whom the accused refused to instruct, retained counsel left Taha Yaseen to sit through the Dujail trial with little more than formal legal representation. It is shamehl that Taha Yaseen's retained counsel did not do more during the trial itself by way of mounting a defence on behalf of their client. The demonstrable interest of Taha Yaseen in defending himself against the charges - which was apparent to any regular observer of Dujailought to have focussed the attention of his lawyers upon the fact that the evidence against their client was extremely weak when juxtaposed against the elements of the alleged crimes as well as the legal requirements of the forms of participation set forth in Article 15 of the IHT Statute. Despite their limited knowledge of ICL, certain members of Trial Chamber I, as it was composed at the conclusion of the closing arguments, seemed to grasp intuitively the weaknesses of the case against Taha Yaseen. In the event, barely-disguised political interference from the Government of Iraq, and the Off~ceof the Prime Minister in particular, which was keen to see a capital sentence awarded to Saddam Hussein, negated any such nascent salutary effects. The political interference gave rise to a change in the composition of Trial Chamber I approximately one week before the Trial Judgement was issued. The addition of Judge Ali Hasan to the Dujail panel served to shift the balance of power therein to a hard-line majority; the change in the composition of the Trial Chamber also sowed the seeds for the eventual execution of Taha Yaseen. When Taha Yaseen's life was spared by the initial Trial Judgement, additional political pressure was brought to bear upon the IHT Appellate Chamber to ensure that the Iraqi Government's conception of justice would prevail. The subsequent decision of Trial Chamber I, by then headed by Judge Ali Hasan, to award Taha Yaseen a capital sentence was redolent of political interference of the most egregious nature. Taha Yaseen's subsequent execution constituted a travesty of justice that cannot be reversed. An examination of the case of Taha Yaseen illustrates the pervasive problems faced by the IHT. Many of these same problems reappeared during the second (now completed) IHT trial, that is, Anfal. In fairness, it will be noted that consider-
able improvements were made during Anfal in conforming to the requirements set forth in the relevant Iraqi procedural law. For instance, the disclosure to the Defence of all relevant contemporaneously-generated documentation, whilst not undertaken with perfection, can be said to have been reasonably well handled. At the same time, Anfal revealed that the Iraqi jurists employed by, or otherwise appearing before, the IHT had made limited progress in understanding the law that they were arguing and applying. Whilst progress of any sort at the IHT should be lauded by those committed to the rule of law, it will be kept in mind that, as with the case of Taha Yaseen, IHT judges with an imperfect grasp of the substantive law are nonetheless possessed of the authority to award capital sentences, which in the event were received by three of the six accused in Anfal. This is unsatisfactory; and a meaningful solution to the problem of inadequate ICL knowledge within the IHT is not foreseeable. Whereas a hybrid tribunal, based in Baghdad, is the most obvious solution to the problem of inadequate ICL knowledge, there is little hope that this solution would be accepted by the current government of Iraq. Elements of the latter, especially the Office of the Prime Minister, are intent upon settling old scores. This is suggested by the interference of the Prime Minister and his staff in the Dujail process, but also by other events, not the least of which was the party that commenced at the Prime Minister's Office on 29 December 2006 when the Prime Minister signed the warrant of execution for Saddam Hussein, despite the fact that the Prime Minister had no constitutional authority to do so. 195 The celebration in question continued into the following day, after the former dictator's hanging, whilst the body of Saddam Hussein lay exposed to curious onlookers in a vehicle parked outside of the Prime Minister's Office. Even absent the sort of political meddling that was witnessed by trial observers throughout Dujail and again during Anfal, the difficulties being experienced by Iraqi jurists in grasping sufficiently the substantive law that they have been arguing as well as applying will continue to ensure that the judgements of the Trial and Appellate Chambers of the IHT will rest upon inadequate legal reasoning. A consideration of the case of Taha Yaseen in particular exposes the IHT as a failed experiment in the application of ICL in a State gripped by political and sectarian violence.
195. See the article elsewhere in this volume written by E.H. Blinderman pp. 153-179
CURRENT DEVELOPMENTS
THE YEAR IN REVIEW' Avril ~ c ~ o n a l d ~
Introduction: the applicability to the 'war on terror' of common Article 3 and trials before military commissions . . . . . . . . . . . . . . . . . . . TheHamdancase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The 2006 Military Commissions Act . . . . . . . . . . . . . . . . . . . . . . . . . . . Department of Defense Directive of 5 September 2006 . . . . . . . . . . . . .
249 249 255 259
Conflicts. armed forces and combatants . . . . . . . . . . . . . . . . . . . . . . . . . Typesofconflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protected persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Civilians generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journalists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
260 260 260 260 261 262 264
Methods. means and types of warfare . . . . . . . . . . . . . . . . . . . . . . . . . . . 'Targeted killing' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Israeli decision on targeted killing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The petitioners' position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The respondents' position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TheCourt'sfindings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
264 264 264 265 266 267
Peaceagreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 The Darfir Peace Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Thecrimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforced disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The International Convention for the Protection of All Persons from Enforced Disappearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extraordinary rendition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Torture and cruel. inhuman and degrading treatment . . . . . . . . . . . . . . . UN Reports on the situation of detainees at Guantanamo Bay . . . . . . . . Report of the UN Commission on Human Rights . . . . . . . . . . . . . . . . . .
271 271 271 273 275 275 275
I . O A . McDonald, 2007 . 2 . Dr Avril McDonald is a research associate of the TMC Asser Institute and a lecturer in intemational humanitarian law at the University of Groningen . Yearbook of International Humanitarian Law Volume 9 .2006 .pp . 247-3 10
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A . McDonald The role of health care professionals in torture and inhuman treatment of detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278 Implementation of IHL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 The International Committee of the Red Cross . . . . . . . . . . . . . . . . . . . . 281 Report on business and international humanitarian law . . . . . . . . . . . . . 281 The International Fact-Finding Commission . . . . . . . . . . . . . . . . . . . . . . 283 International organisations and international actions . . . . . . . . . . . . . . . 284 United Nations Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 TheSecurityCouncil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Afghanistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284 Bosnia and Herzegovina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Burundi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 CGted'Ivoire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .287 Democratic Republic of the Congo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 Eritrea and Ethiopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Haiti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Iran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292 Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 . Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Liberia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .294 NorthKorea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .295 SierraLeone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Somalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .295 Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Timor-Leste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 WesternSahara . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .298 Rule of law - respect for IHL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Human Rights Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Congov.Rwandacase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 North Atlantic Treaty Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Arms control and disarmament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Nuclear weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 North Korea's nuclear tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Iran's nuclear program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 Developments concerning WMD at the Security Council . . . . . . . . . . . 306 The Global Initiative to Combat Nuclear Terrorism . . . . . . . . . . . . . . . . 306 Biological and toxin weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Sixth RevCon of the Biological Weapons Convention . . . . . . . . . . . . . . 307 Conventional weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
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8.3.2
Third RevCon of the Certain Conventional Weapons Convention . . . . . 309 Small arms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
1.
INTRODUCTION: THE APPLICABILITY TO THE 'WAR ON
8.3.1
TERROR' OF COMMON ARTICLE 3 AND TRIALS BEFORE
MILITARY COMMISSIONS Rebranded the 'long war' in 2006,~underlining what the Pentagon indicated would be its indeterminate duration: the conflict of neither an international nor non-international character5 that was formerly known as the 'war on terror' showed no sign of running out of steam or victims. For persons detained in relation to the 'long war' and facing the possibility of trial before military commissions, the year brought some significant developments, first and foremost in the form of the judgement of the US Supreme Court in the Hamdan case.6 But, as in previous years, it often proved to be a case of one step forward, two steps back. 1.1
The Hamdan case
The crux of Hamdan's appeal from the Court of Appeals for the District of Columbia circuit7 to the Supreme Court was that it would be unlawful to try him before the military commissions convened by President Bush in his Military Order No. 1 of 13 November 20018 as (1) neither US law nor the laws or customs of war supported trial by military commission for the crime with which he was charged -
3. Quadrennial Defense Review Report (6 February 2006) p. v,
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conspiracy 'to commit ... offenses triable by military commission' - as it was not a recognised violation of the laws of war, and (2) the procedures of the military commissions violated international law, including his right to see the evidence against him.9 Upholding his appeal, the Supreme Court first rejected the government's argument that it lacked jurisdiction to hear his case at all on account of the 2005 Detainee Treatment ~ c t . "It also dismissed the argument that even if it had statutory jurisdiction it should abstain fi-om hearing the case because, as a civilian court, it should await the outcome of the ongoing military proceedings." Turning to the legality of the establishment and procedures of the military commissions created by President Bush, the Supreme Court found that Hamdan's trial before these milit& commissions would be unlawful on three separate grounds: (I) They were not lawfully established as they lacked congressional authorisation and were not required by military necessity;" (2) the crime of conspiracy 'to commit .. . offenses triable by military commission' was not one over which military commissions have jurisdiction or a recognised violation of the laws of armed conflict;13 and (3) even if Hamdan had been charged with a crime cognisable by military commissions, that is, a violation of the laws or customs of war, the military commission lacked the power to proceed because its structure and procedures violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions.14
9. Hamdan, supra n. 6, pp. 1-2. 10. In response to the Supreme Court's decision in the case of Rasul v. Bush, Supreme Court of the United States, 542 US 466, Nos. 03-343 (28 June 2004), which found that US courts could hear applications filed by foreign nationals captured abroad and held at Guantanamo Bay, Congress passed the 2005 Detainee Treatment Act (DTA), which gave the US Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant. The DTA was part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863). Published 30 December 2005. 9 1005(e)(l) of the DTA provides: 'no court ... shall have jurisdiction to bear or consider ... an application for . .. habeas corpus filed by . .. an alien detained ... at Guantinamo Bay'. Section 1005(h)(2) of the Act provides that §§1005(e)(2) and (3) - which give the D.C. Circuit 'exclusive' jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions - 'shall apply with respect to any claim whose review is ... pending on' the DTA's effective date. 11. Relying on the case of Ex parte Quirin, 3 17 US 1, at 19, the Supreme Court found: 'Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial - rules intended to safeguard the accused and ensure the reliability of any conviction. While we certainly do not foreclose the possibility that abstention may be appropriate in some cases seeking review of ongoing military commission proceedings (such as military commissions convened on the battlefield), the foregoing discussion makes clear that, under our precedent, abstention is not justified here.' Hamdan, supra n. 6, p. 25. 12. Ibid., pp. 48-49. 13. Ibid., pp. 36-40. 14. Ibid., pp. 49-72.
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The Supreme Court rejected the argument that Hamdan could not directly invoke the protection of the Geneva Conventions before a US court, finding that the case of Johnson v. ~ i s e n t r a ~ e rwhich , ' ~ the government and Court of Appeals had relied on, was not controlling. It also dismissed the government's alternative argument that Hamdan was not in any event entitled to their protection. Even though Hamdan was captured in Afghanistan in November 2001 while an international armed conflict was still ongoing, the government argued and the Court of Appeals had allowed that he was actually captured during a separate and distinct armed conflict, namely, the war with A1 Qaeda. The Supreme Court accepted this at face value as well as the government's assertion that this conflict had begun with A1 Qaeda's attacks of 11 September 2001.'%owever, it rejected the government's position that the four Geneva Conventions did not apply to this conflict with A1 Qaeda because it is not an international armed conflict as described in their common Article 2. It found it unnecessary to determine the precise nature of the conflict with A1 Qaeda as it found that, regardless of its character, at least one provision of the Conventions applies to it, namely common Article 3." It rejected the argument that 'since Hamdan was captured and detained incident to the conflict with a1 Qaeda and not the conflict with the Taliban, and since a1 Qaeda, unlike Afghanistan, is not a "High Contracting Party" - i.e., a signatory of the Conventions, the protections of those Conventions are not . .. applicable to ~ a m d a n ' . " It also dismissed the argument that the conflict with A1 Qaeda, being 'international in scope', could not be considered as a conflict not of an intemational character, stating: 'That reasoning is erroneous. The term "conflict not of an international character" is used here in contradistinction to a conflict between nations.'19 According to the Supreme Court: 'Common Article 3 . . . affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory "Power" who are involved in a conflict "in the territory of' a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase "not of an international character" bears its literal meaning.'20
15. 339 US 763 (1950). The administration and Court of Appeal had relied upon a footnote of that opinion to argue that the 1929 Geneva Conventions could not be directly invoked by individuals. 16. At fn. 3 1 of its decision the Supreme Court stated: '. .. we do not question the Government's position that the war [with A1 Qaeda] commenced with the events of September 11, 2001'. Hamdan, supra n. 6, pp. 35-36. 17. Ibid., pp. 65-66. 18. Ibid. 19. Ibid., p. 67. 20. Ibid.
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It is not only the government's reasoning that can be faulted as erroneous. Good news though the Supreme Court's conclusion on the applicability of common Article 3 to the 'war on terror' may come as to persons detained in relation to it or its associated actual wars - who were previously considered to fall outside the protection of international humanitarian law2' - it is legally unfounded. There are two main problems with it. The first relates to the facts of this specific case. The second concerns the facts of the wider 'war on terrorism'. First, by declining to examine the character of the conflict Hamdan was captured in on the grounds that it was not necessary because he was anyway covered by common Article 3, the Supreme Court denied him the greater protection of IHL applicable in international armed conflict to which he was entitled. Given that Hamdan was captured in 2001 during an international armed conflict in Afghanistan, the law applicable in such conflicts, rather than common Article 3 alone, would govern his detention. At the time of his capture, Hamdan, a Yemeni national, was working as Osama Bin Laden's driver.22If he was not a member of the armed forces of the Taleban, or did not fight alongside the Taleban, he would not be entitled to (presumptive) prisoner of war status under Article 4 of the Third Geneva Convention. But if he was in some way affiliated with or integrated into the Taleban's armed forces, he would be. 'Article 4A(1) and (3) of the Third Convention confers prisoner of war status on members of a State Party's regular armed forces, irrespective of the nationality of the corn bat ant(^).'^^ If, as appears to be the case, Hamdan was a civilian, in principle he would be covered by the Fourth Geneva Convention. During an international armed conflict, even a civilian who has taken a direct part in hostilities (and there was no evidence that Hamdan had done so) benefits from the protec-
21. Although the Bush administration conceded that Geneva law applied to the conflict between Afghanistan and the US et al, it had concluded that members of the Taleban had forfeited the right to its protection because they had behaved unlawfully. They were thus 'unlawful combatants'. As for members of A1 Qaeda, the administration had determined that 'none of the provisions of Geneva apply to our conflict with a1 Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, a1 Qaeda is not a High Contracting Party to Geneva'. They were also considered to be 'unlawful combatants', but viz. the war on terror rather than the war with Afghanistan. See The White House, Memorandum from the President for the Vice-president, the Secretary of State, the Secretary of Defense, the Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs, Chairman of the Joint Chiefs of Staff, regarding Humane Treatment of al Qaeda and Taliban Detainees (7 February 2002), reprinted in Greenberg and Dratel, supra n. 5, p. 134, . 23. R.K. Goldman and B.D. Tittemore, 'Unprivileged combatants and the hostilities in Afghanistan: Their status and rights under international humanitarian and human rights law', Paper written for the American Society of International Law Task Force on Terrorism (December 2002) p. 29.
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tions of the Fourth Convention except to the extent that they can be limited pursuant to its Article 5 , and 'such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial .. .'. If, as a Yemeni national, Hamdan was excluded from the protection of the Fourth Convention by virtue of its Article 4,24 he would still be entitled to the protections of Article 7 5 of Additional Protocol I. Although neither the US nor Afghanistan is a party to the Protocol, these minimum standards are widely considered to have the status of customary international law.z5Indeed, the Supreme Court in Hamdan stated: 'Although the United States declined to ratify Protocol I, its objections were not to Article 7 5 thereof. Indeed, it appears that the Government "regard[s] the provisions of Article 7 5 as an articulation of safeguards to which all persons in the hands of an enemy are entitled."'26 As Hamdan was captured during an international armed conflict in Afghanistan, there is nothing to exclude the simultaneous application of common Article 3 in his particular case, but it is not to be substituted for the greater protection of the law applicable in international armed conflict.27 Second, the Supreme Court's conclusion in Hamdan that common Article 3 would apply to anyone captured anywhere at all during the war on terror is not legally correct. By accepting without inquiry the government's claim that the war on terror as a general phenomenon is an armed conflict, the Supreme Court gave credence to this baseless assertion, while avoiding the difficult work of identifying the character of this putative conflict. If the war on terror is not a conflict whose character can be identified, the logical conclusion may be that it is not an armed conflict that is recognised by international humanitarian law at all.
24. Which provides, in part: '. .. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.' 25. J.-M. Henckaerts and L. Doswald-Beck, eds., Customary International Humanitarian Law, Volume I: Rules (Cambridge, Cambridge University Press 2005) pp. 299-383. See also UN Commission on Human Rights, Situation of Detainees at Guantanamo Bay: Report of the Chairperson of the Working Group on Arbitrary Detention, Ms Lelia Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Ms Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Paul Hunt, Future E/CN.4/20061120 (15 February 2006) (hereinafter, Joint UN Report), para. 9. 26. Hamdan, supra n. 6 , p. 70, referencing W. Tafi, 'The law of armed conflict after 911 1: Some salient features', 28 Yale JIL (2003) pp. 3 19,322. 27. As recognised in the Nicaragua and TadiC cases, common Art. 3 can be applied to an intemational armed conflict as much as a non-international armed conflict. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ (1986) 14, para. 2 18; Prosecutor v. Duiko TadiC, ICTY, Case No. IT-94-1, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), para. 102.
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Although it is transnational in scope, the war on terror is not an international armed conflict as it is not fought between at least two states2' The fact that the war on terror is not an international armed conflict does not automatically make it an armed conflict not of an international character. Common Article 3 is not a residual category of any manifestation of violence that cannot be characterised as an international armed conflict. In order for common Article 3 to apply there must, at minimum, be an armed conflict.29The ICTY Appeals Chamber in its decision on jurisdiction in the TadiC case stated: '[Aln armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a Even by stretching the meaning of armed conflict - especially a common Article 3 armed conflict to its widest possible limits, it would not cover the war on terror as a general phenomenon for at least two reasons. First, the 'war on terror' is not an armed conflict, as it does not consist of hostilities, in the sense of protracted, organised military operations, between at least two protagonists which have the characteristics of either armed forces or organised armed groups.31Second, the very fact of its transnational character means that it does not take place within the confines of a single territory, as required by common Article 3.32If, for example, Hamdan -
28. Common Art. 2 1949 Geneva Conventions; Art. l(3) 1977 Additional Protocol I. 29. TadiC Jurisdiction Decision, supra n. 27, para. 67. 30. Ibid., para. 70. 3 1. The drafters eventually decided against including criteria to define non-international armed conflict, but the commentary to common Art. 3 mentions some, to give a sense of what is meant by a non-international armed conflict. The first is '[tlhat the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.' Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, ICRC 1958) p. 35. A1 Qaeda lacks the characteristics of an organised military force or armed group. As stated elsewhere by this writer: 'Even though it has an inner core, with a hierarchical structure and a military wing, it is . .. not an armed group, with commanders and soldiers. Its operators are not part of a military hierarchy or an organised military force as understood by international humanitarian law but are disparate and diffuse and sometimes only very loosely associated with A1 Qaeda or any organisation. A1 Qaeda does not act within a determinate territory. It is more in the way of an ideology and a tactic than an organisation. Even if it could be considered as some form of new type of armed group, it is not a party that has the means of respecting and ensuring respect for the Conventions, nor is it prepared to observe the rules, as its modus operandi is opposed to respect for IHL.' A. McDonald, 'Declarations of war and belligerent parties: International law governing hostilities between states and transnational terrorist networks', 54 NILR (2007) pp. 277 at 307. 32. Common Art. 3 makes it clear that its spatial application is limited to a single state by use of the phraseology: 'In the case of armed conflicts not of an international armed conflict occurring in the territory of one of the High Contracting Parties.' The ICRC Commentary on the provision makes it clear that what is envisaged is an armed conflict 'with armed forces on either side engaged in hostilities - conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country'. Supra n. 31, p. 36.
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had been captured in Ireland instead of Afghanistan in relation to the war on terror he could not have invoked the applicability of international humanitarian law.33 For detainees, prima facie the Supreme Court's findings as to the applicability of common Article 3 to the war on terror may not seem to have any negative implications - after all, many of the protections guaranteed in common Article 3 are recognised in international human rights law and the criminal codes of most states, including the USA. While the ICRC Commentary notes that 'the scope of applicat i o n o f the article must b e as wide as possible',34 it is n o t true, as t h e C o m m e n t a r y claims, that there are 'no drawbacks in this'.35 For the Supreme Court in Hamdan not only recognised the content of common Article 3 as being applicable, it specifically recognised the conflict with A1 Qaeda as being a real war. While common Article 3 only applies viz. 'persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause', during any armed conflict to which common Article 3 applies, it is permitted to kill persons who take a direct part in hostilities. By giving its imprimatur to the government's position that the war on terror is a real war to which international humanitarian law applies, the Supreme Court created a dangerous precedent, which could, for example, be used to justify extrajudicial killing of persons regarded as 'taking a direct part in hostilities during the war on terror', even outside of a territory where an armed conflict is taking place. Such 'arbitrary killing' constitutes a violation of human rights law, which cannot be derogated from even during states of emer-
1.2
The 2006 Military Commissions Act
Showing scant respect for a decision of their highest court, the US government's and Congress's reaction to the decision in Humdun was to once again legislatively overrule the Supreme Court's findings on habeas corpus and regarding many of the procedures applicable to trials before military commissions by passing the
33. See the conclusions of the Joint UN Report, supra n. 25, on this question at part 5.2.1.1 of this year in review, p. 2 10. 34. Ibid. 35. Ibid. 36. Art. 6(1) International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171; Art. 4 (1) American Convention on Human Rights, 1144 UNTS 123. Neither provision may be derogated from in times of emergency under Arts. 4 and 27 of the ICCPR and American Convention, respectively.
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Military Commissions Act (MCA).~'The MCA has been widely c r i t i c i ~ e dHere .~~ we will mention just a few provisions provoking concern. Congress's passage of the MCA was purportedly an effort to ensure that military commissions created pursuant to it would be legally well founded. Only alien unlawful enemy combatants can be tried by military commissions established by the Act. Under US law, as confirmed in the Hamdan case, only persons captured in connection with an armed conflict or occupation or in places where martial law applies, and who cannot or should not be tried by military courts-martial, may be tried by military commission^,^^ provided they are subject to the same procedures as those applicable before military courts-martial.40Because the Supreme Court held 'that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war indepenIn any dently renders illegal his trial by military commission' was re~erved.~' event, under the MCA, the military commissions do not have jurisdiction over lawful enemy combatants who have violated the law of war; they are instead subject to trial by military courts-martial. The Supreme Court in Hamdan rejected his tial before the earlier military commissions not only because the crime he was accused of was not recognised by the laws of war, but also because it was allegedly committed before 11 September 2001, which the court recognised as the beginning of the armed conflict with A1
37. Sec. 7 of the Military Commissions Act provides: 'No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination', and 'Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.' After the promulgation of the Military Commissions Act, the administration formally notified the US District Court that it no longer had jurisdiction to consider hundreds of habeas petitions filed by Guanthamo detainees and pending before US lower courts. K. DeYoung, 'Court told it lacks power in detainee cases', The Washington Post, 20 October 2006, ~www.washingtonpost.corn/wpdynlcontent~article120061101191AR2006 101901692.htm1>. 38. For example, the President of the ICRC stated: 'Our preliminary reading of the new legislation raises certain concerns and questions. The very broad definition of who is an "unlawfd enemy combatant" and the fact that there is not an explicit prohibition on the admission of evidence attained by coercion are examples.' ICRC, 'Developments in US policy and legislation towards detainees: the ICRC position' (19 October 2006) . ' 39. Hamdan, supra n. 6, pp. 26-34. 40. '. .. the rules adopted must be "uniform insofar as practicable". That is, the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.' Hamdan, supra n. 6, p. 57. 41. Ibid., fh.61, p. 66.
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~ a e d aAlthough .~~ we have noted supra that the Supreme Court erred in recognising that conflict as being an armed conflict to which IHL applies, Congress did not even bother to adjust the revamped military commissions' jurisdiction to take account of the Court's finding on the question of their temporal jurisdiction of the military commissions.43 Pursuant to Sec. 3, §948d.(c) of the MCA: 'A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.' The Combatant Status Review Tribunals (CSRTs) created for the purpose of confirming whether the detainees in US custody had been correctly classified as enemy combatants44found that most of them had been. In many cases, its conclusions are open to question given that they rely on the underlying assumption that the war on terror is an actual war. But the built in bias of the CSRTs was enhanced by their skewed procedure, as noted by this writer elswhere: '[Ilnstead of enjoying the benefit of the doubt regarding their status as POWs, the burden was put on the detainees to disprove a negative: why they should not be classified as enemy combatants. The detainees were also presented with a procedural handicap: in deciding whether a preponderance of evidence supported a detainee's claim that he was not an enemy combatant, there was a rebuttable presumption in favor of the government's evidence. The detainees were denied legal representation but instead had a "personal representative" - a military officer who was not a lawyer and whose role was to "provide assistance to the detainee and provide an ability for the detainee, through the personal repre-
42. 'The charge against Hamdan, ... alleges a conspiracy extending over a number of years, from 1996 to November 2001. All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF - the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11,2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war. These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict.' Hamdan, supra n. 6 , pp. 34-36. 43. According to Sec. 3, 5948d. of the MCA concerning the Jurisdiction of military commissions '(a) Jurisdiction. - A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001 .' 44. By Deputy Secretary of Defense Order of 7 July 2004, ~http://www.defenselink.mil/news/ Ju12004/d20040707review.pd~; Combatant Status Implementation Guidelines, 30 July 2004, .
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sentative and only through the personal representative, to have access to the information in DOD files on the detainee's background."'45 The crimes over which the military commissions have jurisdiction are set out in Sec. 3, $ 9 5 0 ~Most, . but not all, of these crimes are recognised violations of the laws of war and, in reality, most of them could only be committed during an armed ~onflict.~' However, the MCA recognises that military commissions have jurisdiction over these crimes, even when they are committed outside of recognised situations of armed conflict, and by persons who by no stretch of the imagination can be considered as combatants. Not only that, the MCA also gives the military commissions criminal jurisdiction over some acts that are not actually crimes under the laws or customs of war, such as spying, terrorism and conspiracy (the latter, despite the finding of the Supreme Court in Hamdan that conspiracy is not a recognised violation of the laws and customs of war).47 As well as laying down the rules governing the composition of military commiss i o n ~the , ~ ~MCA sets out their pre-trial and trial procedures. Sub-chapter 111, of Sec. 3 at §§948q-948s deals with pre-trial procedures. §948r, prohibiting compulsory self-incrimination and dealing with the treatment of statements obtained by torture and other statements, is obtuse and does not conclusively exclude the use of statements made under coercion. There is nothing in Subchapter IV - Trial Procedure - to specifically exclude evidence obtained under torture or other forms of coercion and indeed it is explicitly provided that evidence obtained coercively can be admitted. Sec. 949a.(b)(2) provides: '(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.' Other irregularities with the procedures of the earlier military commissions that were flagged by the Supreme Court in Hamdan have been reintroduced in the MCA, particularly concerning evidence. Evidence may be admitted as authentic if the military judge finds it to be so (Sec. 3, §949a.(b)(2)(D)). Hearsay evidence can be admitted (Sec. 3, #949a.(b)(2)(E)), as may evidence that is illegally seized (Sec. 3, §949a.(a)(2)B)). The accused is not permitted to see all of the evidence against him. Under Sec. 3, §949d.(f)(l) 'Classified information shall be protected and is
45. A. McDonald, 'Hors de combat: Post-September 11 challenges to the rules', in H. Hensel, ed., The Legitimate Use of Military Force: The Just War Tradition and the Customary Law of Armed Conflict, Ch. 10 (Ashgate Publishing 2008). On the legality under human rights law of the CSRTs, see the Joint UN Report, supra n. 25, at part 5.2.1.1 of this 'Year in review'. 46. For example, pillaging; denying quarter; attacking civilian objects; murder of protected persons; using protected persons or property as shields; murder in violation of the law of war; destruction of property in violation of the law of war; perfidy or treachery; improperly using a flag of truce; improperly using a distinctive emblem. 47. For a critique on this point, see the report of 'UN expert on human rights and counterterrorism concerned that Military Commissions Act is now law in United States', United Nations Press Release, 27 October 2006,
140030A8D9?opendocumenV. 48. Sec 3, Sub-chapter 11, 44948h-m.
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privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.' Other rules permitting the withholding of evidence from the accused allow redacted classified information to be admitted into evidence (Sec. 3, §949d.(f)(2)(A)(i), (ii) and (iii)), and, in case of the introduction of otherwise admissible evidence, the withholding from disclosure of the sources, methods, or activities by which the United States acquired the evidence if t h e military j u d g e f i n d s t h a t (i) t h e s o u r c e s , m e t h o d s , o r activities by w h i c h t h e
United States acquired the evidence are classified, and (ii) the evidence is reliable. (Sec. 3, $949d.(f)(2)(B)). Under Sec. 6 of the Act, the President has the authority to make his own interpretations of Geneva law.4' 1.3
Department of Defense Directive of 5 September 2006
The administration's other major response to the Supreme Court's decision in Hamdan was to (partly) formalise its finding regarding the applicability to persons detained in the war on terror of common Article 3 by introducing Sec. 4.2 of Department of Defense Directive Number 23 10.01E, of 5 September 2006. While it is ostensibly a positive development that the administration was finally willing to admit that detainees are not beyond the reach of international law,50the Directive creates its own problems and suffers from some limitations. First, as noted above, certain parts of the war on terror cannot be characterised as an armed conflict and it is simply wrong to apply IHL to them. Second, it is also not necessarily in detainees' interests to do so as while IHL applicable to persons hors de combat guarantees them rights, it also restricts their freedom while giving the detaining power a host of liberties. Third, DoD Directive 2310.01E only applies to detainees in DoD custody. However, it is clear that many detainees have been held by the CIA or have been handed over to third states for interrogation. This secret program is described more fully in part 5.1.2 below.
49. Sect. 6(a)(3)(A) - 'As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.' 50. Previously the administration had taken the position that common Art. 3 did not apply: 'Because of the novel nature of this conflict, . .. we do not believe that al Qaeda would be included in noninternational forms of armed conflict to which some provisions of the Geneva Conventions might apply.' Yoo Memorandum, reprinted in Greenberg and Dratel, supra n. 5, pp. 38 at 38-39, 43-47. In the same memorandum, it was stated: 'Neither their detention nor their trial by the U.S. Armed Forces is subject to the Geneva Conventions.' At p. 48.
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2.
CONFLICTS, ARMED FORCES AND COMBATANTS
2.1
Types of conflict
The decline in armed conflict observed since 1999 continued. Seventeen major armed conflicts were reported in 16 locations, the same figure as in 2005, and the lowest number recorded since the end of the Cold War. According to the Stockholm International Peace Research Institute (SIPRI), Asia was the locus of the majority of conflict^.^' SIRPI considered all of the conflicts that took place in 2006 to be non-international in ~haracter.~' 2.2
Protected persons
2.2.1
Civilians generally
The Security Council continued to focus its attention on the protection of the civilian population during armed conflict but, as in earlier years, its 2006 resolution on the subject stood more as testament to its failure than its success. Resolution 1674 of 28 April was replete with regrets, most particularly that civilians continued to account for the vast majority of casualties of armed conflict. The resolution made several direct references to the law of armed conflict. It recalled that 'deliberately targeting civilians and other protected persons as such in situations of armed conflict is a flagrant violation of international humanitarian law' (para. 3) and that such deliberate attacks as well as other 'flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict, may constitute a threat to international peace and security' (para. 26). It reiterated its condemnation of such practices, and demanded that parties stop them. It particularly censured torture; gender-based and sexual violence; violence against children; recruitment and use of child soldiers; trafficking in people; forced displacement; and denial of humanitarian assistance (para. 3). The SC demanded that all parties to armed conflicts strictly comply with their international legal obligations in the 1899 and 1907 Hague Regulations, in the Geneva Conventions and their Additional Protocols and in Security Council resolutions (para. 6). Reaffirming its view that 'ending impunity is essential if a society in or recovering from conflict is to come to terms with past abuses', the resolution noted that 'justice and reconciliation mechanisms, including national, international and "mixed" criminal courts and tribunals and truth and reconciliation commissions', can not only uphold individual responsibility for serious crimes, but also promote peace, truth, reconciliation and the rights of victims (para. 7). It empha-
5 1. SIPRI Yearbook 2007, Armaments, Disarmament and International Security (Stockholm, SIPRVOxford University Press 2006) p. 4. 52. SIPRI did not count the IsraeliLebanon war as an international armed conflict 'because the estimated death-toll was below 1000'. Ibid.
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sised states' responsibility to comply with their international obligations to end impunity and prosecute those responsible for genocide, crimes against humanity and serious violations of IHL (para. 8), and called upon those states that had not already done so to consider ratifying the main IHL, human rights and refhgee law treaties, and to implement them into their national law (para. 9). Recalling that the forcible displacement of civilians during armed conflict is a violation of IHL (para. lo), the Council urged the international community to provide support and assistance to enable states to fulfil their responsibilities regarding the protection of refugees and other persons protected by IHL, and reiterated '[plarties' obligation in the Geneva Conventions and the Hague Regulations 'to allow full unimpeded access by humanitarian personnel to civilians in need of assistance in situations of armed conflict . ..' (para. 22). 2.2.2
Women
Following a meeting of the Security Council on 26 October 2006, its President made a statement on the role of women in peace-building.53In it he declared: 'The Security Council remains deeply concerned by the pervasiveness of forms of violence against women in armed conflict, including killing, maiming, grave sexual violence, abductions and trafficking in persons. The Council reiterates its utmost condemnation of such practices and calls upon all parties to armed conflict to ensure full and effective protection of women, and emphasizes the necessity to end impunity of those responsible for gender-based violence'. Earlier, on 27 September the UN Secretary-General (SG) issued a report on women, peace and security,54which reviewed the progress of the United Nations System-wide Action Plan for preventing and responding to gender-based violence in armed conflict, which was developed pursuant to SC resolution 1325 ( 2 0 0 0 ) ~ ~ and described in his previous report on women, peace and ~ecurity.'~'Despite overall positive assessment of the current stage of the implementation of the System-wide Action Plan, the review identified a number of gaps and challenges. Lack of stability and security; violence, including gender-based violence; poverty, discrimination, democracy deficits, impunity and weak public institutions generally arose in situations of conflict and post-conflict' (para. 21). The SG noted that while '[ilnteresting and innovative projects are being carried out by United Nations entities to prevent and respond to gender-based violence in armed conflict and provide humanitarian assistance to populations' and '[plrogress has been achieved in other areas of action of the Plan', 'much more can and should be done by all
53. SlPRSTl2006142 (8 November 2006). 54. Report of the Secretary-General on women, peace and security, S/2006/770 (27 September 2006). 55. See 8 YIHL (2005) pp. 220-22 1. 56. S120051636, annex (10 October 2005).
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parts of the United Nations system at all levels, both at Headquarters and in the field' (paras. 49-50). 2.2.3
Children
Following a meeting of the Security Council on 24 July concerning 'Children and armed conflict', its President issued a statement reiterating the Council's 'commitment to address the widespread impact of armed conflict on children and its determination to ensure respect for and implementation of its resolution 1612 (2005) and all its previous resolutions on children and armed conflict ... ' . 5 7 The President noted that progress was made in three areas in particular: the Council appointed a new Special Representative of the Secretary-General for children and armed conflict, Ms Radhika Coomaraswamy; implementation of the monitoring and reporting mechanism on children and armed conflict was ongoing, with results in the field (see below); and the Working Group on children and armed conflict achieved progress in its implementation phase and moved to a discussion of specific reports of the SG on parties to armed conflict, as outlined in the report by its Chair (SI 20061497). The President issued another statement six months later58in which he took note of the tenth report of the Secretary-General to the SC on children and armed conflict59and the progress reported therein. In his tenth report on children and armed conflict, the SG updated the SC on developments in implementing the mechanisms set up to monitor and report on abuses of children committed during and in the context of armed conflict and the general situation concerning children and armed conflict, including the forced recruitment of child soldiers. The SG noted that, since the adoption of SC resolution 1612 (2005), his Special Representative for Children and Armed Conflict had been working on the implementation of the monitoring and reporting mechanisms called for in that resolution, in cooperation with international agencies, the relevant states and UN missions. Country-level monitoring and reporting task force teams were established, and dialogue with some of the parties responsible for recruiting and using child soldiers was initiated. Some headway had been made in regulating the flow of small arms and light weapons - which facilitate the involvement of children in armed conflict - but their trade had yet to be halted. While some advances were made in tackling the problems identified in earlier reports of the SG, new situations and problems had emerged. The SG singled out conflicts in the Middle East, Lebanon, and Israel and the Occupied Territories, which 'resulted in thousands of child victims' (para. 3). In Chechnya, armed groups had reportedly abducted minors. Children's involvement in paramilitary groups, such as the Ulster Volunteer Force and the Ulster Defence Association in Northern Ireland, continued to be a problem. The SG alluded to the lack of progress made in the implementa-
57. SIPRST12006133 (24 July 2006). 58. SIPRST12006148 (28 November 2006). 59. UN SGAJ611529-Sl20061826 (26 October 2006).
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tion of the action plan to halt the recruitment and use of children by
parties to armed conflicts in Burundi, CBte d'hoire, the Democratic Republic of the Congo (DRC), Nepal, Sri Lanka, Sudan and Uganda in violation of applicable international obligations. His updates on the situation in Afghanistan, Burundi, Chad, Colombia, C8te d'lvoire, the DRC, Haiti, Iraq, Liberia, Myanmar (Burma), Nepal, the Philippines, Somalia, Sri Lanka, the Sudan, and Uganda made for grim reading. Most disturbing was the news that evidence had emerged to suggest that the forced recruitment and use of minors as soldiers had become internationalised, with rebel groups crossing into other countries to abduct children. 'Another preoccupying phenomenon is the use of children by mercenaries and mercenary groups' (para. 4). According to the SG, recent experiences indicate that female child soldiers face particular problems, which need to be addressed in any efforts to develop and implement policies and action plans. He quantified the growing problem of sexual and other forms of abuse of children by UN peacekeeping forces: 'From 1 January 2004 to 18 August 2006, investigations into allegations of sexual exploitation and abuse involving 3 13 United Nations peacekeeping personnel resulted in 17 civilians being dismissed or their contracts not renewed and 17 police and 141 military peacekeeping personnel being repatriated on disciplinary grounds. As of 18 August 2006, 85 allegations of sexual exploitation and abuse involving civilian (29), police (8) and military peacekeeping personnel (48) were reported to the Department of Peacekeeping Operations during 2006, and these cases are pending investigation' (para. 114). One of the most notorious reports of systemic sexual abuse of children by UN peacekeepers concerned a prostitution ring in the South Kivu area of the DRC involving girls as young as 15. The UN's strategy to combat this scourge focuses on training of the peacekeeping forces and awareness-raising amongst the affected populations. The Peacekeeping Best Practices Section of the UN Department of Peacekeeping Operations undertook a study of the child protection experience in peace operations. The SG ended his report by recommending 'that the Security Council consider expanding its focus and give equal care and attention to children affected by armed conflict in all situations of concern', as well as 'equal weight to all categories of grave violations beyond the recruitment and use of child soldiers to include the killing and maiming of children, rape and other grave sexual violence, abductions, attacks against schools or hospitals, and denial of humanitarian access for children' (para. 134). The SG also issued three country-specific reports on children and armed conflict, concerning ~ e ~ a lSri , ~~' a n k aand ~ ' the DRC.~*
60. S1200611007 (20 December 2006). 61. S1200611006 (20 December 2006). 62. S120061389 (13 June 2006).
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2.2.4
Journalists
Resolution 1738, adopted by the Security Council on 23 December 2006, addressed attacks against journalists during situations of armed conflict. Paragraph 1 condemned intentional attacks against journalists, media professionals and associated personnel during armed conflict and called upon all parties to end such practices. It recalled that media professionals are civilians who must be respected and protected as such, provided that they take no action adversely affecting their status as civilians. This is without prejudice to the right of war correspondents accredited to the armed forces to the status of prisoners of war provided for in Article 4(A)(4) of the Third Geneva Convention. Media equipment and installations constitute civilian objects and shall not be the object of attack or of reprisals, unless they are transformed into military objectives. Condemning incitement to violence against civilians, the SC indicated its willingness when authorising missions to consider 'steps in response to media broadcast [sic] inciting genocide, crimes against humanity and serious violations of international humanitarian law' (para. 4), without indicating what these might consist of. It reminded states and all parties to armed conflict that they must comply with their international legal obligations concerning the protection of journalists, and urged them to do their utmost to prevent IHL violations against media personnel and to punish those breaches that are committed.
3.
METHODS, MEANS AND TYPES OF WARFARE
3.1
'Targeted killing'
3.1.1
Israeli decision on targeted killing
A December 2006 decision on the lawfulness of Israel's policy of targeted killing,63issued by its Supreme Court sitting as the High Court of Justice, did not find that policy to be per se unlawful, as the petitioners in the case had requested: 'The examination of the "targeted killing" - and in our terms, the preventative strike causing the deaths of terrorists, and at times also of innocent civilians has shown that the question of the legality of the preventative strike according to customary intemational law is complex . .. The result of that examination is not that such strikes are always permissible or that they are always f~rbidden.'~~ -
63. The Public Committee against Torture in Israel et al. v. The Government ofIsrael et al, the Supreme Court Sitting as the High Court of Justice, 13 December 2006, online in English translation at ~elyonlcourt.gov.iVFiles~ENG/021690/0071a34/02007690.a34.pdD. 64. Ibid., para. 60.
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The Court rejected the government's position that the question of the legality of the policy was not justiciable, stating that it was a legal rather than a political matter, and thus fell within the Court's juri~diction.~~ The pivotal issues addressed by the Court in ascertaining the legality of the policy of targeted killings were the legal character of the situation in the Occupied Territories and the applicable law and, related to this, the legal status of Palestinians who launch attacks against the State of Israel from both inside the Territories and within Israel itself. Although both parties, and the Court, used the term 'terrorism' to refer to the methods and means used by these persons, there were signifi~' on these cant differences in the petitioner^'^^ and the r e ~ ~ o n d e n t s 'positions issues. 3.1.1.1 The petitioners' position The starting point for the petitioners was that 'the targeted killings policy is totally illegal, and contradictory to international law, Israeli law, and basic principles of human morality. It violates the human rights recognized in Israeli and international law, both the rights of those targeted, and the rights of innocent passersby caught in the targeted killing zone'.68 While conceding that there is an armed conflict in the Occupied Territories, the petitioners initially claimed that it is not an armed conflict to which the law of war applies, that law applying only to international armed conflict and this not being such a conflict. However, in the course of the proceedings, they changed their position and accepted that it is an international armed conflict. But the petitioners appeared to confuse and conflate the two separate bodies of law regulating the use of armed force in international law, i.e., jus a d bellum and jus in bel10.~~ Asserting that the applicable law is occupation law rather than the law of armed conflict, the petitioners argued that the Palestinians who attack Israel are criminals who should be dealt with under criminal law (arrest and trial) rather than through military means.70Even if the applicable law is the law of armed conflict, that law
65. Ibid., paras. 50-54. 66. The Public Committee against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment. 67. The Government of Israel, the Prime Minister, the Minister of Defense, the Israel Defense Forces (IDF), the Chief of the General Staff of the IDF, Shurat Hadin (Israel Law Center) and 24 others. 68. Supra n. 63, para. 3 . 69. 'In the summary of their arguments (of 9 September 2004), petitioners conceded that the conflict under discussion is an international conflict, however they claim that within its framework, military acts to which the laws of war apply are not allowed. That is since Israel's right to self defensive military action, pursuant to article 51 of the Charter of the United Nations of 1945, does not apply to the conflict under discussion. The right to self defense is granted to a state in response to an armed attack by another state. The territories of the area of Judea, Samaria, and Gaza are under belligerent occupation by the State of Israel, and thus article 51 does not apply to the issue.' Ibid., para. 4. 70. '[Tlhe laws applicable to the issue at hand are the laws of policing and law enforcement within the framework of the law of belligerent occupation, and not the laws of war. Within that framework,
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recognises only two categories of persons: combatants and civilians. 'There is no intermediate status, and there is no third category of "unlawful combatants". Any person who is not a combatant, and any person about whom there is doubt, automatically has the status of civilian, and is entitled to the rights and protections granted to civilians at the time of war.'71Even if the Palestinian attackers are considered to be civilians who take a direct part in hostilities, the policy is unlawful on two grounds: (1) in relation to the Palestinian attackers it is unlawfid to the extent that it targets them even when they are not participating in hosti~ities;'~ and (2) in relation to the general civilian population, it is unlawfid because it causes harm that is disproportionate to the military advantage a n t i ~ i ~ a t e d . ' ~ 3.1.1.2
The respondents' position
The respondents' response alluded both to jus ad bellum and jus in bello, while observing that 'the question whether the targeted killings policy is legal will be decided according to the laws of war'.74Regarding jus ad bellum, they maintained that '[ilt is no longer controversial that a state is permitted to respond with military force to a terrorist attack against it. That is pursuant to the right to self defense determined in Article 51 of the Charter of the United Nations, which permits a state to defend itself against an "armed attack". Even if there is disagreement among experts regarding the question what constitutes an "armed attack", there can be no doubt that the assault of terrorism against Israel fits the definition of an armed attack. Thus, Israel is permitted to use military force against the terrorist organizations. '75 According to the respondents, the situation in the Occupied Territories is an armed conflict, to which the law of war applies.76While originally characterising it as an international armed conflict, later the respondents argued that the character of the conflict is irrelevant, as 'according to all of the classifications, the laws of armed conflict will apply to the acts of the State. These laws allow striking at persons who are party to the armed conflict and take an active part in it, whether it
suspects are not to be killed without due process, or without arrest or trial. The targeted killings violate the basic right to life, and no defense or justification is to be found for that violation.' Ibid. 7 1. Ibid., para. 5. 72. 'It h a m s civilians at times when they are not taking a direct part in combat or hostilities. The targeted killings are carried out under circumstances in which the conditions of immediacy and necessity - without which it is forbidden to harm civilians are not fulfilled. Thus, it is an illegal policy which constitutes forbidden attack of civilian targets.' Ibid., para. 6. 73. Ibid., para. 8. 74. 'Respondents' stance is that the question whether the laws of belligerent occupation apply to all of the territory in the area is not relevant to the issue at hand, as the question whether the targeted killings policy is legal will be decided according to the laws of war, which apply both to occupied territory and to temtory which is not occupied, as long as armed conflict is taking place on it.' Ibid., para. 10. 75. Ibid. 76. Ibid. -
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is an international or non-international armed conflict, and even if it belongs to a new category of armed conflict which has been developing over the last decade in international law - a category of armed conflicts between states and terrorist organ i z a t i o n ~ . Although '~~ believing the Palestinian attackers to be combatants rather than civilians, the respondents argued that they are not entitled to the privileges of combatancy. Instead, they belong to a 'third category' of 'unlawful corn bat ant^'.^' However, even if the Court were to find the Palestinian attackers to be civilians, the targeted killing policy would remain lawful as they should be considered as civilians who take a direct part in hostilities. But as the attackers' participation in hostilities was ongoing, they could be targeted at any time.79Finally, the respondents argued that 'the targeted killings policy, as implemented in practice, fulfills the proportionality requirement' in IHL.~' 3.1.1.3 The Court's findings The Court accepted the respondents' arguments that the situation in the Territories (referred to in the judgement as 'the area') is an armed conflict, dating at least since the time of the second intifada," whose character is international. The applicable The President law is that applicable in such conflicts and which binds 1srae1.~~ decided the case according to that law, without referring to the j u s ad bellurn. Turning to the legal status of what he described as 'those terrorist^',^^ President Barak found that 'the terrorist organizationss4from the area, and their members, do ] ' ~ 'do ~ not fulfill the conditions for combatants [in Art. 1 Hague ~ e ~ u l a t i o n sand not fall into the category of combatants. They do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful corn bat ant^.'^^ The next question was whether an unlawful combatant is a combatant or a civilian or belongs to some third category.
77. Ibid., para. 11. 78. Ibid. 79. 'Respondents' stance is that the simultaneity requirement determined in article 51(3) of The First Protocol, pursuant to which a civilian who takes a direct part in hostilities can be harmed only during such time that he is taking that direct part, does not obligate Israel, as it does not reflect a rule of customary international law. On this point respondents note that Israel, like other states, has not joined The First Protocol. Thus, harming civilians who take a direct part in hostilities is permitted even when they are not participating in the hostilities. There is no prohibition on striking at the terrorist at any time and place, as long as he has not laid down his arms and exited the circle of violence.' At para. 12. 80. Ibid., para. 13. 81. Ibid., para. 16. 82. Ibid., para. 2 1. 83. Ibid., para. 23. 84. Under IHL, only individuals and not groups can be considered as either combatants or civilians, whereas the armed forces or groups to which they belong can be parties to armed conflicts. 85. Supra n. 63, para. 23. 86. Ibid., para. 25.
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Contrary to the assertion of the government that unlawful combatants are combatants rather than civilians, even if they belong in a third category, President Barak found that 'an unlawful combatant is not a combatant, rather a "civilian". However, he is a civilian who is not protected from attack as long as he is taking a direct part in the ho~tilities.'~'That would seem to answer the question whether there is a third category, besides combatants and civilians, or any need for one: if an unlawful combatant is a civilian he surely belongs in that category. But having reached this conclusion, President Barak proceeded to examine whether there is a third category of unlawful combatants. Finding that neither treaty nor customary IHL currently recognises any third category of 'unlawful combatants', and emphasising that '[tlhe question before us is not one of desirable law, rather one of existing law',88 President Barak nevertheless opined that there should be a third category consisting of civilians who are unlawhl combatants, necessitated, in his view, by the fact that 'new reality at times requires new interpretati~n'.~~ What was particularly odd is that, having been unable to uncover any legal basis for a third category, '[iln the spirit of such interpretation', he proceeded 'to the customary international law dealing with the status of civilians who constitute unlawful combatant^'.^^ This writer fails to comprehend how one can examine customary international law dealing with the status of 'civilians who constitute unlawful combatants' after having concluded that customary law does not recognise unlawful combatants. Having decided that the Palestinian attackers are civilians who take a direct part in hostilities, and who are unlawful combatants who should be considered as belonging to a third category, President Barak went on to analyse the meaning of the phrase to 'take a direct part in hostilities'. This involved interpreting the meaning of the words 'hostilities' and 'to take a direct part', as well as the temporal duration of direct participation. President Barak found that: 'The accepted view is that "hostilities" are acts which by nature and objective are intended to cause damage to the army. . .. It seems that acts which by nature and objective are intended to cause damage to civilians should be added to that definiti~n.'~' Turning to the meaning of 'to take a direct part', President Barak engaged in a rather extensive discussion of the literature, recognising that there is no consensus on this point.92 The most controversial question concerned the duration of civilian participation in hostilities, given the Israeli view that the attackers, if civilians taking a direct part in hostilities, can be targeted at all times, even when they are not participating, unless they make some positive act to withdraw from the hostilities. But President Barak was unable to accept the legal basis for this argument put forward by the
87. Ibid., para. 26. 88. Ibid., para. 28. 89. Ibid. 90. Ibid. 91. Ibid., para. 33. 92. Ibid., paras. 34-37.
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respondents, namely that the part of Article 51(3) of Additional Protocol I stating that civilians lose their protection from attack 'for such time' as they take a direct part in hostilities is not customary law: '[A111 of the parts of article 51(3) of The First Protocol reflect customary international law, including the time requirement. The key question is: how is that provision to be interpreted, and what is its scope?'93 President Barak found that there is no consensus regarding the scope of the temporal requirement: 'On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection fiom attack. He is not to be attacked for the hostilities which he committed in the past. On the other hand, a civilian who has joined a terrorist organization which has become his "home", and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity fiom attack "for such time" as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next ho~tility.'~~ Thus, the question of whether it is lawful to target civilians who participate in hostilities will differ depending on the duration of the civilian's participation, or in Barak's words, '[tlhere is thus no escaping examination of each and every case.'95 President Barak identified four constraints on the policy of targeted killing. First, 'well based information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed'; second, 'a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed'; third, 'after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough [independent] investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively)'; and fourth, 'if the harm is not only to a civilian directly participating in the hostilities, rather also to innocent civilians nearby, [tlhat damage must withstand the proportionality test'.96 'Here as well, one must proceed case by case, while narrowing the area of disagreement . . . The hard cases are those which are in the space between the extreme examples. There, a meticulous examination of every case is required; it is required that the military advantage be direct and anticipated (see $57(2)(iii) of The First Protocol). Indeed, in
93. Ibid.,para. 38. 94. Ibid.,para. 39. 95. Ibid., para. 40. 96. Ibid.
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international law, as in internal law, the ends do not justify the means. The state's power is not unlimited. Not all of the means are permitted.'97 The two other justices sitting on the case (Rivlin, VP, and Beinisch, P), concurred with President Barak's substantive findings.
4.
PEACE AGREEMENTS
4.1
The Darfur Peace Agreement
Early 2006 brought a glimmer of hope that the conflict in Darfur might at last be on the road to resolution with the signing of the Darfur Peace Agreement on 5 May 2006. The immediate problem - which cast doubt on whether the agreement could usher in lasting peace - was that the signatories were the government of Sudan and the Sudan Liberation Movement (SLM), the largest rebel group, meaning that the SLM was the only rebel group to sign. The remaining groups boycotted the peace talks. A cornerstone of the agreement was a requirement that the Janjaweed - the militia fighting on behalf of the state - complete disarmament and demobilisation by mid-October 2006, prior to the disarmament and demobilisation of the rebels. The wide-ranging agreement also addressed issues such as power- and wealth-sharing. The Darfkr Peace Agreement stipulated that 4,000 former combatants be integrated into the Sudanese Armed Forces and 1,000 into the police force, and that a fkrther 3,000 be supported through education and training programs. Buffer zones and humanitarian assistance corridors were to be established in the vicinity of camps for internally displaced persons. A commission to work with the UN to help refkgees and displaced persons return to their homes would be created. The agreement also provided that the Sudanese Government give $30 million in compensation to victims of the conflict. By the end of the year, however, few of the goals set out in the agreement had been achieved and it was far from clear that the conflict in Darfur would end anytime soon. Attacks on the civilian population by government forces and the Janjaweed and by rebel groups continued.
97. Ibid., para. 46.
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THE CRIMES 5.1
Enforced disappearances
5.1.1
The International Convention for the Protection of All Persons from Enforced Disappearances
On 20 December 2006, during its 6 1st session, the UN General Assembly adopted the International Convention for the Protection of all Persons from Enforced Disappearance (the onv vent ion).^' While the Convention is not the first treaty to recognise and prohibit enforced disappearance as a human rights violation and as a crime,99it is the first primary instrument of global reach. Such a treaty was necessary to address the fact that no country or region has a monopoly on this crime,"' and new manifestations of it have emerged in recent years (see infra part 5.1.2). An international treaty was also required to emphasise the fact that the enforced disappearance of a person is a compound crime. Apprehending or abducting someone without any lawful basis or official acknowledgement of the apprehension itself constitutes the recognised human rights violations of unlawful arbitrary detention,''' denial of legal personality''' and denial of habeas corpus,'03but the denial of liberty is only just the beginning of the nightmare for those plucked from their homes or places of hiding or the streets, and for their families and fnends. Once in the hands of their abductors, the 'disappeared' may be subjected to a range of other crimes recognised by intemational and national law, including murder, torture, cruel and inhuman treatment,
98. UN AiRESl611177 (20 December 2006). The Convention was earlier adopted by the newly created Human Rights Council by its resolution 111 (29 June 2006). It was due to open for signature on 6 February 2007 and would enter into force 'on the thirtieth day after the date of deposit of the twentieth instrument of ratification or accession', according to its Art. 39. 99. The 1992 UN General Assembly Declaration on the Protection of all Persons from Enforced Disappearance (General Assembly Resolution 4711 33 (19 December 1992)) was the first international legal instrument - albeit a non-binding one - to acknowledge the actuality of disappearances and condemn and prohibit the practice. Two years later, the 1994 Inter-American Convention on Forced Disappearance of Persons was adopted as a response to the widespread use of disappearances as an instrument of state policy in a number of Central and South American countries in the 1960s, '70s and '80s. Since 1998 enforced disappearance has been recognised as a crime against humanity in Art. 7(1) (i) of the Statute of the International Criminal Court. 100. Since its establishment by the UN Human Rights Commission in resolution 20 (XXXVI) (29 February 1980), the UN Working Group on Enforced or Involuntary Disappearances has investigated more than 50,000 individual cases of enforced disappearances in more than 70 countries. See A. Vrancx, 'A long road towards universal protection against enforced disappearance', at Website of International Humanitarian Law, <www.wihl.nl>. 101. Prohibited in Art. 9(1) International Covenant on Civil and Political Rights (ICCPR); Art. 5(4) European Convention of Human Rights (ECHR); Art. 7(3) American Convention on Human Rights; Art. 6 African Charter on Human and Peoples' Rights. 102. Art. 16 ICCPR; Art. 3 American Convention on Human Rights; Art. 5 African Charter on Human and Peoples' Rights. 103. Art. 9(3) ICCPR; Art. 5(3) ECHR; Art. 7(5) American Convention on Human Rights.
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rape and other forms of sexual violence. The crime of enforced disappearance is a continuing crime,'" as individuals who are disappeared frequently never reappear. The Convention's 45 provisions set out a comprehensive international legal fiamework to ensure the protection of individuals from this act and the prosecution and punishment of those who engage in it. Article 1 unequivocally prohibits enforced disappearance and excludes any possible justification for it, while Article 2 defines the offence as 'the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a rehsal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law'. This definition is both wider and narrower than that set out in Article 7(2)(i) of the ICC Statute. Whereas the Rome Statute's definition of the actus reus elements of the crime of enforced disappearance restricts it to 'arrest, detention or abduction of persons ...', Article 2 broadens the definition to include 'any other form of deprivation of liberty ...'. However, the requirement in Article 2 of the Convention of some involvement of a state as a necessary element is an unfortunate limiting factor not present in the Rome Statute, under whose Article 7(2)(ii) an enforced disappearance can also be carried out by 'a political organization'. Whilst in most cases a state will be involved, it cannot be excluded that a political, criminal or terrorist organisation or an armed opposition group, inter alia, could disappear someone. If the customary crime of torture can be carried out by a non-state actor, as acknowledged by the ICTY,"~ there is no legal reason why the crime of enforced disappearance - which is often carried out for the purpose of committing torture - could not also be. Conversely, whereas under Article 7(2)(ii) of the Rome Statute the arrest, detention or abduction of a person must be carried out 'with the intention of removing them from the protection of the law for a prolonged period of time', Article 2 of the Convention merely requires that the act of disappearing someone has the effect to 'place such a person outside the protection of the law', without any requirement of a specific intent. Article 3 goes some way towards mitigating the requirement in Article 2 for state involvement as an element of the crime by providing that: 'Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.' Under Article 4, States Parties are required to criminalise enforced disappearance under their domestic law. Pursuant to Article 6(1), States Parties should hold criminally accountable those responsible for enforced disappearance, either directly or indirectly. Under Article
104. As recognised in Art. 8(l)(b) of the 2006 Convention. 105. Prosecutor v. Kunarac, Kovac and Vukovid,IT-96-23 and IT-96-2311-A, Appeals Chamber, 12 June 2002, para. 148.
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7 , States Parties are required to lay down penalties for the crime of enforced disappearance which reflect its 'extreme seriousness'. While the Convention does not exclude the application of statutory limitations to the crime of enforced disappearance, pursuant to Article 8(1) States Parties must (a) ensure that any statutory limitations are of long duration and proportionate to the extreme seriousness of this offence and (b) commence from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. Under paragraph (2) of Article 8: 'Each State Party shall guarantee the right of victims of enforced disappearances to an effective remedy during the term of limitation.' Under Article 9(1), each State Party shall take the necessary measures to establish its jurisdiction over the offence of enforced disappearance, based on the territorial and active and passive personality principles. Paragraph (2) provides for the application to the crime of the principle of aut dedere aut j~dicare,"~similar to that governing grave breaches of the Geneva Conventions and Additional Protocol I. Alternative bases of criminal jurisdiction recognised under national criminal law may also be exercised. 5.1.2
Extraordinary rendition
In September 2006 President Bush finally came clean on the existence of a 'secret' detention program run by the CIA since 2002, which had long been suspected and widely reported on1'' but had only obliquely been acknowledged by the administration.''' Bush claimed and embraced the program as 'a cornerstone of the US'S
106. 'Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.' 107. As far back as 2001.The Washington Post was instrumental in breaking and investigating the story. See 'Cole suspect turned over by Pakistan', The Washington Post, 28 October 2001; R. Chandrasekaran and P. Finn, 'U.S. behind secret transfer of terror suspects', The Washington Post, 11 March 2002; D. Priest, 'Jet is open secret in terror war', The Washington Post, 27 December 2004; M. Scheuer, 'A fine rendition', The New York Times, I1 March 2005; S. Shane, S. Grey and M. Williams, 'CIA expanding terror battle under guise of charter flights', The New York Times, 3 1 May 2005;D. Priest, 'CIA holds terror suspects in secret prisons - Debate is growing within agency about legality and morality of overseas system set up after 9lI 1', The Washington Post, 2 November 2005, ;J. Mayer, 'Outsourcing torture: The secret history of America's "extraordinary rendition" program', The New Yorker, 14 February 2005;Committee on International Human Rights of the Association of the Bar of the City of New York and the Center for Global Justice and Human Rights, New York Law School, Torture by Proxy: International and Domestic Law Applicable to 'Extraordinary Renditions (New York, NYU Law School 2004). 108. In a 2001 interview on US television, Vice President Cheney explained the need to go over to 'the dark side' in fighting terrorism: 'We're going to spend time in the shadows of the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussions, using sources and methods that are available to our intelligence agencies if we're going to be success-
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anti-terrorist strategy'.Io9when signing into law the Military Commissions Act one month later, President Bush stated: "'When I proposed this legislation, I explained that I would have one test for the bill Congress produced: Will it allow the CIA program to continue? This bill meets that test."I0 As more about the program was revealed, it became increasingly clear that it could not exist without the support and cooperation of a host of states around the world. The most disturbing revelation is how few states have kept their hands completely clean in what some have come to describe as a 'massive criminal conspiracy'."' In June 2006, Swiss parliamentarian Dick Marty issued his interim report on extraordinary rendition prepared for the Council of Europe's Parliamentary As~ e m b l ~ His . " ~ terms of reference were limited to the involvement of European countries in the practice of extraordinary rendition and in allowing secret detention centres to operate on their territories. Confirming the secret program, in which many European states were implicated at one level or another, he reported that it was 'unlikely that European states were completely unaware of what was happening, in the context of the fight against international terrorism, in some of their airports, in their airspace or at American bases located on their territ~ry'."~'It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services.'""arty's 'findings were expansive, revealing that the torture planes had criss-crossed Europe and the world, touching down on numerous airstrips in countries including: Afghanistan, Algeria, Australia, Azerbaijan, Bahrain, Colombia, Croatia, Cyprus, Czech Republic, Djibouti, Egypt, Estonia, Fiji,
ful. That's the world these folks operate in and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective. ... It is a mean, nasty, dangerous business out there, and we have to operate in that arena.' See transcript of Vice President Dick Cheney, NBC's Meet the Press, 1601. 16 September 200 1, <www.washingtonpost.com/wp-srvinatiodat~cke&transcnpts/cheney09 htmlp. US Secretary of State Condoleezza Rice owned up to and defended the program during her trip to Europe in late 2005. See Secretary Condoleezza Rice 'Remarks upon her departure for Europe', Andrews Air Force Base, 5 December 2005, ~http://www.state.govlsecretary/rm/2005/57602.htm>. See also 8 YIHL (2005) pp. 232. 109. The White House, 'President discusses creation of milita~ycommissions to try suspected terrorists', 6 September 2006, ~www.whitehouse.govlnews/releases/2006/09/20060906-3.html>. 110. The White House, 'President Bush signs Military Commissions Act of 2006', 17 October .html>. 2006, ~http://www.whitehouse.gov/news/releases/2006/10120061017-1 111. T. Paglen and A.C. Thompson, Torture Taxi: On the Trail of the CIA $ Renditions Flights (Cambridge, Icon Books 2007) p. 32. 112. D. Marty, 'Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States', Committee on Legal Affairs and Human Rights, Council of Europe Parliamentary Assembly, Doc. 10957, 12 June 2006, . See also D. Marty, 'Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe Member States', Explanatory Memorandum, 7 June 2006,
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275
Germany, Greece, Iraq, Ireland, Italy, Jordan, Kuwait, Libya, Macedonia, Malta, Morocco, Pakistan, Poland, Portugal, Romania, Russia, Saudi Arabia, Spain, Sudan, Sweden, Switzerland, Tajikistan, Turks and Caicos Islands, the United Arab Emirates, United Kingdom, United States of America, and ~zbekistan'."~ The practice of extraordinary rendition is not only a violation of international law prohibiting the practice of enforced disappearance but also contravenes the Convention on Torture.Ii6 Article 3 of which prohibits the handing over of a person to a country where there is a likelihood that he or she will be tortured."' 5.2
Torture and cruel, inhuman and degrading treatment
5.2.1
UN Reports on the situation of detainees at Guantanamo Bay
5.2.1.1
Report of the UN Commission on Human Rights
On 15 February 2006 four UN special rapporteurs and the chairperson of the UN Working Group on Arbitrary Detention (hereinafter, the mandate holders) issued a joint report into the situation surrounding the detention at Guantanamo Bay of suspected terrorists, covering the period since June 2004."' The comprehensive, 54-page, report was based on the US government's responses to a questionnaire submitted by the mandate holders, interviews with former Guantanamo detainees, responses from lawyers representing some of the detainees and information in the public domain.Il9 The mandate holders had sought to visit Guantanamo and carry out interviews with detainees there, but decided to cancel their planned trip after the US, while inviting three of the five mandate holders to come, informed them that they could not conduct private interviews with detainees.'*' The mandate holders examined divers aspects of the US detention policy at the Naval Base, including the status under IHL of detainees, the lawfulness under international law of the detentions of the different categories of persons held there, the conditions of detention, and the treatment of detainees. The mandate holders reported that, as of 21 October 2005, 'approximately 520 detainees were held in Guantanamo Bay'. Between the opening of the detention centre in January 2002 and 26 September 2005, 264 persons were transferred out of Guantanamo. Of these, 68 were transferred into the custody of other states (suggesting that the remainder remained in US custody), including Pakistan, the Russian Federation, Morocco, the UK, France and Saudi Arabia. As of 21 October
115. Paglen and Thompson, supra n. 111, p. 169. 116. See A. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror (New York, Metropolitan Books 2006). 117. See the conclusions of the Joint UN Report (supra n. 25) on this question at part 5.2.1.1 of this Year in review. 118. Ibid. 119. Ibid., para. 4. 120. Ibid., para. 3.
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2005, President Bush had designated 17 detainees as eligible for trial before military commissions. Of those 17, three had later been returned to their country of origin and released. As of 3 1 December 2005, nine detainees had been referred to a military commission for trial.I2' The Chairperson of the Working Group on Arbitrary Detention and the Special Rapporteur on the independence of judges and lawyers found that 'the global struggle against international terrorism does not, as such, constitute an armed conflict for the purposes of the applicability of international humanitarian law'.122 'Many of the detainees held at Guantanamo Bay were captured in places where there was - at the time of their arrest - no armed conflict involving the United States. ... The legal provision allowing the United States to hold belligerents without charges or access to counsel for the duration of hostilities can therefore not be '. .. the ongoing detention of the invoked to justify their d e t e n t i ~ n . "Therefore, ~~ Guantanamo Bay detainees as "enemy combatants" does in fact constitute arbitrary deprivation of the right to personal liberty'.'24 Even if some of the detainees might have been lawfully captured during an armed conflict, and have the status of POWs or civilian detainees under international law, they were generally not being detained with a view to prevent their return to the battlefield but for the purposes of gathering intelligence on A1 Qaeda, a purpose that 'is inconsistent with the provisions of the Geneva ~ o n v e n t i o n s ' . ' ~ ~ Affirming the finding of the US District Court for the District of Columbia in the Guantanamo Detainees cases,126the report found that the Combatant Status Review Tribunals (CSRT) established following the 2004 decision of the Supreme Court in ~ a s u l ,as ' ~well ~ as the Administrative Review Boards established on 11 May 2004 to provide annual reviews of each detainee's detention, did not satisfjr the requirements of Article 9 of the ICCPR. Moreover, '[ilt would appear that in determining the status of detainees the CSRT has recourse to the concepts recently and unilaterally developed by the United States Government, and not to the existing international humanitarian law regarding belligerency and combatant status; and [elven where the CSRT determines that the detainees is not an "enemy combatant" and should no longer be held, as in the case of the Uighurs held at GuantAnamo Bay nine months after the CSRT determined that they should be freed, release might not en~ue.'~''
121. Ibid., para. 5. 122. Ibid., para. 21. 123. Ibid., p. 25. 124. Ibid., para. 20. 125. Ibid., para. 23. 126. In re. Guantanamo Detainees cases, US District Court for the District of Columbia, Decision of 31 January 2005,355 F. Supp. 2d 443. 127. Supra n. 10. 128. Joint LJN Report, supra n. 25, para. 28.
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The report also criticised the procedures before military commissions as 'hard to reconcile with article 14 of ICCPR'. 129 As far as the treatment of detainees is concerned, the Special Rapporteur on torture noted that: 'Beginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture, has put in place a number of policies that effectively weaken the p r ~ h i b i t i o n . "While ~~ some of the early policy documents concerning coercive treatment have subsequently been superseded,13' others remained in force, including techniques ~ included incentive/removal of incentive, i.e., authorised on 16 April 2 0 0 5 . ' ~They comfort items; change of scenery down (exposure to extreme temperatures and deprivation of light and sound stimulation; environmental manipulation; sleep adjustment and is01ation.I~~ The report said that these techniques meet four of the five elements of the definition of torture (the perpetrators were officials; the victims were in a position of powerlessness, they were purposeful (gathering intelligence) and committed intentionally, but noted that the definition of torture also required a severity threshold: 'Treatment aimed at humiliating victims may amount to degrading treatment or punishment even without intensive pain or suffering. It is difficult to assess in abstract0 whether this is the case with regard to acts such as the removal of clothes. However, stripping detainees naked, particularly in the presence of women and taking into account cultural sensitivities, can in individual cases cause extreme psychological pressure and can amount to degrading treatment or even torture. The same holds true for the use of dogs, especially if it is clear that an individual phobia exists. Exposure to extreme temperatures, if prolonged, can conceivably cause severe suffering."34 The Special Rapporteur on Torture 'stresses that the simultaneous use of these techniques is even more likely to amount to torture'.135 The report criticised the conditions of detention, and pointed out that they seem to have been used to 'counter resistance' and cause stress and were closely linked with investigation techniques.'36 The report mentioned recurring reports of three contexts in which excessive force was routinely used: during transportation, during operations by the Initial Reaction Forces (IRF) and by force-feeding during hunger strikes. The Special Rapporteur on Torture found that the well-documented
129. Ibid., para. 32. 130. Ibid., para. 46, giving specific examples in support of this assertion. 131. Ibid., para. 48. 132. By virtue of Secretary of Defense Memorandum for the commander, US southern command (16 April 2005) 'Counter-resistance techniques in the war on terror'. See also US DoD, <www.defen selink.mi~newslMar2005ld200503 1Oexe.pdP. 133. Joint UN Report, supra n. 25, para. 50. 134. Ibid., para. 5 1. 135. Ibid., para. 52. 136. Ibid., para. 53.
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evidence of excessive force during transportation, including 'beating, kicking, punching, but also stripping and forced shaving by IRF where detainees resisted ... amounts to torture, as it inflicts severe pain or suffering on the victims for the purpose of intimidation and/or punishment'.'37 It was stated further: 'On the basis of the information available to him, the Special Rapporteur takes the view that the United States practice of "extraordinary rendition" constitutes a violation of article 3 of the Convention against Torture and article 7 of I C C P R . " ~ ~ The US strongly refuted the [unedited version of the] joint UN Report's findings and criticised its methodology in a Letter dated 3 1 January 2006 from the Permanent Representative of the United States to the United Nations and Other Intemational Organizations in Geneva, Ambassador Kevin Edward Moley, to the Office of the UN High Commissioner for Human Rights. The letter reaffirmed that the us: 'is engaged in a continuing armed conflict against A1 Qaida, that the law of war applies to the conduct of that war and related detention operations, and that the International Covenant on Civil and Political Rights, by its express terms, applies only to "individuals within its temtory and subject to its jurisdiction.. . The Report's legal analysis rests on the flawed position that the ICCPR applies to Guantanamo detainees because the United States "is not clearly engaged in an international armed conflict between two Parties to the Third and Fourth Geneva Conventions." This, of course, leads to a manifestly absurd result; that is, during an ongoing armed conflict, unlawful combatants receive more procedural rights than would lawful combatants under the Geneva Conventions. Numerous other discussions in the Unedited Report are similarly flawed."39 5.2.2
The role of health care professionals in torture and inhuman treatment of detainees
More information came to light in 2006, including in the above-mentioned UN Joint ~ e ~ o r about t , ' ~ the ~ involvement of physicians and psychologists, inter alia, in determining the conditions of detention of persons being held in connection with the war on terror, in advising on techniques to 'soften up' detainees prior to interrogation, in shaping interrogation procedures in order to counter resistance and extract information, in keeping hunger strikers alive against their will by force-feeing, and in using the threat of or actual denial of medical and nursing care in order to induce compliance amongst detainees. In the Joint UN Report, the UN Special Rapporteur on the right to health reported receiving
137. Ibid., para. 54. See also para. 88: 'The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture.' 138. Ibid., para. 55. 139. Included as Annex I1 to the Joint UN Report, ibid., pp. 53-14 at 53. 140. Ibid.
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'serious and credible reports of violations of the right to health - both health care and the underlying determinants o f health - at Guantanamo Bay. These reports alleged, inter alia, that (i) the conditions o f confinement have had devastating effects o n the mental health o f the detainees; (ii) provision o f health care has been conditioned o n cooperation with interrogators; (iii) health care has been denied, unreasonably delayed and inadequate; (iv) detainees have been subjected to non-consensual treatment, including drug-
ging and force-feeding; and (v) health professionals systematically violate professional ethical standards, including the provision o f quality health care for detainee^."^' The Special Rapporteur stated that he had received reports that health professionals at Guantanamo have 'systematically violated widely accepted ethical standards set out in the United Nations Principles of Medical Ethics and the Declaration of Tokyo, in addition to well-established rules on medical c ~ n f i d e n t i a l i t ~ He ' . ' ~criti~ cised the US Department of Defense's Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of thc United States, released on 3 June 2005,'" for permitting the participation of physicians in coercive interrogation practices that are prohibited under international While admitting that psychiatrists and psychologists participate in interrogations as part of so-called 'Behavioural Science Consultation (BSC) Teams', the US 'justifies their participation on the grounds that these health professionals are not in provider-patient relationships with detainee^'.'^^ On 6 June 2006 the Department of Defense cancelled the 3 June 2005 Medical Program Principles and Procedures - which had been issued in the form of a memorandum by the Assistant Secretary of Defense (Health Affairs) - and reissued it as a DoD 1n~truction.l~~ The 2006 DoD Instruction maintained the distinction between health care personnel who are in a provider-patient treatment relationship with detainees or involved in their medical care and those carrying out BSC functions. This means that significant loopholes still exists with regard to those health care professionals whom DoD does not consider to be in a provider-patient relationship with detainees.
141. Ibid., para. 70. 142. Joint UN Report, supra n. 25, para. 75. 143. US Dept of Defense. Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States. HA Policy 05-006 (3 June 2005). 144. Joint UN Report, supra n. 25, paras. 77-78. See also American College of Physicians, 'Comments on Department of Defense Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States' (16 November 2005), stating: '[Wle are concerned about the distinction the Principles draw between those who have a provider-patient treatment relationship and those engaged in non-treatment activities. This distinction leaves open the possibility for physician involvement in interrogations, which is inconsistent with ACP policy regarding the physician's role as healer and promoter of health and human rights.' 145. Joint UN Report, supra n. 25, para. 77. 146. US Dept of Defense. Medical Program Support for Detainee Operations, Instruction 23 10.08E (6 June 2006).
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In June 2006 the American Medical Association (AMA) made a policy statement to the effect that physicians must neither conduct nor directly participate in an interrogation, nor monitor interrogations with the intention of intervening. Physicians may participate in developing effective interrogations strategies for general training purposes as long as these strategies do not threaten or cause physical injury or mental suffering and are humane and respect the rights of indi~idua1s.l~~ In August, the Council on Ethical and Judicial Affairs of the AMA issued a report entitled Physician Participation in ~nterrogation,'~~ whose purpose was 'to delineate the boundaries of ethical practice with respect to physicians' participation in the interrogation of prisoners and detainee^'.'^^ Inter alia, the report addressed the question of the role of physicians in interrogations and specifically the question of whether such individuals are in a professional provider-patient treatment relationship with a detainee being interrogated. It rejected the position advanced by the US Department of Defense 'that physicians who do not provide medical care to interrogatees are not bound by physicians' ethical obligations to patients because they act outside of the patient-physician relationship', finding that 'various Opinions in the AMA's Code of Medical Ethics suggest that physician interactions under the authority of third parties are governed by the same ethical principles as interactions involving patients. Physicians must apply medical knowledge and skills within the profession's ethical standards, which are distinct from and often more stringent than those of the law.''50 In a resolution adopted in August 2006, the American Psychological Association (APA) reaffirmed the APA's absolute opposition to all forms of torture and abuse and underscored that UN documents and conventions form the basis for APA policy. It also stressed psychologists' duty to be proactive not only in condemning abuses but also in preventing them.I5l
147. 'New AMA ethical policy opposes direct physician participation in interrogation' (12 June 2006). 148. CEJA Report 10, A-06, 'Physician Participation in Interrogation,' American Medical Association. 149. Ibid., p. 1. 150. Ibid., p. 5. 151. APA Resolution Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, Adopted by APA Council of Representatives, (9 August 2006). See also 'American Psychological Association reaffirms unequivocal position against torture and abuse - APA council of representatives underscores duty of psychologists to stop incidents of torture as well as report violations', APA Press Release (10 August 2006).
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IMPLEMENTATION OF IHL 6.1
The International Committee of the Red Cross
6.1.1
Report on business and international humanitarian law
While much has been written on the topic of business and human rights, the subject of the rights and responsibilities of business enterprises under IHL has been relatively neglected. The publication in December 2006 by the ICRC of a report entitled 'Business and International Humanitarian ~ a w was " ~thus ~ welcome. Places of business and their personnel are protected objects and persons - unless the former become military objectives and the latter take a direct part in hostilitiesIs3- which enjoy a host of rights as well as responsibilities under IHL. Businesses should be aware of the circumstances in which their premises could be converted into a military objective. For example, 'if armed forces initially contracted to protect the facilities of business enterprises subsequently used those facilities to launch, or defend against, military actions, the infrastructure and personnel implicated in supporting such military actions would become military targets'.'54 Referring to the necessity for many enterprises to rely on private contractors to supply security in combat zones, the report stated: 'Ordinarily, security personnel retained by business enterprises must operate in accordance with domestic law as well as with international law enforcement standards. These standards permit security personnel to use force only when strictly necessary and in a manner that is proportional to the threat faced."" Where during an armed conflict private military and security contractors end up breaking IHL, the businesses that hire them 'may under certain circumstances, be legally liable for assisting the commission of violations of international humanitarian law, even if they did not intend the violations to occur and if the offences were not perpetrated on their behalf'.'56 Business assets are considered as private property, which according to IHL must be respected. 'Under limited circumstances however, an occupying power may be entitled to seize the property of business enterprises, provided it is returned and compensation paid at the end of the armed conflict.''57 Businesses must ensure that they are not implicated in pillage through unlawful acquisition of property: 'In the past, courts have considered the acquisition of assets by entering into contracts as pillage when the agreement was based on threats, intimidation, pressure, or a position of power derived from the surrounding armed conflict. In other cases, transfer of company
152. 153. 154. 155. 156. 157.
Business and International Humanitarian Law (Geneva, ICRC December 2006). Ibid., p. 17. Ibid., p. 2 1. Ibid. Ibid. Ibid., p.19.
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shares based on fear, management of a business enterprise for the benefit of individuals other than the owners and knowingly receiving goods obtained against the will of the true owner were all found to constitute pillage.'158
Businesses have important responsibilities as far as the conditions of labour of their workforce are concerned. While under IHL parties to armed conflict can, in certain situations (such as during occupations and viz. detainees), compel some persons to work, 'it does not grant this right to private actors and, in any event, it prohibits uncompensated or abusive labour'.'59 The report notes: 'Some companies have been found responsible for having benefited from the labour of civilians, prisoners of war or concentration camp detainees to carry out work that did not meet minimum standards.' 160 Businesses operating in conflict zones may not acquire property or land from which the owners have been forcibly displaced. Neither can the expulsion of civilians by armed groups acting on behalf of a business enterprise be justified. If 'such practices were closely linked to an armed conflict, they could give rise to significant legal liabilities, both criminal and civil.'16' Some destruction of the natural environment usually accompanies an armed conflict, but unless it meets a high threshold of severity it is usually not unlawful. Still, businesses must be mindfulabout how IHL rules concerning protection of the natural environment are relevant to them: 'Business enterprises may be implicated in violating these rules by selling armed forces the means necessary to carry out attacks that cause severe damage to the environment. Therefore, business enterprises supplying products - such as chemical or biological weapons, or exfoliants - that can cause such damage during armed conflict may face legal proceedings. Business enterprises may also be held responsible for violations of international humanitarian law perpetrated against the environment by providing services. Advising armies on how to engineer massive oil spills as part of an armed conflict, assisting in the development of weapons that cause widespread, long-term and severe damage to the environment or providing armed forces with the means to do so would be plainly inconsistent with an undertaking to promote international humanitarian
Weapons are the means to wage war, and their manufacture and trade is accordingly a multi-billion dollar industry. Companies involved in it 'consequently face particular challenges linked to their role in the way conflicts are Not
158. Ibid.,p. 22. 159. Ibid.,p. 23. 160. Ibid. 161. Ibid., p. 24. 162. Ibid. 163. Ibid.,p. 25.
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only do a number of IHL treaties prohibit the manufacture and trade in certain weapons (such as chemical weapons and landmines), '[plroduction and trade in weapons other than those explicitly prohibited might also give rise to legal liability where the trader knowingly supplies weapons to end-users who use them to violate international humanitarian law. Considerations based on international
humanitarian law are also relevant for products not traditionally used as weapons, provided that the manufacturers or suppliers know that the product is to be used to perpetrate war crimes."64
The report notes that accomplice liability is the most likely form of criminal responsibility to arise in these cases.165 Finally, the report noted that while some states have laws in place to enable businesses themselves to be held criminally responsible for war crimes, 'the managers of business enterprises may face prosecution in a personal capacity. . . . In addition, because all States have an obligation to investigate and prosecute certain war crimes irrespective of where the acts occurred, business enterprises or their managers may face proceedings in countries other than those in which they operate. . . . Finally, business enterprises and their managers also face the risk of civil liability."66
6.2
The International Fact-Finding Commission
On 2 August 2006 the Republic of Montenegro became the 69th state to accept the competence of the International Fact-Finding Commission (IFFC) when it deposited with the Swiss Federal Council a declaration to this effect, in accordance with Article 90 of Additional Protocol I, at the same time as it deposited its Instrument of Accession to the Conventions and ~ r o t o c o l s . ' ~ ~ The Commission published its third five-year report in December 2006, covering 2002-2006.'~'It noted that: 'in spite of the numerous efforts made by individual members of the Commission and the Commission as a whole, it has not been approached by a State with a concrete demand for an enquiry nor has it been involved in any good offices function. However, the Commission is pleased to notice that the knowledge on the part of States, important international organisations as well as the civil society about its existence and the role it has been provided with, has constantly increased in the period since 2002, which is
Ibid. Ibid., p. 26. Ibid. ~http://www.ihffc.org/edchronological.html~.
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highly encouraging for the pursuance of the work of the next Commission to be elected on 7 December 2 0 0 6 . ' ' ~ ~
During the fourth diplomatic meeting to elect the members of the IFFC, held on 7 December 2006 in Berne, the following persons were elected or reelected for a term of ofice of five years: Prof. Ghalib Djilali (Algeria); Prof. Eric David (Belgium); Dr. Jeanette Irigoin Barenne (Chile); M. Reinado Botero-Bedoya (Colombia); Prof. Michael Bothe (Germany); Col. Charles Garraway (Great Britain); Prof. Stelios Perrakis (Greece); Prof. Flavia Lattanzi (Italy); Prof. Akira Mayama (Japan); Prof. Ian Refalo (Malta); Prof. Elzbieta Mikos-Skuza (Poland); Capt. Valery Knyazev (Russian Federation); Prof. Miodrag Starcevid (Serbia); Dr. Gisela Perren-Klingler (Switzerland); and Col. Hugo Corujo Sanseviero (Uruguay). 170
7.
INTERNATIONAL ORGANISATIONS AND INTERNATIONAL ACTIONS
7.1
United Nations Organisation
7.1.1
The Security Council
7.1.1.1 Afghanistan Resolution 1662 of 23 March extended the mandate of the UN Assistance Mission in Afghanistan (UNAMA) for 12 months. By resolution 1707 of 12 September, adopted under Chapter VII, the Council further extended the International Security Assistance Force's (ISAF) mandate for 12 months beyond 13 October 2006. The force's mandate allows it to take all necessary measures to carry out its designated tasks. The SC recognised the need for still further strengthening of the force, and called on Member States to contribute personnel, equipment and other resources to ISAF, and to make contributions to the Trust Fund established pursuant to resolution 1386 (2001). Resolution 1735, adopted by the Security Council on 22 December pursuant to Chapter VII, aimed at reinforcing the sanctions and other restrictions previously imposed with respect to the Taliban, A1 Qaeda and Osama bin ad en.'^'
169. Ibid. 170. . 171. In SC resolutions 1267 (1999), 1333 (2000), and 1390 (2002).
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7.1.1.2 Bosnia and Herzegovina Resolution 1722, adopted by the Security Council on 21 November under Chapter VII, reaffirmed its support for the Peace Agreement, as well as for the Dayton Paris Agreement on Implementing the Federation of Bosnia and Herzegovina of 10 November 1995,17*and called upon the parties to strictly comply with their obligations under those Agreements. It reminded the Bosnian authorities of their primary responsibility for the successful implementation of the Agreements, including their obligation to cooperate with the ICTY. The Council authorised UN Member States, acting together with EU Member States, to establish an EU-led force to replace the NATO stabilisation force (SFOR) in Bosnia and Herzegovina, whose mandate had come to an end. The new multinational force (EUFOR), as the legal successor to SFOR, would deploy in Bosnia for an initial period of 12 months, starting from 21 November, under unified command and control. The Council welcomed NATO's decision to continue to maintain a presence in Bosnia and Herzegovina in the form of a NATO Headquarters, in order to continue to assist in implementing the Peace Agreement in conjunction with EUFOR. 7.1.1.3
Burundi
Following the successful conclusion of the transitional process in Burundi, including the peaceful transfer of authority to a new government, the SC adopted resolution 1692 on 30 June under Chapter VII, extending the mandate of the United Nations Operation in Burundi (ONUB) until 31 December 2006. By the same resolution, the Security Council extended until 30 September the authorisation given in resolution 1669 for the SG to temporarily redeploy some resources of the UN Mission in the DRC (MONOC) to O N U B . ' ~ ~ In Resolution 17 19 of 25 October the Security Council requested the SecretaryGeneral to establish a United Nations Integrated Office in Burundi (Bureau IntCgre des Nations Unies au Burundi (BINUB)), as recommended in the addendum of his seventh report of 14 August 2006,"~for an initial period of 12 months commencing on 1 January 2007. Its main function was to support the government in its effort to cement long-term peace and stability throughout the peace consolidation phase. BINUB's many functions were to include the promotion and protection of human rights, including by building national institutional capacity in that area, particularly with regard to the rights of women, children and other vulnerable groups. Another primary function would be in supporting efforts to combat impu-
172. Sl199511021,annex. 173. For details, see below under Democratic Republic of the Congo. 174. Sl20061429lAdd.1.
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nity, particularly through the establishment of transitional justice mechanisms, including a truth and reconciliation commission and a special tribunal. 7.1.1.4
CBte d'Ivoire
C6te d'lvoire was high on the Security Council's active agenda during 2006, as it adopted a total of seven resolutions aimed at restoring peace and security to the West Ahcan country. By resolution 1652 of 24 January, adopted under Chapter VII, the Security Council extended the mandate of the United Nations Operation in CBte d'Ivoire (UNOCI), and of the French forces supporting it, until 15 December 2006 and decided to keep UNOCI's troop levels under review. On 6 February, as the security situation continued to deteriorate, the Council, by resolution 1657 adopted under Chapter VII, authorised the SG to immediately redeploy one infantry company from the UN Mission in Liberia to UNOCI, in order to provide extra security for UN personnel and property and carry out the other tasks falling under its mandate. In resolution 1682 of 2 June, adopted under Chapter VII, the Council greenlighted an increase in UNOCI's numbers by a maximum of 1,500 additional personnel until 15 December 2006, including up to 1,025 military and 475 civilian police personnel. Resolution 1708, adopted by the SC on 14 September pursuant to Chapter VII, extended the mandate of the Group of Experts established pursuant to paragraph 9 of resolution 1643 ( 2 0 0 5 ) ' ~until ~ 15 December 2 0 0 6 , ' ~as~ the situation still constituted a threat to international peace and security. It requested the Group of Experts to update it, through the Committee established by paragraph 14 of resolution 1572 (2004), (hereinafter, 'the ~ommittee')"~ before 1 December 2006 on the implementation of the measures imposed by paragraphs 7,17' 9179and 11 I a 0 of resolu-
175. The Group of Experts consists of experts in arms, diamonds, finance, customs, and civil aviation, inter alia, who are mandated to monitor traffic in arms and related materiel; the provision of assistance for military activities, and sources of finance for arms, including through the exploitation of natural resources. See 8 YZHL (2005) p. 240. 176. See final report (Sl20061735, annex) of the Group of Experts created by the Secretary-General, hrther to para. 9 of resolution 1643 (2005). 177. The Committee was tasked, inter alia, with designating the persons and entities subject to the measures imposed by paras. 9 and 11 of resolution 1572 (2004). 178. Conceming the imposition of a moratorium on states on the direct or indirect supply, sale or transfer to CGte d'lvoire of arms or any related materiel, as well as the provision of any assistance related to military activities. 179. Conceming the imposition on states of a ban on the entry into their territories of persons considered by the Committee to constitute a threat to the peace and national reconciliation process in CGte d'Ivoire, or any other person determined as responsible for serious violations of IHL or human rights in CBte d'lvoire. 180. Ordering states to freeze financial assets on their territories controlled directly or indirectly by persons designated in para. 9 of resolution 1572.
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tion 1572 (2004) and paragraphs 4"' and 6"' of resolution
1643 (2005), and to make recommendations in this regard. Resolution 1721, adopted under Chapter VII, called for the full implementation of the peace process and the organisation of free, open, fair and transparent elections by 31 October 2007. It referenced IHL in its preambular paragraphs and in paragraph 30, where the Council reiterated its serious concern at all violations of human rights and IHL, and urged the Ivorian authorities to investigate them without delay in order to end impunity. Resolution 1726, adopted on 15 December under Chapter VII, extended UNOCI's mandate until 10 January 2007. In a preambular paragraph, the Council expressed its serious concern at the deteriorating humanitarian situation, which had caused large-scale civilian suffering and displacement. The very same day, the Security Council issued yet another resolution on C6te d'Ivoire. Resolution 1727, also adopted under Chapter VII, reiterated the demands of earlier resolutions. The Council renewed until 3 1 October 2007 the provisions of paragraphs 7 to 12 of resolution 1572 (2004) and of paragraph 6 of resolution 1643 (2005). It demanded that all Ivorian parties, including the transitional government and the Forces nouvelles, provide unhindered access to equipment, sites and installations to enable the Group of Experts as well as UNOCI and French forces to carry out the tasks set out in paragraphs 2'" and l2In4of resolution 1609 (2005). It requested the SG and the French government to immediately inform it, through the Committee, of any serious obstacle to UNOCI's or French forces' freedom of movement and to provide the names of the persons responsible. By the same resolution the Security Council extended the mandate of the Group of Experts for six more months. It stated that it was fully prepared to impose targeted measures against persons designated by the Committee to be responsible for serious violations of human rights and IHL. 7.1.1.5
Cyprus
Resolution 1687, adopted by the SC on 15 June, reaffirmed all the Council's relevant resolutions on Cyprus, declared its full support for the United Nations Peace-
181. Which decided that any obstacles to the free movement of UNOCI or the French forces supporting it or any attack on their personnel, inter alia, constituted a threat to the peace and national reconciliation. 182. Requiring all states to take the necessary measures to prevent the import of all rough diamonds from CBte d'Ivoire to their territory. 183. Para. 2 set out UNOCI's mandate, which included observing and monitoring the implementation of the joint declaration of the end of the war of 6 April 2005 and of the comprehensive ceasefire agreement of 3 May 2003, and investigating ceasefire violations. 184. Para. 12 authorised the French forces to use all necessary means in order to support UNOCI in accordance with the agreement reached between them, and in particular to contribute to the general security of the area of activity of the international forces, to intervene in support of UNOCI at its request, to help to protect civilians in the deployment areas of their units, and to support the arms embargo.
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keeping Force in Cyprus (UNFICYP) and extended the force's mandate until 15 December 2006. 7.1.1.6 Democratic Republic of the Congo In 2006, despite progress towards peace, the situation in the Democratic Republic of Congo (DRC) remained a major focus of the Security Council. By resolution 1654, adopted on 3 1 January under Chapter VII, the SC requested the SG to reconstitute the Group of Experts established by its resolution 1533 (2004) in order to monitor violations of the arms embargo.ls5 The Council demanded that all parties ensure the safety of the Group of Experts and allow it all necessary access. On 10 April the Council passed resolution 1669, authorising the SG to temporarily redeploy, until l July, one infantry battalion, a military hospital and up to 50 military observers from the United Nations Mission in Burundi (ONUB) to the UN Mission in the DRC (MONUC). Two weeks later, on 25 April, the Council passed resolution 1671 pursuant to Chapter VII. It authorised the deployment to the DRC of a European Union force, to be known as Eufor R.D.Congo, whose task was to assist MONUC in providing security during the Congolese elections. The duration of the deployment should not exceed MONUC's mandate. Resolution 1693, adopted on 30 June under Chapter VII, temporarily bolstered MONUC's military and civilian police strength until 30 September in view of the upcoming elections. Resolution 1698 of 3 1 July, adopted under Chapter VII, addressed the continuing illegal smuggling of weapons into the DRC in violation of the arms embargo. The Council reaffirmed the demands of paragraphs 15,1s6 18Is7and 191ssof resolution 1493 (2003), paragraph 5 of resolution 1596 (2005),'~~ and paragraphs 15I9O
185. Imposed by resolution 1493 of 28 July 2003 and expanded by resolution 1596 of 3 May 2005. 186. Demanding, inter alia, that all parties desist from interference with the freedom of movement of UN personnel. 187. Demanding that all states ensure that no direct or indirect assistance of any kind is given to armed groups and movements present in the DRC. 188. Demanding that all parties provide full access to MONUC military observers, including in ports, airports, airfields, military t,ases and border crossings, and requesting the SG to deploy MONUC military observers in N. and S. Kivu and in Ituri. 189. Demanding that all parties with military capabilities in Ituri, in North Kivu or in South Kivu other than the army and police of the DRC - help the Government of National Unity and Transition implement its commitments regarding disarmament, demobilisation and reintegration (DDR) of foreign and Congolese combatants, and regarding security sector reform. 190. Demanding that the governments of Uganda, Rwanda, the DRC and Burundi take measures to prevent the use of their respective territories in support of violations of the arms embargo imposed by resolutions 1493 and 1596, and renewed by resolution 1616, or in support of activities of armed groups present in the region.
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and 1619' of resolution 1649 (2005). In light of the parties' failure to comply with the arms embargo, it renewed until 3 1 July 2007 the provisions of paragraphs 20 to 22'92of resolution 1493, as amended and expanded by paragraph 1 of resolution 1 5 9 6 ' ~and ~ by paragraph 2 of resolution 1649,Ig4and reaffirmed paragraphs 2,195 6,196 and 13 to l6I9' of resolution 1596, as well as paragraphs 3 to 5'99 of resolution 1649 and paragraph 10200of resolution 1671. The Council requested the SG to take, as soon as possible, the steps required to extend the mandate of the Group of Experts until 3 1 July 2007. It requested the Group of Experts to continue fulfilling its mandate as defined in resolutions 1533 (2004), 1596 (2005) and 1649
191. Demanding that all states neighbouring the DRC, as well as the Government of National Unity and Transition, impede any kind of support to the illegal exploitation of Congolese natural resources, particularly by preventing the flow of such resources through their temtories. 192. Para. 20 imposed on all states, for an initial period of 12 months, an obligation to take measure to prevent the direct or indirect supply, sale or transfer, from their temtories or by their nationals ... of arms and any related materiel, and the provision of any assistance, advice or training related to military activities, to all foreign and Congolese armed groups and militias operating in N. and S. Kivu and Ituri, and to groups not party to the Global and All-inclusive agreement in the DRC. Para. 21 decided that these measures would not apply to supplies to MONUC, the Interim Emergency Multinational Force deployed in Bunia and the integrated Congolese national army and police forces, as well as to supplies of non-lethal military equipment intended solely for humanitarian or protective use. Para. 22 left open the possibility of the SC renewing these measures after 12 months. 193. Applying the measures established by para. 20 of resolution 1493, ibid., to any recipient in the DRC. 194. Extending the provisions of paras. 13 to 16 of resolution 1596 to political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups and to political and military leaders of Congolese militias receiving support from outside the DRC, and in particular those operating in Ituri, who impede the participation of their combatants in the DDR processes. 195. Making the provisions of para. 1 of resolution 1596, supra n. 193, inapplicable to units of the army and police of the DRC who had completed their DDR or who are in that process, or who operated under the command of the Btat-major integrit of the Armed Forces or of the National Police. 196. Measures regarding the operation of aircraft in the region. 197. Measures regarding customs control on the borders between Ituri or the Kivus and the neighbouring states. 198. Para. 13 imposed measures to prevent the entry into or transit through their territories of all persons designated by the Committee as acting in violation of the measures taken by Member States in accordance with para. 1; para. 14 suspended the application of para. 13 in cases where such travel was justified on humanitarian grounds, inter alia; para. 15 required states to freeze the financial and other assets owned or controlled, directly or indirectly, by persons designated by the Committee. Para. 16 excepted from the application of para. 15 assets and resources that were necessary for basic living expenses, inter a h . 199. Para. 3 excepted from travel restrictions individuals returning to the temtory of the state of their nationality, or participating in efforts to bring to justice perpetrators of grave violations of human rights or IHL; para. 4 extended the tasks of the Committee; para. 5 requested the SG and Group of Experts to assist the Committee in its designation of leaders under para. 2 of resolution 1649. 200. Excepting from the measures imposed in para. 20 of resolution 1493 supplies of arms and related material as well as technical training and assistance intended solely for the support of or the use by Eufor R.D.Congo.
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(2005),~O'to regularly update the Committee on its work, and to report back to it in writing by 20 December 2006, and again before 10 July 2007. Recalling the terms of paragraph 13 of resolution 1493 (2003),~'~it strongly condemned the continued use and recruitment of children in the hostilities. It extended until 3 1 July 2007 the provisions of paragraphs 13 to of resolution 1596 (2005) to the political and military leaders recruiting or using child soldiers in violation of international law and to individuals committing serious violations of international law involving the targeting of children during armed conflict, including killing and maiming, sexual violence, abduction and forced displacement. The Council requested the Working Group of the Security Council on children in armed conflict, the Secretary-General and his Special Representative for children in armed conflict, and the Group of Experts to assist the Committee in the designation of the individuals referred to in paragraph 13. By resolution 171 1 of 29 September, adopted under Chapter VII, the Council prolonged MONUC's mandate until 15 February 2007, at the strength authorised by resolutions 1621 (2005) and 1635 (2005). In the same resolution, the Council deplored the 'persistence of violations of human rights and international humanitarian law in the Democratic Republic of the Congo, in particular those carried out by these militias and foreign armed groups and by elements of the Armed Forces of the Democratic Republic of the Congo (FARDC)', and stressed 'the urgent need for those responsible for these crimes to be brought to justice'. Resolution 1736, adopted by the Security Council on 22 December pursuant to Chapter VII, green-lighted an increase in MONUC's military strength of up to 916 military personnel from 1 January 2007 until the expiry of its mandate on 15 February 2007, before which it would revisit the matter. A preambular paragraph deplored the persistence of violations of human rights and IHL in the DRC, especially those carried out by militias and foreign armed groups and by elements of FARDC. The Council stressed the urgent need for those responsible for these crimes to be brought to justice. 7.1.1.7
Eritrea and Ethiopia
During 2006 the Security Council issued five resolutions dealing with the mandate of the UN Mission in Ethiopia and Eritrea (UNMEE). By resolution 1661 of 14 March, it extended UNMEE's mandate for one month until 15 April. Resolution 1670 of 13 April extended UNMEE's mandate for a hrther month until 15 May. The Council warned the parties that if they had not fdly complied
201. In general, concerning the collection and analysis of information on the flow of arms and related materiel to armed groups in the DRC and the monitoring of the arms embargo imposed. 202. Condemning the use of child soldiers and calling on all parties to provide his Special Representative with information on the measures that they have taken to put an end to the recruitment and use of child soldiers. 203. Supra n. 198.
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with resolution 1640 (2005)~'~ by the beginning of May, it would review the mission's mandate and strength. As UNMEE's mandate was about to expire on 15 May, resolution 1678, adopted that day, extended it until the end of May. The SC reiterated its demand that both parties fully comply with resolution 1640, in particular its paragraphs 1205 and 5,206 indicating that if they did not it would adjust the mission's mandate and troop
level. As the parties failed to abide by these compliance demands, the Council was forced to make good on its warnings. Resolution 1681 of 31 May, extending UNMEE's mandate until the end of September, authorised the reconfiguration of its military arm within its existing mandate, as set out in resolution 1320 (2000) and further adjusted in resolution 1430 (2002). The Council approved the deployment of up to 2,300 troops to the mission, including up to 230 military observers. It demanded that both Ethiopia and Eritrea fully comply with resolution 1640 (2005) and fully cooperate fully with the Boundary Commission (EEBC), and called on them to implement without further delay the EEBC's boundary decision and to create the necessary conditions for demarcation to proceed expeditiously. On 29 September, by resolution 1710, the Council extended UNMEE's mandate for a further four months, until 3 1 January 2007. It expressed its intention, in the event it were to determine that the parties had not demonstrated progress towards demarcation by 3 1 January 2007, to transform or reconfigure the mission. 7.1.1.8
Georgia
With the long-running dispute over Georgia's breakaway province of Abkhazia showing no sign of resolution, the Council decided in resolution 1656 of 3 1 January to extend the mandate of the UN Observer Mission in Georgia (UNOMIG) until 3 1 March. In resolution 1666 of 3 1 March, the Council extended UNOMIG's mandate until 15 October. On 13 October, in resolution 1716, the Council extended UNOMIG's mandate for a further period until 15 April 2007. 7.1.1.9
Haiti
With the situation in Haiti continuing to pose a threat to international peace and security, on 14 February, acting under Chapter VII, the Security Council extended the mandate of the UN Stabilization Mission in Haiti (MINUSTAH) until 15
204. See 8 YIHL (2005) p. 244. 205. Demanding that Eritrea reverse its decision to ban UNMEE helicopter flights, and other restrictions imposed on the mission, and provide UNMEE with the access, assistance, support and protection required for the performance of its duties. 206. Demanding that Ethiopia fully and immediately implement the decision of the EEBC and take concrete steps to enable the Commission to demarcate the border completely and promptly.
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August. By resolution 1702, adopted on 15 August, it further extended MINUSTAH's mandate until 15 February 2007. 7.1.1.10 Iran [See infra part 8.1.21 7.1.1.11 Iraq On 10 August, by resolution 1700, the Security Council extended the mandate of the United Nations Assistance Mission for Iraq (UNAMI) for 12 months and requested its intention to review it if requested by the Iraqi government. Resolution 1723, adopted by the Security Council on 28 November under Chapter VII, noted that UNAMI was present in Iraq at the government's request. It reaffirmed the mission's authorisation, as set forth in resolution 1546 (2004), and prolonged its mandate until 3 1 December 2007. The mission's mandate would be reviewed at the request of the Iraqi government, or no later than 15 June 2007, and would be terminated if requested. 7.1.1.12 Lebanon By resolution 1655 of 3 1 January the SC extended the mandate of the United Nations Interim Force in Lebanon (UNIFIL) until the end of July. It condemned acts of violence against Israel by Hezbollah and Israeli violations of Lebanese airspace. Lebanon was urged to regain control over its southern territory. By resolution 1664 of 29 March the Council requested the SG to negotiate an agreement with the Lebanese government for the establishment of an international tribunal to try persons implicated in the assassination of former Prime Minister Rafiq Hariri and others. Resolution 1680, adopted by the Security Council on 17 May, reiterated the Council's call for full implementation by Lebanon and other concerned states and parties of all requirements of resolution 1559 (2004). It strongly encouraged Syria to react positively to Lebanon's request to it to delineate their common border. Commending Lebanon for taking measures to prevent the movement of arms into its territory, it called on Syria to take similar steps. Resolution 1686 (2006) of 15 June welcomed the report of the International Independent Investigation Commission convened to investigate the circumstances into the killing of Mr Hariri, and extended the Commission's mandate for one year. On 12 July 2006 Hezbollah operatives launched a cross-border raid into Israel, killing three members of the Israel Defence Force (IDF) and kidnapping two others. Israel's response was immediate. On the same day, it launched a failed rescue attempt, during which five more IDF members were killed. It then launched Operation 'Change of Direction', a full-scale military operation on Lebanese territory.
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A serious cause for concern is that it took the SC so long to react to the conflict. On 18 July, 'despite calls from several governments for the United States to take the lead in negotiations to end the fighting, US Secretary of State Condoleezza Rice said that a ceasefire should be put off until "the conditions are conducive"'.207 SC resolution 1697 of 3 1 July made no mention of any ceasefire. Taking note of the 'escalating hostilities since 12 July', it urged all concerned parties to abide scrupulously by their obligation to respect the safety of UNIFIL and other United Nations personnel, and avoid any course of action that might endanger them. It called upon the parties to allow UNIFIL to resupply its positions, to conduct search and rescue operations on behalf of its personnel and to undertake any other measures UNIFIL deemed necessary to ensure the safety of its personnel. It also extended UNIFIL's mandate till 3 1 August. By the time a ceasefire was called for by the SC one month later on 11 August in resolution 1 701, approximately 1,000 Lebanese civilians had been killed and a million displaced, and swathes of Lebanese infrastructure - including bridges, roads, power plants and civilian objects - had been subjected to direct military strikes, resulting in widespread destruction. On the Israeli side of the border, over 40 civilians died as a result of rocket strikes by ~ e z b o l l a h . ' ~ ~ The Council called on UNIFIL - whose mandate it extended until 31 August 2007 - and the Lebanese government, upon a full cessation of hostilities, to deploy their forces together throughout the South. It called on Israel to begin a concurrent withdrawal of its troops from that region. It emphasised the importance of Lebanon being able to extend its control throughout its own territory and the Council's support for the country's territorial integrity, sovereignty and political independence. It called on the international community to take immediate steps to extend its financial and humanitarian assistance to the Lebanese people, including through facilitating the safe return of displaced persons and, under the authority of the Lebanese government, reopening airports and harbours, and called on it to consider future assistance in Lebanon's reconstruction and development. The SC called on Israel and Lebanon to support a permanent ceasefire and a long-term solution based on the following principles and elements: - full respect for the Blue Line by both parties; - security arrangements to prevent the resumption of hostilities, including the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of Lebanon and UNIFIL; - full implementation of the relevant provisions of the Taif Accords and of resolutions 1559 (2004) and 1680 (2006), which require the disarmament of all armed groups in Lebanon, in order to ensure that, pursuant to the Lebanese cabinet deci-
207. S. Hersh, 'Watching Lebanon: Washington's interests in Israel's war', The New Yorker, 21 August 2006; R. Fisk, 'How can we stand by and allow this to go on?' The Independent, 31 July 2006. 208. R. Falk and A.U. BLli, 'International Law at the Vanishing Point', Middle East Report,
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sion of 27 July 2006, there would be no weapons or authority in Lebanon other than those of the Lebanese state; - no foreign forces in Lebanon without the consent of its government; - no sales or supply of arms and related materiel to Lebanon except as authorised by its government; - Israel's provision to the UN of all remaining maps in its possession of landmines placed in Lebanon. The resolution also authorised an increase in UNFIL's troop numbers to 15,000 and an expansion of its mandate to include, inter aka, monitoring the ceasefire and accompanying Lebanese forces as they deployed throughout the south as Israel withdrew its troops. The resolution made no reference to IHL. giving Israel time to launch The ceasefire came into effect on 14 August 2006,~'~ a final ground assault.210 7.1.1.13 Liberia By resolution 1667 of 31 March the Council extended the mandate of the UN Mission in Liberia (UNMIL) until 30 September. By resolution 1683, adopted on 13 June acting under Chapter VII, the Security Council decided that the restrictions imposed by paragraph 2(a) and (b) of resolution 1521 (2003) - by which an arms embargo was imposed on Liberia - would not apply to weapons and ammunition already provided to members of the Special Security Service (SSS) for training purposes, pursuant to advance approval under paragraph 2(e) by the Committee established by paragraph 21 of that resolution, and that those weapons and ammunition could remain in the custody of the SSS for operational use. Those measures would also not apply to limited supplies of weapons and ammunition - as approved by the Committee in advance on a case-by-case basis - intended for use by members of the police and security forces who had been vetted and trained since the inception of UNMIL. The government was responsible for marking the approved weapons and ammunition, maintaining a registry of them, and formally notifying the Committee that these steps had been taken. Resolution 1689 of 20 June 2006, which was adopted under Chapter VII, renewed the measures imposed by paragraph 6 of resolution 1521 (2003)~"for an additional six months, in order to allow the new government enough time to establish an effective, transparent and internationally verifiable Certificate of Origin regime for trade in Liberian rough diamonds, with a view to joining the Kimberley Process. It called on the government to provide the Sanctions Committee with a
209. Lebanon: 'The Israel-Hamas-Hezbollah Conflict, CRS Report for Congress' (I5 September 2006) p. 9. 210. Ibid., p. 11. 2 11. Directing all states to take necessary measures to prevent the direct or indirect import of all rough diamonds from Liberia to their territory, whether or not such diamonds originated in Liberia.
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detailed description of the proposed regime. It also requested the SG to renew the mandate of the Panel of Experts for six more months. Resolution 1694, adopted on 13 July under Chapter VII, increased UNMIL's civilian police component by 125 and deceased its military component by the same number, UNMIL's mandate was extended until 3 1 March 2007 by resolution 1712 of 29 September, adopted under Chapter VII. The resolution reaffirmed the Council's intention to authorise the Secretary-General to redeploy troops between UNMIL and the United Nations Operation in C6te d'Ivoire on a temporary basis. It endorsed the SG's recommendation of a phased, gradual consolidation, drawdown and withdrawal of UNMIL's troop contingent. Resolution 1731 of 20 December renewed the arms embargo and travel restrictions imposed in earlier resolutions for 12 months. The measures on diamonds were renewed for six months to give the government sufficient time to establish a satisfactory Certificate of Origin regime. The government should provide the Sanctions Committee, established according to paragraph 2 1 of resolution 1521 (2003), with a detailed description of the proposed regime. Resolution 1731 also extended the mandate of the Panel of Experts until 20 June 2007. 7.1.1.14 North Korea [See infra part 8.1.11 7.1.1.15 Sierra Leone Resolution 1734 of 22 December extended the mandate of the United Nations Integrated Office in Sierra Leone (UNIOSIL) until 31 December 2007 and authorised an increase in its numbers. 7.1.1.16 Somalia In resolution 1676, adopted on 10 May under Chapter VII, the Security Council stressed the obligation of all member states to comply with the arms embargo imposed by its resolution 722 (1992), violations of which had increased. It expressed its intention to consider specific actions to improve implementation of and compliance with the measures imposed by the embargo. The Council requested the SG, in consultation with the Committee established pursuant to resolution 75 1 of 24 April 1992, to re-establish within 30 days, for a six month-period, a Monitoring Group in order to undertake a variety of tasks aimed at investigating breaches of the arms embargo and improving compliance with it. Resolution 1724, adopted by the Security Council on 29 November 2006, stressed member states' obligation to fully comply with the measures imposed by resolution 733 (1992). It expressed the Council's intention, in light of the report of
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the Monitoring ~ r o u ~to ,consider ~ ' ~ specific action to improve implementation of and compliance with these measures. 7.1.1.17 Sudan On 24 March, in resolution 1663, the Security Council extended the mandate of the United Nations Mission in Sudan (UNMIS) until 24 September. It strongly condemned the actions of militias and armed groups, such as the Lord's Resistance Army, for attacking civilians and committing human rights violations. In resolution 1665 of 29 March, the Security Council, acting under Chapter VII, extended until 29 September the mandate of the Panel of Experts appointed pursuant to resolution 1591 (2005). The following month, in resolution 1672, of 25 April adopted under Chapter VII, the SC decided that all states must implement the travel and financial restrictions specified in paragraph 3 of resolution 1591 (2005) with respect to the following individuals: Major General Gaffar Mohamed Elhassan (Commander of the Western Military Region for the Sudanese Armed Forces); Sheikh Musa Hilal (Paramount Chief of the Jalul Tribe in North Darfur); Adam Yacub Shant (Sudanese Liberation Army Commander); and Gabril Abdul Kareem Badri (National Movement for Reform and Development Field Commander). Following the AU-led Abuja peace talks, culminating in the signing of the Darhr Peace Agreement (DPA) on 5 May, the Security Council adopted resolution 1679 on 16 May. Welcoming the progress made in drafting the DPA, the Council, acting under Chapter VII, called on the parties to the Agreement to respect their commitments and implement it without delay. It urged those parties that had not signed it to do so expeditiously and to avoid impeding its implementation, and indicated that it would consider taking measures such as a travel embargo against those violating or blocking the agreement. The Council welcomed the deployment to Darfur of the African Mission in Sudan (AMIS), and endorsed the decision of the African Union Peace and Security Council in its comrnuniquk of 15 May 2006 that, in view of the signing of the DPA, concrete steps should be taken to effect the transition from AMIS to a United Nations operation. It called on the parties to the DPA to work with the various interested bodies in order to accelerate this transition. To this end, it called for the deployment of a joint African Union and United Nations technical assessment mission within one week of the adoption of the resolution. Resolution 1706, adopted on 3 1 August, expanded the mandate of the as yet to be established or deployed UN Mission in Sudan (UNMIS), with a view to supporting the early and effective implementation of the DPA. The expanded mandate of the UN force - which should have a 'strong Ahcan participation and character' - was to include the following tasks: Monitoring and verifying the implementation of the DPA and the N'djamena Agreement on Humanitarian Cease-fire on the
2 12. S/2006/913 (2 1 November 2006).
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Conflict in Darfur; observing and monitoring the movement of armed groups and the redeployment of forces in areas of UNMIS's deployment; investigating violations of the Agreements and reporting violations to the Ceasefire Commission; maintaining a presence in key areas in order to promote the re-establishment of confidence and discourage violence; monitoring transborder activities of armed groups; and assisting with development and implementation of a comprehensive and sustainable programme for disarmament, demobilisation and reintegration. UNMIS was authorised to use all necessary means to hlfil its duties. In order to execute its extra tasks, the Council authorised a strengthening of UNMIS's numbers, by up to 17,300 military personnel, 3,300 civilian police personnel and 16 Formed Police Units. The SC called for UNMIS's rapid deployment, in accordance with the recommendation contained in the SG's report dated 28 July 2006. The Council requested the SG to consult jointly with the African Union, and the parties to the DPA, including the Government of National Unity, on a plan and timetable for transition from AMIS to UNMIS. It decided that those elements outlined in paragraphs 40 to 58 of the Secretary-General's report of 28 July 2006 should begin to be deployed no later than 1 October 2006. Additional capabilities should be fielded as soon as feasible. UNMIS should take over from AMIS the responsibility for supporting the implementation of the DPA upon the expiration of AMIS' mandate but, in any event, no later than the end of 2006. Resolution 1706 strongly condemned 'all violations of human rights and international humanitarian law in Darfur', and called upon the Government of National Unity to take urgent action to tackle gender-based violence in Darfur. The Council alluded to the 'large-scale organized violence in Darfur', which AMIS's presence had contributed to reducing. In contrast, in resolution 1709, adopted by the Security Council on 22 September in order to it extend the mandate of UNMIS until 8 October, no direct reference was made to IHL. However, the Council expressed its grave concern over the continued deterioration of the humanitarian situation in Darhr, and reiterated in the strongest terms the need for all parties to the conflict to put an end to the violence and atrocities in that region. By resolution 1713, adopted under Chapter VII on 29 September 2006, the SC extended the mandate of the Panel of Experts until 29 September 2007 and requested the Secretary-General to appoint to it a fifth member. It requested the Panel to provide a mid-term report on its work no later than 29 March 2007. While the SC deplored the ongoing violence, impunity, and consequent deterioration of the humanitarian situation, reiterated its deep concern about the security of civilians and humanitarian aid workers and about humanitarian access to populations in need, and called upon all parties to immediately cease offensive actions, the resolution made no direct reference to violations of IHL or demanded their cessation. UNMIS's mandate was extended until 30 April 2007 by resolution 1714 of 6 October. The Council welcomed the mission's full deployment in those areas of operation in support of the Comprehensive Peace Agreement and the improving humanitarian situation in southern Sudan resulting from progress on implementa-
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tion of the Comprehensive Peace Agreement. The Council expressed its grave concern over the recruitment and use of children in conflict in the Sudan, particularly by other armed groups in southern Sudan and the continued deterioration of the humanitarian situation in Darfur, and reiterated the need for all parties to the conflict in Darfur, including non-parties to the DPA, to put an end to the violence and atrocities in that region. It called upon the parties to the Comprehensive Peace Agreement, the Darfur Peace Agreement and the N'djamena Humanitarian Ceasefire Agreement to respect their commitments and fully implement all aspects of these Agreements without delay. It called upon those parties that had not signed the Darfur Peace Agreement to do so without delay and not to act in any way that would impede its implementation. 7.1.1.18 Timor-Leste By resolution 1677 of 12 May, the Security Council extended the mandate of the UN Office in Timor-Leste (UNOTIL) until 20 June. UNOTIL's mandate was further extended until 20 August by resolution 1690 of 20 June, with a view to planning for the UN's role once UNOTIL's mandate expired. Resolution 1703 of 18 August 2006 extended UNOTIL's mandate for a final week until 25 August. By resolution 1704 of 25 August the Council established a follow on mission, known as the United Nations Integrated Mission in Timor-Leste (UNMIT), for an initial period of six months. A mixed civilianlmilitary mission, UNMIT was to consist of up to 1,608 police personnel and initially up to 34 military liaison and staff officers. UNMIT's mandate included supporting the government and relevant institutions in consolidating stability; enhancing a culture of democratic governance; and facilitating political dialogue among Timorese stakeholders in their efforts to engender national reconciliation and social cohesion. 7.1.1.19 Western Sahara By resolution 1675 of 28 April, the Council extended the mandate of the UN Mission for the Referendum in Western Sahara (MINURSO) until 3 1 October. It reaffirmed the need for full respect for the military agreements reached with MINURSO with respect to the ceasefire. Resolution 1720 of 3 1 October extended MINURS07s mandate until 30 April 2007 and once again reaffirmed the need for full respect for the military agreements with regard to the ceasefire. The Council called on the Secretary-General to provide a report on the situation in Western Sahara before the end of the mandate period. 7.1.1.20 Rule of law - respect for IHL In a statement issued by the President of the Security Council on 22 June 2006 on the subject of the rule of law, the Council emphasised 'the responsibility of States to comply with their obligations to end impunity and to prosecute those responsi-
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ble for genocide, crimes against humanity and serious violations of international humanitarian law'. The Council reaffirmed that 'ending impunity is essential if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians and to prevent future such abuses'. The Council signaled its intention 'to continue forcefully to fight impunity with appropriate means', and drew 'attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and 'mixed' criminal courts and tribunals and truth and reconciliation corn mission^'.^'^ 7.1.2
General Assembly
7.1.2.1
Human Rights Council
On 15 March 2006 the UN General Assembly voted to replace the Human Rights Commission with the Human Rights Council, based in Geneva, which will function as a subsidiary organ of the General ~ s s e m b lIt~ 'shall . ~ ~ be ~ responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner'.215 It 'should address situations of violations of human rights, including gross and systematic violations, and make recommendation thereon'.*I6 The Human Rights Council consists of 47 member states, elected directly, by secret ballot, by the majority of GA member states, with its membership being equitably distributed on a regional basis. Council members shall serve for a renewable term of three years.217UN members states can take into account a state's human rights record in electing members to the Human Rights Council, and can elect to suspend a member that commits gross and systematic violations of human rights.218Elections of the first members of the Human Rights Council took place on 9 May, and it held its first meeting on 19 June. 7.1.3
International Court of Justice
7.1.3.1
Congo v. Rwanda case
On 28 May 2002 the Democratic Republic of the Congo (DRC) instituted proceedings before the International Court of Justice (ICJ) against ~ w a n d a . "It~ alleged that Rwanda had committed an act of armed aggression against the DRC, which
21 3 . SlPRSTl2006128 (22 June 2006). 2 14. General Assembly resolution 60125 1 (3 April 2006), para. 1. 215. Ibid., para. 2. 216. Ibid., para. 3 . 217. Ibid., para. 7. 2 18. Ibid., para. 8. 219. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), General List No. 126.
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resulted in "'massive, serious and flagrant violations of human rights and of international humanitarian law" ... "in breach of the 'Intemational Bill of Human Rights', other relevant international instruments and mandatory resolutions of the United Nations Security Council"'.220 On 3 February 2006 the ICJ decided on the jurisdiction of the Court and the admissibility of the DRC's application.22' Of particular interest for our purposes were the Court's findings on the question of reservations to the 1948 Genocide Convention and the jus cogens character of the crime of genocide. The Court rejected the DRC's argument that Rwanda had withdrawn its reservation to Article IX of the Genocide which gives the ICJ jurisdiction over disputes between the parties to the Genocide Convention as to its 'interpretation, application or fulfilment'. It then considered whether Rwanda's reservation to the Genocide Convention was valid. Inter alia, the DRC had argued,223and Rwanda had that the prohibition of genocide in the 1948 Convention is a preemptory norm, with the status ofjus cogens, which creates rights and obligations erga omnes. But Rwanda argued that, notwithstanding the peremptory character of the prohibition against genocide, 'that does not in itself suffice to "confer jurisdiction on the Court with respect to a dispute concerning the application of those rights and obligations"'.225Rwanda argued further that 'its reservation to Article IX is not incompatible with the object and purpose of the Genocide Convention, inasmuch as the reservation relates not "to the substantive obligations of the parties to the Convention but to a procedural provision"'.226 The ICJ followed its earlier jurisprudence227in reaffirming that the principles enshrined in the Genocide Convention are binding even on non-party states, and that '[ilt follows that "the rights and obligations enshrined by the Convention are rights and obligations erga But:
220. International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic ofthe Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application (3 February 2006), para. 1. 221. Ibid. 222. Art. IX provides: 'Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article 111, shall be submitted to the Intemational Court of Justice at the request of any of the parties to the dispute.' 223. Supra n. 220, para. 56. 224. Ibid., para. 60. 225. Ihid. 226. Ibid., para. 61. 227. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, ICJ Rep. 1996 (II), p. 616, para. 31. 228. Referencing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Rep. 1951, p. 23. 229. Supra n. 220, para. 64.
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"'the erga omnes character of a norm and the rule of consent to jurisdiction are two different and . . . the mere fact that rights and obligations erga ornnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute. The same applies to the relationship between peremptory norms of general intemational law Cjus cogens) and the establishment of the Court's jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute that jurisdiction is always based on the consent of the parties.'23' The Court reaffirmed that reservations are permissible under the Genocide Con~ e n t i o nso , ~long ~ ~ as they are 'not incompatible with the object and purpose of the Dismissing the DRC's argument, it said: 'This legal situation is not altered by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide.'234 Given that: 'Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention . .. the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or hlfilment of the Convention, is to be regarded as being incompatible with the object and purpose of the As for the DRC's argument that the reservation itself conflicted with a peremptory norm of intemational law, the Court found that 'no such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention. Rwanda's reservation cannot therefore, on such grounds, be regarded as lacking legal effect'.236 Having rejected all other bases for jurisdiction put forward by the DRC, the ICJ concluded that it had 'no jurisdiction to entertain the Application', and was therefore 'not required to rule on its admissibility'.237 It was 'precluded by its Statute
230. Referencing East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, p. 102, para. 29. 23 1. Supra n. 220, para. 64. 232. Referencing Advisory Opinion in the case concerning Reservations to the Convention on the Prevention and Punishment ofthe Crime ofGenocide, ICJ Rep. 1951, pp. 22 et seq. 233. Supra n. 220, para. 66. 234. Ibid. 235. Ibid. See also Legality of Use ofForce (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999, p. 772, paras. 32-33; Legality of Use of Force (Yugoslavia v. United States ofAmerica), Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999,p. 924, paras. 24-25. 236. Supra n. 220, para. 69. 237. Ibid., para. 126.
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from taking any position on the merits of the claims made by the D R C ' . ~ ~In' concluding, it noted, however, that '[wlhether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law'.239 7.2
North Atlantic Treaty Organization
During its Summit in Riga, held from 28-29 November, the North Atlantic Council issued a Comprehensive Political ~ u i d a n c e , ~setting ~ ' out the framework and political direction for NATO over the coming 10-15 years, including the priorities for all Alliance capability issues, planning disciplines and intelligence. In the Riga Summit Declaration released on 29 November by the heads of state and government participating in the meeting, the Council noted that while the alliance is currently participating in six missions in three geographic regions, Afghanistan remains the priority.241 During the meeting the Atlantic Council announced that the NATO Response Force (NRF) had achieved 'full operational capability'.242 Earlier in the year, during its meeting held in Brussels on 8 June, the Defence Planning Committee and Nuclear Planning Group issued new Ministerial Guidance aiming at providing a framework for Alliance defence planning over the coming decade.243The Ministerial Guidance noted that 'deterrence and defence, along with arms control and non-proliferation, will continue to play a major role in the achievement of the Alliance's security objectives. We reaffirmed our full commitment to the Nuclear Non-Proliferation Treaty as the cornerstone of global nuclear non-proliferation efforts and an essential basis for the pursuit of nuclear disarmament. In this context, we expressed serious concern over the possible consequences for security and stability, resulting fiom instances of non-compliance with the Treaty.'244
238. Ibid. 239. Ibid. 129eehtm>. 240. ~bttp:/lwww.nato.int/docu/basictxthO61 241. Riga Summit Declaration. Issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Riga on 29 November 2006, Press Release (2006) 150 (29 November 2006). 242. Ibid., para. 23. 243. See . 244. Ibid.
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ARMS CONTROL AND DISARMAMENT 8.1
Nuclear weapons
The possibility of nuclear proliferation came closer with the flexing of North Korea's nuclear muscles, and Iran's continued efforts to develop a nuclear capability. The prevention of weapons of mass destruction falling into the hands of terrorists was also a major concern of international organisations and individual states. 8.1.1
North Korea h nuclear tests
Since 2003, when North Korea (DPRK) announced that it had nuclear weapons,245 diplomatic efforts on several fronts246have focused on damage control. These efforts seemed to bear fruit when the communist regime signed a Joint Statement on 19 September 2005,~~' during the Six-Party ~ a l k s , agreeing ~~' to abandon its nuclear weapons and all existing nuclear programs.24y~ o r t hKorea's sabre-rattling resumed on 5 July 2006, however, when it test-fired seven ballistic missiles containing conventional warheads into the Sea of ~ a p a n . Its ~ ~clear ' intention was to signal that it had the capacity to strike enemy states such as South Korea and Japan. The Security Council reacted by issuing resolution 1695 on 15 July, condemning the tests. It affirmed that such launches jeopardise peace, stability and security in the region and beyond. The Council demanded that the DPRK suspend all activities related to its ballistic missile program, imposed an embargo on the import and export of missile-related materials from North Korea, and condemned its withdrawal from the Non-Proliferation Treaty. It strongly urged North Korea to irnmediately return to the Six-Party Talks without preconditions; to work towards the expeditious implementation of the 19 September 2005 Joint Statement, in particular to abandon all nuclear weapons and existing nuclear programs; and to return as soon as possible to the Non-Proliferation Treaty and the International Atomic Energy Agency (IAEA) safeguards.25' Ignoring these entreaties and demands, on 9 October North Korea upped the ante by carrying out its first-ever nuclear test,252triggering consternation and anger on the part of international organisations and individual states. The test was widely
245. ~http:l/www.fas.org/nukelguide/dprklnuke/index.ht~nl>. 246. Ibid. 247. . 25 1 . IAEA INFCIRC/403. 252. However, scientists noted that the size of the blast was unusually small.
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condemned as provocative, including by North Korea's closest ally The head of the IAEA, Mohamed El Baradei, expressed his deep regret and concern.254 NATO condemned 'in the strongest terms possible the North Korean nuclear weapon test. This test poses an extremely serious threat to peace and security in the Pacific region and the world.'255 The UN Security Council reacted by unanimously adopting Resolution 1718 on 14 October, under Chapter VII of the UN Charter. The resolution condemned the test and demanded that the DPRK refrain from carrying out hrther nuclear tests or ballistic missile launches. It further demanded that it immediately retract its announcement of withdrawal from the Treaty on the Non-Proliferation of Nuclear . ~ ~ ~Korea should suspend all activities Weapons and return to the ~ r e a t y North related to its ballistic missile program; recommit to a moratorium on missile launching; abandon all nuclear weapons and existing nuclear programs in a complete, verifiable and irreversible manner; act strictly in accordance with the Nonproliferation Treaty and the terms and conditions of the IAEA Safeguards Agreement; and undertake transparency measures extending beyond these requirements, including access to individuals, documentation, equipment and facilities required and deemed necessary by the IAEA. The SC imposed an embargo on the direct or indirect supply, sale or transfer to the DPRK of various weapons systems, including tanks, artillery systems, warships, helicopters, missiles, and technical information. It froze the export of luxury and other items to North Korea. UN Member States should prevent the entry into or transit through their territory of any person designated as being involved in supporting the North Korea program. On 3 1 October, after talks in Beijing with the US and China, Pyongyang agreed to return to the six-party talks. 8.1.2
Iran k nuclear program
Iran has been developing what it claims is a civilian nuclear power capability but which some suspect may have a military purpose. In 2006 the situation started coming to a head as, in the face of deepening concern and protestations from states and international organisations, Iran became ever more resolute in its nuclear ambitions. The IAEA has been most closely monitoring the situation. Its Director General issued a number of reports during 2006 expressing and delineating the agency's concerns.
253. C. MacLeod, 'In unusual rebuke, China denounces nuclear test', USA Today, 10 October 2006. 254. IAEA Press Release 2006117, DPRK Nuclear Test, Statement by IAEA Director General, ~http://www.iaea.org/NewsCenter/PressReleases/2006/p2006 17.htmP. 255. North Atlantic Council Statement on North Korea nuclear test, NATO Press Release (2006) 119 (I0 October 2006). 256. Pyongyang pulled out of the Non-Proliferation Treaty in 2003.
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The Director General's report of 27 ~ebruary*~' listed a number of outstanding issues and concerns regarding Iran's nuclear program, including the fact that it could have a military dimension, and stated that the IAEA was unable to conclude that there were no undeclared nuclear materials or activities in Iran. The Director General's report of 28 ~ ~ rfound i lthat~ after ~ more ~ than three years of Agency efforts to seek clarity about all aspects of Iran's nuclear program, the gaps in knowledge continued to be a matter of concern. The IAEA was unable to progress in its efforts to provide assurances about the absence of undeclared nuclear material and activities in Iran. The Director General's report of 8 ~ u n e *declared '~ that Iran has not taken the steps required of it by the IAEA Board of ~ o v e r n o r s , 2-~and ~ reiterated by the Security Council in a statement of 29 March (see below) - which are essential to build confidence. It regretted Iran's decision to resume enrichment-related activities. The Security Council also weighed in. On 29 March its President issued a statement on the subject of non-proliferation in the context of Iran's development of a suspected nuclear program for military purposes.261It noted with serious concern Iran's decision to resume enrichment-related activities, including research and development, and to suspend cooperation with the IAEA under the Additional Protocol; called upon Iran to take the steps required by the IAEA Board of Governors, notably in the first operative paragraph of its resolution GOVl2006114; and underlined the particular importance of re-establishing full and sustained suspension of all enrichment-related and reprocessing activities. The SC requested that the IAEA Director General present within 30 days a report to the IAEA Board of Governors and the Security Council on the process of Iranian compliance with the steps required by the IAEA Board. Resolution 1696 (2006), adopted by the SC on 3 1 July under Chapter VII, in order to make mandatory the suspension required by the IAEA, called on Iran to take the steps required by the IAEA Board of Governors in its resolution GOVI 2006114, which it said were essential to build confidence in the exclusively peaceful purpose of its nuclear program and to resolve outstanding questions. It demanded that Iran suspend all enrichment-related and reprocessing activities, including research and development - to be verified by the IAEA - and stated that such suspension, as well as full, verified Iranian compliance with the requirements set out by the IAEA Board of Governors, would contribute to a negotiated diplomatic solution that would guarantee that Iran's nuclear program was for exclusively peaceful purposes. The resolution endorsed the proposals of China, France, Germany, the Russian Federation, the United Kingdom and the United States, with 257. GOVl2006115, (27 February 2006). 258. GOVl2006127, (28 April 2006). 259. GOVl2006138, (8 June 2006). 260. As set out in GOVl2006/14, (4 February 2006) Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran. 261. SiPRSTl2006115, (29 March 2006).
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the support of the European Union's High ~ e ~ r e s e n t a t i v efor , ' ~a~long-term comprehensive arrangement which would allow for the development of relations and cooperation with Iran based on mutual respect and the establishment of intemational confidence in the exclusively peaceful nature of Iran's nuclear program. It requested the IAEA Director General to report to the Agency's Board of Governors and to the Security Council by 3 1 August on whether Iran had established full and sustained suspension of all enrichment activities, as well as on the process of Iranian compliance. In the event that Iran had not complied with the resolution by that date, it resolved to adopt appropriate measures under Article 4 1 of Chapter VII to persuade it to comply, and underlined that further decisions might be required. Resolution 1737, adopted by the Security Council on 23 December under Article 41 of Chapter VII affirmed that Iran must take the steps required by the IAEA Board of Governors in its resolution GOV/2006/14 without further delay. It decided that Iran should immediately suspend all enrichment-related and reprocessing activities, including research and development, and work on all heavy waterrelated projects, including the construction of a research reactor. These actions would have to be verified by the IAEA. States were required to take the necessary measures to prevent the supply, sale and direct or indirect transfer from their tenitories or by their nationals, or in any other way, of all items, materials, equipment, goods and technology which could contribute to Iran's enrichment-related reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems. 8.1.3
Developments concerning WMD at the Security Council
On 27 April the UN Security Council adopted resolution 1673 under Chapter VII of the Charter, to assist in its implementation of resolution 1540 of 28 April 2004. The latter had addressed the proliferation of WMD and particularly the challenge of preventing them from falling into the hands of terrorists. Resolution 1673 reiterated the decisions reached and requirements imposed in the 2004 resolution and stressed the importance of full compliance by states with the 2004 resolution. It called on states that had not already reported on the steps taken to implement it to present such a report to the 1540 Committee of the Security Council without delay. States that had already reported were encouraged to furnish the Committee with updates on their activities. The Council extended the 1540 Committee's mandate for two years, until 27 April 2008. 8.1.4
The Global Initiative to Combat Nuclear Terrorism
The Global Initiative to Combat Nuclear Terrorism (the Initiative) was launched by Presidents Bush and Putin on 15 July 2006 in St. Petersburg, Russia, on the eve of
The year in review
307
the G8 Summit, in order to expand and accelerate the development of partnership capacity to combat the global threat of nuclear terrorism.263 From 30-3 1 October representatives from the governments of Australia, Canada, China, France, Germany, Japan, Italy, Kazakhstan, Morocco, Russia, Turkey, the United Kingdom and the United States met in Rabat, Morocco and reached agreement on a Statement of Principles for the Initiative, as well as on Terms of Reference for Implementation and ~ s s e s s r n e n t . 'Partner ~~ nations committed themselves to: improving accounting and security of radioactive and nuclear materials; enhancing security at civilian nuclear facilities; improving detection of nuclear and radioactive materials to prevent illicit trafficking; improving capabilities to search and confiscate unlawfully held nuclear or radioactive substances or devices using them; leveraging response, mitigation and investigation capabilities in case of a terrorist attack; developing technical means to identify nuclear or other radioactive materials and substances that could be used in a terrorist attack; preventing terrorists from acquiring safe havens and the financial means to acquire or use nuclear or radioactive materials; improving legal and regulatory frameworks at the national level in order to ensure that terrorists who commit acts of nuclear terrorism can be held criminally and civilly responsible; and promoting greater information sharing. The partner nations agreed to continue their discussions in February 2007 in Turkey, where they planned to review the progress made; consider an initial Plan of Work; and take steps to broaden participation in the Initiative. Partner nations seek the support of all nations that are actively committed to combating nuclear terrorism and endorsing the Statement of Principles, and the Initiative remains open to other partner nations who share its goals. The International Atomic Energy Agency was invited to serve as an observer to the Initiative. 8.2
Biological and toxin weapons
8.2.1
Sixth RevCon of the Biological Weapons Convention
It will be recalled that the fifth RevCon of the 1972 Biological and Toxins Weapons Convention (BWC), held in September 2001, was suspended when delegates could not reach consensus on a verification mechanism.265The need to break the impasse galvanised the 2003-2005 inter-sessional meetings and helped to restore a positive outlook and encourage agreement on a way out of the morass. The groundwork for the Sixth Revcon was prepared at a PrepCom held in Geneva from 26-28 April 2006 and attended by 78 States Parties. There it became clear that the only way to avoid a repeat of the 2001 debacle was to scale back ambitions; accept that, for many states, the time was not yet ripe for a verification
263. Fact Sheet, Bureau of International Security and Nonproliferation, Washington, DC (7 November 2006). 264. Ibid. 265. See 4 YIHL (2001) p. 326-327.
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apparatus and park that issue, at least momentarily, and agree to focus on those issues upon which agreement might be achieved.266 With a clear working framework already laid out, the Sixth RevCon opened in Geneva on 20 November, attended by 103 States Parties, ten signatory states and one observer state. In addition, many inter-governmental and non-governmental organisations were represented. At the close of the three-week meeting on 8 December, the President summarised what had been achieved. Although more modest than some States Parties might have hoped for, there were still some concrete results, which were summarised in a Final ~ e c l a r a t i o n . ~ ~ ' The RevCon reaffirmed that the Convention is essential for the maintenance of international peace and s e c ~ r i t ~is, 2comprehensive ~~ in its scope and applies to all relevant scientific and technological developments.269Although Article I of the BWC only expressly prohibits the use of biological and toxin weapons, the Final Declaration reaffirmed States Parties' belief that 'under any circumstances the use, development, production and stockpiling of bacteriological (biological) and toxin weapons is effectively prohibited under Article I of the The States Parties reemphasised the need for effective national implementation of the BWC,~~ and ' for measures to promote the development of the peaceful uses of biological agents and toxins, and recommended steps to promote universal adherence to the Efforts would be taken in the years ahead to persuade those states not yet party to the BWC to get on board. Of greatest practical significance was an agreement to establish an Implementation Support Unit (consisting of three full-time staff members) to assist in implementing the decisions of the ~ e v ~ o n The . " ~way forward in the coming years was mapped out in the program adopted for the intersessionals that would be held from 2007 through 2 0 1 0 . ~ ~ ~ During the series of annual week-long meetings, planned to commence in 2007, the main issues for deliberation would be national implementation; regional cooperation; biosafety and biosecurity; oversight and awareness-raising; enhancement of international cooperation and exchange in biological science and technology; and assistance in the case of alleged use of biological weapons.275
266. See Report of the Preparatory Committee, BWClCONF.VVPCl2, (28 April 2006). 267. Sixth Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Geneva (20 November-8 December 2006), Final Document, Geneva, 2006, Bwcl Conf.VIl6, Final Declaration, pp. 8-18. 268. Ibid., Preamble, para. (i). 269. Ibid., para. 1. 270. Ibid., Preamble, para. (vi). 271. Ibid., para. 11. 272. Ibid., pp. 19 at 22-23, paras. 10-11. 273. Ibid., pp. 19 at 19-20, paras. 5-6. 274. Ibid., pp. 19 at 20-21, para. 7. 275. Concluding statement by the President of the Conference, annexed to 'Sixth review conference on bioweapons convention concludes session negotiated final declaration proves multilateralism
The year in review
8.3
Conventional weapons
8.3.1
Third RevCon of the Certain Conventional Weapons Convention
309
The Third Review Conference of the High Contracting Parties to the Convention was held in Geneva from 7 to 17 November 2006, preceded by the Eighth Annual Conference of the States Parties to Amended Protocol 11. A special plenary meeting of the Conference to mark the entry into force of CCW Protocol V on Explosive Remnants of War took place on 13 November 2006. Protocol V, concerning explosive remnants of war, entered into force on 12 November. Since its adoption, 35 states have thus far notified the Secretary-Genera1 of the United Nations, as depositary of the Convention, of their consent to be bound by Protocol V. It was decided that the first Protocol V RevCon should take place on 5 November 2007, and that a Preparatory Committee for the Conference would be held on 18 June 2007. 8.3.2
Small arms
A conference to review progress in the implementation of the Programme of Action to prevent, combat and eradicate the illicit trade in small arms and light weapons,276held in New York from 26 June to 7 July, ended without the participants being able to agree on an outcome document.277Delegates to the conference reaffirmed that the most urgent task is to take firm steps to control illicit arms brokers. This issue would be studied in depth by a United Nations intergovernmental expert group, which held its first session in November 2 0 0 6 . ~ ~ ~ In other developments, in February 2006 the UN Secretary-General issued a report on small arms covering the period January-December 2005, which reported on the initiatives undertaken to implement his recommendations on ways and means in which the Security Council could contribute to dealing with the problem of the illicit trade in small arms and light weapons in situations under its considera-
can work in disarmament affairs', Press Release (8 December 2006). See also M. Khan, 'The 2006 BWC Review Conference - The President's Reflections', Disarmament Diplomacy, No. 84 (Spring 2007). 276. See Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York (9-20 July 2001) (AICONF.192115), chap. IV, para. 24. 277. At the 14th meeting of the review conference, on 7 July, the Conference was not able to agree to conclude a final document. At the same meeting, the Conference adopted its report to the General Assembly by consensus. Report of the United Nations Conference to Review Progress Made in the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, AICONF.19212006lRCl9(12 July 2006), para. 30. See also 'Secretary-General disappointed small arms conference ended without agreement', SecretaryGeneral, SGlSMl10558, DC13038, Department of Public Information, News and Media Division, New York (10 July 2006). 278. Ibid.
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t i ~ n . *The ' ~ SG reported that the UN working group set up to negotiate an international instrument to enable states to identify and trace illicit small arms and light weapons in a timely and reliable manner convened its second and third substantive sessions from 24 January to 4 February 2005 and from 6 to 17 June 2005, respectively. At its third and final session, the working group reached consensus on a draft international instrument of a political character and recommended that the General Assembly adopt it at its sixtieth session. By its decision 601519 of 8 December 2005, the Assembly unanimously adopted the instrument annexed to the working group's report.280The SG concluded his report by expressing his satisfaction at the progress made in attaining or implementing his recommendations.
279. S120061109 (17 February 2006). 'The present report is submitted pursuant to the statement by the President of the Security Council of 17 February 2005 (SlPRST/2005/7), in which the Council requested me to update it on the implementation of the recommendations contained in my report of 20 September 2002 on small arms (S/200211053). The recommendations were compiled pursuant to the presidential statement of 31 August 2001 (SiPRSTl2001/21), by which the Security Council requested me to make specific recommendations on ways and means in which the Council could contribute to dealing with the question of the illicit trade in small arms and light weapons in situations under its consideration, taking into account the views of Member States, recent experiences in the field and the contents of that statement.' At para. 1. 280. A160188 and Corr.2.
INTERNATIONAL CRIMINAL COURTS ROUND-UP' Enrique Carnero Rojo and Maria
bondas as^
THE INTERNATIONAL CRIMINAL COURT 1.1
The Presidency
In plenary session held on 11 March 2006, the judges of the International Criminal Court elected the Presidency of the Court, for a term of three years. Judges Philippe Kirsch (Canada) and Akua Kuenyehia (Ghana) were re-elected President and First Vice-president of the Court, and Judge Rene Blattmann (Bolivia) was elected Second vice- resident.^ 1.2
The Chambers
On 26 January 2006, six new judges were elected by the Assembly of States Parties to the Rome Statute. Hans Peter Kaul (Germany), Erkki Kourula (Finland), Akua Kuenyehia (Ghana), Sang-Hyun Song (Republic of Korea), and Anita USacka (Latvia) were re-elected for a non-renewable mandate of nine years. Ekaterina Trendafilova (Bulgaria) was elected for the first time by the Assembly, also for a non-renewable mandate of 9 years. They all made a solemn undertaking at the seat of the Court in an open session held on 10 March 2006.~ On 11 March 2006, the judges met in plenary session to assign judges to the three judicial divisions. Erkki Kourula, Rene Blattmann and Hans-Peter Kaul were elected Presidents of the Appeals, Trial and Pre-Trial Divisions, r e s p e ~ t i v e l ~ . ~ Following their election on 11 March 2006, the members of the Presidency reconstituted Pre-Trial Chambers. The Pre-Trial Chambers were formed as follows:
1. 0Enrique Carnero Rojo and Maria Nybondas, 2007 2. Enrique Carnero Rojo is Associate Legal Adviser in the Office of the Prosecutor at the International Criminal Court and holds an LL.M. in Public International Law from the University of Leiden; the views expressed herein are those of the author in his personal capacity and do not necessarily represent those of the ICC. Maria Nybondas is Researcher in International Humanitarian Law and International Criminal Law at the T.M.C. Asser Institute for lnternational Law, The Hague, Assistant Managing Editor of the Yearbook of International Humanitarian Law, and a Ph.D. candidate in international law at the university of Amsterdam. 3. ICC Press Release, ICC-CPI-20060302-125-En, 11 March 2006. 4. ICC Press Release, ICC-CPI-20060302-124-En, 10 March 2006. 5. Report of the International Criminal Court to the United Nations General Assembly, N611217, 3 August 2006, para. 40. Yearbook of International Humanitarian Law
Volume 9 - 2006 - pp. 311-361
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a. Pre-Trial Chamber I (Democratic Republic of Congo): Judges Jorda (France), Kuenyehia (Ghana) and Steiner (Brazil);
b. Pre-Trial Chamber I1 (Uganda): Judges Politi (Italy), Diana (Mali) and Trendafilova (Bulgaria); and c. Pre-Trial Chamber 111 (Darfur and Central African Republic): Judges Steiner (Brazil), Kaul (Germany) and Trendafilova ( ~ u l ~ a r i a ) . ~ On 10 December 2006, Judge Maureen Harding Clark (Ireland) resigned from the International Criminal Court in order to serve on the High Court of re land.' Judge Harding Clark, elected for a mandate of 9 years, had been assigned to the Trial Division but was not serving on a full-time basis pending the first trials before the IcC.~ 1.3
Office of the Prosecutor
In 2006, the Office of the Prosecutor was engaged in investigations in three situations (see below), and was monitoring a further five situations in the preliminary examination phase, including the situations in the Central African Republic and C6te d'~voire.~ In February 2006, the Office of the Prosecutor dismissed the communications related to crimes allegedly committed in Venezuela and crimes allegedly committed by nationals of 25 States Parties in Iraq. With regard to Venezuela, the Prosecutor concluded that there was not a reasonable basis to believe that the alleged crimes fell within the jurisdiction of the court." With regard to Iraq the Prosecutor concluded that the alleged crimes did not reach the gravity threshold required by the Rome Statute and that national proceedings had been initiated by relevant states." In addition to preparing for trial the case against Thomas Lubanga and the eventual confirmation of the charges in the five outstanding arrest warrants against Lord's Resistance Army commanders (see below), in 2006 the Office of the Prosecutor opened a second case concerning another Ituri armed group and continued
6. Ibid., para. 42. 7. ICC Press Release, ICC-CPI-200612 11-192-En, 11 December 2006. 8. On 1 February 2007, the Assembly of States Parties decided that the election to fill the judicial vacancy resulting from Judge Harding Clark's resignation will be held during its sixth session in November 2007. 9. Update on communications received by the Office of the Prosecutor of the ICC, 10 February 2006; Report of the International Criminal Court to the United Nations General Assembly, A/61/217, 3 August 2006, paras. 30-32; Statement by Luis Moreno-Ocampo: Fourth session of the Assembly of States Parties, 23 November 2006. 10. Ibid. 11. Ibid.
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to analyse the possibility of opening a third case in the Democratic Republic of the Congo. l 2 In June 2006, upon request from the Secretary-General of the United Nations and following consultation with States Parties to the Rome Statute, the Prosecutor approved the extension of Mr Brammertz's leave until 3 1 December 2006 to continue his work as Commissioner of the United Nations International Independent
Investigation Commission dealing with the investigation into the assassination of former Lebanese Prime Minister Rafiq Hariri.I3Mr Brammertz, Deputy Prosecutor for Investigations, had been granted a six-month leave for this purpose on 22 December 2005. On 25 and 26 September and 17 and 18 October 2006, the Office of the Prosecutor held a second public hearing in The Hague and New York with states and non-governmental organisations in order to provide information and increase awareness about the work of the Office in its first three years and to discuss priorities for the next three years.14The 'Report on the activities performed during the first three years (June 2003 June 2006)' and the 'Report on Prosecutorial Strategy' were presented during this hearing and finalized, taking into consideration the comments received from the participants. Among the five strategic objectives formulated by the Office of the Prosecutor for the coming three years are the completion of two trials and the conduct of four to six new investigations after June 2006.'' The Prosecutor's objectives were aligned with the Court's Strategic Plan, which was adopted in early 2006 and submitted to the Assembly of States Parties in November 2006 (see below).I6 On 6 and 7 October 2006, the Prosecutors of the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia co-hosted the third colloquium of international prosecutors in The Hague. The colloquium brought together international prosecutors from the tribunals all over the world, including the co-Prosecutors of the Extraordinary Chambers in the Courts of Cambodia and the Prosecutor of the Special Court for Sierra Leone. During the colloquium, the ICC Prosecutor discussed with his colleagues the criteria developed by his office for the selection of situations for investigation and the selection of cases for prose~ution.'~ -
12. ICC-OTP Press Release, ICC-OTP-20060302-126-En, 17 March 2006; Report of the Intemational Criminal Court to the United Nations General Assembly, A1611217, 3 August 2006, para. 19; Statement by Luis Moreno-Ocampo: Fourth session of the Assembly of States Parties, 23 November 2006. 13. Report of the International Criminal Court to the United Nations General Assembly, A1611217, 3 August 2006, para. 62. 14. ICC-OTP Press Release, ICC-OTP-20060920-162-En, 20 September 2006. 15. ICC-OTP Report on Prosecutorial Strategy, 14 September 2006, Part 111. 16. ICC-ASPI516. 17. Statement by Luis Moreno-Ocampo: Fourth session of the Assembly of States Parties, 23 November 2006.
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1.4
Registry
During 2006, four States became Parties to the Rome Statute: the Comoros (18 August 2006);ls Saint Kitts and Nevis (22 August 2006);19 Montenegro (23 October 2006),~' and Chad (1 November 2006),~'bringing the total number of ICC State Parties to 104. On 6 March 2006, the Presidency of the Court approved the Regulations of the Registry, which provide for the practical arrangements for the judicial proceedings and the operation of the Registry itself.22The drafting of the Regulations, which started in February 2004, benefited from comments by Chambers, the Office of the Prosecutor, lawyers, academics, experts and representatives of non-governmental organisations. Among other court-wide agreements concluded during 2006, on 29 March 2006 the International Committee of the Red Cross (ICRC) and the ICC signed an agreement whereby the ICRC is authorised to, inter aha, visit all detainees held by the ICC for the duration of their detention. The ICRC carried out its first visit to the ICC Detention Centre pursuant to the agreement on 28 and 29 June 2006.'~ The European Union and the ICC concluded an agreement on cooperation and assistance on 10 April 2006. The agreement covers areas such as the sharing of classified information, the testimony of European Union personnel, the waiver of privileges and immunities, cooperation with the Prosecutor, the provision of facilities and services, including support in the field, attendance at European Union meetings and cooperation on training for judges, prosecutors, officials and couns e ~ . ~ ~ On 13 April 2006, the Court concluded a Memorandum of Understanding (MoU) with the Special Court for Sierra Leone for the conduct of the trial of Charles Taylor in The ~ a ~ u ePursuant .'~ to the MoU, the ICC has been providing courtroom services and facilities, detention services and facilities and related assistance to the Trial Chamber of the Special Court sitting in The Hague since 20 June 2006. All such costs are to be paid in advance by the Special Court. The MoU was concluded upon request from the President of the Special Court for Sierra Leone, which was accepted by the Assembly of States Parties to the Rome
18. 19. 20. 21. 22. 23. 24. 25. 26.
ICC Press Release, ICC-20060829-159-En, 29 August 2006. Ibid. ICC Press Release, ICC-CPI-20061107-173-En, 7 November 2006. Ibid. ICC Press Release, ICC-CPI-200604 19- 134-En, 19 April 2006. ICC Press Release, ICC-20060629-143-En, 29 June 2006. ICC Press Release, ICC-CPI-20060410-132-En, 10 April 2006. For 2006 developments in the Taylor case, see infra, at p. 2. ICC Press Release, KC-20060621-140-En, 21 June 2006.
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In June 2006, the Court continued discussions with the African Union (AU) in relation to the conclusion of a MoU dealing with the general relationship between the Court and the AU." The Board of Directors of the Trust Fund for Victims of the International Criminal Court held its third annual meeting on 6 and 7 November 2006 in The Hague in the presence of all its members: Madame Simone Veil, Chair, His Grace Archbishop Desmond Tutu, His Excellency Mr Tadeusz Mazowiescki and His Excellency Mr Arthur ~ o b i n s o n . ~The ' Board, who provide guidance on the long-term strategy of the Trust Fund for Victims administered by the Registry, discussed issues related to the implementation, role and structure of the Secretariat of the Fund, as well as the planning of the activities of the Fund for the next year. On 8 December 2006, in accordance with the provisions of the Professional Conduct for Counsel, the members of the Disciplinary Board and the representatives of counsel on the Disciplinary Appeals Board of the ICC were appointed following the first of such elections organised by the Registry. 1.5
Assembly of State Parties
The Assembly of State Parties (ASP) held its fifth session from 23 November to 1 December 2006 in The ~ a g u eThe . ~ ~session was opened by the President of the Assembly, Mr Bruno Stagno Ugarte, Minister of Foreign Affairs and Worship of Costa ~ i c a . ~ ' During its 6th meeting, on 30 November 2006, the ASP re-elected four members of the Board of Directors of the Trust Fund for Victims for a three-year mandate, namely Archbishop Desmond Tutu (South Africa), Mr Tadeusz Mazowiecki (Poland), Mr Arthur Napoleon Raymond Robinson (Trinidad and Tobago) and Ms Simone Veil ( ~ r a n c e ) .On ~ ' 16 May 2006, the Bureau of the ASP had elected by consensus Mr Robinson to fill the remaining vacancy in the Board of ~ i r e c t o r s . ~ ~ On the issue of the Court's permanent premises, the ASP requested the Court to focus only on the option of purpose-built premises on the Alexanderkazeme site in The Hague, without prejudice to the prerogative of the Assembly to make a final decision on where to permanently house the Court. Furthermore, it also requested the Bureau and the host state to proceed with the necessary preparatory work for
27. Fourth report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593(2005), 14 December 2006. 28. ICC Press Release, ICC-CPI-TFV-2006 1109- 181-EN, 9 November 2006. 29. The session resumed in New York from 29 January to I February 2007. 30. ICC Press Release, ICC-CPI-20060509-136-En, 9 Mary 2006. 31. Oficial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Ffth session, The Hague, 23 November to I December 2006 (International Criminal Court publication, ICC-ASPI5132) Part I, Section B, para. 35; ICC Press Release, ICC-ASP20061 130-189-En, 30 November 2006. During the resumed fifth session of the Assembly, on 1 February 2007, the ASP elected Mr Bulgaa Altangerel (Mongolia) as the fifth member of the Board of Directors of the Trust Fund for Victims. 32. ICC Press Release, KC-ASP-20060620-1 39-En, 20 June 2006.
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E. Carnero Rojo and M. Nybondas
such project, with a view to allowing the Assembly to take an informed decision at its eight session in 2 0 0 7 . ~ ~ On the strategic planning process of the Court, the ASP considered the Strategic Plan of the the Report on the Strategy of the Court on Information and and the Strategic Plan for Outreach of the Communication ~echnologies~' The ASP recommended that the Court continue the dialogue with the Bureau, and focus on the concrete implementation of the Strategic Plan of the Court, including the location of the activities of the Court, the position of victims, the outreach and communication activities of the Court, and the relationship between the Strategic Plan and the budget.37The Strategic Plan provides a common framework for the Court's activities over the next 10 years, with emphasis on objectives for the immediate three years, and sets out thirty objectives in order for the Court to ensure the quality of justice; to become a well-recognized and adequately supported institution; and to be a model for public adrnini~tration.~~ Upon conclusion of the negotiations between the Court and the host state on the headquarters agreement, the ASP approved the draft agreement and called upon the President of the Court to conclude the Agreement on behalf of the Court as soon as possible.39Also adopted at the fifth session was a plan of action for achieving universality and full implementation of the Rome ~tatute.~' On the basis of a preliminary report on the issue:' the ASP requested the Bureau to start preparation of the Review Conference to be held in 2009, in particular its practical and organizational aspects (dates and venues) and its rules of procedure.42 In this regard, the ASP took note of the report of the Special Working Group on the
33. Oficial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fijih session, The Hague, 23 November to I December 2006 (International Criminal Court publication, ICC-ASPl5132) Part 111, Resolution ICC-ASPISIRes.1. 34. ICC-ASPI516. 35. ICC-ASPI517. 36. ICC-ASPl5112. 37. Of$cial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fijih session, The Hague, 23 November to 1 December 2006 (International Criminal Court publication, ICC-ASPl5132) Part 111, Resolution ICC-ASPISIRes.2. 38. Report of the International Criminal Court to the United Nations General Assembly, A1611217, 3 August 2006, paras. 43-45. 39. Oficial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fijth session, The Hague, 23 November to 1 December 2006 (International Criminal Court publication, ICC-ASPl5132) Part 111, Resolution ICC-ASPISIRes.3, Section A, Annex 11. 40. Ibid., Section A, Annex I. 41. ICC-ASPISIINF.2. 42. Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fijih session, The Hague, 23 November to I December 2006 (International Criminal Court publication, ICC-ASPl5132) Part 111, Resolution ICC-ASPI5IRes.3, Section D.
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Crime of ~ ~ ~ r e s s i o nand ; ' noted that the Working Group should conclude its work at least 12 months prior to the Review ~ o n f e r e n c e . ~ ~ Finally, the Court's programme budget for 2007 was adopted, approving appropriations totalling almost 89 million euros and a staffing level of 647.45The ASP reiterated its decision to hold its sixth session in 2007 in New York; and its seventh session during 2008 in The Hague, with a resumed session in 2009 in New York
for the next round of elections.46 1.6
Situations and cases
1.6.1
The Democratic Republic of Congo
On 10 January, Pre-Trial Chamber I, dealing with the situation in the Democratic Republic of Congo (DRC), issued the first decision of the Court on an application to participate in proceedings as a victim. The Chamber made a distinction between 'victims of a situation' and 'victims of a case' and, over the Prosecutor's objection, declared that on the basis of terminological, contextual and teleological arguments, Article 68(3) of the Statute is applicable to the stage of investigation of a situation. Accordingly, it found that victims can participate at the stage of investigation of a situation by (a) presenting their views and concerns; (b) filing documents; and (c) requesting the Pre-Trial Chamber to order specific measures. The Chamber further found that, on the basis of rule 85(a), in order for an applicant to be granted the status of victim, the applicant need show that there are 'reasonable grounds to believe' that (a) he is a natural person, (b) he has suffered harm (physical, emotional or economic), (c) the crimes he alleges fall within the jurisdiction of the Court, and (d) the harm suffered is the result of the commission of such crimes. On the basis of these findings, six applicants were accorded the status of victims and were allowed to participate in the proceedings at the stage of investigation of the situation in the DRC.~' On 10 February 2006, Pre-Trial Chamber I issued a sealed arrest warrant against Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union des Patriotes Congolais and commander-in-chief of the Forces Patrio-
43. ICC-ASPI5ISWGCAIl. 44. OfJicial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Flfh session, The Hague, 23 November to 1 December 2006 (International Criminal Court publication, ICC-ASPl5132) Part 111, Resolution ICC-ASPISIRes.3, Section D. 45. OfJicial Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fijih session, The Hague, 23 November to I December 2006 (Intemational Criminal Court publication, ICC-ASPI5132) Part 111, Resolution ICC-ASPISIRes.4, Section A. 46. Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fifth session, The Hague, 23 November to I December 2006 (Intemational Criminal Court publication, ICC-ASPISI32) Part 111, Resolution ICC-ASPI5IRes.3, Section D. 47. Situation in the Democratic Republic of Congo, Pre-Trial Chamber I, Decision sur les demandes de participation a la procedure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS Set VPRS 6, Doc. ICC-01104-101, 17 January 2006.
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E. Carnero Rojo and M. Nybondas
tiques pour la Liberation du Congo. The warrant was issued pursuant to a request filed by the Office of the Prosecutor on 12 January 2 0 0 6 . ~The ~ Chamber found that there were reasonable grounds to believe that Thomas Lubanga had committed the war crime of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities in the DRC region of Ituri, ~ warrant charged individual criminal between July 2002 and December 2 0 0 3 . ~The responsibility pursuant to Article 25(3)(a) of the Statute for the commission of crimes within the jurisdiction of the ~ o u r t . " On 17 March 2006, Thomas Lubanga was arrested and transferred to The Hague, marking the first arrest for the International Criminal Court. At the time of his arrest, Lubanga was held in detention in Kinshasa by Congolese authorities on unrelated charges. The French Government agreed to cooperate with the Court and provided a military aircraft to transfer Lubanga. MONUC also provided support to the operation.5' The Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo facilitated Lubanga's transfer by lifting the travel ban imposed against him for the purpose of his surrender to the Lubanga made his initial appearance before Pre-Trial Chamber I on 20 March 2006. The Chamber provisionally set the confirmation of charges hearing for 27 June 2 0 0 6 . ~ ~ Between 20 March and 9 November 2006, Pre-Trial Chamber I held numerous status conferences (public hearings) in relation to a host of pre-trial issues litigated for the first time before the Court and issued over 600 decisions in preparation for the confirmation of charges hearing. The main issues discussed during this time were the disclosure of evidence between the Prosecutor and the Defence, several motions brought by the Defence seeking, inter alia, the release of Thomas Lubanga Dyilo, and the possible participation of victims and third parties in the proceedings. Regarding disclosure, the Pre-Trial Chamber requested observations from the parties and eventually established an interpartes system of disclosure for the confirmation hearing,54and general principles to restrict disclosure in order to protect the safety of victims and witnesses and to prevent prejudice to fbrther or ongoing i n ~ e s t i ~ a t i o nThe s . ~ Chamber ~ also adopted, in consultation with the parties, an e-
48. ICC-OTP Press Release, ICC-OTP-20060302-126-En, 17 March 2006. 49. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I , Decision on the Prosecutor's Application for Arrest Warrant, Article 58, Doc. ICC-01104-01106-8-US-Con; 10 February 2006. 50. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I , Mandat d'arret contre M. Thomas Lubanga Dyilo, Doc. ICC-01104-01106-2, 10 February 2006. 5 1. ICC Press Release, ICC-CPI-20060302-125-En, 17 March 2006. 52. Report of the International Criminal Court to the United Nations General Assembly, A1611217, 3 August 2006, para. 7. 53. ICC Press Release, ICC-CPI-20060320-128-En, 20 March 2006. 54. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on the Final System of Disclosure and the Establishment of a Timetable, Doc. ICC-01104-01106-102, 15 May 2006. 55. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I , Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 8 1 (2) and (4) of the Statute, Doc. ICC-01104-01106-108-Corr, 19 May 2006. Several of the Pre-Trial Chamber's findings in
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protocol for the provision of evidence in electronic
Regarding Lubanga's release, the Pre-Trial Chamber affirmed the jurisdiction of the Court to proceed with the case, dismissing allegations of Lubanga's irregular arrest by Congolese authorities and subsequent illegal surrender to the ~ o u r t . ~ Similarly, ' the Chamber did not grant a request for Lubanga's interim release, considering that the reasons for his detention had not changed since his arrest and that the length of his detention was not unreasonable in the circumstance^.^^ Lubanga's right to have translations was also litigated before the confirmation hearing. The Chamber denied Lubanga's request that the Prosecution provided in French all documents that the Prosecution was obliged to disclose, and ordered that an interpreter be permanently available to assist the ~ e f e n c e . ~concerning ' the participation of victims, the PreTrial Chamber recognised four applicants as victims with standing to participate in the case against Lubanga, in the consideration that there were reasonable grounds to believe that they had suffered harm as a result of the crimes set forth in the " contrast, the Chamber did not grant warrant of arrest issued against ~ u b a n ~ a .By leave to the Women's Initiative for Gender Justice to submit observations as amicus curiae because the content of such observations referred to allegations (gender based crimes) not included in the case.6' On 28 August 2006, the Prosecutor filed the document containing the charges against Thomas Lubanga and the list of the evidence that the Prosecutor intended to present at the confirmation hearing.@ In the document, the Prosecutor accused
this decision were subsequently reversed by the Appeals Chamber. See Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Prosecutor's appeal against the Decision of Pre-Trial Chamber I entitled "Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence, Doc. ICC-01104-011 06-568, 13 October 2006. 56. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information on Electronic Version for their Presentation During the Confirmation Hearing, Doc. ICC-01104-01106-360, 28 August 2006. 57. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute, Doc. ICC-01104-01106-512, 3 October 2006. 58. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision sur la demande de mise en liberte provisoire de Thomas Lubanga Dyilo, Doc. ICC-01104-01106-586, 18 October 2006. 59. Prosecutor v. Thomas Luhanga Dyilo, Pre-Trial Chamber I , Decision on the Requests of the Defence of 3 and 4 July 2006, Doc. ICC-01104-01106-268,4 August 2006. 60. Prosecutor v. Thomas Lubanga D,vilo, Pre-Trial Chamber I , Decision sur les demandes de participation a la procedure presentees par les Demandeurs VPRS 1 a VPRS 6 dans l'affaire Le Procureur c. Thomas Lubanga Dyilo, Doc. ICC-01104-01106-172, 29 June 2006 ; Prosecutor v. Thomas Luhanga Dyilo, Pre-Trial Chamber I , Decision sur les demandes de participation a la procedure d0001106, a/ 0002106 et a10003106 dans le cadre de I'affaire Le Procureur c. Thomas Lubanga Dyilo et de l'enquete en Republique democratique du Congo, Doc. ICC-01104-01106-228, 28 July 2006 ; Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision sur les demandes de participation a la procedure aJ0004106 a a/0009/06, a1001 6/06 a d0063106, do07 1106 a d0080106 et d0105106 dans le cadre de l'affaire le Procureur c. Thomas Lubanga Dyilo, Doc. ICC-01104-01/06-601,20 October 2006. 61. Prosecutor v. Thomas Luhanga Dyilo, Pre-Trial Chamber I , Decision on Request pursuant to Rule 103 (1) of the Statute, Doc. ICC-01104-01106-480,26 September 2006. 62. ICC Press Release, ICC-20060828-156-En, 28 August 2006.
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Thomas Lubanga of being a co-perpetrator under Article 25(3)(a) of the crime of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities between 1 July 2002 and 31 December 2003. Thereafter, the Chamber decided that the contact of the parties with protected witnesses of the other party would take place through the Registry's Victims and Witnesses Unit, and that otherwise the party seeking contact would have to inform the party which intends to rely on the witness of the time and place of any scheduled interview so as to allow the latter to be present at the beginning of such interview.63 The Chamber also found that non-disclosure of the identity of the Prosecution witnesses vis-a-vis the Defence was, in the exceptional circumstances of the case, the only available and feasible measure for the necessary protection of such witnesses, and that redactions were also necessary for the preservation of further investigations. Accordingly, the Chamber authorised the Prosecutor to withhold the disclosure of the identity of the witnesses and to rely on summaries of their statements authorised by the Chamber for the purposes of the confirmation hearing.64In contrast, the Chamber did not authorise the Prosecutor to 'proof' his only witness prior to the confirmation hearing. It found that preparing the witness to give oral evidence before the Court in order to prevent being taken by surprise or being placed at a disadvantage due to ignorance of the Court's proceedings was encompassed by the Statute and the Rules. However, putting to the witness the questions the Prosecutor intended to ask during the witness' testimony and comparing the statements made by the witness during the proofing with the content of an earlier statement of the witness, was not covered by the Statute, the Rules or the Regulations and was neither a widely accepted practice in international criminal law, nor a general principle of law derived from national laws of the legal systems of the The confirmation hearing, initially rescheduled for 28 September, eventually opened on 9 November and concluded on 28 November 2006. During the hearing a single witness brought by the Prosecution was examined and two legal representatives of the victims were authorised by the Pre-Trial Chamber to present opening
63. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I , Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses, Doc. ICC-01104-01106-447, 19 September 2006. 64. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, Doc. ICC-01104-01106-437, 15 September 2006; Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, Doc. ICC-01104-01106-455, 20 September 2006; Decision concerning the Prosecutor Proposed Summary Evidence, Doc. ICC-01104-01106-517,4 October 2006. 65. Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I , Decision on the Practices of Witness Familiarization and Witness Proofing, Doc. ICC-01104-01106-679,s November 2006.
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and closing ~taternents.~~ An eventual confirmation of the charges against Mr Lubanga by Pre-Trial Chamber I would lead to the first trial before the ICC.~' The Appeals Chamber of the Court was seized with the first interlocutory appeals in 2006. On 13 July 2006, the Appeals Chamber issued its first decision on the merits, dismissing the Prosecutor application for extraordinary review of a decision by Pre-Trial Chamber I . In~ the ~ underlying decision, Pre-Trial Chamber I had denied the Prosecutor leave to appeal its decision granting the applications of six victims to participate in proceedings during the investigation of the situation in D R C . Other ~ ~ issues on appeal included the scope of possible appellate review and decisions of the Pre-Trial Chamber on jurisdiction and admissibility and the redaction of evidence. The Appeals Chamber upheld the first instance dismissal of Mr Lubanga's challenge to the jurisdiction of the Court, finding, inter alia, that the doctrine or principle of abuse of process relied on by the Defence was not envisaged in the ~tatute.~' The Appeals Chamber also endorsed the possibility to use summaries of witness statements and other documents at the confirmation hearing even if the identities of the relevant witnesses have not been disclosed to the Defence prior to the hearing." However, the Appeals Chamber reversed the Pre-Trial Chamber decisions authorising redactions in the Prosecution evidence, on the ground that such decisions were not sufficiently reasoned, and directed the PreTrial Chamber to decide anew on the Prosecutor's applications for redactions.''
66. For the modalities of participation of victims during the hearing, see Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision sur les modalites de participation des victimes a/0001/ 06, a/0002106 et a10003106 a l'audience de confirmation des charges, Doc. ICC-01104-01106-462, 22 September 2006. 67. The Chamber issued a decision confirming the charges on 29 January 2007. 68. Situation in the Democratic Republic of Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber 1's 3 1 March 2006 Decision Denying Leave to Appeal, Doc. ICC-01104-168, 13 July 2006. 69. Situation in the Democratic Republic ofCongo, Decision on the Prosecution's Application for Leave to Appeal the Chamber's Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 And VPRS 6, Doc. ICC-01104-135, 3 1 March 2006. 70. Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, Doc. ICC-01104-01106-772-OA4, 14 December 2006. 71. Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled "First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81", Doc. ICC-0110401106-773-OA5, 14 December 2006. 72. Ibid.; Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled "second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81", Doc. ICC01104-01106-774-OA6, 14 December 2006.
322 1.6.2
E. Carnero Rojo and M. Nybondas Uganda
On 9 March 2006, Pre-Trial Chamber 11, assigned to the situation in Uganda, found that it is vested with powers of its own when it comes to issues which go beyond the purely investigative sphere, such as, typically, the matter of the protection of victims and witnesses. It also found that the Registry, including its Divisions and Units, as an organ entrusted with tasks which are in fact integral to, and have an important impact on, the judicial functions of the Court, may file proprio motu certain documents in the record of the proceedings in order to provide the Chamber with information which is essential for the exercise of the Chamber's The finding was trigprerogatives and duties to protect victims and witne~ses.'~ gered by the Registry's submission to the Chamber, over the Prosecutor's objection, of an LRA letter threatening staff members of the Court. On 1 June 2006, following a request by the Office of the Prosecutor, the International Criminal Police Organisation (Interpol) issued Red Notices alerting its member countries of the arrest warrants against the five Lords Resistance Army (LRA) commanders who remain at large since 8 July 2005: Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska ~ u k w i ~ a . ~ ~ On 6 July 2006, Pre-Trial Chamber I1 unsealed the results of DNA tests conducted on the corpse reported to be that of LRA commander Dominic Ongwen. Dominic Ongwen had been reported killed in North-Eastern Uganda on 30 September 2005. However, the DNA results were negative, meaning that the body was not that of Dominic ~ n ~ w e n . ~ ~ On 14 August 2006, Raska Lukwiya was reported killed.76 On 7 November 2006, the Prosecutor informed that DNA examinations and forensic tests conducted by the Government of Uganda with the assistance of the Office of the Prosecutor had confirmed that Raska Lukwiya was indeed killed on 12 August 2006 during a fire fight between the Ugandan army and the L R A . ~ ~ On 20 October 2006, the President of the Pre-Trial Division, at the request of the judges of Pre-Trial Chambers I and 11, decided to separate the Senior Legal Adviser fi-om any functions he might have in relation to the case of the Prosecutor v. Joseph Kony et al., and that no submissions relating to this case would thenceforth
73. Prosecutor v. Joseph Kony et al., Pre-Trial Chamber 11, Decision on the Prosecutor's Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission Filed by the Registry on 5 December 2005, Doc. ICC-02104-01105-147, 9 March 2006. 74. ICC Press Release, ICC-OTP-20060601- 1%-En, 1 June 2006. 75. ICC Press Release, ICC-OTP-20060707-147-En, 7 July 2006. 76. ICC-OTP Press Release, ICC-OTP-200608 14-15I -En, 14 August 2006; Prosecutor v. Joseph Kony et a/., Pre-Trial Chamber 11, Submission of Information Regarding Raska Lukwiya, Doc. ICC02104-01105-97, 14 August 2006. 77. Statement by the Prosecutor Luis Moreno-Ocampo on the confirmation of the death of Raska Lukwiya, 7 November 2006. On 22 March 2007, the Prosecutor requested that the warrant of arrest for Raska Luwiya be withdrawn and rendered without effect because of his death.
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be communicated to the Senior Legal Adviser until further notice.78The decisions were motivated by the Prosecutor's application that the Senior Legal Adviser to the Pre-Trial Division be separated from rendering legal advice to the Chamber in this case due to his previous involvement in the same case while employed as Legal Adviser to the Office of the Prosecutor. The same application and decision had been made in relation to the case of the Prosecutor v. Thomas Lubanga ~ ~ i l o . ' ~ On the same day, the President of the Pre-Trial Division, on behalf of the Judges of Pre-Trial Chamber I and Pre-Trial Chamber 11, requested the President to convene a special plenary session of the judges to examine and, as appropriate, determine whether the Prosecutor's application amounted to a request for disqualification of the judges of Pre-Trial Chambers I and I1 and, if so, to decide on the matter. In September and November 2006, Pre-Trial Chamber 11, 'with a view to exercising its powers and fulfilling its duties, in particular under part 9 of the Statute', ordered the Registrar and the Prosecutor to provide information on the status of cooperation between themselves and with the relevant States as regards the execution of the arrest warrants issued against the five LRA commander^.^^
Following the United Nations Security Council referral of the situation in Darfur in March 2005, the Prosecutor briefed the Council on the development of his investigation during 2006. In his third report on 14 June 2006, the Prosecutor indicated that his Office had selected several incidents for further investigation and analysis, that it did not appear that Sudanese authorities had investigated or prosecuted or were investigating or prosecuting the cases to be the focus of his Office, and that the continuing insecurity in Darfir was prohibitive of effective investigations inside ~ a r f u r .The ~ ' Prosecutor also anticipated the investigation and prosecution of a sequence of cases, rather than a single case dealing with the situation in Darfur as a whole. Noting the Prosecutor's third report to the UN Security Council, Pre-Trial Chamber 111, assigned to the situation in Darfur, issued a decision on 24 July 2006
78. Prosecutor v. Joseph Kony et al., Pre-Trial Chamber 11, Decision on the Prosecutor's Request to Separate The Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice Regarding the Case, Doc. ICC-02104-01105-124, 3 1 October 2006. 79. Prosecutor v. Thomas Luhanga Dyilo, Pre-Trial Chamber I, Decision on the Prosecutor's Application to Separate the Senior Legal Adviser to the Pre-Trial Division from rendering Legal Advice regarding the Case, Doc. ICC-01104-01106-623, 27 October 2006. 80. Prosecutor v. Joseph Kony et al., Pre-Trial Chamber 11, Order to the Registrar and the Prosecutor for the Submission of Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda, Doc. ICC-02104-01105-l l I, 15 September 2006; Prosecutor v. Joseph Kony et al., Pre-Trial Chamber 11, Order to the Prosecutor for the Submission of Additional Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda, Doc. 1CC-02104-0110513 1,30 November 2006. 81. Third Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR l593(2OO5), 14 June 2006.
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inviting Antonio Cassese, Chairperson of the International Commission of Inquiry on Darfur, and Louise Arbour, High Commissioner of the Ofice of the UN High Commissioner for Human Rights, to present written observations as amici curiae on the protection of victims and the preservation of evidence in ~ a r f u r . The ~ ' Prosecutor and the ad hoc Counsel for the Defence appointed by the Registrar filed comments on such observations in September and October 2006. Additionally, the ad hoc Counsel unsuccessfully sought to raise jurisdiction and admissibility issues,83and to participate in the missions to Khartoum conducted by the ProsecuOn 23 November 2006, the Prosecutor announced to the Assembly of States Parties to the Rome Statute that his Office was completing the investigation necessary to support the first application naming individuals for war crimes and crimes against humanity committed in ~arfur.'' On 14 December 2006, the Prosecutor informed the United Nations Security Council that his Office was seeking to finalise the preparation of the submission of evidence to the judges by February 2007. 86
1.6.4
Central African Republic
On 30 November 2006, pursuant to a request filed by the Central African Republic (CAR), Pre-Trial Chamber 111, assigned to the situation in CAR, found that the preliminary examination of a situation must be completed 'within a reasonable time from the reception of a referral by a State Party', and that the State which referred the situation has a right to be informed by the Prosecutor of the Prosecutor's decision to initiate or not an investigation of the referred situation, and therefore to ask the Chamber to request that the Prosecutor provide the said informat i ~ n . ~Pursuant ' to an order by the Chamber, the Prosecutor informed that no decision to proceed with an investigation had been made and that although it was
82. Situation in Darfuv, Sudan, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, Doc. KC-02105-10,24 July 2006. 83. Situation in Darfur; Sudan, DCcision relative aux 'Conclusions aux tins d'in limine litis sursis a statuer' dCposCes par le conseil ad hoc de la Defense, Doc. ICC-02/05-25, 2 November 2006 ; Situation in Darfur; Sudan, Decision relative aux conclusions aux fins &exception&incompetenceet d'irrecevabilitk, Doc. ICC-02105-34,22 November 2006. 84. Situation in Darfur; Sudan, Decision on the Ad hoc Counsel for Defence Request of 18 December 2006, Doc. ICC-02/05-47, 2 February 2007. 85. Statement by Luis Moreno-Ocampo: Fourth session of the Assembly of States Parties, 23 November 2006. 86. Fourth report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593(2005), 14 December 2006; ICC-OTP Press Release, ICC-OTP-20061215193-En, 14 December 2006. The Prosecutor filed an application requesting that summons to appear be issued against Ahmad Muhammad Harun and Ali Kushayb on 27 February 2007. 87. Situation in the Central African Republic, Pre-Trial Chamber 111, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, Doc. ICC-01105-6, 30 November 2006.
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made in the near future, a more specific estimate
2.
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
2.1
Amendment to the Rules of Procedure and Evidence
In March 2006, in accordance with the amendment of the Statute adopted by the Security Council (see below), the judges amended Rule 15 bis and adopted Rule 15 ter providing for the assignment and functions of reserve Further amendments to the rules were adopted during 2006 in line with the goals of increasing the efficiency of proceedings at the Tribunal (see below). In May 2006, the judges adopted an amendment to Rule 73 bis to authorize Trial Chambers to either invite or direct the Prosecution to select those counts in the indictment on which to proceed.90The judges of the Tribunal considered that this Rule amendment was necessary to ensure respect for an accused's right to a fair and expeditious trial and to prevent unduly lengthy periods of pre-trial detention. The Prosecutor strongly opposed this amendment due to her belief that she has a . ~ September ' 2006, the commitment to all victims of the former ~ u ~ o s l a v i aIn Judges adopted two new provisions, Rules 92 ter and 92 quarter, increasing the ability of the Trial Chambers to consider written statements and transcripts of witnesses in lieu of oral testimony where that evidence goes to the acts and conduct of an accused.92Trial Chambers are now empowered to decide whether a witness should appear for cross-examination where written statements or transcripts are used, and to allow the admission of written evidence of witnesses who are not available to attend as witnesses at the ~ r i b u n a l . ~ ~ 2.2
Election and appointment of judges
On 28 February 2006, the Security Council amended Article 12 and Article 13 quater of the ICTY Statute to allow the Secretary-General to appoint, at the request of the Tribunal President, reserve judges from the Tribunal's pool of ad litem
88. Situation in the Central African Republic, Prosecution's Report Pursuant to Pre-Trial Chamber 111's 30 November 2006 Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, Doc. ICC-01105-7, 15 December 2006. 89. ITl321Rev.37, Rules 15 bis and 15 ter. 90. ITl32iRev.38, Rule 73 bis (D) and (E). 9 1. Thirteenth Annual Report (2006), Ai61i271-S120061666. 92. ITl32iRev.39, Rules 92 ter and 92 quater. 93. S!2006!898 (15 December 2006).
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judges to specific trials. Reserve judges will be present at each stage of a trial and may replace a judge on a bench if he or she is unable to continue sitting.94 Two ad litem judges, Stefan Trechsel (Switzerland) and Arpad Prandler (Hungary), were sworn in on 7 April 2 0 0 6 ; ~with ~ a further five ad litem judges, Antoine Kesia-Mbe Mindua (Democratic Republic of Congo), Ali Nawaz Chowhan (Pakistan), Tsvetana Kamenova (Bulgaria), Kimberley Prost (Canada) and Ole Bj0m Stale (Norway) sworn in on 25 April, 27 June, 3 and 13 July 2 0 0 6 . ~ ~ 2.3
Transfers to the ICTY
During 2006, the following individuals were transferred to the ICTY: Milan LukiC (2 1 February 2006);~'and Dragan ZelenoviC (10 June 2006).~' Radovan KaradiiC and Ratko MladiC still remain at large, as well as four other accused.
2.4
New indictments
There were no new indictments issued by the Prosecutor during 2006, except for those for contempt of the Tribunal, in accordance with the completion strategy of the ~ r i b u n a l On . ~ ~11 September 2006, an indictment was confirmed against Domagoj MargetiC, who was charged with one count of contempt of the Tribunal in the case against Tihomir BlaSkiC. MargetiC, a freelance journalist who had previously been charged with contempt for a similar conduct, was accused of interfering with the administration of justice by publishing on the Internet the identity of over 50 protected witnesses who testified in the BlaSkiC case."' 2.5
Enforcement of sentences
On 9 June 2006, Dario Kordid and Zoran ZigiC were transferred to Austria to serve their prison sentences. KordiC, one of the leading politicians in the Bosnian Croat community during the war, had been sentenced to 25 years' imprisonment for instigating and ordering war crimes against Bosnian Muslim civilians in central Bosnia and Herzegovina. Zigid, a former civilian taxi-driver mobilized to serve as a reserve police officer in Prijedor, had been sentenced to 25 years' imprisonment
94. SC Res. 1597, UN Doc. SIRES11660 (2006). 95. ICTY Press Release, JPIMOWI1064e, 7 April 2006. 96. ICTY Press Release, CTIMOWI107le, 25 April 2006; ICTY Press Release, CVOIMOWI 1092e, 27 June 2006; ICTY Press Release, CVO/MOWl1096e, 3 July 2006; ICTY Press Release, CVOIMOWII I OOe, 13 July 2006. 97. ICTY Press Release, CVO/MOW11044e, 21 February 2006. 98. ICTY Press Release, CTIMOWI1089e, 10 June 2006. 99. Thirteenth Annual Report (2006), A161127 1-Sl20061666. 100. lCTY Press Release, CTIMOWll loge, 11 September 2006.
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for crimes against humanity and war crimes committed against non-Serbs in the Keraterm, Omarska and Tmopolje On 21 June 2006, Dragan Nikolic was transferred to Italy to serve his sentence of 20 years' imprisonment for crimes committed as a commander of the Susica Detention Camp in the Vlasenica municipality of eastern Bosnia and Herzegovina. Nikolic had pleaded guilty to the charges of persecution on political, racial and religious grounds, murder, sexual violence and torture.lo2 On 5 October 2006, Miodrag Jokic was transferred to Denmark to serve his seven year prison term. Jokic was convicted for crimes committed by soldiers under his command during the attack on Dubrovnik on 6 December 1991, after pleading guilty to six counts of violations of the laws or customs of war.Io3 2.6
Reforms
In an informal plenary in April 2006, the judges of the Tribunal adopted the final proposals of the Working Group on Speeding Up Trials, which made specific recommendations to enhance the efficiency of pre-trial and trial proceedings by shifting away from a party-driven process to one that is closely managed by the judges of the Tribunal. The specific measures adopted by the Judges include establishing workplans and setting strict timetables for the parties with respect to issues such as disclosure and agreed-upon facts, ordering the Prosecution to provide greater specification of its trial strategy at an earlier stage, requesting final versions of witnesses' statements at the pre-trial stage, making greater use of written witness statements, evidence of adjudicated facts and documentary evidence from other proceedings in lieu of examination-in-chief, and exercising greater control over cross-examination of witnesses.lo4These measures, implemented in several cases, have led to a reduction of the amount of live evidence-in-chief presented by the Prosec~tor.'~~ Pursuant to Security Council resolution 1534 (2004), the President and Prosecutor submitted to the Council their fifth and sixth twice-yearly assessment reports setting out the progress made towards implementation of the Completion Strategy of the Tribunal, including the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions pursuant to Rule 11bis.lo6 In tandem with these processes, on 14 November 2006 the Special War Crimes Chamber of the State Court of Bosnia and Herzegovina (BiH) rendered the first judgement on a case referred under Rule 1l bis in the Stankovik case, for rapes and other crimes against humanity committed in the Bosnian town of Foca in 1992."'
ICTY Press Release, CVOIMOWI1088e, 9 June 2006. ICTY Press Release, CTIMOWI109le, 23 June 2006. ICTY Press Release, JP!MOWI1120e, 5 October 2006. Thirteenth Annual Report (2006), A1611271-Sl20061666; S120061353 (31 May 2006). S120061898 (15 December 2006). S120061353 (3 1 May 2006); S120061898 (15 December 2006). ICTY Press Release, JP/MOW/1126e, 14 November 2006.
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2.7
Judgements and Decisions
2.7.1
Prosecutor v. Momir NikoliC, Judgement on Sentencing Appeal, 8 March 2006'08
Momir NikoliC, Chief of Intelligence and Security of the Bratunac Brigade in eastem BiH, pleaded guilty at a hearing held on 7 May 2003 to crimes arising from the murder, inhumane treatment, forcible transfer and destruction of property of Bosnian Muslim civilians from Srebrenica, Bratunac, Zvornik and PotoCari in July 1995. The Trial Chamber entered a single conviction against NikoliC for persecutions as a crime against humanity on the basis of a Joint Motion for Consideration of a Plea Agreement filed by the parties. That conviction for Count 5 of the indictment led to the dismissal of the remaining charges, namely genocide, complicity in genocide, extermination, forcible transfer and murder as a crime against humanity and as a war crime. The Chamber sentenced Nikolid to 27 years' imprisonment despite the recommended 10 to 20 years' sentence proposed in the plea agreement between the parties. In its 8 March 2006 decision on sentencing, the Appeals Chamber allowed NikoliC's fifth ground of appeal that the Trial Chamber took into account the mistranslation of the defence counsel's closing arguments to his detriment when assessing his sentence.Io9The Appeals Chamber also upheld NikoliC's third and seventh grounds of appeal that the Trial Chamber failed to provide a reasoned opinion and did not take all his actions into account when it decided not to give him full credit for his co-operation with the c rose cut or;"^ and that the Trial Chamber erred in double-counting his active role in the crime in its assessment of the gravity of the offence, and the role he played in the crime as a separate aggravating circumstance."' In contrast, the Appeals Chamber did not upheld NikoliC's fourth ground of appeal alleging that the Trial Chamber erred in considering the vulnerability of the victims as a factor contributing to the gravity of the offence as well as an aggravating circumstance. The Appeals Chamber found that the Trial Chamber considered, on the one hand, the impact of the crimes on the people who survived the horrific events at Srebrenica when assessing the gravity of the offence, and on the other hand the position of vulnerability and the helplessness of the victims as an aggravating circ~mstance.~'~ The Appeals Chamber dismissed all other grounds of appeal raised by the appellant, including arguments raised that the Trial Chamber had ventured outside the facts of the guilty plea and had overstated his rank when assessing the gravity of the offence; that the sentence was excessive in comparison with other sentences rendered by the ICTY; that the Trial Chamber gave insuffi-
108. Case No. IT-02-6011-A, Judgement on Sentencing Appeal, Appeals Chamber, 8 March 2006. 109. Ibid., para. 72. 110. Ibid., paras. 103, 107. 1 11. Ibid., para. 62. 112. Ibid., para. 66.
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cient credit for the fact that the he did not order, plan, or instigate the crimes; and that the Trial Chamber did not give sufficient credit to the guilty plea and to his expression of remorse as mitigating circumstances.
Prosecutor v. Ivica MarijatiC and Markica RebiC
2.7.2
-Judgement, -Appeals
10 March 2006"~
Judgement, 27 September 2006"~
On 11 March 2006, Ivica MarijaCiC, a journalist and editor-in-chief of Hrvatski List, a Croatian newspaper, and Markica RebiC, another journalist, were found guilty of knowingly and wilhlly interfering with the administration of justice by respectively publishing the identity of a protected witness from the Blas'kiC trial, along with his statement and the fact that he had testified in non-public proceedings, and by disclosing the identity of the protected witness, along with his statement and transcript of his testimony, contrary to Rule 77(A)(ii) of the Rules. Considering, inter alia, that where the content of a written witness statement is largely the same as the content of oral testimony given in closed session, that content must also be considered protected by the terms of a closed session order,'15 the Trial Chamber found MarijaEiC and Rebid in contempt of the Tribunal and fined each of them with 15,000 Euros, to be paid within one month of the judgement. On 27 September 2006, the Appeals Chamber dismissed all grounds of appeal raised by MarijaCiC and Rebid, which contended that the ICTY did not have personal and subject jurisdiction in the case; that the Court order violated did not intend to protect the victim's identity, was unclear in scope and only binding for the parties to the BlaSkiC trial; that evidence relied on by the Trial Chamber to find that Rebic disclosed the protected information to MarijaEiC was unreliable; that the Trial Chamber erred in not holding an evidentiary hearing for the purposes of sentencing; and that the penalty was excessive. However, the Appeals Chamber found proprio motu that it was in the interests of justice in the particular case to allow payment by instalments, considering that Mr MarijaEiC and Mr RebiC should not be disadvantaged by any inadvertence of their Counsel, who failed to make sufficient submissions at trial on their financial sit~ation."~
113. 1 14. 115. 116.
Case No. IT-95-14-R77.2, Judgement, 10 March 2006. Case No. IT-95-14-R77.2-A, Appeals Judgement, 27 September 2006. Case No. IT-95-14-R77.2, Judgement, I0 March 2006, para. 27. Case No. IT-95-14-R77.2-A, Appeals Judgement, 27 September 2006, para. 55
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2.7.3
Prosecutor v. Enver HadiihasanoviC and Amir Kubura, Judgement, 15 March 2006"~
In this case, Enver HadiihasanoviC, Commander of the ABiH 3rd Corps and member of the Joint Command of the Army of Bosnia and Herzegovina, and Amir Kubura, Commander of the ABiH 3rd Corps 7th Muslim Mountain Brigade, were charged for crimes committed by forces under their command against Bosnian non-Muslim civilians and property following attacks against several villages in Central Bosnia in 1993 and the beginning of 1994. In the first tribunal judgement to deal with the presence of foreign Muslim or Mujahedin combatants in central Bosnia and Herzegovina, Trial Chamber I1 sentenced HadiihasanoviC and Kubura to respectively five and two and a half years' imprisonment for failing to take necessary and reasonable measures to prevent or punish war crimes of murder, cruel treatment and plunder. Both men were found guilty pursuant to Article 7(3) of the Statute. In its judgement, the Trial Chamber observed that the presumption of the exercise of effective control associated with the de jure authority of a commander is not rebutted automatically by the fact that a commander needs to use force to control his troops. A commander has the duty to ensure that the laws and customs of international humanitarian law are respected, even when that would involve the use of force against his own subordinate^."^ The Trial Chamber acquitted in part HadiihasanoviC and Kubura of four counts of murder and cruel treatment because it could not be established that they knew about the crimes; that they had effective control over the Mujahedin responsible for the crimes; that they gave orders to the latter; that those orders were implemented; or that they failed to refer known cases to the competent authorities. They were also acquitted in part of three counts of wanton destruction of property not justified by military necessity, plunder and destruction of or wilful damage to institutions dedicated to religion because it was not proven beyond reasonable doubt that the destruction was extensive and was not justified by military necessity; that HadiihasanoviC and Kubura were informed of the destruction; or that they failed to take preventive and punitive measures against the perpetrators. The two convicted persons and the Prosecutor appealed the judgement and the sentence. On 11 April 2006, Amir Kubura was granted early release. 2.7.4
Prosecutor v. Milomir StakiC, Appeals Judgement, 22 March 2006"~
On 22 March 2006, the Appeals Chamber rendered its judgement in the Stakid case. The appeal arose out of Milomir StakiC's conviction to life imprisonment on 31 July 2003 for war crimes and crimes against humanity committed against the non-Serb population in Prijedor, in northwest BiH, in 1992.
117. Case No. IT-Ol-47-T, Judgement, 15 March 2006. 118. Ibid., paras. 85-88, 1406, 1477. 119. Case No. IT-97-24-A, Judgement, Appeals Chamber, 22 March 2006
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In its judgement, the Appeals Chamber dismissed the Prosecutor's first three grounds of appeal, finding that the Trial Chamber did not err in law either by defining the groups allegedly targeted for genocide as Bosnian Muslims and Bosnian Croats rather than 'non-Serbs' (Judge Shahabuddeen dissenting), or by finding that the Bosnian Croat group was not separately targeted for genocide;'20and considering that the evidence could reasonably be seen as consistent with the Trial Chamber's conclusion that Stakic merely intended to displace, but not to destroy, the Bosnian Muslim group.12' The Prosecutor's fourth ground of appeal was however upheld (Judge Giiney dissenting). The Appeals Chamber found that when evidence supports convictions under multiple counts for the same underlying acts, a Trial Chamber does not have discretion to enter one or more of the appropriate convictions, and therefore the Trial Chamber should have convicted StakiC cumulatively for persecutions, murder and deportation as crimes against humanity.I2' The Appeals Chamber dismissed in full the first, second, third, fifth and seventh grounds of appeal raised by StakiC, namely that the Trial Chamber relied on 'acts' originating from outside the time-period of the indictment and that the Trial Chamber prevented him from contesting the alleged error during the proceedings at trial; that the Trial Chamber denied him a fair trial by declaring certain evidence inadmissible and other evidence admissible, by accepting the Prosecutor's late disclosure of exculpatory evidence and by issuing warnings to his witnesses; that the Trial Chamber drew impermissible inferences from the evidence regarding the foreseeability of the crimes and his willingness to accept the risk that they would occur; that the Trial Chamber erred in concluding that a systematic attack occurred in Prijedor and in not requiring knowledge of a 'vast scheme of collective murder' or the intent to kill thousands for extermination to arise as a crime against humanity; that the Trial Chamber erred in its consideration of the evidence establishing the required 'nexus' between the crimes for which he was found guilty and the armed conflict; and that the Trial Chamber impermissibly convicted him for persecutions and extermination as a crime against humanity based on the same facts. In contrast, the Appeals Chamber granted in part StakiC's fourth ground of appeal, and found that displacements across constantly changing frontlines (not internationally recognised) are not sufficient under customary international law to ground a conviction for deportation (Judge Shahabuddeen dissenting).lZ3Moreover, the Appeals Chamber also clarified that deportation does not require an intent that the deportees should not return.'24 Even though no party had appealed the Trial Chamber's application of the mode of liability of 'co-perpetratorship' instead of the joint criminal enterprise pleaded by the Prosecutor, the Appeals Chamber considered the issue proprio motu and
120. 12 1. 122. 123. 124.
Ibid., paras. 28, 35, 36. Ibid., paras. 56-57. Ibid.,para. 358. Ibid.,para. 303. Ibid.,para. 307.
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found that 'co-perpetratorship' does not have support in customary international law or in the settled jurisprudence of the ~ r i b u n a 1 . IThe ~ ~ Appeals Chamber remedied this error by applying the correct mode of liability to the factual findings of the case, and found that Stakid was a participant in a joint criminal enterprise the common purpose of which was to persecute, deport, and forcibly transfer the Bosnian Muslim and Bosnian Croat populations of ~ r i j e d o r ,and ' ~ ~was therefore liable for the crimes of persecutions, deportation and inhumane acts (forcible transfer) pursuant to the first category of joint criminal enterprise, and for the crimes of extermination and murder pursuant to the third category of joint criminal enterp r i ~ e . The ' ~ ~ Appeals Chamber also clarified propio motu that, contrary to the view of the Trial Chamber, acts of forcible transfer may be sufficiently serious as to amount to a crime of "other inhumane acts" (Judge Giiney dissenting).'28 Accordingly, it entered convictions in relation to incidents which it found to amount to acts of forcible transfer instead of deportation. After granting in part the sentence appeal by both parties, finding that the Trial Chamber acted ultra vires in imposing a review obligation on the Host State after 20 years, and that it erroneously considered Stakid's professional background and the long phase of preparation and planning as aggravating factors,'29 the Appeals Chamber imposed a new sentence of 40 years' imprisonment and set aside the obligation on the Host State to review Stakid's sentence after a specified time had elapsed. 2.7.5
Prosecutor v. Mnko MartinoviC and Mladen NaletiliC, Appeals Judgement, 3 May 2006I3O
On 31 March 2003 Trial Chamber I found Vinko MartinoviC, a.k.a. 'stela', the founder and commander of the Bosnian Croat 'Convicts' Battalion', and Mladen NaletiliC, a.k.a. 'Tuta', commander of a unit within such battalion, responsible for crimes against humanity (persecutions, murder, torture and inhumane acts), grave breaches of the Geneva Conventions (wilful killing, torture, wilfully causing great suffering or serious injury to body or health, inhumane treatment and unlawful transfer of civilians), and violations of the laws and customs of war (unlawful labour, wanton destruction not justified by military necessity and plunder) committed against Bosnian Muslim in south-eastem Bosnia and Herzegovina between April 1993 and January 1994. On the basis of individual and command responsibility, they were sentenced to 18 and 20 years' imprisonment, respectively. On 3 May 2006, the Appeals Chamber allowed in part the Prosecutor's appeal, as well as NaletiliC's and Martinovie's appeals, and affirmed their respective sen-
125. 126. 127. 128. 129. 130.
Ibid., para. 62. Ibid., paras. 78, 85, 98. Ibid., para. 104. Ibid., para. 317. Ibid., paras. 393,416,423. Case No. IT-98-34-A, Judgement, Appeals Chamber, 3 May 2006.
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tences. The Appeals Chamber dismissed the vast majority of the grounds of appeal raised by both sides, including issues regarding due process of law (such as vagueness of the indictment and alternative charging,I3' admissibility and credibility of evidence,13*and disclosure of exculpatory inf~rmationl~~), the international character of the armed conflict,'34various factual findings made by the Trial Chamber (such as discriminatory intent, superior-subordinate relationship, character of mili-
tary operations and actions of the accused),'35and cumulative conviction^.'^^ The Appeals Chamber also set aside, in part, a few of the convictions entered by the Triai Chamber against Naletilid and Martinovid, on the basis that they were not put on sufficient notice of some incidents for which they were convicted'37or that no reasonable trier of fact could have reached the Trial Chamber's conclusions,~38 and corrected some of the findings made by the Trial Chamber regarding the elements of the crime against humanity of deportation (Judge Schomburg dissenting) 139,the admissibility of particular pieces of evidence,I4O the impermissible conviction for persecution and other crimes against humanity on the basis of the same facts (Judge Giiney and Judge Schomburg dissenting),14' and the consideration of mitigating and aggravating circumstance^.'^^ However, taking into account that the errors did not affect the judgement and did not result in unfair prejudice to the accused, the particular circumstances of this case as well as the form and degree of the participation of the accused in the crimes affirmed on appeal, as well as the seriousness of those crimes, the Appeals Chamber found that the sentences imposed by the Trial Chamber against them were within the range that a reasonable Trial Chamber could have ordered.143
2.7.6
Prosecutor v. Ivica Rajik, Sentencing Judgement, 8 May 2 0 0 6 ' ~ ~
Ivica Rajic, commander of the HVO's Second Operational Group in the Central Bosnia Operative Zone based in Kiseljak, pled guilty on 26 October 2005 to four counts of grave breaches of the Geneva Conventions, namely wilhl killing, inhuman treatment, extensive destruction not justified by military necessity and carried out unlawfully and wantonly, and appropriation of property in the area of Stupni
131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144.
Ibid., para. 102. Ibid., paras. 229,233, 238,248,267,403,457, 502, 512. Ibid., para. 398. Ibid., paras. 121-122. Ibid., paras. 146,281, 300, 321,487. Ibid., paras. 562, 586 Ibid., paras. 35,48,95-97. Ibid., paras. 171,211, 305,474,477. Ibid., para. 154. Ibid., para. 259. Ibid., para. 590. Ibid., paras. 601, 607, 613, 626, 630. Ibid., paras. 619,632. Case No. IT-95-12-T, Judgement, Trial Chamber, 8 May 2006.
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Do and VareS (central Bosnia) in 1993. On the basis of the plea agreement, the Trial Chamber entered a conviction against RajiC for the said counts on the basis of his individual criminal responsibility under both Article 7(1) and Article 7(3) of the Statute, and on 8 May 2006 sentenced him to 12 year's imprisonment. In determining the gravity of RajiC's crimes, the Trial Chamber rejected the Prosecutor's submission according to which the crimes were serious because they were widely broadcasted and received immediate attention from the UN Security Council. The Chamber found that the seriousness of a crime is not related to such coverage or attention, since otherwise the gravity of two identical crimes would differ depending on their media coverage or international attention.'45When considering the aggravating circumstances put forward by the Prosecutor, the Trial Chamber found that RajiC's abuse of his position of authority and his position as a superior could not be taken into account as aggravating factors, since these factors had already been taken into consideration when examining the gravity of the crimes.14' Similarly, the Trial Chamber rejected the Prosecutor's argument according to which absconding from justice and participating in cover-up activities should aggravate the sentence. The Prosecution did not prove that these elements were aggravating circumstances pursuant to customary international law or general principles of law.'47 The Trial Chamber also reviewed four mitigating circumstances submitted by the accused and the Prosecution, namely the guilty plea, RajiC's remorse, his cooperation with the Prosecution and his personal circumstances. 2.7.7
Prosecutor li Naser OriC, Judgement, 30 June 2 0 0 6 ' ~ ~
On 30 June 2006, the Trial Chamber convicted Naser OriC, Senior Commander of the Bosnian Muslim forces in eastern Bosnia and Herzegovina between 1992 and 1995, for two counts of violations of the laws and customs of war on the basis of his individual criminal responsibility under Article 7(3) of the Statute, and sentenced him to two years' imprisonment for failing to take necessary and reasonable measures to prevent the occurrence of murder and cruel treatment in Srebrenica between December 1992 and March 1993. Since the imposed sentence was less than the credit to be applied for the period of time OriC had been in custody, the Trial Chamber ordered his release with immediate effect. The case concerned the detention of a number of Serbs at different buildings in Srebrenica by the Bosnian Muslim military police and the destruction of Bosnian Serb property in connection with several attacks carried out by OriC's subordinates. Concerning the former allegations, the Trial Chamber found that Mr OriC effec-
145. 146. 147. 148.
Ibid., para. 87. Ibid., paras. 107-108. Ibid., para. 132. Case No. IT-03-68-T, Judgement, Trial Chamber, 30 June 2006.
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tively controlled the Srebrenica Military ~ o l i c e , that ' ~ ~he was put
on notice that the security and the well-being of all Serbs detained in Srebrenica was at risk,'S0 and that he knew and had reason to know about acts of murder and cruel treatment committed against them.I5' The Trial Chamber rejected OriC's arguments that his lack of further involvement was due to his military commitments elsewhere and that there were others in charge of prisoners. In this regard, the Chamber held that, as a general rule, the treatment of prisoners in armed conflict, including their physical and mental condition, cannot be deemed less important than military considerations, however important they may be. This general rule does not, and cannot, apply when, for instance, there is the impossibility to act, or when it would be utterly unreasonable to expect one to act, as in the case of a life-threatening situati011.I~~ The Trial Chamber also rejected Orid's submission that he had inadequate means at the time to prevent the crimes committed against the prisoners.153In contrast, the Chamber found that the accused could not be found guilty of failing to punish his subordinates for the crimes, since there was not enough evidence to prove that he knew or could have known that the crimes had taken place and would therefore have been in a position to punish.'54 Concerning the charges of instigating or aiding and abetting the wanton destruction of Bosnian Serb property not justified by military necessity during four attacks in 1992 and 1993, the Chamber found that OriC opposed this conduct and that, although he had the responsibility to prevent reckless destruction by his subordinates, in the particular circumstances of the attacks he could not have prevented fighters from committing the destruction, or from aiding and abetting civilians to The Chamber also found that it had not been proven commit such de~truction.'~~ beyond reasonable doubt that the accused exercised effective control over the perpetrators.'56Accordingly, the Chamber acquitted Orid of Counts 3 and 5. In determining the sentence, the Trial Chamber considered the difficult circumstances in which the accused had to operate as a strong mitigating f a c t ~ r . ' ~ Both ' Oric and the Prosecutor appealed the judgement. 2.7.8
Prosecutor v. Zoran 2igik
-Decision on Zoran zigik's 'Motion for Reconsideration of Appeals Chamber Judgement IT-98-3011-A Delivered on 28 February 2005', 26 June 2 0 0 6 ' ~ ~
149. Ibid., para. 532. 150. Ibid., para. 550. 151. Ibid., para. 560 152. Ibid., para. 559. 153. Ibid., para. 570. 154. Ibid., para. 577. 155. Ibid., paras. 683-687. 156. Ibid., paras. 706, 709-7 1 1, 71 5. 157. Ibid., para. 771. 158. Case No. IT-98-3011 -A, Decision on Zoran iigic's 'Motion for Reconsideration of Appeals Chamber Judgement IT-98-3011-A Delivered on 28 February 2005', Appeals Chamber, 26 June 2006.
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-Decision on Zoran iigid's Request for Review under Rule 119, 25 August 2006'~~ On 2 November 2001, Trial Chamber I convicted Zoran 2igik for crimes against humanity and violations of the laws or customs of war as a participant in the joint criminal enterprise of the Omarska camp and for committing crimes against humanity and violations of the laws or customs of war in the Omarska, Keraterm and Trnopolje camps. The Trial Chamber sentenced him to 25 years' imprisonment. In its judgement of 28 February 2005, the Appeals Chamber upheld this sentence, although it reversed some of the convictions. On 26 June 2006, the Appeals Chamber dismissed zigiC3sapplication for reconsideration, finding that hgi6 simply repeated arguments he presented to the Appeals chamber and that the application was 'frivolous' and 'an abuse of process'.160 Additionally, the Appeals Chamber, relying on 'cogent reasons in the interests of justice', expressly departed from its previous jurisprudence affirming an 'inherent power to reconsider any decision, including a judgement where it is necessary to do so in order to prevent an injustice', and declared that 'there is no power to reconsider a final judgement' (Judge Shahabuddeen appended a declaration with his dissent).16' The Appeals Chambers noted, however, that its departure did not affect the power of the Tribunal to reconsider its decisions, which cannot be subject to review proceedings. On 25 August 2006, the Appeals Chamber dismissed another request for reconsideration filed by zigiC, finding that 'beyond being frivolous' it constituted 'an abuse of the Appeals Chamber's proceedings'.'62 The Appeals Chamber issued a warning against iigiC that any further attempts to seize the Chamber with similarly unfounded motions would result in the imposition of sanctions. 2.7.9
Prosecutor v. Josip Jovid, Judgement, 30 August 2 0 0 6 ' ~ ~
On 30 August 2006, Josip JoviC, a journalist and editor-in-chief of Slobodna Dalmacija, a Croatian daily newspaper, was found guilty of knowingly and wilfully interfering with the administration of justice by publishing excerpts of the testimony of a protected witness from the Blas'kiC trial, and by refusing to comply with an order to cease such publication, contrary to Rule 77(A)(ii) of the Rules. The Trial Chamber rejected JoviC's defence of mistake of law and found that a person's
159. Case No. IT-98-3011-R.2, Decision on Zoran '&it's Request for Review under Rule 119, Appeals Chamber, 25 August 2006. 160. Case No. IT-98-3011-A, Decision on Zoran 2igi6's 'Motion for Reconsideration of Appeals Chamber Judgement IT-98-3011-A Delivered on 28 February 2005', Appeals Chamber, 26 June 2006, para. 8. 161. Ibid., para. 9. 162. Case No. IT-98-3011-R.2, Decision on Zoran gigit's Request for Review under Rule 119, Appeals Chamber, 25 August 2006, para. 10. 163. Case No. IT-95-14 & IT-95-1412-R77, Judgement, Trial Chamber, 30 August 2006.
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misunderstanding of the law does not excuse a violation of it.IMIn its decision, the Trial Chamber relied, inter alia, on the finding in the Marijacii and Rebii case (see supra) that where the content of a written witness statement is largely the same as the content of oral testimony given in closed session, that content must also be considered protected by the terms of a closed session order.lh5Consequently, it found JoviC in contempt of the tribunal and fined him with 20,000 Euros, to be paid within one month of the judgement. The convicted person appealed both his conviction and sentence. 2.7.10
t I
Prosecutor v. Momtilo KrajiSnik, Judgement, 27 September 2 0 0 6 ' ~ ~
This case dealt with events between July 199 1 and December 1992 relating to the crimes committed against the non-Serb population of 35 of the 109 municipalities in Bosnia and Herzegovina. On 27 September 2006, MomEilo KrajiSnik, one of the top leaders in the Bosnian Serb leadership during the war, was found guilty of five counts of crimes against humanity pursuant to Article 7(1) of the Statute for the commission of persecution, extermination, murder, deportation and forced transfer through his participation in a joint criminal enterprise, the common objective of which was to ethnically recompose the territories targeted by the Bosnian-Serb leadership by drastically reducing the proportion of Bosnian Muslims and Bosnian Croats through expulsion. The Trial Chamber sentenced KrajiSnik to 27 years' imprisonment. The Chamber found that, from 18 March 1992 until 30 December 1992, there was a widespread and systematic attack directed by Serb forces against the Bosnian-Muslim and Bosnian-Croat civilian population residing in the indictment municipalities, aimed at forcibly displacing this population in order to change the ethnic composition of the municipalities or of a smaller area thereof. lh7 Approximately 3,000 Muslims and Croats who were not taking active part in the hostilities were killed in 30 municipalities during the indictment period,168and more than one hundred thousand Muslims and Croats were deported or forcibly transferred.lh9 The Chamber also found that these populations were persecuted by restrictive and discriminatory measures of Serb authorities, namely denial of employment, restriction on freedom of movement, violation of the right to privacy, denial of equal access to public services, denial of the right to judicial process, killings, cruel or inhumane treatment, including the establishment and perpetuation of inhumane living conditions, forced transfer or deportation, unlawful detention, forced labour, appropriation, plunder and destruction of property as well as destruction of cultural
164. 165. 166. 167. 168. 169.
Ibid., para. 21. Ibid., paras. 2, 13, 19. Case No. IT-00-39-T, Judgement, Trial Chamber, 27 September 2006. lbid., paras. 708, 710. Ibid., paras. 717, 719. Ibid., para. 732, 1144.
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E. Carnero Rojo and M. Nybondas
monuments and sacred sites.I7O The Chamber however found that none of these acts of murder, extermination and cruel or inhumane treatment were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as In affirming the responsibility of the accused for the aforementioned crimes, the Trial Chamber dismissed the argument that joint criminal enterprise (JCE) was not an appropriate mode of liability in this case, due to the size of the case, its scope, and the fact that KrajiSnik was structurally remote from the commission of the crimes charged in the indictment.I7' In contrast, the Chamber declared that a JCE may exist even if none or only some of the principal perpetrators are part of it, because, for example, they are not aware of the JCE or its objective and are proIt cured by members of the JCE to commit crimes which further that 0bje~tive.l'~ also indicated that the criminal means of a common criminal objective may be expanded when leading members of the JCE are informed of new types of crime committed pursuant to the implementation of the common objective, take no effective measures to prevent recurrence of such crimes, and persist in the implementation of the common objective of the J C E . ' ~Nonetheless, ~ the Chamber required interaction or cooperation among the members of the JCE and the intent of the participant to achieve the criminal ~bjective."~ In this regard, the Chamber found that a JCE existed throughout the territories of the Bosnian-Serb Republic. The JCE had a centrally-based leadership component, including KrajiSnik, which was closely connected with local and regional politicians, military and police commanders, paramilitary leaders, and others."' The crimes of deportation and forced transfer were the original means of implementing the JCE's common objective of removal by force of Bosnian Muslims and Bosnian Croats from large areas of Bosnia-Herzegovina, but the criminal means of the enterprise grew to include other crimes of persecution, as well as murder, and extermination. These crimes l~~ came to redefine the criminal means of the JCE's common 0 b j e ~ t i v e .KrajiSnik's contribution to this JCE was, inter alia, to help establish and perpetuate the Serb structures that were instrumental to the commission of the crimes. He also deployed his political skills both locally and internationally to facilitate the implementation of the JCE's common objective through the crimes envisaged by that objective.17' KrajiSnik was found to know about, and intend, the mass detention
170. 171. 172. 173. 174. 175. 176. 177. 178.
Ibid., paras. 791,794, 806, 809, 814, 818, 828, 835, 840. Ibid., para. 867. Ibid., para. 876. Ibid., paras. 883, 1082. Ibid., para. 1098. Ibid., paras. 884, 886. Ibid., para. 1087. Ibid., paras. 1097, 11 18. Ibid., para. 1121.
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and expulsion of civilians, and accepted that many Muslims and Croats of all ages would pay a heavy price."' Regarding the counts of genocide and complicity in genocide, the Trial Chamber found that a crime committed by a person of low political or military rank without genocidal intent may nevertheless be characterized as an act of genocide if it was procured by a person of higher authority acting with that intent.''' However, and in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide, the Chamber did not receive sufficient evidence to establish whether the perpetrators had genocidal intent, that is, the intent to destroy the Bosnian-Muslim or Bosnian-Croat ethnic group as such. The evidence did not show that at any time during the indictment period the crime of genocide formed part of the common objective of the JCE in which KrajiSnik participated, nor did it show that KrajiSnik had the specific intent necessary for genocide.'81 Among other factors, the Chamber considered KrajiSnik's age and his relatively long time in detention before his trial began when imposing the sentence.Ix2Both the Prosecutor and the convicted person appealed the judgement. 2.7.11
Prosecutor v. Mlado RadiC, Decision on Defence Request for Review, 31 October 2006"~
On 31 October 2006, the Appeals Chamber dismissed an application seeking review of the appeals judgement that on 28 February 2005 confirmed Mlado Radii's sentence of 20 years' imprisonment for the commission of torture and sexual crimes in Omarska camp (Prijedor, BiH) in 1992. The Appeals Chamber held that the new witness statements filed by RadiC did not refer to a 'new fact' as required for reconsideration, but were additional evidence on facts that were in issue at tria1.Ix4 2.7.12
Prosecutor v. Tihomir BlaSkiC, Decision on Prosecutor k Request for Review or Reconsideration, 23 November 2006"~
On 23 November 2006, the Appeals Chamber dismissed an application filed by the Prosecutor seeking review of the Appeals Judgement that on 29 July 2004 reversed a number of Tihomir BlaSkii's convictions, including those relating to responsibility for crimes committed in AhmiCi and Grbavica (Central Bosnia) in April 1993,
179. Ibid., para. 1119. 180. Ibid., para. 857. 181. Ibid., paras. 1091-1092, 1094. 182. Ibid., paras. 1164, 1166. 183. Case No. IT-98-3011-R.l, Decision on Defence Request for Review, Appeals Chamber, 3 1 October 2006. 184. Ibid., para. 22. 185. Case No. IT-95-14-R, Decision on Prosecutor's Request for Review or Reconsideration, Appeals Chamber, 23 November 2006; ICTY Press Release, RHNOWll128e, 24 November 2006.
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and reduced his sentence from 45 to nine years imprisonment. In dismissing the application for the reversal of both acquittals, the Appeals Chamber found that the request did not contain 'new facts' in accordance with the Rules of Procedure and Evidence, but rather additional evidence of already litigated facts. It concluded that a review of the appeals judgement was not warranted on that basis. The Chamber clarified that in cases where the facts previously litigated are not entirely clear and they could be interpreted more broadly or narrowly vis-a-vis the alleged 'new facts', the review Chamber does not, a priori, decide to interpret the previous facts more narrowly, but weighs the arguments of the parties in order to determine the most appropriate characterization of the facts as they were considered by the original chamber.ls6 It also held that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgment or final de~ision."~ 2.7.13
Prosecutor v. Blagoje SimiC, Appeals Judgement, 28 November 2006'~'
On 17 October 2003, Blagoje SimiC, a medical doctor who became the highest ranking civilian official in the municipality of Bosanski ~ a m a cduring the war, was found guilty of one count of crimes against humanity pursuant to Article 7(1) of the Statute for the commission of persecution through his participation in a joint criminal enterprise to take over power in the said municipality and to persecute the non-Serb civilians. The underlying acts of persecution included the unlawful arrest and detention of Bosnian Muslim and Bosnian Croat civilians, cruel and inhumane treatment including beatings, torture, forced labour assignments and confinement under inhumane conditions, and deportation and forcible transfer committed between 17 April 1992 and 3 1 December 1993. Simid was sentenced to 17 years' imprisonment (Judge Per-Johan Lindholm dissenting). On 28 November 2006, the Appeals Chamber granted SimiC's first and second grounds of appeal and reversed the Trial Chamber's finding that the appellant participated in the said joint criminal enterprise (Judge Shahabuddeen and Judge Schomburg dissenting). The Appeals Chamber found that none of the different versions of the indictment put SimiC on adequate and timely notice that he was charged as a participant in a joint criminal enterprise, that this defect was not timely cured and that as a result SimiC's ability to prepare his defence was materially impaired.lR9However, the Appeals Chamber dismissed the contentions of the appellant that the findings of the Trial Chamber, even if accepted, did not support any form of responsibility under the statute,lgoand relying on underlying factual findings of the Trial Chamber, upheld the conviction for aiding and abetting perse-
186. 187. 188. 189. 190.
Ibid., para. 17. Ibid., para. 23. Case No. IT-95-9-A, Judgement, Appeals Chamber, 28 November 2006. Ibid., paras. 46, 56, 74. Ibid., para. 82.
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cution in the form of the unlawful arrests and detention, confinement in inhumane conditions, forced labour and forcible displacement of non-Serb civilians (Judge Shahabuddeen and Judge Schomburg dissenting).lgl The Chamber found that the only reasonable inference that could be drawn from the circumstances was that the appellant was aware of the discriminatory context in which the crimes were carried out and that he knew that his assistance had a substantial effect on the perpetration of these crimes.192In contrast, the Appeal Chamber granted in part the appellant's ninth and tenth grounds of appeal and reversed his conviction for persecution due to cruel and inhumane treatment in the form of torture and beating (Judge Shahabuddeen and Judge Schomburg dissenting).'93 It also confirmed that the Trial Chamber committed an error of law when it denied an oral motion for access to confidential material from a related case. However, it found that such an error did not invalidate the verdict as it did not result in an infiingement of SimiC's right to a fair trial. 194 Considering that aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a participant in a joint criminal enterprise, and finding pi-oprio motu that the Trial Chamber erred in considering SimiC's position of authority and his professional background as a medical doctor as aggravating circumstance^,'^^ the Appeals Chamber reduced the sentence to 15 years' imprisonment (Judge Liu dissenting). 2.7.14
Prosecutor v. Stanislav GaliC, Appeals Judgement, 30 November 2 0 0 6 ' ~ ~
On 5 December 2003, Stanislav Galid, Commander of the Sarajevo Romanija Corps of the Bosnian Serb Army, was found guilty of one count of violations of the laws or customs of war (acts of violence the primary purpose of which is to spread terror among the civilian population) and four counts of crimes against humanity (murder and inhumane acts other than murder through sniping and shelling) on the basis of his individual criminal responsibility pursuant to Article 7(1) of the Statute (ordering), and sentenced to 20 years' imprisonment (Judge NietoNavia partially dissenting). The facts of the case relate to the sniping and shelling on the city of Sarajevo (BiH) between 10 September 1992 and 10 August 1994. The Trial Chamber found that Sarajevo civilians were made the object of a widespread or systematic campaign of deliberate attacks by forces under the effective control of Galic, who was found to conduct the campaign primarily to terrorize the civilian population. On 30 November 2006, the Appeals Chamber dismissed all grounds of appeal by GaliC, upheld the Prosecutor's appeal on the length of the sentence and sen-
191. 192. 193. 194. 195. 196.
Ibid., para. 189. Ibid., paras. 118, 136, 158, 186. Ibid., paras. 138, 190. Ibid., para. 223. Ibid., paras. 265,269, 274. Case No. IT-98-29-A, Judgement, Appeals Chamber, 30 November 2006.
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tenced GaliC (the appellant) to life imprisonment. Discussing the grounds of appeal of the appellant, the Appeals Chamber found that Trial Chambers have discretion to determine when an accused may testify in his own defence, and that the Trial Chamber's exercise of such discretion in this case did not inhnge the appellant's right to a fair In dismissing the complaint of the appellant regarding the lack of impartiality of one of the trial judges, the Appeals Chamber found that the recourse available to GaliC through the Bureau was sufficient to ensure that his rights were not prejudiced, and that the fact that such trial judge confirmed an indictment in a related case did not establish actual bias or gave rise to a founded apprehension of bias.198Further grounds of appeal dismissed by the Appeals Chamber concerned the Trial Chamber's decision not to travel to Sarajevo, its evidence evaluation method, its alleged failure to apply the in dubio pro reo principle, its alleged misinterpretation of the jurisdiction of the tribunal and of the elements of the crimes of attack on civilians, murder and inhuman treatment, and of the mode of liability of ordering, as well as its allegedly impermissible cumulative conviction. The Appeals Chamber identified several factual and legal errors in the Trial Chamber's judgement, but found that they would not have affected the finding of guilt. 199 Discussing an alleged violation of the nullum crimen sine lege principle, the Appeals Chamber affirmed the customary law nature of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population (Judge Schomburg dissenting).200The Appeals Chamber found that the holding of the Trial Chamber that the infliction of terror is not an element of the crime of terror against the civilian population, was perfectly within the authority of the Trial Chamber. Therefore, the Appeals Chamber upheld the findingzo1and determined that GaliC was properly put on notice of the charges against him.'' It also upheld the Trial Chamber's findings that the primary purpose of the campaign of sniping and shelling was to spread terror among the civilian population, that Galid had the intent to spread terror among the civilian population,203and that he ordered the commission of the crimes.204 With respect to the Prosecution's appeal on sentence, the Appeals Chamber found that although the Trial Chamber did not err in its factual findings and correctly noted the principles governing sentencing, 'the sentence of only 20 years was so unreasonable and plainly unjust, in that it underestimated the gravity of
197. 198. 199. 200. 201. 202. 203. 204.
Ibid.,para. 22. Ibid.,paras. 32,33,43,44. Ibid.,paras. 269, 334-335, 346, 351. Ibid.,para. 86. Ibid.,paras. 103-104. Ibid.,paras. 71, 74, 96. Ibid.,paras. 107-108,224. Ibid.,paras. 239-240, 389.
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GaliC's criminal c~nduct"~'that a longer sentence was merited (Judge Pocar partially dissenting and Juge Meron dissenting). 2.7.15
Prosecutor v. Milan BabiC, Order Assigning a Judge to Conduct an Inquiry, 6 March 2006~"
Milan BabiC, a detained witness, was found dead at the United Nations Detention Unit in Scheveningen on 5 March 2006. At the time of his death, Babic, who had been convicted to 13 years' imprisonment for crimes committed against non-Serb civilians in a self-proclaimed Serb political entity in eastern Croatia during the war, was testifying in the case against Milan MartiC, another former high-level official of the Croatian Serb political entity. Pursuant to his authority under the Statute and the Rules of Detention, the ICTY President ordered an internal inquiry into the circumstances surrounding Babid's death. On 8 June 2006, the ICTY Vice-President made public the report resulting from such inquiry, which concluded inter alia that BabiC committed suicide. 2.7.16
Prosecutor v. Slobodan MiloSeviC, Order Terminating the Proceedings, 14 March 2006~"
On 11 March 2006, Slobodan MiloSeviC, former President of Serbia and of the Federal Republic of Yugoslavia, was found dead at the United Nations Detention Unit in Scheveningen. At the time of his death, MiloSeviC was on trial for 66 counts of grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide or complicity in genocide and crimes against humanity, allegedly committed in Croatia between August 1991 and June 1992, Bosnia and Herzegovina between 1992 and 1995, and Kosovo between January 1999 and June 1999. His trial had commenced on 12 February 2002, with the defence case beginning on 31 August 2004. On 14 March 2006, the Trial Chamber issued an order terminating all proceedings in this trial, and recalling that all the protective measures ordered in these proceedings shall continue to have effect unless and until they are rescinded, varied or augmented. On 30 May 2006, the ICTY VicePresident made public the results of an intemal inquiry into the circumstances surrounding the death of ~ i l o ~ e v iThe d.~ report ~ ~ concluded, inter alia, that he died of natural causes from a heart attack, confirming the conclusions of a 4 April 2006 report from The Hague District Public Prosecutor's Office which ruled out any suggestion of criminal conduct.209
205. Ibid., para. 455. 206. Case No. IT-03-72, Order Assigning a Judge to Conduct an Inquiry, President of the Tribunal, 6 March 2006; ICTY Press Release, AMIMOWI1046e, 6 March 2006. 207. Case No. IT-02-54-T, Order Terminating the Proceedings, Trial Chamber, 14 March 2006; ICTY Press Release, CClMOWl1050ef, 1 l March 2006. 208. ICTY Press Release, LMIMOWI108le, 3 1 May 2006. 209. ICTY Press Release, FPIMOWI1063e, 5 April 2006.
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2.7.17
Prosecutor v. ~ e l j k oMejakiC, Momcilo Gruban, Dusan Fustar and Duiko KneieviC, Decision on Joint Defence Appeal against Decision on Referral under Rule 11 his, 7 April 2006"~
On 20 July 2005, the Referral bench granted the Prosecutor's motion to refer the case to BiH pursuant to Rule 11 bis. The accused themselves had been opposed to referral, preferring trial before the ICTY, but submitted that if referral was appropriate, the case should be referred to Serbia and Montenegro. On 7 April 2006, the Appeals Chamber dismissed eight of the defendants' grounds of appeal, allowed one in part, and affirmed the decision to refer the case to the State Court of Bosnia and Herzegovina. In dismissing the appeal, the Appeals Chamber found that the Referral Bench properly concluded that the treaty or national law governing extradition does not apply to prevent the referral of an accused pursuant to Rule 11his because, as with the initial transfer of the accused to the ICTY, his transfer to the State authorities under Rule llbis is not the result of an agreement between the State and the ICTY, but of a Security Council resolution under Chapter VII of the UN ~ h a r t e r . ~It" also held that the Referral Bench had no obligation to determine which jurisdiction provided guarantees of enforcing the more lenient law on the accused and that it correctly exercised its discretion when concluding that if the case was referred, it would be for the State Court of BiH to determine the law applicable to each of the alleged criminal acts of the accused.212Finally, the Appeals Chamber found proprio motu that the Referral Bench erred in ordering the Prosecution to seek further direction from the Referral Bench if arrangements for monitoring and reporting should prove ineffe~tive.~'~ 2.7.1 8
Prosecutor v. Paiko LjubidC
-Decision to Refer the Case to Bosnia and Herzegovina pursuant to Rule 11 his, 12 April 2006"~ -Decision on Appeal against Decision on Referral under Rule 11 bis, 4 July 2006"~ On 12 April 2006 the Referral Bench granted the Prosecutor's motion for referral to BiH on the basis that neither the level of responsibility of the accused nor the
2 10. Case No. IT-02-65-ARl l bis. 1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11 bis, Appeals Chamber, 7 April 2006; ICTY Press Release, MHIMOW/1066e, 7 April 2006. 2 11. Ibid., para. 3 1. 212. Ibid., paras. 48, 59. 213. Ibid., para. 96. 214. Case No. IT-00-41-PT, Decision to Refer the Case to Bosnia and Herzegovina pursuant to Rule 11 bis, Referral Bench, 4 September 2006; ICTY Press Release, RCIMOWl1068, 12 April 2006. 21 5. Case No. IT-00-41 -ARI 1bis. I, Decision on Appeal against Decision on Referral under Rule 11 bis, Appeals Chamber, 4 July 2006; ICTY Press Release, OWMOW11098e, 5 July 2006.
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gravity of the crimes alleged in the indictment precluded the possibility of trial before another court. LjubiEid did not oppose the referral of his case as such, but suggested that the case be referred to Croatia, of which country he is a national, rather than to Bosnia and Herzegovina. The Referral Bench, however, found that the nexus with Croatia appeared to be weaker than the nexus to Bosnia and Herzegovina, since the only apparent nexus between the accused and Croatia was that he had obtained Croatian citizenship after the events contained in the indictment, that criminal proceedings were alleged to have been initiated against him in Croatia and that he voluntarily surrendered to the Tribunal from that State. In deciding on the motion for referral, the Bench reviewed the question of the laws applicable to the events in 1993 in BiH; the prospects for a fair trial; and the non-imposition of the death penalty. On 4 July 2006, the Appeals Chamber dismissed LjubiCic's appeal on the merits in its entirety, reaffirming that a referral pursuant to Rule 11bis does not amount to an extradition strict0 sensu and that the Referral Bench was not obliged to satisfy itself that in case of referral defence counsel would receive the same level of remuneration as they do before the I C T Y . ~ ' ~ 2.7.1 9
Prosecutor v. Vladimir KovateviC
-Public Version of the Decision on Accused's Fitness to Enter a Plea and Stand Trial, 12 April 2 0 0 6 ~ ' ~ -Decision on Defence 'request for certification for interlocutory appeal of "Decision on Defence motion to dismiss the indictment" from 1st September 2006', 27 September 2 0 0 6 ~ ~ ~ -Decision on Referral of Case Pursuant to Rule 1 1 bis, 17 November 2 0 0 6 ~ ' ~ On 7 April 2006, Trial Chamber I found that Vladimir KovaEeviC was unfit to enter a plea or to stand trial. On the basis of several medical expert reports, the Chamber found that the accused lacked the ability to plead, understand the nature of the charges, understand the course of the proceedings, understand the significance of the evidence, instruct counsel, understand the consequences of the proceedings, and testify.220However, on 1 September 2006, the Chamber denied a motion to dismiss the indictment against him in view of his condition. The Cham-
216. Ibid., paras. 8, 25. 217. Case No. IT-01-4212-1, Public Version of the Decision on Accused's Fitness to Enter a Plea and Stand Trial, Trial Chamber, 12 April 2006; ICTY Press Release, OWMOWl1069e, 12 April 2006. 218. Case No. IT-01-4212-1, Decision on Defence 'request for certification for interlocutory appeal of "Decision on Defence motion to dismiss the indictment" from 1st September 2006', Trial Chamber, 27 September 2006. 219. Case No. IT-01-4212-1, Decision on Referral of Case Pursuant to Rule 11 bis with confidential and partly exparte annexes, Referral Bench, 17 November 2006; ICTY Press Release, CVOIMOWI 1127e, 17 November 2006. 220. Case No. IT-01-42/24, Public Version of the Decision on Accused's Fitness to Enter a Plea and Stand Trial, Trial Chamber, 12 April 2006, para. 45.
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ber found that the mental health of the accused at the time did not exclude the resumption of proceedings in the future and that accordingly there were no reasons to terminate the proceedings. A request for certification for appeal was subsequently denied, on the basis that the legal question raised by Mr KovaCeviC was immaterial and that the possible consequences of additional future examinations of the accused connected to a criminal procedure called for speculation.221 On 17 November 2006, the Referral Bench ordered that the case of Vladimir KovaEevid be referred to the authorities of the Republic of Serbia, marking the first case referred by the ICTY to Serbia pursuant to Rule 11 his. The Bench ordered the referral proprio motu upon concluding that neither the level of responsibility of the accused nor the gravity of the crimes alleged in the indictment were ipso facto incompatible with the referral. The Bench considered the laws applicable to the events in 1991 in Serbia, the prospects for a fair trial, witness protection measures, and the non-imposition of the death penalty. Conceming KovaCevid's opposition to the referral on the basis of his poor mental health, the Bench was satisfied that the applicable procedural law in Serbia provides safeguards that an accused does not have to stand trial if mentally unfit, and that mechanisms exist in Serbia for the ongoing monitoring of KovaCeviC's health, provision for his welfare and resumption of proceedings against him should he become fit to stand
2.7.20
Prosecutor v. Vojislav Seielj
-Decision on Assignment of Counsel, 2 1 August 2 0 0 6 ' ~ ~ -Decision on Appeal against the Trial Chamber's Decision on Assignment of Counsel, 20 October 2 0 0 6 ~ ' ~ -Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial, 25 October 2 0 0 6 ~ ~ ~ -Reasons for Decision (No. 2) on Assignment of Counsel, 27 November 2006'~'
221. Case No. IT-01-4212-1, Decision on Defence 'request for certification for interlocutory appeal of "Decision on Defence motion to dismiss the indictment" from 1st September 2006', Trial Chamber, 27 September 2006. 222. Case No. IT-01-4212-1, Decision on Referral of Case Pursuant to Rule 11 bis with confidential and partly exparte annexes, Referral Bench, 17 November 2006, paras. 56, 62. 223. Case No. IT-03-67-PT, Decision on Assignment of Counsel, Trial Chamber, 21 August 2006; ICTY Press Release, AMiMOWll102e, 21 August 2006. 224. Case No. IT-03-67-AR.73.3, Decision on Appeal against the Trial Chamber's Decision on Assignment of Counsel, Appeals Chamber, 20 October 2006. 225. Case No. IT-03-67-PT, Order Conceming Appointment of Standby Counsel and Delayed Commencement of Trial, Trial Chamber, 25 October 2006. 226. Case No. IT-03-67-PT, Reasons for Decision (No. 2) on Assignment of Counsel, Trial Chamber, 27 November 2006; ICTY Press Release, OWMOW11129e, 27 November 2006.
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-Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused, 6 December 2 0 0 6 ~ ~ ~ -Decision on Appeal against the Trial Chamber's Decision (No. 2) on Assignment of Counsel, 8 December 2 0 0 6 ~ ~ ' lj counsel and On 21 August 2006, Trial Chamber 1 assigned Vojislav ~ e ~ edefence ordered that the accused participate in the proceedings against him through his counsel only. The Chamber found that the right of the accused to defend himself can be restricted in the interests of justice if the accused fails to cooperate in good faith with the court, or is wilfully disruptive and disrespectful.229After describing numerous instances where the accused behaved in an obstructionist, disruptive and disrespectful manner, and intimidated and made slanderous comments about witnesses, the Trial Chamber concluded that 'there is a strong indication that his selfrepresentation may substantially and persistently obstruct the proper and expeditious conduct of a fair On appeal, this decision was reversed on 20 October 2006, exclusively on the ground that the Trial Chamber had failed to issue a formal warning to the accused that his self-representation would be revoked in case of continuing r n i s c ~ n d u c t . ~ ~ ' Following this decision, the Trial Chamber on 25 October restored the status quo prior to the assignment of counsel, namely, self-representation with standby counsel to assist or, if necessary, to take over the defence. However, on 27 November 2006, the Chamber decided to once again impose counsel on the accused, considering that self-representation in the course of the period since 20 October 2006 had substantially and persistently obstructed the proper and expeditious conduct of the proceeding^.'^' By this time, Se~eljhad already started a hunger strike,233a situation which led the Trial Chamber on 6 December 2006 to order Dutch authorities to provide medical services to the accused. The Chamber clarified that such services may include drip-feeding, but only to the extent that such services were not contrary to compelling internationally accepted standards of medical ethics or binding rules of international However, only two days later the Appeals Chamber set aside the Trial Chamber's imposition of counsel holding that the
227. Case No. IT-03-67-PT, Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused, Trial Chamber, 6 December 2006. 228. Case No. IT-03-67-AR.73.4, Decision on Appeal against the Trial Chamber's Decision (No. 2) on Assignment of Counsel, Appeals Chamber, 8 December 2006. 229. Case No. IT-03-67-PT, Decision on Assignment of Counsel, Trial Chamber, 21 August 2006, para. 23. 230. Ibid., para. 79. 231. Case No. IT-03-67-AR.73.3, Decision on Appeal against the Trial Chamber's Decision on Assignment of Counsel, Appeals Chamber, 20 October 2006, paras. 26,38. 232. Case No. IT-03-67-PT, Reasons for Decision (No. 2) on Assignment of Counsel, Trial Chamber, 27 November 2006. 233. ICTY Press Release, RH/MOW/l132e, 30 November 2006. 234. Case No. IT-03-67-PT, Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused, Trial Chamber, 6 December 2006, para. 15.
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Trial Chamber erred in the interpretation of the appeal decision issued on 20 October. The Appeals Chamber clarified that such decision fully restored Se~elj'sright to self-representation.235In view of the Appeals Chamber's decision, the accused abandoned his hunger strike.236 2.7.2 1
Prosecutor v. Mitar RaSeviC and Savo TodoviC, Decision on Savo TodoviC j. Appeal against Decisions on Referral under Rule 11 bis, 4 September 2 0 0 6 ~ ~ ~
On 8 July 2005, the Referral Bench granted the Prosecution's motion to refer the case against Mitar RaseviC and Savo TodoviC to the State Court of BiH. In this case, referral had been sought by both the national authorities of BiH and Serbia and Montenegro. Following an appeal by TodoviC, the Appeals Chamber remitted the case to the Referral Bench on 23 February 2006, finding that the fact that the Bench based its decision on an indictment which was subject to challenge by the accused and was yet to be accepted by the Trial Chamber was an error of law that invalidated the referral decision. On 31 May 2006, after the Trial Chamber had granted a motion for the amendment of the indictment and the Referral Bench Decision re-ordered referral to BiH, TodoviC appealed again. On 4 September 2006, the Appeals Chamber dismissed the appeal in its entirety and affirmed the decision to refer the case to the State Court of BiH. In dismissing TodoviC's appeal, the Appeals Chamber reaffirmed that the gravity of the crimes charged against him and his level of responsibility were compatible with the referral of the case to a national jurisdiction. It held that the Bench did not err in finding that BiH had a significantly greater nexus with the trial than Serbia and Montenegro, that the laws applicable in BiH provided an adequate basis to ensure compliance with the requirements for a fair trial, and that the Prosecutor was obliged to report back on the progress of the case. The Appeals Chamber declared that the detention unit attached to the State Court of BiH met internationally recognized standards, but that the Prosecutor was obliged to alert the Bench in case there were serious concerns that the minimum standards of detention would not be met.238It also reiterated its expectations that the State Court would adhere to the recommendations of the OSCE regarding pre-trial detention issues.239
235. Case No. IT-03-67-AR.73.4, Decision on Appeal against the Trial Chamber's Decision (No. 2) on Assignment of Counsel, Appeals Chamber, 8 December 2006, para. 26. 236. ICTY Press Release, RH/MOWl1134e, 8 December 2006. 237. Case No. IT-97-25Il -ARl 1bis. 1 & IT-97-2511-AR11bis.2, Decision Savo TodoviC's Appeal against Decisions on Referral under Rule 1I bis, Appeals Chamber, 4 September 2006; ICTY Press Release, MHIMOWII lose, 5 September 2006. 238. Ibid., para. 99. 239. Ibid., para. 119.
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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 3.1
Completion strategy
On 8 June and on 16 December 2006 the President and the Prosecutor of the ICTR gave the UN Security Council updates on the completion strategy of the tribuThey confirmed that the tribunal was on schedule regarding the completion of the trials of sixty-five to seventy persons by the end of 2008. The President, Judge Marse, stressed that there was a need for cooperation from member states to arrest and transfer indictees still at large and to accommodate acquitted persons. He reiterated that instead of holding new elections, the mandate of the permanent judges of the tribunal should be extended to 2008. He also mentioned that the tribunal had adopted measures to increase the pace of the proceedings. The Prosecutor, Justice Jallow, reported the continued challenge in arresting indictees at large and stated that the tracking and arrest programme would be intensified the coming year. Other priorities were the timely and efficient conclusion of trials, the preparation of cases for trial and the referral of cases to national jurisdictions. The Prosecutor pointed out that support for and capacity building in countries that were willing to accept cases on referral remained essential. 3.2
The Chambers
On 13 June the UN Security Council extended the mandate of the eleven permanent judges of the ICTR. The extended mandate, which runs until 3 1 December 2008, came as a response to a request by the President of the tribunal and was intended to facilitate the implementation of the completion strategy of the tribunal. Extension of the judges' terms of office for nineteen months was preferred to elections for a new term of four years. In accordance with the provisions of the Statute, both the Security Council and the General Assembly granted their approval for the extension of the judges' mandates.24' On 7 February 2006 Judge Liu Daqun of China was sworn in as a judge of the Appeals Judge Robert Fremr of the Czech Republic was sworn in as ad litem judge on 15 September 2006. He replaced Judge Flavia Lattanzi of ~ t a l ~ . ~ ~ ~
240. ICTR Press Release, ICTWINFO-9-2-479.EN, 8 June 2006, and ICTR Press Release, ICTW INFO-9-2-506.EN, 16 December 2006. 241. ICTR Press Release, ICTWINFO-9-2-480.EN, 14 June 2006. 242. ICTR Press Release, ICTR/INFO-9-2-467.EN, 7 February 2006. 243. ICTR Press Release, ICTWINFO-9-2-494.EN, 15 September 2006.
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3.3
Transfer of case
The Prosecutor of the ICTR on 15 February requested the transfer of the case of Michel Bagaragaza to Norway for trial. The accused, who surrendered to the Tribunal on 16 August 2005, was charged with conspiracy to commit genocide, genocide or complicity in genocide. Before his surrender, Bagaragaza had entered an agreement with the prosecution that he would be tried by a national HOWever, on 19 May 2006 the Trial Chamber denied the Prosecutor's motion for referral of the case to Norway. The Trial Chamber found that Norway did not have jurisdiction over the alleged crimes in the indictment. Therefore, there was no need to consider the ability of the Referral State to conduct a fair trial or the nonimposition of the death penalty by the Referral State, as set out in Rule 11 bis of the Rules of Procedure and ~ v i d e n c ePursuant . ~ ~ ~ to an appeal by the prosecution, the Appeals Chamber confirmed on 30 August 2006 the decision of the Trial Chamber and found that it could not sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian 3.4
Guilty plea
On 14 December Joseph Nzabirinda pleaded guilty to charges of murder as a crime against humanity. Nzabirinda, nicknamed 'Biroto', was a former businessman and youth organiser in Sahera secteur in Ngoma commune.247 3.5
Judicial notice
On 16 June the Appeals Chamber delivered a land mark decision in the case of Prosecutor v. Karemera, Ngirumpatse and ~ z i r o r e r a . ~The ~ * Appeals Chamber ruled that 'the Trial Chambers must take notice of the following facts: i. The existence of Twa, Tutsi and Hutu as protected groups falling under the Genocide Convention; ii. The following state of affairs existed in Rwanda between 6 April 1994 to 17 July 1994: there were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to person[s] perceived to be Tutsi. As a result of the attacks, there were a large
244. ICTR Press Release, ICTWINFO-9-2-471 .EN, 15 February 2006. 245. Case No. ICTR-2005-86-Rllbis, Decision on the Prosecution Motion for Referral to the Kingdom of Norway, Trial Chamber 111, 19 May 2006; ICTR Press Release, ICTRIINFO-9-2-477. EN, 22 May 2006. 246. Case No. ICTR-05-86-ARl lbis, Decision on Rule 1 l bis Appeal, Appeals Chamber, 30 August 2006, para. 18. 247. ICTR Press Release, ICTWINFO-9-2-504.EN, 14 December 2006. 248. Case No. ICTR-98-44-AR73 (C), Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006.
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number of deaths of persons of Tutsi ethnic identity; iii. Between 6 April 1994 and 17 July 1994 there was genocide in Rwanda against Tutsi ethnic group.'249 According to the press release on the ruling, the decision was going to have immediate impact on the proceedings in the Karemera et al. case. In addition, because of the judicial notice, the facts mentioned in the decision no longer require any proof, which means that the occurrence of the genocide is beyond dispute. In the cases to come, the prosecution does not need to prove the occurrence of the genocide. Accordingly, the decision was considered as one of the most important rulings of the tribunal and it was expected to shorten the cases by relieving the prosecution of the burden of proving the occurrence of the genocide. 3.6
Release
Elizaphan Ntakirutimana, who was sentenced to ten years' imprisonment on 19 February 2 0 0 3 , ~ ~was ' released from prison on 6 December 2006 at the age of 81, after having served his sentence.25'He was the first person convicted by the ICTR to become released after serving his sentence. Ntakirutimana was a former senior pastor of the Seventh-day Adventist church who was found guilty of aiding and abetting in genocide and aiding and abetting extermination as a crime against humanity. His co-accused, his son GCrard, was sentenced to 25 years' imprisonment for involvement in the same events. The Trial Chamber found that Elizaphan Ntakirutimana 'had transported attackers to places where they pursued and killed Tutsi refugees'. He had also ordered the removal of the roof of a church in order that the Tutsi could no longer seek refuge there, which would make finding and killing the Tutsi easier. Ntakirutimana was arrested in the USA in 1996, after which he was released and arrested again. At the sentencing stage the Trial Chamber ruled that the Ntakirutimana would be given credit for the time he served on remand in the USA and in Arusha, Tanzania. 3.7
Judgements
3.7.1
Prosecutor v. Andrk Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Appeals Judgement, 7 July 2 0 0 6 ~ ~ ~
On 25 February 2004 Trial Chamber I11 acquitted the accused Andre Ntagerura and Emmanuel Bagambiki in a case charging them with genocide, among other crimes. In the same judgement it sentenced the third accused, Imanishimwe to 27
249. ICTR Press Release, ICTRIINFO-9-2-481.EN, 20 June 2006. 250. Prosecutor v. Eiizaphun and Gkrard Ntakirutimana, Cases No. ICTR-96-10 & ICTR-96-17T, Judgement and Sentence, 2 1 February 2003, see 7 YIHL (2003) pp. 3 11-3 12. 251. ICTR Press Release, ICTRIINFO-9-2-502.EN, 6 December 2006. 252. Case No. ICTR-99-46-A, Appeals Judgement, 7 July 2006.
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years' imprisonment.253The Appeals Chamber on 8 February 2006 rejected the appeal by the Prosecutor and upheld the acquittal by the Trial Chamber of Ntagerura and ~ a g a m b i k iReasons . ~ ~ ~ for the decision were delivered on 7 July 2006, in a judgement which partly allowed the appeal of Imanishimwe and in which the Appeals Chamber reduced his sentence to 12 years' imprisonment. The prosecution argued on appeal that the Trial Chamber erred in finding that some paragraphs of the indictments against the accused were defective. The Appeals Chamber found that the prosecution failed to demonstrate that the relevant paragraphs were not defective. Although the Trial Chamber was found to have erred when making certain decisions relating to the indictments at the pre-trial stage, the Appeals Chamber considered that these errors did not invalidate the decision~.~~~ With regard to the conviction of Imanishimwe for acts perpetrated at the Gashirabwoba football field, the Appeals Chamber found that the charges against him (under Article 6(3)) in relation to these events were not included in the indictment. It considered that the ability of the accused to prepare his defence was thereby materially impaired. The Trial Chamber should not have entered a finding of guilt on the basis of Article 6(3) in relation to genocide at the these events and, therefore, the Appeals Chamber set aside the guilty verdict for genocide at the Gashirabwoba football field.256 The fact that Imanishimwe was acquitted of genocide on the basis of Article 6 (3) affected the seriousness of the crimes and, accordingly, the length of the prison sentence. However, the Appeals Chamber considered that the review of the verdict did not affect the 12 years sentence imposed for the crimes of murder, torture and cruel treatment constituting serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol 11. This sentence was to run concurrently with the other sentences pronounced by the Trial Chamber under Counts 9, 11 and 12.~5~ 3.7.2
Prosecutor v. Paul Bisengimana, Judgement and Sentence, 13 April 2006~~'
Paul Bisengimana, a former Bourgmestre of Gikoro commune, Kigali-Rural prefecture, was sentenced to 15 years in prison for extermination as a crime against humanity.259The guilty plea of Bisengimana was accepted on 7 December 2006. In
253. Prosecutor v. Andrk Ntagerura, Samuel Imanishimwe and Emmanuel Bagambiki ('Cyangugu case'), Case No. ICTR-99-46-T, Judgement and Sentence, 25 February 2004. See 0. Swaak-Goldman and M. Nybondas, 'International Criminal Courts Round-Up', 7 YIHL (2004) p. 343. 254. ICTR Press Release, ICTR/INFO-9-2-468.EN 255. Case No. ICTR-99-46-A, Appeals Judgement, 7 July 2006, paras. 87, 111-114. 256. Ibid., paras. 164-165. 257. Ibid., paras. 442-444. 258. Case No. ICTR-00-60-T, Judgement and Sentence, 13 April 2006. 259. Ibid., para. 203.
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his plea, he admitted being guilty of murder and extermination as crimes against humanity.260 In April 1994 a large number of Tutsi civilians were killed in attacks on Musha Church and on Ruhanga Protestant Church and School, both situated in Gikoro commune. The Chamber was satisfied that the accused, Bisengimana, participated in the attacks by being present during the attack against Musha and by not taking any active steps to protect the Tutsi civilians during the attack on Ruhanga Protestant Church and School.262His presence and his omission to act amounted to aiding and abetting the crime of e~termination.~'~ The Chamber further examined the guilt of the accused with regard to the crime of murder as a crime against humanity. It recalled that 'it is the scale of the killings that distinguishes extermination from murder as a crime against humanity'.264The plea agreement in which Bisengimana acknowledged his guilt specifically concerned the murder of a Tutsi man called Rusanganwa, while the indictment suggested that the accused was charged with several murders.265The Chamber found that the accused was individually criminally responsible for the murder as a crime against humanity by his presence during the murder of ~ u s a n g a n w a At . ~ ~the ~ same time, the Chamber considered that the murder was best understood as being part of the crime of extermination committed at Musha Consequently, the Chamber held that it was "in the interests of justice and the fairness of the proceedings" to convict the accused only with respect to extermination as a crime against humanity.268 The Chamber thoroughly considered the issue of aggravating and mitigating circumstance in relation to Bisengimana. It acknowledged that several mitigating circumstances were applicable to the accused: the guilty plea and his expression of remorse, his family situation, his good character, his lack of prior criminal convictions, his good conduct in detention, his age and his ill-health.269However, the number of people killed and the fact that the accused held the position of bourgmestre and despite this did nothing to stop the killings, constituted such ovenvhelmingly aggravating circumstances that only limited mitigation was warranted.270 The Chamber sentenced the accused to 15 years' imprisonment, despite the recom-
260. p. 288. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270.
See R. Rastan and M. Nybondas, 'International Criminal Courts Round-Up', 8 YIHL (2005) Case No. ICTR-00-60-T, Judgement and Sentence, 13 April 2006, para. 74. Ibid., para. 78. Ibid., paras. 76 and 81. Ibid., para. 87. Ibid., para. 90. Ibid., para. 95. Ibid., para. 103. Ibid., para. 105. Ibid., para. 180. Ibid., paras. 181-183.
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mendation of a sentence of 12 to 14 years that the parties had agreed to in the plea agreement.271 3.7.3
Prosecutor v. Joseph Serugendo, Judgement, 12 June 2 0 0 6 ~ ~ '
On 15 March 2005, Serugendo pleaded guilty to direct and public incitement to commit genocide and to persecution as a crime against humanity.273The guilty plea was entered in exchange for an agreement with the prosecution, according to which a recommendation would be made to the Chamber to impose an imprisonment term ranging from 6 to 14 years.274 The charges against the accused concerned a killing campaign against members of the Tutsi population. At all times material to the case, the accused was, among other things, a member of the governing board of Radio T&l&ision Libre de Mille Collines (RTLM) and a member of the Interahamwe militia.275In this function he planned, together with other leaders of the Interahamwe, political meetings and rallies in order to 'indoctrinate, sensitize, and incite member of the Interahamwe to kill or cause serious bodily or mental harm to members of the Tutsi population, with the aim of destroying the Tutsi ethnic He also planned the establishment, funding and operation of the radio station, RTLM, which disseminated messages that incited the killing of the Tutsi population and furthered ethnic hatred between Hutu and ~ u t s i . ~ ' ~ Considering the aggravating and mitigating circumstances of the accused, the Chamber found the number of victims as a result of the incitement to genocide and persecutions to be an aggravating factor. Despite the gravity of the crimes, the Chamber on the other hand considered it warranted to impose a relatively low sentence, due to his guilty plea and in particular his ill-health. The Chamber sentenced the accused to six years' imprisonment.278 Joseph Serugendo passed away on 22 August 2006 at the Nairobi Hospital in Kenya. 279 3.7.4
Prosecutor v. Sylvestre Gacumbitsi, Appeal Judgement, 7 July 2 0 0 6 ~ ~ '
Sylvestre Gacumbitsi was bourgmestre, the highest-ranking local administrative official, of Rusumo commune in Kubungo prefecture in April 1994, at the time of
Ibid., paras. 184-203. Case No. ICTR-2005-84-T, Judgement and Sentence, 12 June 2006 Ibid., para. 5. Ibid., para. 8. Ibid., para. 16. Ibid., para. 20. Ibid., paras. 22-30. Ibid., paras. 88-95. ICTR Press Release, ICTRANFO-9-2-488.EN, 22 August 2006. Case No. ICTR-2001-64-A, Appeal Judgement, 7 July 2006.
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the genocide. Trial Chamber 111 convicted Gacumbitsi of genocide and extermination and rape as crimes against humanity on 17 June 2004 and sentenced him to 30 years' imprisonment.281 Both Gacumbitsi and the prosecution filed an appeal. Gacumbitsi (the appellant) alleged that the Trial Chamber had made errors in certain interlocutory decisions. He hrther contented that errors had been made in relation to his convictions for genocide and for extermination and rape as crimes against humanity. He also submitted that even if the convictions were not quashed on appeal, his sentence should be reduced to fifteen years.282 The Trial Chamber dismissed the appellant's appeal in its entirety.283It held that the appellant failed to show that the interlocutory decisions made by the Trial Chamber had in some way materially impaired the defence of the appellant.284As for the convictions, the Appeals Chamber considered that the Trial Chamber did not make any errors in assessing the evidence on genocide and crimes against humanity.2x5As no discernible error was made by the Trial Chamber, the Appeals Chamber rejected the request to reduce the sentence.286 The Appeals Chamber allowed, in part, three of the six grounds of appeal raised by the prosecution. It found the appellant guilty of aiding and abetting the murder of his two Tutsi tenants, and found that the Trial Chamber erred in failing to con" Appeals Chamber also allowed the appeal regarding the sider this i s s ~ e . ~The appellant's responsibility for ordering crimes committed. While the Trial Chamber held the appellant responsible only for the orders given to the communal policemen, the Appeals Chamber found him responsible for ordering the crimes committed by all attackers at Nyarubuye The Appeals Chamber found that the appellant was a key player when it came to planning, instigating, ordering, committing and aiding and abetting genocide and crimes against humanity in Rusumo commune. Therefore, it quashed the sentence of 30 years' imprisonment imposed by the Trial Chamber and sentenced the appellant to life imprisonment. Judges Shahabuddeen, Liu, Meron and Schomburg appended separate opinions to the judgement. Judges Giiney and Meron appended partially dissenting opinion~.~~~
281. 282. 283. 284. 285. 286. 287. 288. 289.
Ibid., paras. 2-3. Ibid., para. 4. Ibid., para. 207. Ibid., paras. 11-35. Ibid., paras. 36-108. Ibid., para. 111. Ibid., paras. I1 3-125. Ibid., paras. 184-187. See parts V - IX of the judgement.
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3.7.5
Prosecutor v. Jean Mpambara, Judgement, 11 September 2 0 0 6 ~ ~ '
Mpambara, a former bourgmestre of Rukara commune, was charged with genocide and extermination as a crime against humanity. The charges concerned events that took place in Rukara commune over a six-day period, and during which some two thousand Tutsi civilians were killed.291The accused was not charged with physically participating in the killing, but he was said to have 'verbally instigated the attacks; distributed weapons on various occasions; and omitted to do things which shows that he aided and abetted the crimes'.292The Chamber considered whether the accused by his acts or omissions was part of a joint criminal enterprise or whether he aided and abetted others committing the crimes. It also examined whether the accused planned, ordered or instigated the crimes.293Having considered all the facts, the Trial Chamber concluded that the prosecution could not show beyond a reasonable doubt that the accused was responsible for the crimes that had taken place between 7 and 12 April 1994. The Chamber found the accused not guilty on all counts and ordered his immediate release.294 In its judgement the Trial Chamber paid special attention to the issue of liability for omissions. According to the Trial Chamber, there are three situations in which an omission may lead to criminal responsibility under Article 6(1): omission as aiding and abetting; omission as evidence of participation in a joint criminal enterprise; and omission as a failure of duty to prevent or punish. With regard to the third situation, the Chamber noted that an omission as a failure of duty had been mentioned in earlier case law; in the BlaikiL case, the Rutaganira case and in the Ntagerura case. It found that this form of liability is a 'species of criminal liability distinct from omissions which prove aiding and abetting or joint criminal enterprise'. Consequently, it held that the prosecution should have articulated this in its pleadings. As the prosecution did not do so, the Chamber decided not to consider a failure of duty to prevent or punish in relation to the accused.295 In her separate opinion, Judge Flavia Lattanzi disagreed with the majority of the Chamber on the issue of 'failure of duty to prevent or punish'. She was of the opinion that liability for an omission could not arise in that context, except where the accused was charged under the superior responsibility provision.296
Case No. ICTR-01-65-T, Judgement, 11 September 2006. Ibid., paras. 1-4. Ibid., para. 41. Ibid., para. 40. Ibid., paras. 175-176. 295. Ibid., paras. 21-35. 296. See Opinion individuelle du Juge Lattanzi, 20 September 2006. 290. 291. 292. 293. 294.
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Prosecutor v. Tharcisse Muvunyi, Judgement and Sentence, 12 September 2 0 0 6 ~ ~ ~
At the time of the events relevant to the present case, the accused, Muvunyi, was a Lieutenant-Colonel stationed at the ~ c o l des e sous-oficiers (ESO) In this function, the accused allegedly became responsible for the crime of 'genocide, or in the alternative, complicity in genocide, direct and public incitement to commit genocide, rape, and other inhumane acts as crimes against humanity'.2yy The Trial Chamber established that the accused, whether formally appointed as ESO Commander or not, effectively held the position of most senior officer and commander on the ground, exercising effective control over the acts of ESO sold i e r ~ . ~In " this role, the accused tacitly approved the attack on unarmed Tutsi civilians at the Groupe scolaire in Butare prifecture. Therefore, the Trial Chamber found the accused guilty of genocide under Article 6(1). During attacks on Butare University Hospital, the University of Butare, Beneberika Convent, at Mukara forest and at several roadblocks in Butare, the accused failed to take the necessary and reasonable measures to prevent his subordinates or to punish them for the killing of Tutsi civilians. The Trial Chamber, therefore, held him responsible for genocide under Article 6(3).301AS the accused was found guilty of genocide, the Trial Chamber dismissed the charges of complicity in genocide.302 The Trial Chamber noted that under Article 2 of the Statute, direct and public incitement to commit genocide can be punished as a separate crime.303It found that the accused had spoken in public, calling for the killing of Tutsis and associating them with snakes. The Trial Chamber was satisfied that the accused knew that his audience understood the genocidal implication of his speech and that therefore, he had the intent required under Article 2 of the Statute. The accused was found responsible for direct and public incitement to commit genocide.304 With regard to the charges of rape as a crime against humanity, the Trial Chamber found that the evidence provided in the case satisfied the legal criteria for rape as a crime against humanity. However, the evidence did not support the specific allegations in the indictment. The Trial Chamber held that the accused could be held guilty neither as an aider and abettor, nor as a superior under the superior responsibility provision.305As for the charges of other inhumane acts as crimes against humanity, the Trial Chamber found that the open humiliation of two Tutsi women as well as the beatings and injuries caused to other Tutsi civilians consti-
297. 298. 299. 300. 301. 302. 303. 304. 305.
Case No. ICTR-2000-55A-T, Judgement and Sentence, 12 September 2006. Ibid., paras. 30. Ibid., para. 5. Ibid., para. 57. Ibid., paras. 496-498. Ibid., para. 499. Ibid., paras. 500-505. Ibid., paras. 506-5 10. Ibid., paras. 5 15-526.
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tuted crimes under Article 3(i) of the Statute. The accused was found guilty under Article 6(3). The Trial Chamber was satisfied that the accused knew of the illegal acts of his subordinates and that he had effective control over them. Nevertheless, he failed to take the necessary and reasonable measures to prevent or punish their acts. The Trial Chamber based its finding on 'effective control' on the fact that the accused had the material and human resources to prevent or punish his subordinates. Interestingly, the Trial Chamber supported its view by stating that the accused gave instructions that a certain family should not be harmed during the attack, and that he tried to save the life of a child belonging to that particular family.306 Having considered the evidence and the aggravating and mitigating circumstances, the Trial Chamber sentenced the accused, Muvunyi, to 25 years' imprisonment. 3.7.7
Prosecutor v. Andrk Rwamakuba, Judgement, 20 September 2006~"
The accused, Rwamakuba, is qualified as a doctor and worked as a public health specialist. At the time of the genocide, the accused was Minister of Primary and Secondary Education in the interim government and a member of the Mouvement Dkmocratic du Rwanda party.308 The case against the accused concerned events that took place in the period between 6 and 30 April 1994 in Gikomero commune and at Butare University Hospital, during which Tutsi refugees at the Kayanga Health Centre and Tutsi civilians at Butare University Hospital were massacred.309As a result of inconsistencies between the evidence and the indictment, as well as of reliability issues in relation to all prosecution witnesses, the Trial Chamber considered that the prosecution failed to prove its case beyond a reasonable doubt. Consequently, the Trial Chamber unanimously found the accused not guilty on all Interestingly, the Trial Chamber in this case decided not to consider all the allegations made by the prosecution against the accused. In addition to the charges of genocide, or in the alternative, complicity in genocide, and crimes against humanity in relation to the events already mentioned, the prosecution in its closing brief had submitted that as Minister of Primary and Secondary Education, Rwamakuba 'did nothing, either to denounce the crimes committed against the Tutsi, [o]r to dissociate himself from the [Interim ~overnment]'.~" The prosecution had further contended that 'by these omissions, Rwamakuba directly failed to discharge the duties entrusted to him, which he had sworn to hlfil, and that he encouraged the
306. 307. 308. 309. 3 10. 3 11.
Ibid., paras. 527-530. Case No. ICTR-98-44C-T, Judgement, 20 September 2006. Ibid., para. 3. Ibid., paras. 11-29. In general, see the factual findings of the judgement, and for a conclusion, see paras. 2 10-2 16. Ibid., para. 1 I.
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genocidal a~tivities'.~"The Trial Chamber held that it would be contrary to the fundamental right of the accused to a fair trial if the Chamber were to decide to consider these allegations. The alleged omissions were neither mentioned in the indictment, nor did the prosecution provide 'timely, clear, and consistent information' about such additional allegations.313Therefore, the Trial Chamber decided only to consider the charges pursuant to Article 6(1), and that any factual allegations related to the political activities or the position of the accused were to be considered as 'context or background from which inferences could be drawn concerning, for instance, his intent, disposition or other elements of the crimes'.314 3.7.8
Prosecutor v. Athanase Seromba, Judgement, 13 December 2 0 0 6 ~ ' ~
Athanase Seromba, a former priest of Nyange parish, Kivumu commune, was found guilty of genocide and extermination as a crime against humanity on 13 December 2006. He was sentenced to 15 years' imprisonment. The Trial Chamber considered it established that the accused orally aided and abetted members of the Interahamwe, militiamen and gendarmes who carried out attacks on Nyange parish where large numbers of Tutsi civilians had sought refuge. He encouraged the demolition of the parish and identified its weakest points to the driver of the bulldozer. Considering his position as priest and the prevailing situation in Rwanda at the time, the Trial Chamber found that the accused 'must have been aware of the intent of the attackers of the refugees at the parish'.316 The Trial Chamber considered the authority the accused had as a Catholic priest and the trust he had won from the Tutsi refugees by offering them shelter in his parish, as aggravating factors in the case against Seromba. The failure to live up to the trust of the refugees added to the aggravating circ~mstances.~'~ On the other hand the accused had had a good reputation and was relatively young at the time of the events. These facts and the voluntary surrender of the accused were considered in mitigation at the sentencing The sentence imposed on Seromba was appealed by the prosecution. Considering that the accused was found guilty of genocide and of extermination as a crime against humanity, the prosecution was of the view that an inadequate sentence had been imposed.319
312. Ibid. 3 13. Case No. ICTR-98-44C-T, Judgement, 20 September 2006, para. 28. 3 14. Ibid., para. 29. 3 15. Case No. ICTR-2001-66-T, Judgement, 13 December 2006. (Judgement only available in French.) 3 16. Ibid., para. 341. 3 17. Ibid., para. 390. 318. Ibid, paras. 395, 398, 399. 3 19. ICTR Press Release, ICTWINFO-9-2-507.EN, 22 December 2006.
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4.
SPECIAL COURT FOR SIERRA LEONE
4.1
Chambers
On 18 January the Special Court announced that Justice Lussick of Samoa had been elected Presiding Judge of Trial Chamber I1 for a renewable term of one year.320On 19 June Justice Bankole Thompson of Sierra Leone was elected Presiding Judge of Trial Chamber I for a one-year term.321 Justice Renate Winter of Austria served as the Vice-president of the Special Court for four months from the end of January 2006, and was succeeded by Justice Emmanuel Ayoola of ~ i ~ e r i a . ~ ~ ~ On 15 May Justice George Gelaga King of Sierra Leone was elected Presiding Judge of the Appeals Chamber, a position which at the same time made him President of the Special Court for a one-year period.323 4.2
Registry
On 24 February the Special Court announced the appointment of Mr. Lovemore Green Munlo of Malawi as the new Registrar of the On 20 July the Registrar of the Special Court in a ceremony returned the detention facility on Bonthe Island to the Sierra Leone Prison Service. The building had served as a temporary detention facility and it had housed judicial proceedings while the New England complex was being 4.3
Office of the Prosecutor
In 2006 the Chief Prosecutor of the Special Court, Desmond de Silva QC, stepped down when his contract expired on 30 June.326Mr. Stephen Rapp of the United States of America was appointed as his successor.327
320. SCSL Press Release, 'Justice Lussick Elected Presiding Judge of Trial Chamber II', 18 January 2006. 321. SCSL Press Release, 'Justice Thompson Elected Presiding Judge of Trial Chamber I', 19 June 2006. 322. SCSL Press Release, 'Justice Renate Winter to Serve as New Vice-president of the Court', 27 January 2006. 323. SCSL Press Release, 'New President for the Special Court for Sierra Leone', 15 May 2006. 324. SCSL Press Release, 'Lovemore Munlo Becomes Registrar at Special Court', 24 February 2006. 325. SCSL Press Release, 'Special Court Returns Bonthe Island Facility to the Sierra Leone Government', 20 July 2006. 326. SCSL Press Release, 'Special Court Prosecutor to Step Down', 28 April 2006. 327. SCSL Press Release, 'New Prosecutor for the Special Court', 7 December 2006.
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361
Cases
The most interesting development during the year 2006 took place in relation to the case of the Prosecutor v. Charles Ghankay ~ a ~ l oThe r . accused, ~ ~ ~ a former leader or head of an organised armed group, the National Patriotic Front of Liberia, and later the President of the Republic of Liberia, was taken into custody of the Special Court on 29 March 2 0 0 6 . On ~ ~ the ~ same day, the Principal Defender at the Special Court was informed about the arrival of the accused at the detention facility of the Court. The Principal Defender was to ensure that the rights of the accused were fully respected.330 Following the arrival of Taylor into the custody of the Special Court, the President of the Court requested the Government of The Netherlands and the President of the International Criminal Court to facilitate the conduct of the trial against Taylor in The Hague. The reason for the request were 'concerns about the stability in the region should Taylor be tried in ~ r e e t o w n ' . ~ ~ ' The initial appearance of the accused took place at the Special Court in Freetown on 3 April 2006. Taylor pleaded not guilty to all 11 counts of the amended indictment.332
328. Case No. SCSL-2003-01-1, Amended Indictment, 16 March 2006. 329. SCSL Press Release, 'Chief Prosecutor Announces the Arrival of Charles Taylor at the Special Court', 29 March 2006. 330. SCSL Press Release, 'Defence Office Moves to Ensure Fair Trial Rights for Mr. Charles Taylor', 3 1 March 2006. 331. SCSL Press Release, 'Special Court President Requests Charles Taylor be Tried in The Hague', 30 March 2006. 332. SCSL Press Release, 'Chief Prosecutor Welcomes the Successful Initial Appearance of Charles Taylor in Freetown, Sierra Leone', 3 April 2006.
362
ISRAEL, HIZBOLLAH, AND THE SECOND LEBANON WAR'
Yael
on en^
1.
INTRODUCTION
1.1
The legal issues
This article analyses jus ad bellurn questions arising from the 2006 war in Lebanon between Israel and Hizbollah. In particular, it examines Israel's claim to self-defence. Part 1 describes the scene of events and the actors. Part 2 explores whether the events of 12 July qualify, in themselves, as an armed attack. Part 3 concerns Hizbollah's and Lebanon's international responsibility for the attack. Part 4 examines whether Israel's actions complied with the legal requirements for a lawful act of self-defence. No attempt will be made to canvas the entire doctrinal debate on all relevant issues; rather, the aim is to highlight the idiosyncrasies of the conflict and their effect on the application or development of the law. The discussion is limited to jus ad bellurn issues, namely whether Israel's resort to force was lawhl. Jus in bello issues, which have been subject to heated debate with respect to this conflict, require a separate discussion. Another matter that merits separate analysis is whether Iran or Syria may be held responsible for the 12 July attack and its consequences. Throughout this article, Hizbollah is considered and referred to as an 'irregular force'. This may be regarded by some as downplaying Hizbollah's acts as 'terrorist acts'. Although this latter category has become relevant under international instrum e n t ~ it, ~remains undefined and politically controversial4. Nonetheless, since international concern with terrorism has called into question some basic general
1. O Y. Ronen, 2007. 2. Dr. Y. Ronen is Lecturer at Ono Academic College, Israel. I am grateful to Dr. Yuval Shany on his comments to an earlier draft of this article. I am also grateful to Dr. Avril McDonald and to Prof. Mary Ellen O'Connell for sharing with me their opinions on certain issues. 3. E.g., General Assembly A/49/60 Measures to Eliminate International Terrorism 17 February 1995, SC Res. 1373 (2001), Report of the High-level Panel on Threats, Challenges and Change, UN Doc. N591565 (2004). 4. For a concise description of the problem see Report of the High-level Panel on Threats, Challenges and Change, ibid., paras. 157-164.
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tenets of jus ad belllum,' reference to terrorist acts, in the sense of acts against the bodily integrity of civilians intended to intimidate a population or compel a government to do or abstain from any act," will be made where appropriate. 1.2
The facts
On 12 July 2006, a Hizbollah force crossed the UN-identified line between Israel and Lebanon (the 'Blue Line') and attacked an IDF patrol some 200m further south. They killed three soldiers and kidnapped two others. Five more Israeli soldiers were killed while in pursuit of the Hizbollah force into Lebanese territory. At the same time, Hizbollah fired Katyusha rockets and mortar shells at Israel's border communities and IDF posts. Three civilians were injured. Israel immediately informed the Security council7that it: 'reserves the right to act in accordance with Article 51 o f the Charter o f the United Nations and exercise its right o f self-defence when a n armed attack is launched against a Member o f the United Nations.'
On the night of 12 July, the Israeli government decided unanimously to respond by military action. The Israeli Defence Forces (IDF) immediately began a military campaign8 The Lebanese government, for its part: '. .. was not aware of and does not take responsibility for, nor endorses what happened on the international b ~ r d e r ' .Hiz~ bollah Secretary-General Nasrallah revealed that Hizbollah had been planning the operation for almost five months and confirmed that the Lebanese government had not been informed of the plans.'0
5. R. Miillerson, 'Jus ad Bellum: Plus $a change (le monde) plus c'est la m&mechose (le droit)?', 7 Journal o f Conflict and Security Law (2002) p. 149. 6. The relevant element in the definition of terrorism in the Report of the High-level Panel on Threats, Challenges and Change, supra n. 3 is 'An act ... that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act', para. 164. 7. Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council Ai601937-Sl 2OO6/S 15. 8. Originally called 'due remuneration', then 'Operation Change of Direction', and since March 2007 officially called 'the Second Lebanon War'. Government Decision 1468 of 25 March 2006. 9. N. Qawas and R. El Rafei, 'Siniora's Cabinet makes clear it had nothing to do with "what happened"' The Daily Star, 13 July 2006 ?edition~id=l&categ~id=2&article_id=73930>. All internet sources were last checked on 15 May 2007. 10. 'Nasrallah: 'Only exchange will win back troops, "Whole world will not be able to retrieve 2 captured 'Israeli' soldiers except through indirect negotiations"' Daily Star (Lebanese Daily News.
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In the ensuing conflict, Hizbollah fired 3,970 rockets at Israel, expressly targeting civilian communities." Israel carried out over 8,700 flown sorties over Lebanese territory and over 2,000 coastal bombardments towards it.I2 The fighting ceased with the entry into force of a UN-brokered cease fire on 14 August 2006. By 1 October the IDF had completed its withdrawal from southern ~ e b a n o n . ' ~ According to official Lebanese sources14, 1,191 Lebanese were killed and 4,409 injured. These figures do not distinguish between civilians and Hizbollah fighters. Israel claims that over 530 Hizbollah fighters were killed.15 In addition, over 974,000 Lebanese were displaced.According to official Israeli sources, 43 Israeli civilians and 117 IDF soldiers were killed during the conflict.16 Close to 4,300 civilians were treated in hospitals for injuries. Some 300,000 civilians were displaced and more than a million were forced to live in underground shelters. 1.3
Hizbollah
Hizbollah is a Shi'ite organization that was founded during the Lebanese civil war as a merger of several groups fighting against the 1982 Israeli occupation of Lebanon. It was set up with the financial and logistic support of Iran, and to this date continues to be dependent on Syria and Iran.I7
11. 'Hezbollah chief threatens a wider war', Aljazeera 4 August 2006,
English/Archive!Archive?ArchiveID=24741>. 12. IDF spokesperson ~hthttp:!/wwwl.idf.il/DOVEWsite/mainpage.asp?sl=EN&id=7&docid= 56539.EN>. 13. Except from the village of Ghajar. The withdrawal was confirmed by UNIFIL 'The IDF withdraws from the south, except Ghajar', UNIFIL Press Release 1 October 2006
Depts!dpko/missionslunifiVprO7O.pdB. 14. Lebanese inter-ministerial High Relief Commission, . 15. ~http://www.mfa.gov.il/MFA/Temorism-+Obstacle+to+Peace!Temorism+fiom+Lebanon-+Hiz bullah!Summary%20oP/o2OIDF%20operations~2Oagainst%2OHizbullah%2Oin~2OLebanon%2Ol3Aug-2006>. In December 2006 Hizbollah official Mahmoud Komati admitted in an interview to AP to some 250 Hizbollah fighters killed ~http://news.bbc.co.uWlihilworldlmiddle~east15257128.stm~. 16. Website of the Israeli Ministry of Foreign Affairs, ~http:!lwww.mfa.gov.ilNFA/Terrorism+Ob stacle+to+Peace!Terrorism+fiom+Lebanon+Hizbullah~izbul1ah+attack+in+northern+Israel+and+Is raels+response+l2-Jul-2006.btm>. 17. J. Brandon, 'Factfile: Hezbollah', ; D. Sobelman, 'New Rules of the Game: Israel and Hizbollah after the Withdrawal from Lebanon', Jaffee Center for Strategic Studies Memorandum, No. 69 ch. 1
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After the Ta'if accord of 1989, which marked the end of the civil war in Lebanon, Hizbollah forces redeployed on the perimeter of Israel's self-declared security zone. The Lebanese government, represented in the south by only a token security presence, has since acquiesced in Hizbollah's armament efforts and its activities.I8 When Israel withdrew from Lebanon in 2000, Hizbollah positioned its fighters and weapons along the Blue Line. It pledged to continue opposing Israel as long as it occupied the Shab'a Farms area, which Lebanon has since 2000 been claiming as Lebanese territo~y.'~ It also pledged to pursue the release of Lebanese detainees and prisoners held in Israel, and the July 12 attack was directly related to this aim." Even after Security Council Resolution 1559 (2004), which called for the disbanding of militias in ~ebanon," Hizbollah continued to maintain an active presence along the Blue Line and in the south of Lebanon. Official Israeli sources list 19 incidents of Hizbollah attacks on Israel during the six years between Israel's withdrawal and the 12 July attack:' in which Israeli soldiers were killed and both soldiers and civilians abducted. The prevalent Western view is that Hizbollah is a terrorist In contrast, the majority of the Lebanese population as well as
18. D. Berkovich, 'Hizbollah's Primary Agent of Change: The Role of the Lebanese Army' 9 Strategic Assessment (November 2006) p. 28 at 30. 19. This area was under Syrian sovereignty when Israel occupied it in 1967, and accordingly Israel contends that it is not Lebanese temtory. This position is backed by the UN. Lebanon and Syria (as well as other Arab and Muslim states) contend that this area was ceded from Syria to Lebanon and accordingly is Lebanese. Interestingly, this argument only came to light shortly before Israel's withdrawal from Lebanon in 2000. See C. Mallat, 'The Hezbollah-Israel War: Narratives and "Legal Truth"' Jurist 28 July 2006 ~ h t t p : / / j u r i s t . l a w . p i t t . e d u / f o r u m y / 2 0 0 6 i t i v e s and.php>. For a historical and legal analysis of the issue see R. Erlich, 'Raising the Issue of the Sheba'a Farms in the Proposed American-French Security Council Draft Resolution for Ending the Fighting: Background Information and Significance', Intelligence and Terrorism Information Center at the Center for Special Studies 9 August 2006 < h t t p : / / w w w . t e r r o r i s m - i n f o . o r g . i l i m a l a m ~ English/engnlhtmVsheba-farms_e.htm>. 20. Hizbollah's account of the events that sparked the confrontation is as follows: 'July Wednesday 12,2006 At 9:05am: Fulfilling the promise it pledged [to return Lebanese prisoners held in Israel], the IR [Islamic Resistance] captured two "Israeli" soldiers on the occupied Palestinian borders and moved them to a safe place.' 'Chronicle of heroic confrontations between Islamic Resistance (IR) fighters & "Israeli" occupation soldiers according to IR statements' . Nassarallah emphasized the aim of the abduction in a press conference on 12 July 2006 . 21. In the resolution the Security Council: '3. Calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias; 4. Supports the extension of the control of the government of Lebanon over all Lebanese territory;' 22. 'Hizbullah attacks along Israel's northern border 2000-2006' AFP lists 21 incidents during the period until the end of October 2003, Sobelman, supra n. 17, Appendix. 23. E.g., US Foreign Terrorist Organizations 11 October 2005 , SlPV.5489 (14 July 2006) p. 10; Canada: Terrorist Organizations Listed under Regulations Establishing a List ofEntities made under subsection 83.05(1) of the Criminal Code; UK: List of Proscribed Terrorist Organizations Under the Terrorism Act 2000 (External Security Organization
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many non-Western States regard Hizbollah as a resistance movement against Israeli aggression.24 In the 1990s Hizbollah expanded its activities to the political and social arenas." It has since participated in parliament and governmen? and enjoys considerable political clout. It is a partner whose consent is required in the decision-making process on major issues in the country.27
2.
THE EVENTS OF 12 JULY AS AN ARMED ATTACK
The immediate triggers of the conflict, namely the abduction and killing of the Israeli soldiers and the firing of rockets toward civilian communities, were carried out by Hizbollah's use of force. The question is whether this force amounted to an 'armed attack' under Article 51 of the UN First, since a right of selfdefence only arises in response to a use of force that was unlawful,29the following section examines the legality of Hizbollah's action. Subsequent sections examine whether the specific use of force amounted to an armed attack. 2.1
Legality of the 12 July attack
Israel claims that Hizbollah's act on 12 July was a terrorist act. Hizbollah claims that it was resisting Israeli aggression, in defence of 'natural rights' supported by international law.30These claims represent different narratives of the immediate
only); Netherlands: 'beantwoording~toezegging~inzake~degositievanhezbollah' The Netherlands Ministry of Foreign Affairs ~http:llwww.minbuza.nllnllactueelibriev~arlement,20O3ll2ibeantwoord ing~toezeggingjnzake~deqositie~van~hezbol1ahht; Australia: List attached to the Security Legislation Amendment (Terrorism) Act 2002 (External Security Organization only); European Parliament: Resolution on the Situation in Lebanon Official Journal 320 E , 15/12/2005 pp. 0257-0259. Slovakia, SiPV.5493 (21 July 2006) p. 18 on the specific acts. E. 24. Sobelman, supra n. 17, at pp. 59-60. ~http://www.tau.ac.illjcsslmemoranda~mem069.pd~ g., Algeria: 'Unless one wants to make entire peoples disappear from the face of the Earth, legitimate resistance to occupation will not go away as long as the causes that have given rise to it are not eliminated', SiPV.5493 Resumption 1 (21 July 2006) p. 21; Cuba: 'Those allegations are merely part and parcel of an elaborate Zionist scheme to break resistance to aggression and invasion in the region', ibid., p. 3 1. 25. 'Implementation of GA Res. 60125 1 (2006) Entitled 'Human Rights Council" Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-211, UN Doc. A/ HRC/3/2 (2006) ('HRC Commission of Inquiry') para. 37. 26. In July 2006 Hizbollah held fourteen seats in the Lebanese parliament, and was represented by two ministers in the government. 27. Berkovich, supra n. 18, at p. 30. 28. The other question, whether an irregular force is capable of carrying out an armed attacked, is addressed below at section 3.1 Self-defence following an attack by an irregular force. 29. 'There can be no self-defence against self-defence', USA v. von Wizsaecker et al. (Nuremberg 1949), 14 NMT p. 3 14 at 329. 30. Nasrallah statement, supra n. 10.
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conflict and its wider political and historic dimensions. While they run parallel to each other with no meeting point,31they are not outside the scope of legal analysis. The UN Charter and customary law prohibit the unilateral use of force except in self-defence. The argument that the 12 July attack was an act of self-defence can easily be dismissed. This right is undisputedly available to states only.32The Lebanese ' did not claim that it was acting (through Hizbollah) in self-defence, rather it attempted to dissociate itself fi-om the act. It would have been hard for it to sustain such a claim given that it had not known about the attack beforehand. Needless to say, Lebanon did not inform the Security Council that it was acting in self-defence. Another potential ground for Hizbollah's use of force might be self-determination. To be sure, at no point had Hizbollah or any of its proponents referred to the Yet the repeated reference to 'resistance to aggresright to self-determinati~n.~~ sion', and the frequent invocation of this term in the context of the Israeli-Arab and Israeli-Palestinian conflict, invite an examination whether the 12 July attack qualifies as an act in pursuit of self-determination. The question whether the pursuit of self-determination can justify the use of force is beyond the scope of this article,34yet a few comments are appropriate as to its application in the present case. Hizbollah's immediate objective in abducting the soldiers was to advance the release of Lebanese detainees and prisoners in Israel. Another objective was the liberation of the Shab'a Farms Area from Israeli occupation. The right to self-determination concerns the right of a people to be free of foreign occupation, alien domination or a racist regime. It does not concern release of detainees, prisoners of war or even hostages. As a right pertaining to peoples, it is not as such applicable to any territorial dispute, including occupation. The mere presence of a population in an occupied territory does not automatically render the conflict over the territory one of self determination. Instead, the liberation of territory from occupation is governed by the traditional law on use of force and self-defence. Accordingly, pursuit of the various Hizbollah or Lebanese interests does not fall within the scope of 'self-determination'.
3 1. Mallat, supra n. 19.
32. Art. 51 UN Charter. This is the standard reading of Article 51 underlying the overwhelming bulk of current literature. Cf., Y. Dinstein, War; Aggression and Self-Dejence, 4th edn. (Cambridge, CUP 2002) pp. 181-182. 33. Although reference to self-determination is often made in the aftermath of events, sometimes in explanation of significant changes in international relations and possibly international law, e.g., recognition of Bangladesh as an independent state. J. Crawford, The Creation of States in International Law, 2nd edn. (Oxford, OUP 2006) pp. 139-142. 34. Even if a right to use force in pursuit of self-determination is applicable in the circumstances examined here, it could not justify violations of the jus in bello, such as the targeting of rockets at civilian communities. As noted in the Report of the High-level Panel on Threats, Challenges and Change, supra n. 3, there is nothing in the fact of occupation - and consequently in the delineation of possibly permissible use of force in pursuit of self-determination - that justifies the targeting and killing of civilians (para. 160).
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Another Hizbollah objective was the liberation of areas which it considers occupied by Israel other than the Shab'a Farms, namely the West Bank and Gaza A perusal of the international debate on the conflict reveals that states condemning Israel's action often conflated the situation in Lebanon with the occupation of the West Bank and Gaza Yet neither Lebanon nor Hizbollah is regarded by the International community as representing the Palestinian people.37 Even if by denying the right of the Palestinian people to self-determination Israel is violating an obligation erga ornne~,~'this does not entitle any self-appointed vigilante, in this case Hizbollah, unilaterally to take on the cause of another people through the use of force. Even assuming that denial of self-determination is analogous to an armed attack in that it may justify the use of force, there is no concept of 'collective self-determination' analogous to 'collective self-defence'. Accordingly, there appears to be little basis to the claim that Hizbollah was acting lawfully in pursuit of the right of self-determination of the Palestinians. In the international debate following the eruption of the conflict in Lebanon, two different camps could be distinguished. One camp comprised the UN Secretary~ e n e r a and l ~ ~states that considered Hizbollah's act an unlawful attack and the immediate trigger for the thereby rejecting the argument that Israel's
35. As well as Israeli territory within 1948 armistice lines, e.g., 'The Islamic Resistance pounds Acre city in occupied Palestine with a burst of missiles', 2 August 2006 Hizbollah website, . Hizbollah consistently refers to 'Israel' (in parentheses) to indicate that it does not acknowledge its right to exist as a state. 36. Letter dated 26 July 2006 from the Permanent Observer of the League of Arab states to the United Nations addressed to the President of the Security Council, UN Doc. S/2006/582; Syria: 'The real terrorism in the region is the continued occupation by Israel of Arab lands', SlPV.5493 Resumption 1 (21 July 2006) p. 15; Egypt: 'The current source of threat and tension is not only the continuous military operations by Israeli forces in Palestine and Lebanon ... The core issue is . .. the continued occupation by Israel of Arab lands in Palestine, Lebanon and Syria since 1967 ... That is the issue that the Security Council has completely failed to address', ibid., p. 23; Arab League: 'occupation is the root cause of all the violence and tension in the region', ibid., p. 27; Morocco: 'Needless to remind the Council that this aggression adds up to another aggression against the Palestinian people', ibid., p. 29; Iran: 'Those allegations are merely part and parcel of an elaborate Zionist scheme to break resistance to aggression and invasion in the region and to deflect attention from the root cause of all tensions in the Middle East, that is, the continued occupation of Palestinian, Lebanese and Syrian territories and its fallout', ibid., p. 32; Committee on the Exercise of the Inalienable Rights of the Palestinian People: 'The Committee continues to consider that the occupation by Israel of Palestinian territory remains the root cause of the conflict', ibid., p. 42. This conflation is partly explained by the fact that the debate was held under the title 'Situation in the Middle East'. States supporting Israel also addressed the situation in Lebanon and in the West Bank and Gaza jointly, but with respect to jus in bello. 37. Hizbollah does not claim to be a Palestinian organization, but emphasizes its Lebanese character. J. van Kemp, 'The organization Bush condemns as so-called 'terrorists' - Who is Hizbullah? The party that welcomes outside aid but is no one's puppet!', Hizbollah's website, . 38. Legal Consequences of the Construction o f a Wall in the Occupied Palestinian Territoly, General List No. 131, Judgement of 9 July 2004 ('Wall Advisory Opinion'), paras. 88, 155-158. 39. SlPV.5492 (20 July 2006) p. 3. 40. The UN Secretary-General: 'Hizbollah's provocative attack on 12 July was the trigger for this crisis' SlPV.5492 (20 July 2006) p. 3; A G-8 statement on 16 June noted: 'In Lebanon, Hizbollah, in
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overall policy is immediately at issue or relevant. Some of them further indicated that the attack was inimical to the Lebanese and regional interests, implicitly rejecting any justification for the attack on a basis such as self-determination. For example, the UK argued:41 'It is important to remember that this crisis was precipitated b y Hizbollah. Its militants
crossed into Israel and killed eight Israeli soldiers and kidnapped two more. This is a calculated attempt by Hizbollah to fiuther destabilize the region, without the slightest regard for the potential impact o f its actions on the people o f Lebanon, the Lebanese govemment and the wider region;'
The other camp comprised many Arab and Muslim states that condemned Israel as the aggressor, usually with reference to its occupation of Lebanon (the Shab'a Farms area), of the Palestinian territories, or of both, as the immediate source of the conflict.42Some hailed Hizbollah's actions as resistance to occupation.43However, perhaps the most striking about the Arab response was its absence. Many governments remained silent for days. Some, such as Egypt, Jordan and Saudi Arabia, expressly criticized Hizbollah in an Arab League's emergency summit.44
violation of the Blue Line, attacked Israel .. . undermining the democratically elected govemment of Prime Minister Fuad Siniora ...', ~http:l/www.mfa.gov.illMFNMFAArchive/2000~2009/2006/state ment+by+Group+of+Eight+Leaders+G-8+Summit+2006+16-Jul-2006.htm>; Pem: 'This escalation of violence and its extension to Lebanon was provoked by an attack by Hizbollah, an act of aggression unacceptable to any state and which prompted a military reaction by Israel in Lebanon', SPV.5493 Resumption 1 (21 July 2006) p. 3; Argentina: 'we reiterate once again that the primary responsibility falls on Harnas and Hizbollah due to their provocative and irresponsible actions in recent months', ibid., p. 9; France: 'In Lebanon, Hizbollah bears responsibility for the unleashing of hostilities, and we condemn in the strongest terms the continued firing of rockets on Israeli cities that blindly kill and wound civilians', ibid., p. 11; Australia: 'We need to bear in mind responsibility for the current crisis. It began with the attacks on Israel by Hamas and Hizbollah, including the capture of Israeli soldiers and the launching of rockets and mortar bombs into Israel', ibid., p. 27. US: 'Today Hizballah terrorists operating from Lebanon kidnapped two Israeli soldiers and launched rocket attacks against civilian targets in Israel. The United States condemns in the strongest terms this unprovoked act of terrorism', White House statement on Condemnation of Hizballah Kidnapping of Two Israeli Soldiers, 12 July 2006
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While this criticism was not framed in legal terms, it casts doubt on whether Hizbollah's acts can be justified on grounds of self-determination. Security Council Resolution 1701(2006)points to Hizbollah's attack as the trigger for the conflict.45The Commission of Inquiry appointed by the Council of Human ~ i g h t s ; despite ~ not being mandated to address jus ad bellum matters, also referred to 'Hezbollah's illegal action under international law of 12 July 2006' as the trigger for the ~onflict.~' To summarize, although there is no clear consensus on the matter, it is difficult to provide a legal basis for Hizbollah's use of force under international law. 2.2
Gravity of the 12 July 2006 attack
In the Case Concerning the Military and Paramilita y Activities in and Against Nicaragua (Nicaragua v. United States of America) (hereinafter Nicaragua) the International Court of Justice interpreted Article 5 1 as setting a threshold of gravity for the qualification of an act as an 'armed attack'.48 This contr~versial~~ requirement was reiterated in the Case Concerning Oil Platforms (Islamic Republic of . ~the ~ Case ConIran v. United States of America) (hereinafter Oil ~ l a t f o r m s )In cerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (hereinafter Congo v. uganda)jl Judges ICooijmans5' and sirnmaj3 both opined that the test of gravity of the attack is the same whether the perpetrator is the armed forces of a state or an irregular force. In Nicaragua the ICJ distinguished between 'the most grave forms of the use of force' that constitute armed attacks and other less grave forms.54No concrete test was provided for 'grave forms'. At the same time, the Court distinguished an armed attack from 'a mere frontier incident'.55 It has been argued that the 12 July
Iran. E. Landau, 'Reactions in the Arab World: Bluning the Traditional Lines', 9 Strategic Assessment (August 2006) pp. 17-19. 45. SC Res. 1701(2006) prearnbular para. 2. The Resolution nonetheless requests the UN Secretary-General to develop proposals to deal with the Shab'a Farms area (operative para. 10). This can be read as a political victory to Hizbollah, even if not a legal recognition of its claim. 46. The Commission of Inquiry can hardly be accused of a pro-Israeli bias, e.g., H. Upton, 'The Human Rights Council: First Impressions and Future Challenges', 7 HRLR (2007) p. 29, at 39; UN Watch, 'Reform or Regression? An Assessment of the New UN Human Rights Council', 6 September 2006, ~http:l/www.unwatch.org/atf/cfl%7B6DEB65DA-BE5B-4CAE-8056-8BF0BEDF4D17%7D/ Reform%20or%20Regression%206%20~. 47. HRC Commission of Inquiry, supra n. 25, para. 61. 48. ICJRep. (1986) 14, para. 191. 49. E.g., R. Higgins, Problems and Process (Oxford, OUP 1994) p. 251; Miillerson, supra n. 5, at pp. 180-18 1; Nicaragua, supra n. 48. Dissenting Opinion of Judge Schwebel 349. 50. Judgement of 6 November 2003 General List No. 90, para. 5 1. 5 1. General List No. 116, Judgement of 19 December 2005. 52. Congo v. Uganda, supra n. 5 1, Separate Opinion of Judge Kooijmans, para. 3 1. 53. Congo v. Uganda, supra n. 51, Separate Opinion of Judge Simma, para. 13. 54. Nicaragua, supra n. 48, para. 191. 55. Ibid., para. 195.
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37 1
incident was just such an in~ident.'~ However, this seems a hasty dismissal of the incident." First, the ambush took place 200 meters within Israeli territory and not on or across the 'frontier'. Also, it is submitted that to take the Nicaragua distinction literally would be e r r o n e ~ u sThe . ~ ~ severity of the attack is also significant, as the words 'a mere' indicate. The Court may have referred to spontaneous incidents of little significance, which would not have attracted any attention were it not for their taking place across an international border and nominally engaging the law on the use of force. In contrast, ~ r e m e d i t a t e dkilling ~ ~ and abducting of soldiers can be considered a serious frontier incident. Another matter is that at the same time that the abduction took place, rockets were fired at civilians within Israel. This was probably not what the Court had in mind when it referred to 'a mere frontier incident'. Still, the question remains whether the Hezbollah attack could also be qualified as sufficiently grave. Dinstein argues that an armed attack presupposes 'a use of force producing (or liable to produce) serious consequences, epitomized by territorial intrusions, human casualties or considerable destruction of property'.60 Hizbollah's actions on 12 July clearly fall within this definition. Nonetheless, in Oil Platforms the Court relied on a much narrower definition. It ruled that a missile attack causing damage to a ship and injury to six crew members and the mining of a single ship when loss of life has occurred, do not, even cumulatively, qualify as ~ ' reaching this conclusion the Court attached significance to an armed a t t a ~ k . In the absence of a specific intention to target the two ships.62Even under this exacting test, the 12 July events can qualify as an armed attack. There is no doubt as to the intentional targeting of both the patrol and the civilian communities, and if the loss of life is a benchmark,63 then surely the 12 July events qualify as an armed attack.
56. M.E. O'Connell, 'Proportionality and the Use of Force in the Middle East Conflict', Jurist 18 July 2006 ~http:/ljurist.law.pitt.edu~forumy/2O06/07/proportiona1ity-and-use-of-force-innphp~; A. d'Amato, 'Qana, War Crimes, and the Pending UN Resolution on Lebanon', Jurist 31 July 2006 ~http://jurist.law.pitt.edu/forumy/2006/07/qana-war-crimes-and-pending-un.php. 57. M. Kelly, 'Israel v. Hezbollah: Article 51, Self-Defense and Pre-emptive Strikes', Jurist 29 July I -self.php>. 2006
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2.3
Separate cross border incursions by irregular forces as a continuous armed attack
An alternative argument is that even if the 12 July attack was not sufficiently grave as to constitute an armed attack by itself, it was one in a series of Hizbollah offensives, which together amount to an armed attack. This argument relies on the 'accumulation of events' doctrine. According to this doctrine, even if each incident is only a 'needle prick' which does not qualify as an armed attack, the totality of incidents may constitute a systematic campaign that does rise to the level of armed attack.64This approach broadens the scope of the right as it permits a reaction in self-defence even once the initial attack is terminated, provided that the circumstances reveal a threat of similar actions from the same source.65This approach is similar to a claim of anticipatory self-defence, but is not identical. It is based on the fact that an armed attack had already began to take place, and that the specific incident forms a continuum with impending ones. Israel has in the past relied on the accumulation of events doctrine.66In line with this, it regarded the 12 July attack not as an isolated event but as one incident within an ongoing paramilitary campaign by ~izbollah.~' This wide interpretation of self-defence has been debated in the Security Council and elsewhere since the 1 9 5 0 s . ~Israel ~ may be regarded as its strongest advocate,69but it has not been alone. Similar claims were made by the US and othem70 In 1980 ILC Rapporteur Ago implicitly accepted the validity of the doctrine when he n ~ t e d : ~ ' 'If, for example, a state suffers a series o f successive and different acts o f armed attack from another state, the requirement of proportionality will certainly not mean that the victim state is not free to undertake a single armed action o n a much larger scale in order to put a n end to this escalating succession o f attacks.'
64. M.N. Feder, 'Reading the U.N. Charter Connotatively: Toward A New Definition of Armed Attack', NY Univ JIL & Pol. (1986-1987) p. 395 at 416; Dissenting Opinion of Judge Schwebel in Nicaragua, supra n. 48. 65. Ochoa-Ruiz, supra n. 62, at p. 515. 66. Feder, supra n. 64, pp. 415-418; D. Bowett 'Reprisals Involving Recourse to Armed Force', 66 AJIL (1972) p. 1, at 6. 67. Address to the Knesset by Prime Minister Ehud Olmert, 17 July 2006, . 68. Bowett, supra n. 66, and Feder, supra n. 64. 69. The similarity between the circumstances of the July 2006 Conflict and the Israeli invasions of Lebanon in 1978, 1981 and 1982 is striking. On the latter see B.A. Feinstein, 'The Legality of the Use of Armed Force by Israel in Lebanon - June 1982', 20 Israel LR (1985) p. 263; W.V. O'Brien, 'Reprisals, Detterance and Self-Defense in Counterterror Operations', 30 firginia JIL (1989-1990) p. 421. 70. C. Gray, International Law and the Use of Force (Oxford, OUP 2000) at pp. 107-108 and sources cited there. 7 1. ILC Yearbook (1980) Vol. 11 (Part One), UN Doc. AlCN.4ISER.AlI 980lAdd. l (Part I), p. 69, para. 121. The matter is further addressed below in section 4.3 Proportionality.
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Yet when argued in the Security Council, the accumulation of events doctrine was not endorsed.72Instead, acts of purported self-defence were condemned as reprisals and unlawful preemptive action.73Gray argues that this was not because of doctrinal differences as to the scope of 'armed attack', but because the interest that Israel was claiming to defend was unlawful, namely illegal occupation or denial of the right of a people to exercise self-determinati~n.'~ow ever, the refusal to
accept the doctrine predates the Israeli occupation of territories in 1967, and was not limited to Israeli ~lairns.'~ Some consider that Security Council Resolutions 1368(2001) and 1373(2001) mark a turning point in the Council's approach towards repeated but separate attacks.76The Resolutions affirm the right to self-defence following a single incident on the basis that it ('like any act of international terrorism') constituted a threat to international peace and security, which states were empowered to combat by all means.77This has been interpreted as acceptance of the wider interpretation of the right to self-defence. According to this view, the Security Council regarded unilateral action as neither reprisal nor anticipatory or preemptive action, but as self-dcfence against a continuous attack that had begun to take place, and included the threat of future attacks." In Nicaragua the ICJ appeared not unwilling to accept the doctrine as a matter of law, but found it inapplicable in the circumstance^.^^ In contrast, in Oil Platforms, where the US relied on it, the Court examined the US claims to self-defence only with regard to the incidents that have taken place, and disregarded the potential implications of the more general threat argued by the US. Some consider this an implicit rejection of the accumulation of events d~ctrine.~' However, the very
72. Feder, supra n. 64, at p. 416, B. Levenfeld, 'Israel's Counter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal Under Modem International Law', 21 Columbia JTL (1982) pp. 1, at 19. 73. For a detailed description see O'Brien, supra n. 69, at pp. 445 onwards. 74. Gray, supra n. 70. at pp. 101-102; see also Bowett, supra n. 66, at pp. 18-19. Gray distinguishes military action in response to cross-border incursions by irregular forces onto the temtory of the victim state from military action following attacks on nationals abroad. Claims of self-defence with regard to the latter, she claims, were rejected as unlawful reprisals, while in the former case, theoretically the 'accumulation of events' doctrine might be applicable, had it not been for the specific circumstances in which it was raised. This distinction is questionable. Whether an attack on nationals is on the temtory of their national state ('cross-border incursion') or abroad ('terrorism') is often a matter of convenience. The means (attack of civilians) and purpose (political aims, exercise of selfdetermination or other) are the same. The irregular forces certainly do not regard the two types of action as qualitatively distinct. Accordingly, cross-border incursion on to a state's temtory and attacks on its nationals abroad form elements in a single sequence of events, and the doctrine should not be adopted with regard to the one but not the other. 75. Bowett, supra n. 66, at p. 8. 76. M.N. Shaw, International Law, 5th edn. (Cambridge, CUP 2003) p. 1028. 77. Res. 1368(2001) preambular paras. 1, 2 and operative paras. 1, 5; res. 1373(2001) preambular para. 3 and operative para. 8. 78. See also R. Wedgwood, 'Responding to Terrorism: The Strikes against Bin Laden', 24 YJZL (1999) p. 559 at 565; Miillerson, supra n. 5, at p. 180. 79. Nicaragua, supra n. 48, para. 23 1, Oil Platforms, supra n. 5 1, paras. 62-64. Gray, supra n. 74, atp. 108. 80. Ochoa Ruiz. supra n. 62, at p. 5 17.
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fact that the Court examined whether each incident amounted to an armed attack is an implicit acceptance that self-defence is not limited to halting an ongoing offensive but may under certain circumstances follow an incident that has already ended not through the volition of the victim state." The Court's position on the doctrine as a matter of principle thus remains unclear. The international support of Israel's 2006 claim to a right of self-defence was in stark contrast to previous reaction^.'^ It is unlikely that the severity of the specific attack was a decisive factor, in view of the fact that more severe attacks (in terms of casualties, particularly civilian ones) had in the past not been accepted as grounds for self-defence in the eyes of the Security Council. Rather, it seems that at the heart of the matter was a new appreciation of the threat that Israel faces. Canada expressly commented that it was clear that Hizbollah's intention was to continue its attacks on The change in attitude can also be explained under Gray's argument that the accumulation of events doctrine was rejected because of the illegality of Israel's territorial claim (notwithstanding the inconsistency of her argument with pre-1967 rejection of the doctrine); the positive reception by the Security Council of the doctrine that repeated incidents form a continuous attack was possible because member states no longer considered Israel to be in violation of international law with regard to Lebanon. In any event, whether the doctrine has only recently been adopted or has only now become applicable on the facts, it appears to have been at least tentatively accepted.
3.
RESPONSIBILITY FOR THE ATTACK UNDER INTERNATIONAL LAW
The previous discussion focuses on whether the events of 12 July could by themselves constitute an armed attack. The following is an analysis of responsibility for the attack. Two issues will be addressed. The first is whether an act by an irregular force, namely Hizbollah, can trigger the right of self-defence. The second question is whether Lebanon can be held internationally responsible for the attack.84
8 1. Oil Plaforms, in contrast to other situations where the matter was discussed, was not concerned with acts characterized as terrorist activity. 82. For detailed review of debates in the Security Council see O'Brien, supra n. 69. 83. 'It is now clear that Hizbollah's objectives went far beyond the abduction of Israeli soldiers. It is also obvious that the abduction was only the prelude to major offensive intended to inflict as much pain and suffering as possible, which is evident in Hizbollah's indiscriminate launching of hundreds of rockets into urban areas deep in Israel with devastating consequences, including the deaths of innocents. It was also intended to sabotage the internal Lebanese democratic political dialogue, whose objectives include fulfilling Res. 1559 (2004). And finally, it was intended to serve the interests of Hizbollah's backers in Damascus and Tehran' SlPV.5493 Resumption 1 (21 July 2006) p. 39. 84. Another question, beyond the scope of this article, is whether responsibility can be attached to Iran or Syria.
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375
Self-defence following an attack by an irregular force
Since the perpetrator of the attack on 12 July was Hizbollah, the question that must be addressed is whether an attack by an irregular force that does not belong to a state can qualify as an armed attack for the purpose of Article 5 1 of the UN Charter. For more than fifty years the generally accepted interpretation of Article 51 of the LJN Charter has been that a right to self-defence arises in response to an armed attack only by a state,85although by no means was this the only interpretati~n.~~ The traditional interpretation argues, inter alia, that the international personality of an irregular force that is a non-government actor does not extend so far as the capacity to launch an attack within the meaning of the UN Charter. Hence, the acts of an irregular force are neither lawful nor unlawful in terms of the use of force under international law." The aftermath of the terrorist attacks on 11 September 2001 ('9111') is regarded as a turning point in this respect, although opinions differ on the correct interpretation of practice. Security Council Resolutions 1368 (2001) and 1373 (2001) affirmed the right of self-defence, without designating a state responsible for the attacks. Some regard them as the vindication of the right to self-defence against an irregular force, at least when the latter carries out a large scale attack.88Others, however, emphasize the linkage between A1 Qaeda and Afghanistan in justification for the military response.89 The ICJ appears to uphold the traditional approach. In the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian ~erritory~' (hereinafter Wall Advisory Opinion) the Court stated that 'Article 5 1 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one state against another state. However, Israel does not
85. Separate Opinion of Judge Kooijmans, Wall Advisory Opinion, supra n. 38, para. 35. 86. E.g., Wedgwood, supra n. 78, at p. 564; Dinstein, supra n. 58, at p. 204 87. A. McDonald, 'Terrorism, Counter-terrorism and the Jus in Bello', in 'Terrorism and Intemational Law: Challenges and Responses', Contributions presented at the Meeting of independent experts on Terrorism and International Law: Challenges and Responses. Complementary Nature of Human Rights Law, International Humanitarian Law and Refugee Law, organized by the International Institute of Humanitarian Law, San Remo, 30 May-1 June 2002 and the Seminar on International Humanitarian Law and Terrorism, organized by the International Institute of Humanitarian Law in cooperation with the George C. Marshall Center San Remo, 24-26 September 2002, p. 60 ('San Remo') at p. 60. 88. Preambles to SC Res. 1368 (2001) and 1373 (2001); Separate Opinion of Judge Simma in Congo v. Uganda, supra n. 51, para. 11; Reisman (2006) 537; Murphy (2005) 63; R. Wedgwood, 'The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense', 99 AJIL (2005) p. 52, at 58; Miillerson, supra n. 5, at pp. 177-178; T.M. Franck 'Terrorism and the Right of Self-Defense', 95 AJIL (2001) pp. 839, at 840; Dinstein, supra n. 58, at p. 206. 89. M. Byers, 'Terrorism, the Use of Force and International Law after 1I September', 51 ICLQ (2002) pp. 401,406-407; E.P.J. Myjer and N.D. White, 'The Twin Towers Attack: An Unlimited Right to Self-Defence?', 7 JCSL (2002) p. 1 , at 7; M.E. O'Connell, 'Enhancing the Status of Non-State Actors Through a Global War on Terror?', 43 Columbia JTL (2004-2005) p. 435. 90. Wall Advisory Opinion, supra n. 38, para. 136.
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claim that the attacks against it are imputable to a foreign government'. It concluded that 'Article 51 of the Charter has no relevance in this case'. However, the Court also based its conclusion on the fact that 'Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, the territ~ry'.~' The Court distinguished this situation from that contemplated by Resolutions 1368 (2001) and 1373 (2001). The weight which the Court attached to the fact that the attacks emanated from territory under control of the victim state indicates that it did not close the door on the possibility of self-defence in response to an attack by an irregular force, at least when it emanates from territory outside the control of the victim state. Moreover, by distinguishing the case from the 2001 Security Council Resolutions, the Court appears to affirm the interpretation of those resolutions as acknowledging the right of self-defence against a non-state actor. Indeed, Judges Buergenthal, Higgins and Kooijmans all criticized the majority opinion for construing the right of self-defence too narrowly. They considered that it could encompass action in response to an armed attack by an irregular force.92 In Congo v. Uganda the Court noted that it had found no need to respond to the contentions of the parties as to whether, and under what conditions, contemporary international law provides for a right of self-defence against large-scale attacks by an irregular force.93In this it conceded that the matter was still open. This only reinforces the need for caution in any categorical conclusions from the Wall Advisory Opinion. Judge Kooijmans reiterated his position that a large-scale attack by irregular force can qualify as 'armed attack' for the purposes of Article 5 1 .94 Judge Simma shared this view.95 Security Council Resolution 1701 (2006) does not take an express position with regard to the lawfulness of Israel's actions, yet it treats Israel's use of force differ~ for 'the immediate cessation by Hizbollah of all ently from ~ i z b o l l a h ' s .It~calls
91. Ibid., para. 139. 92. Ibid., Declaration of Judge Buergenthal, para. 61, separate opinions of Judges Higgins, para. 33, and Kooijmans, para. 35; S.D. Murphy, 'Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?', 99 AJIL (2005) pp. 66-67. 93. Congo v. Uganda, supra n. 51, para. 147. The court found no need to do so because it had found 'that the legal and factual circumstances for the exercise of a right of self-defense by Uganda against the DRC were not present'. Yet other than the absence of notification to the SC as required by Article 51, the only circumstances found not present were precisely the inability to attribute the actions of the irregular force to the DRC (or to Sudan). The Court therefore implicitly gives a response, whereby attacks by irregular forces do not give rise to a right of self-defence. Judge Kooijmans in a separate opinion suggested that the 'circumstances' are the possible existence of a minimum threshold for state support for terrorists that qualifies as an armed attack. He too finds that the Court implicitly rejects the possibility of self-defence in response to action by an irregular force, paras. 20-25. There is no doubt that the Court has conflated the question of the extent of involvement of a host state with that of whether self-defence is contingent upon an armed attack by a state. 94. Congo v. Uganda,supra n. 51, Separate Opinion of Judge Kooijmans, paras. 26-31 95. Ibid., Separate Opinion of Judge Simma, paras. 8-15. 96. SC Res. 1701 (2006) operative para. 1.
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attacks and the immediate cessation by Israel of all offensive military operations'. The differential use of 'all attacks' and 'offensive military operations' suggests that at least some of Israel's acts were perceived as lawful by the Council. This necessarily implies that the right of self-defence does include action against an irregular force. If an act by an irregular force is not an 'armed attack' for the purposes of Article
5 1, it does not trigger the right to self-defence. It is nothing more than a criminal act against which the victim state may carry out law enforcement meas~res.~' The question is then how the victim government can enforce the law if the irregular force is operating from outside its territory. In the cases of both the Israeli action in the West Bank and the US action against A1 Qaeda, law enforcement measures were technically possible. Israeli forces in the West Bank are entitled to carry out law enforcement measures under the law of occupation. The US could take law enforcement measures against A1 Qaeda on Afghani soil because it considered itself entitled to send its forces to act there in self-defense against Afghanistan. By analogy, for Israel to be able to carry out law enforcement measures against Hizbollah, it needs to establish a right of self-defence against ~ebanon?' otherwise it had no jurisdiction to act in the latter's Regardless of the approach adopted vis-a-vis the capacity of non-state actors to commit an 'armed attack' within the meaning of Article 5 1, however, the responsibility of the state from which the attack emanated (the 'host' state) must be examined.
3.2
Attribution of responsibility for the attack to Lebanon
Lebanon's role with regard to the attack on Israel is important in two respects. First, if an act of an irregular force does not constitute an armed attack, Israel's right to self-defence depends on the existence of Lebanese responsibility for the attack."' Second, even if Israel has a right of self-defence directly against Hizbollah, the question remains whether Lebanon's responsibility as a host government justifies action on its territory. In its letter to the Security ~ o u n c i l ' Israel ~ ' attributed responsibility to Lebanon: 'Responsibility for this belligerent act of war lies with the government of Lebanon, from whose territory these acts have been launched into Israel... The ineptitude and inaction
97. McDonald (2002), supra n. 87, at p. 60. 98. Infra section 3.2 Attribution of responsibility for the attack to Lebanon. 99. It could ask Lebanon to cooperate through criminal law-enforcement measures. The inadequacy of such measures to counter Hizbollah needs little elaboration. 100. Another alternative is that Iran or Syria might be responsible for Hizbollah's acts. Even if such responsibility is established, the question remains whether Israel may act on Lebanese territory in defence against an Iranian or Syrian attack. The analysis of this issue might resemble the analysis whether Israel may act on Lebanese territory in defence of an attack for which Hizbollah but not Lebanon is responsible, a matter considered infra at 4.1 Acting in self-defence against a non-assisting host state. 101. Supra n. 7.
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of the govemment of Lebanon has led to a situation in which it has not exercised jurisdiction over its own territory for many years.. .Today's act is a clear declaration of war ...
Israeli Prime Minister Olmert dec~ared:'~' 'This morning's events were not a terrorist attack, but the action of a sovereign state that attacked Israel for no reason and without provocation. The Lebanese government, of which Hizbullah is a member, is trying to undermine regional stability. Lebanon is responsible and Lebanon will bear the consequences of its actions.'
On the same day Minister of Foreign Affairs Livni said: Io3 'Hizbullah is a terrorist organization which is part of the Lebanese govemment. The international community, including the Security Council, has demanded, repeatedly, time and again, that the government of Lebanon dismantle Hizbullah. Lebanon has failed to act and today's aggression is the result. Israel views the government of Lebanon as responsible for today's unprovoked aggression.'
These statements present two different legal propositions. One, that Lebanon is responsible for the attack because Hizbollah takes part in its government; the other, that Lebanon is responsible for the attack because it had not prevented Hizbollah's action. Soon afterwards, the Israeli government decided to regard itself in conflict with Hizbollah alone and not with ~ e b a n 0 n . l 'By ~ 16 July, Prime Minister Olmert was referring to the attack in terms of terrorism and to Lebanon as a pawn in the hands of foreign states. He emphasized that Israel was not fighting Lebanon but only the terrorist element therein.lo5Nonetheless, the next day he stated:Io6 'Even if last Wednesday's criminal attack against an IDF patrol was carried out without the consent of the Lebanese government and without the assistance of its military, this does not absolve it of full responsibility for the attack which emanated from its sovereign territory. '
102. Press Conference with Prime Minister Olmert, . 103. Statement by FM Livni on Hizbullah attack from Lebanon 12 July 2006
gov.i1/MFA/About+the+MinistryiMFA+Spokesmad2006/statement+by+FM+Livni+on+Hizbullah +attack+from+Lebanon+12-Jul-2006.htm>. 104. Chief Military Advocate Avichai Mandelblit, International Law Forum, Jerusalem 3 January 2007 (notes on file with the author). It has been hinted informally that this was in response to pressure from the US, and not because of any change in Israel's legal position. 105. Cabinet Communique, 16 July 2006, ~http:/lwww.mfa.gov.il/MFA/govemment/Communi ques/2006lCabinet+Communique+16-Jul-2006.htrnz. 106. Supra n. 67.
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These statements ostensibly relieve Lebanon from direct responsibility for the armed attack. Nonetheless, the Prime Minister maintained that Lebanon is fully responsible for the attacks because it allowed them to take place from its territory. A state is internationally responsible for a wrongful act if the act was carried out by its organs or if the act can be attributed to it by virtue of the link between the perpetrators and the government.'07 The following is an analysis whether Lebanon can be held responsible fo the armed attack, as Israel claimed at least at the outset.
3.2.1
Lebanon k responsibility for the attack on the ground of Hizbollah S exercise of governmental authority
Hizbollah does not have the formal status of an organ under Lebanese law.lo8 Nonetheless, it has been claimed that it is a de facto organ of Lebanon because of its participation in the Lebanese government and ~ar1iament.l'~ In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereinafter Bosnia v. Serbia) the ICJ said that an entity may be regarded as a de facto organ of a state if it is completely dependent on it."' Under this test, Hizbollah is clearly not a de facto organ of Lebanon. An argument was also put forward that Hizbollah is a de facto organ of Lebanon because under the Lebanese state's own constitutional framework it is carrying out national defence tasks. This was argued by Hizbollah members detained in Israel, in an attempt to establish their status as prisoners of war under Article 4A(1) of the third Geneva Convention. The Israeli District Courted rejected the argument. Its decision was upheld by the Supreme Court sitting as a Court of Appeals.'"
107. International Law Commission Draft Articles on state Responsibility for Internationally Wrongful Acts Report of the International Law Commission on the work of its Fifty-third session (2001) UN Doc. A156110 ('ILC Draft Articles') Draft Articles 4-1 1. 108. Cf., ILC Draft Art. 4(2). 109. R. Sabel, 'Hezbollah, Israel, Lebanon and the Law of Armed Conflict', Jurist 25 July 2006.
~http://jurist.law.pitt.edu/forumy12006107ihezbo11ah-i~rae1-1ebanon-and-1a~-of.php~. 110. General List. No. 9 1, Judgement of 26 February 2007 para. 397. 111. The District Court noted stated that Hizbollah was at best a militia under Art. 4A(2) of the Third Geneva Convention. State of Israel v. Hussein ben Ali Sleiman and Two Other.7, Criminal Requests (Nazareth) 2743106, Decision of 19 October 2006, upheld in Mhamad Abdulhamud Srur and Two Others v. State oflsrael Various Criminal Requests 8780106, 8984106, Supreme Court sitting as a High Court of Appeals, Decision of 20 November 2006. The Commission of Inquiry appointed by the Human Rights Council also referred to Hizbollah's participation in government and Parliament, and to the status of its military wing as 'an armed group, a militia, whose conduct and operations enter into the field of application of article 4, paragraph 2(b), of the Third Geneva Convention of 12 August 1949' (paras. 56-57, [sic.]).This was in the context of determining whether the conflict was international or not. In Bosnia v. Serbia the ICJ emphasized that the standard of link between an irregular force and a State required for establishing the character of a conflict is different than that required for establishing international responsibility, supra n. 110, paras. 403-405. The same distinction would apply between the standard for POW status and the status fbr international responsibility.
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Another possibility that must be explored is that Hizbollah's acts are attributable to Lebanon on the ground that Hizbollah exercises governmental authority, namely national defence.]l2This matter highlights the uniqueness of the situation in Lebanon, where a self-appointed militia carries out governmental tasks. On the one hand the Lebanese government has effectively, but not formally by law113outsourced national defence to a paramilitary group. Whether it did so enthusiastically out of free choice or reluctantly out of political weakness is immaterial once it has endorsed the situation, as it has done numerous times,'14 including with regard to Given the extent of the Lebanese government's acquiescence the 2006 ~onflict."~ or even endorsement of Hizbollah's presence in southern Lebanon, it is difficult to characterize Hizbollah as acting 'in the absence or default' of official authorities, as required under Article 9 of the ILC's Articles on State Responsibility. On the other hand, the government also did not actively delegate its authority to Hizbollah. Moreover, account has to be taken of the fact that the 12 July attack was in excess of whatever tacit permission Hizbollah has received from the government.'16 This illustrates the need to interpret the various categories of attribution with elasticity if one were to seek to apply them to the present case. 3.2.2
Lebanon 8 responsibility for the attack on the ground that it has endorsed it
The Lebanese government's immediate and express denial of responsibility and disavowal of Hizbollah's acts appears to preclude any attribution of responsibility to Lebanon on the grounds of endorsement.'I7 Yet other statements, while not endorsing the 12 July attack, clearly endorsed Hizbollah's presence and activities in general. President Lahoud in a statement at the 61st Session of the UN General
112. ILC Draft Article 9. Another question is whether the exercise of governmental functions by Hizbollah is generally called for, as required by Draft Article 9. This is the crux of the matter, of course. The Lebanese position, advocated more enthusiastically by Hizbollah than by the government but nonetheless agreed by the two, is that defence of the border with Israel is vital against Israel's aggression. Israel refutes this and regards Hizbollah (and its precursors in the 1970s) as the source of conflict in the area. 113. Cf., ILC Draft Art. 5. 114. E.g., the ministerial statement issued following the 2005 elections by the newly-elected government endorsed Hizbollah's right to possess military weapons to cany out a national resistance against the perceived Israeli occupation of Lebanese territory HRC Commission of Inquiry, supra n. 25, para. 57. 115. Prime Minister Siniora on 15 July 2006 commended the Lebanese people as it 'embraced its national resistance.. .' Speech of Prime Minister Siniora to the Lebanese People on 15 July 2006, available on the website of the Lebanese UN Mission, ~ h t t p : i / u n . c t i . d e p a u l . e d u / p u b l i c / L e b ~ n g lish/> ('Siniora Speech'). 116. The provision that excess of authority or contravention of instructions do not relieve a state of international responsibility applies to organs and persons empowered to exercise elements of governmental authority, ILC Draft Article 7. It does not cover persons acting in the absence or default of government. 117. Cf., ILC Draft Art. 11.
Israel, Hizbollah, and the second Lebanon War
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Assembly hailed the Lebanese people as it 'embraced its national resistance, whose men faced occupation forces with epic valor, preventing their advance ..."I8. He called upon the General Assembly to differentiate 'between him who defends his country against Israeli aggression and occupation and strives to liberate his countrymen from decades of unlawful imprisonment and those elements who perpetrate acts of wanton slaughter against their countrymen and others equally.' This can be read as a direct endorsement of the 12 July attack. President Lahoud also saluted 'the fallen soldiers of peace who will hence share their obituary with that of our brave army soldiers and of our valiant resistance fighters'.ll9 These statements, if not an endorsement of the initial 12 July attack, endorse both Hizbollah's objectives and its response to Israel's military campaign. It is a strained argument that Lebanon can on the one hand acquiesce in the general presence and activity on its territory of an irregular force, and at the same time avoid responsibility for acts carried out by that force. Once again, the circumstances do not fall neatly into existing categories of attribution. 3.2.3
Lebanon k responsibility for the attack on ground that it had not prevented it
A state may be held responsible for the acts of an irregular force (that is not its organ) if its links with it are sufficiently close. Israel has long argued (with a few other states) that by harbouring terrorists, the host state becomes complicit in the armed attack that they carry out.120This proposition is based on the obligation of every state to take all reasonable measures to prevent irregular forces from acting from its territory, embodied in the 1970 Declaration on Principles of Customary International Law concerning Friendly Relations and Cooperation among govemments, which provides: 1 2 ' 'Every state has the duty to refrain from . . . or acquiescing in organized activities with its territory directed towards the commission of [terrorist acts in another state], when the acts referred to in the present paragraph involve a threat or use of force.' Specifically with regard to the 2006 conflict, Israel invokes the non-compliance of Lebanon with Resolution l559(2OO4), which calls for the deployment of Lebanese Armed Forces to all parts of the country, in particular the South, and the disarming
1 18. 119. 120. 121.
AI61IPV. 14 (2 1 September 2006) p. 8. Ibid., p. 9. Feinstein, supra n. 69; O'Brien, supra n. 69, at pp. 433-435; Levenfeld, supra n.72, at pp. 3-5. GA Res. 2625 (XXV) Principle 1 para. 9.
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of militias,I2' as a breach of the obligation of due diligence; a breach which enabled Hizbollah to carry out its attack.Iz3 The difficulty with this argument is that it conflates responsibility for non-prevention with responsibility for the act itself. There is no dispute that a state which fails to exercise due diligence is in violation of the obligation to prevent intervention and unlawful use of force from its territory. The argument that such a negligent state becomes responsible for the act of an irregular force itself, namely for the armed attack, has in the past been rejected,'24 and a higher standard of control was demanded for attributing the attack itself to the state.125In Nicaragua the ICJ adopted an exacting test of 'effective control','26 requiring direction and control of specific operations.'27In TadiC, the ICTY required a lower threshold of 'overall control', although with regard to an armed group operating outside the territory of the purportedly controlling government, a more extensive involvement was required, that of 'generally directing or helping plan their action~'.'~'In Bosnia v. Serbia the ICJ reiterated the 'effective control' test and distinguished between the test for international responsibility and the test for the character of the conflict, which was the subject of the Tadid judgement.'29At any rate, neither test provides a ground for attributing Hizbollah's actions to Lebanon, as there is no claim that Hizbollah acted under the Lebanese government's control or instruction, generally or with regard to the specific attack. The difference between the two types of responsibility - for non-prevention and for the attack itself - became blurred following 9/11. The US held Afghanistan directly responsible for the armed attack by virtue of harboring A1 Qaeda and refusing to surrender Bin Laden. It later elaborated this position in the Bush Doctrine, which equates the state harboring the terrorists with the terrorists them~ e 1 v e s .This l ~ ~ once again brought to the fore the debate on the extent to which a
122. Operative paras. 3,4. 123. SiPV.5489 (14 July 2006) p. 6. Salem argues that had Lebanon taken control of the south in 2000, the 2006 conflict would not have erupted. Salem, supra n. 17, at p. 15. 124. A. Cassesse, 'Terrorism is Also Disrupting Some Crucial Legal Categories of International Law', 12 EJIL (2001) p. 993. 125. ILC Draft Art. 8. 126. Nicaragua, supra n. 48, para. 115. 127. The Prosecutor v. Dusko TadiC, IT-94-1-A, ICTY Appeals Chamber (Judgment of 15 July 1999) (Merits) 38 ILM(1999) p. 1518 ('TadiC'), at para. 114. 128. bid., at para. 138. The difference between the two tests is therefore not as great as it seems, given that Nicaragua also concerned an armed group operating outside the controlling State. 129. Bosnia v. Serbia, supra n. 1 10, paras. 403-405. 130. The 2006 National Strategy for Combating Terrorism announced in September 2006 repeats the same principle: 'The United States and its allies and partners in the War on Terror make no distinction between those who commit acts of terror and those who support and harbor terrorists. Any government that chooses to be an ally of terror has chosen to be an enemy of ffeedom, justice, and peace'.
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state harbouring or tolerating terrorists could be regarded as responsible for their acts.I3' Some consider the Bush Doctrine an enthusiastic adoption132or vindication of the old argument.13%thers reject it as a hasty excess of law.134Still others concede that perhaps self-defence is available against a state harboring the terrorists, at least if the attack had already been c~rnmitted."~ Resolution 1373(2001) establishes specific obligations of preventing terrorist acts. Against this background, is there a basis for adopting a different standard for establishing responsibility of a host state for an armed attack'? The difference between responsibility for non-prevention of an act and responsibility for its commission is ordinarily one of degree only. In the context of use of force, however, it is a difference of quality. A state responsible for an armed attack is vulnerable to an act of self-defence. A state responsible only for not preventing an armed attack is not, by virtue of this responsibility alone, vulnerable to an act of self-defence. If nonprevention is equivalent to commission of the attack, the victim government may respond with force against the host government even if the latter is responsible only for hosting the irregular force. This appear an expansion of the existing laws of international responsibility and use of force. However, the same result may be reached from within existing law if, as explored below,136a victim state may act against an irregular force on the territory of a host state even in the absence of responsibility for the attack on the part of that state. Even if the due diligence standard is accepted13' for examining Lebanon's responsibility for the attack itself and not just for not preventing it, Israel must show that Lebanon was capable of acting against Hizbollah but did not do so.I3' Israel vehemently maintains that Lebanon is capable of taking control over its entire territory. Due diligence requires a state only to take 'reasonable measures'. These probably do not include disbanding the irregular force at the cost of risking chaos and civil war, one of the reasons for the Lebanese's failure to disband Hizbollah to date. Consenting to intervention by the victim state may be a reasonable measure, depending on the circumstances. In the event, if confrontation of the Lebanese
13 1. J. Somer, 'Acts of Non-State Armed Groups and the Law Governing Armed Conflict', ASIL T.M. Franck, Insight 24 August 2006 ~http://www.asil.org/insights/2006/08/insights060824.h1; Recourse to Force (Cambridge, CUP 2002) at pp. 64-65; M. Bothe, 'Terrorism and the Legality of Pre-emptive Force', 14 EJIL (2003) pp. 227 at 233. 132. R.P. Barnidge Jr, 'States' Due Diligence Obligations with Regard to International Non-State Terrorist Organisations: The Heavy Burden States Must Bear',l6 Irish Studies in International Affairs (2005) p. 120. 133. B.A. Feinstein, 'A Paradigm for the Analysis of the Legality of the Use of Armed Force Against Terrorists and states that Aid and Abet Them', 17 Transnational Lawyer (2004) p. 5 1 at 59. 134. Cassesse, supra n. 124; O'Connell, supra n. 89, at p. 449; J.D. Paust, 'Use of Armed Force against Terrorists in Afghanistan, Iraq and Beyond', 35 Cornell JIL (2001-2002) p. 533, at 540; S.R. Ratner, 'Jus ad Bellum and Jus in Bello after September 11', 96 AJIL (2002) p. 905 at 908. 135. Byers, supra n. 89, at pp. 408-409. 136. See 4.1 Acting in self-defence against a non-assisting host state. 137. Bowett rejects the notion that there is absolute liability, supra n. 66, at p. 20. 138. Congo v. Uganda, supra n. 5 1, para. 30 1. For a contrary position see Judge Kooijmans' separate opinion, para. 82.
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govemment with Hizbollah would have led to civil war, so would have allowing Israel to intervene. Accordingly it may be argued that in the circumstances, it was not possible to demand of the Lebanese government to disband Hizbollah.
3.2.4
Conclusion
An analysis of each of the bases for international responsibility of Lebanon indicates that the relationship between Hizbollah and the Lebanese government is such that it does not fall neatly into any of the ordinary categories of attribution. The conclusion may be that Hizbollah's action cannot be attributed to Lebanon. On the other hand, the categories are not set in stone. While each one alone may not give rise to Lebanese responsibility, cumulatively they may have this effect. 3.3
The international response
Those states that regarded the incidents of 12 July as an armed attack appeared to distinguish between Hizbollah and Lebanon, and to exonerate Lebanon from responsibility for the attack.'39Many, in fact, emphasized the need to strengthen and support Lebanon in controlling its territory.I4O Some added Lebanon's failure and obligation to prevent Hizbollah activity from its territ~ry.'~' Security Council Resolution 1701(2006) follows the same line. It refers to Hizbollah as a foreign force operating without the consent of the Lebanese government142and emphasizes143 'the importance of the extension of the control of the govemment of Lebanon over all Lebanese territory in accordance with the provisions of Resolution 1559(2004) and Resolution l680(2OO6), and of the relevant provisions of the Taif Accords, for it to exercise its full sovereignty, so that there will be no weapons without the consent of the government of Lebanon and no authority other than that of the govemment of Lebanon.'
By implying that Lebanon had not had control over its territory and that Hizbollah was acting outside the Lebanese government's authority, the Resolution releases Lebanon from responsibility for the attack.
139. The UN Secretary-General commented on this: 'Moreover, any analogy with Afghanistan under the Taliban is wholly misleading. Mr. Siniora's govemment clearly espouses democratic values. It deserves, and must receive, all possible support from the international community', SPV.5492 (20 July 2006) p. 3. 140. E.g. Greece, SPV.5493 Resumption 1 (21 July 2006) p. 3; Peru, ibid., p. 4; UK, ibid., p. 5, Denmark: ibid., p. 7; France, ibid., p. 11; Finland on behalf of the EU and aligned states, ibid., p. 16; Chile, ibid., p. 35; US, Press Briefing by Secretary of state Condoleezza Rice and National Security Advisor Steve Hadley 13 July 2006 ~http://www.whitehouse.gov/news/releases/2006/07/20060713-8. htmb. 141. Greece and France: SiPV.5489 (14 July 2006) p. 17. 142. SC Res. 1701(2006) operative para. 8. 143. Ibid., operative para. 3.
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At the same time, states considered Israel to have a right to self-defence."' In other words, the notion that an attack by an irregular force gives rise to a right of self-defence even in the absence of any state responsible appears to have gained considerable ground. The rejection by other states of Israel's right to self-defence was based on a different reading of the conflict, according to which the actions of Hizbollah are not unlawful. It does not bear on the doctrinal question of self-de-
fence in response to acts of irregular forces. To summarize, no one, other than Israel, regarded Lebanon as responsible for the attack directly or because it did not prevent it. Nonetheless, there was wide acknowledgement of Israel's right to self-defence. This supports the growing recognition of a right to self-defence against an armed attack by an irregular force not linked to any state.
THE EXERCISE OF THE RIGHT TO SELF-DEFENCE
4.
For military action to be a valid act of self-defence, it must be necessary and proportionate to the armed attack.'45The evaluation of compliance with either requirement depends on the interpretation of the right to self-defence. In the case of selfdefence against an irregular force, a preliminary issue that must be addressed is the permissibility of operating in the territory of the host state when it is not responsible for the attacks. 4.1
Acting in self-defence against a non-assisting host state
In a case of inter-state armed attack, the right of self-defence of the victim state implies permission to infnnge upon the attacker's territorial inviolability. An armed attack by an irregular force operating from the territory of a state not responsible for its acts presents a challenge in this respect. Clearly the victim state must only target the irregular force.146But is it entitled to operate against the irregular force on the territory of a host state that is itself not responsible for the attack and has not given its consent to such an operation? Indeed, one of the difficulties in
144. Supra n. 140 and also France, SlPV.5489 (14 July 2006) p. 7; US, SiPV.5493 (21 July 2006) p. 17; Slovakia, ibid., p. 19; Russia: SJPV.5493 Resumption l(21 July 2006) p. 2; Ghana: ibid., p. 8;
Argentina: ibid., p. 9; Switzerland: ibid., p. 18; Brazil: ibid., p. 19; Canada: ibid., p. 39; Turkey: ibid., p. 28; Guatemala: ibid., p. 41; Norway: ibid., p. 23. Prior to that debate, the G-8 statement noted: 'It is also critical that Israel, while exercising the right to defend itself, be mindful of the strategic and humanitarian consequences of its actions'; Statement by the Council of the European Union on the Middle East, 17 July 2006, . 145. Oil Platforms, supra n. 51, para. 5 1. Whether it must also be immediate is disputed, but in the circumstances not an issue, given that Israel responded within hours of the 12 July attack. 146. See also Wedgwood, supra n. 78, at p. 566.
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acknowledging the right to self-defence against an irregular force is that it implies a right to use some measure of force in the territory of the host One approach is that in the absence of a host government's responsibility for the armed attack, there is no right to self-defence on its territory. Gray argues that states that have carried out actions against irregular forces on the territory of host states have tended to accuse the host states for the attacks, apparently on the view that without the host government's involvement there can be no action of self-defence on its territory. The same view appears to have guided the US in attaching responsibility to the Taliban and Afghanistan following 911 It might also explain the Israeli Prime Minister's statement, in which he attached direct responsibility for the attacks to Hizbollah, but at the same time maintained that Lebanon remained r e ~ ~ o n s i b 1 eThis . l ~ ~approach entirely rejects the possibility of action in the territory of a host state unless it is responsible for the attack.150O'Connell adds, however, that in the case of a failed host state the victim state should still have a right to self-defence, despite the absence of responsibility on the part of the host state.I5' A proactive approach appears to be gaining ground, which advocates that even in the absence of responsibility for the armed attack, the host state might lawfully become vulnerable to military action 'incidentally', if it does not suppress the irregular force's activity. Wedgwood argues that if a state permits the use of its territory for terrorist attacks when it could shut those operations down, and refuses requests to take action, it cannot expect to insulate its territory against measures of self-defence.15*Simrna and Dinstein add the victim state's right to act in self-defence in the territory of a host state even if that state is not unwilling to take action but too weak to do so.'53The emphasis in this approach is on the genuine attempt to suppress the irregular force's activity. In practice, it allows the victim state to operate on the territory of the host state in any case where the host state does not act against the irregular force for whatever reason. Under the first, conventional, approach it appears that Israel had no right to operate in Lebanese territory, as Lebanon was not responsible for the attacks, nor was it a failed state. Lebanon's situation resembled that of Tunisia, attacked by
147. Unless the irregular force is operating from the high seas. 148. Gray, supra n. 74, at p. 99; Byers, supra n. 89 at pp. 408-409, Myjer and White, supra n. 89, at pp. 7-8. 149. Address to the Knesset by Prime Minister Ehud Olmert 17 July 2006, supra n. 105. 150. Byers, supra n. 89, at pp. 408-409; Paust, supra n. 134, at p. 539. However, Paust justifies the action in Afghanistan by the fact that the Taliban government was not recognized, pp. 539-540. This is irrelevant. Non-recognition of a government does not affect the rights of the state. This is also the import of Congo v. Uganda, supra n. 5 1, confirmed in Judge Koroma's Declaration, para. 9. 15 1. O'Connell supra n. 89, at p. 450 152. Wedgwood, supra n. 86, at p. 565. 153. Ibid.; Dinstein, supra n. 58, at pp. 244-245; B. Simma, ed., The Charter of the United Nations A Comrnentav, 2nd edn. (Munchen, Beck 2002) Vol. 1, p. 802 para. 36 quoted with approval in Kateka Dissenting Opinion in Congo v. Uganda, supra n. 5 1, para 37. The Caroline incident confirms the customary permissibility of resort to force under such circumstances.
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Israel in 1986 because of PLO activities. At the time, even the US condemned Israel's action.lS4This approach was expressed with regard to the 2006 conflict by South Africa, which commented: 'We do not believe that an entire nation can be attacked because of tensions with Hizbollah', apparently rejecting completely Israel's claim to be acting in self-defence."' Under the proactive approach, Israel could operate against Hizbollah on Lebanese territory if Lebanon did not itself take action for whatever reason. Interestingly, states that acknowledged Israel's right to self-defence took it for granted that Israel would operate on Lebanese tenitory. This may be explained by the lowering of the threshold for responsibility under the Bush Doctrine, which effectively regards any state tolerating terrorists as responsible for their acts. This moves Lebanon into the category of internationally-responsible states, making not only action on its territory permissible, but Lebanon could even be the direct target for self-defence. Accordingly, a US House of expressed its support for: Representatives re~olution'~' '. . . Israel's right to take appropriate action to defend itself, including to conduct operations both in Israel and in the territory of nations which pose a threat to it, which is in accordance with international law, including Article 5 1 of the United Nations Charter;'
In the alternative, the growing emphasis on the obligation of due diligence to prevent cross-border incursions lends support to the notion that the responsibility for failure to exercise such diligence renders the state 'incidentally' susceptible to military response without needing to make it directly responsible for the attack.
4.2
Necessity
If self-defence only applies to repelling an attack in actual progress, then once a specific attack has ended by the attacker's own volition, there is no necessity for self-defence and any hrther military action constitutes reprisals. If, on the other hand, a series of incidents is also regarded as an attack which gives rise to a right of self-defence, then the prevention of future attacks is equivalent to the repelling of an ongoing one. Under this latter interpretation Israel's response could be considered prima,facia necessary. One aspect of the requirement of necessity of the military response is that the state attacked did not, in the particular circumstances, have had any means of halt-
154. O'Connell, supra n. 89, at p. 450. M.E. O'Connell, 'Proportionality and the Use of Force in the Middle East Conflict', Jurist 21 July 2006 . 155. SlPV.5493 Resumption 1 (21 July 2006) p. 44. Other states also criticised the effect of Israel's action on Lebanese, as will be discussed below. However, South Africa exceptionally did not mention the right to self-defence, which other states acknowledged. 156. House of Representatives Res. 92 1 (20 July 2006) ~http://thomas.loc.govihomeigpoxmlc1091 hr92 l_eh.xml> para. 8.
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ing the attack other than recourse to armed force.lS7This does not inescapably mean that Israel should have negotiated with Hizbollah before resorting to force. Leaving aside the question whether the exhaustion of peaceful means includes negotiations with an irregular force that does not abide by basic principles of international humanitarian law (e.g., distinction), clearly there was no realistic prospect of direct negotiations leading to termination of the immediate attack as it was perceived by Israel (i.e., by release of the soldiers and abandonment of the use of force). Another peaceful measure Israel could theoretically have taken was to request Lebanon to intervene to secure the release of the soldiers. Given the relationship between Lebanon and Hizbollah, and in view of previous incidents of abduction, the efficacy of such an approach is d o u b t f ~ l . ' As ~ ~ the international community, acting together through Security Council Resolution 1559 (2004), failed to prompt Lebanon to take a strong stance against Hizbollah, there was no reason to assume that a direct Israeli request would achieve this. The requirement of necessity also entails that the forcible measure taken was prima facie capable of achieving this goal.159Doubts have been raised as to the effectiveness of Israel's response in this respect. In the Security Council debate, Ghana commented: 'The use of force to combat terrorism has often proved to be c o ~ n t e r ~ r o d u c t i v e .Many " ~ ~ states repeated the usual mantra that peace in the Middle East cannot be achieved through force.161 The goal they set, it must be noted, was far more ambitious than that of Israel, which were, in the immediate phase, the return of the abducted soldiers, ending the threat posed by Hizbollah (namely the bombardment of civilian communities) and the removal of Hizbollah fi-om the area. In terms of realistic prospects of achievement, the first two goals can be regarded as necessary. 4.3
Proportionality
The standard for proportionality depends on the scope of the right to self-defence. If the right is limited to repelling an ongoing attack, a proportionate response
157. Ago, para. 120, Oil Platforms, supra n. 51, para. 76. 158. Amal Saad-Ghorayeb in 'Hezbollah's Role in Lebanon's government', NPR 13 July 2006 ~http://www.npr.org/templatesltranscript/transcript.php?storyId=5554992~. 159. M.E. O'Connell 'Necessity, Proportionality and the Use of Force by States, By Judith Gardam' (book review) 100 AJIL (2006) p. 973 at 974. 160. SlPV.5493 Resumption 1 (21 July 2006) p. 8; On the tendency to adopt a bipolar approach to combating terrorism see Miillerson, supra n. 5, at pp. 158-162. 161. Brazil: 'Unilateral and other types of nonnegotiated solutions are not likely to bring about peace, but only precarious truces that are broken in bloody conflicts such as the one we are witnessing today. The international community must not remain passive before the deterioration of the conflict and the destruction of Lebanon as a viable nation' SiPV.5493 (21 July 2006) p. 19; Norway: 'A peaceful solution to the situation in the Middle East cannot be found through military action. Only a political process and negotiations involving all parties can yield a comprehensive and lasting peace', ibid., p. 23.
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should be similar in scale to the armed attack.I6' If the right also includes the prevention of future attacks, then proportionality should be measured against the pending threat, which can be projected from previous attacks.163The constant firing of rockets on civilian Israeli communities gave a reasonably good idea of the threat at issue. The asymmetry between the immediate trigger of the conflict and the scale of Israel's response does not by itself indicate the disproportionality of Israel's response. Instead the objectives of Israel's campaign must also be evaluated. If they are excessive with regard to the threat, or if the means to achieve them were excessive, only then the requirement of proportionality was not complied with. The special circumstances, namely that Lebanon was not held responsible for the attacks, yet was inevitably affected by the Israeli response, suggest that a particularly stringent test might be appropriate in assessing the proportionality of the response. Israel was explicit from the start that the immediate goal of its military action was the return of its abducted soldiers164but that this was not the only goal. It also aimed to end the threat posed by ~ i z b o l l a h , declaring '~~ on 16 July: 'It must be clear that Israel will not return to the status quo that prevailed before last Wednesday; this situation was intolerable from the outset'.'66 Prime Minister Olmert outlined the objectives of the Israeli military action:'67 'And in Lebanon, we will insist on compliance with the terms stipulated long ago by the international community . . .: The return of the hostages ...; A complete cease fire; Deployment of the Lebanese army in all of southern Lebanon; Expulsion of Hizbollah from the area, and hlfilment of United Nations Resolution 1559 ... We will search every compound, target every terrorist who assists in attacking the citizens of Israel, and destroy every terrorist infrastructure, everywhere ... Israel will not agree to live in the shadow of missiles or rockets against its residents.' Minister of Foreign Affairs Livni added that:I6'
162. Oil Platforms, supra n. 5 1 , para. 77; Dinstein, supra n. 58, at p. 225. 163. ILC Yearbook, supra n. 71, para. 121, on the right to take action 'to put an end to this escalating succession of attacks'. 164. There are those that claim that Israel's military action had been in the planning for a long time and that the abduction was only a peg on which to hang the launch of a military offensive. Whether a state was spontaneous or whether it was yearning for an excuse is irrelevant to the legality of its action. Either an action is permissible or it is not. Its necessity and proportionality depend on objective criteria (even if those are subjectively assessed) and not on the state of mind of politicians. That apart, the Israeli operation, which is generally regarded as a military and political failure, casts doubt on whether any preparations had actually taken place in advance of the offensive. 165. Statement of the UN Secretary-General in Security Council Debate SiPV.5492 (20 July 2006) p. 3. 166. Cabinet Communique 16 July 2006, supra n. 105. 167. Address to the Knesset by Prime Minister Ehud Olmert 17 July 2006, supra n. 105. 168. FM Livni meets with Special UN Team, 18 July 2006 .
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'[there] is comprehensive agreement that a cease-fire alone is not enough, but also the unconditional return o f the [abducted] soldiers and the full implementation o f UN Security Council Resolution 1559, in order to keep Hizbollah from establishing itself a s the
regional provocateur.'. Israel set a number of different objectives. Two of them, the return of the abducted soldiers and the cessation of Hizbollah rocket firing on civilian communities, respond to the immediate threat on Israel. A third objective was the removal of Hizbollah from the border area and the enforcement of the hlfilment of Security Council Resolution 1559 (2004). Since enforcement of Security Council resolutions is not as such within the mandate of any single state, action justified by pursuit of only this objective appears to exceed the scope of permissible military action. Preventing Hizbollah from 'establishing itself as the regional provocateur' is also problematic as an objective of self-defence because it goes far beyond neutralizing Hizbollah's immediate military power, and suggests long-term political objective^.'^^ Another objective attributed to Israel, namely the restoration of its power of deterrence, might also be considered excessive use of force, since general deterrence is not clearly within the scope of permissible self-defence. Moreover, to achieve this objective, Israel would have needed to demonstrate power that is by far greater than that necessary for terminating the immediate conflict.'70 The assessment whether the Israeli objectives were proportionate to the threat or in excess of it depends on the reading of the wider context of the immediate conflict. There seems to be no dispute that a comprehensive solution is necessary. The question is whether Israel may and can unilaterally achieve this objective or initiate a process towards it. Another issue was the extent of the use of force, not only its objectives. For example, had a very limited military response been taken in order to remove Hizbollah from the area, there would probably have been little criticism of the objective as such. Yet the same states that acknowledged Israel's right of self-defence also condemned its disproportionate use of force. The disproportionality was deduced from the extent of civilian casualties and damage to infra~tructure.'~' This criticism appears to conflate proportionality as a criterion for jus ad bellum, i.e.,
169. Y. Ben-Meir, 'Israeli government Policy and the War's Objectives', 9 Strategic Assessment (2006) p. 1 at pp. 2-3. Every military action is intended to generate political change. However, since Art. 51 envisages Security Council action, the right of self-defence under it must be very narrow, limited to essential military necessity pending concerted international action. 170. Y. Evron, 'Deterrence and its Limitations', 9 Strategic Assessment (2006) p. 22. 17 1. Turkey: 'What is currently taking place in the region goes far beyond self-defence' SlPV.5493 Resumption 1 (21 July 2006) p. 28; New Zealand: 'we cannot accept that Israel has reacted with due proportionality or caution', ibid., p. 33; Russia: '...the casualties and the destruction demonstrate that the actions stated for achieving this purpose go far beyond a counterterrorist operation', ibid., p. 2; Peru: 'Nevertheless, [Israel] should exercise that right [to self-defense] while ... avoiding the disproportionate use of force, which is causing the deaths of many innocent civilians, damaging civil infrastructure and creating a humanitarian crisis', ibid., p. 3; France: '. .. we also condemn the disproportionate response by Israel, whose military operations are holding the Lebanese people hostage, killing
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between the military action and the attack or threat, with the proportionality as a criterion for jus in bello, i.e., between the military advantage and the collateral damage to civilians and non-military 0 b j e ~ t s . IThe ~ ~ two types of proportionality are not identical. A defensive military campaign might be proportionate to the attack, but specific tactics or attacks might contravenejus in bello.17' Thus, to conclude from excessive collateral damage that the entire operation is in excess of the right of self-defence is erroneous. However, at issue was possibly the fact that the damage was inflicted upon a Lebanese population which was only 'incidentally' involved. In some cases this link between jus ad bellum and jus in hello was express. EU envoy Javier Solana stated on 19 July, following a visit to ~ e b a n o n : ' ~ ~ 'I have been in Lebanon, I have spent a night in Lebanon and I see the suffering o f the people. And I d o not see what that has to do with the battle against Hizbullah. The battle against Hizbullah is important. Another thing is to weaken a country.'
In other cases the link was less apparent. For example, Norway urged Israel 'not to resort to disproportionate action. We must prevent the violence and conflict from expanding into neighboring areas. '
large numbers of civilians and causing substantial material damage in Lebanon', ibid., 11; Switzerland '. .. in the light of law and the facts, Switzerland considers the reaction of Israeli armed forces in Lebanon to be clearly disproportionate. The repeated air strikes of recent days against civilian targets are a serious violation of international humanitarian law', ibid., p. 18; Brazil: 'Brazil condemns the disproportionate use of force that has resulted in the loss of innocent lives and heavy damage to the Lebanese and Palestinian infrastructure . ..', ibid., p. 19; Indonesia: 'In view of the scale of destruction and the casualties resulting from Israel's indiscriminate attacks and its disproportionate use of force ...', ibid., p. 25. India: 'We have equally strongly condemned the excessive and disproportionate military retaliation by Israel, which has targeted civilian infrastructure, including the Beirut airport, and resulted in the killing and suffering of innocent civilians, including women and children', ibid., p. 34; Chile: 'We condemn the disproportionate measures taken by the Israeli forces, which have caused hundreds of deaths in Lebanon a majority of them civilians . ..', ibid., p. 35. Other statements are less clear about the link between the excessive use of force and the disproportionate damage to civilians. The UN Secretary-General: '. .. Israel's disproportionate use of force and collective punishment of the Lebanese people must stop', ibid., p. 3; Argentina: 'In recent weeks we also expressed our serious concern about the disproportionate and excessive use of force by Israel. We reiterate our condemnation of the military actions that have caused the deaths of hundreds of innocent Lebanese and Palestinian civilians and the destruction of basic infrastructure ... on Lebanese territory', ibid., p. 9. Algeria: 'In addition to its disproportionate response and the excessive use of force against the innocent population and vital civil infrastructure of Lebanon ...', ibid., p. 22; Guatemala: 'Our country is extremely concerned at the Israeli military actions, in particular at the excessive use of force; the destruction of civilian infrastructure . . .', ibid., p. 41. 172. Art. 5 1 (5)(b) of Additional Protocol I. 173. R. Kirgis, 'Some Proportionality Issues Raised by Israel's Use of Armed Force in Lebanon', 17.htrnb. ASIL Insight 17 August 2006 ~http:Nwww.asil.org/insights/2006/08/insightsO608 174. Joint press conference by FM Tzipi Livni and EU Envoy Javier Solana, 19 July 2006, 175. WPV.5493 Resumption 1 (21 July 2006) p. 23. -
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To summarize, proportionality under the j u s ad bellum weighs the intensity of military action against the attack or threat. Israel's perception of the threat and of the means to prevent it was expansive, and its response reflected it. Controversy remains both on the objectives of the campaign and the means employed to achieve them. This linksj u s ad bellurn and jus in bello issues.
5.
EPILOGUE
Following the war, the Israeli government decided to appoint a governmental commission of inquiry 'to look into the preparation and conduct of the political and the security levels concerning all the dimensions of the Northern Campaign which started on July 12th 2 0 0 6 ' . ' ~On ~ 30 April 2007 the Winograd ~omtnissionl'~ issued an interim report covering the period from the IDF's exit from Lebanon in 2000 to 17 July 2006. Although the Commission did not address questions of international law, some of its factual findings are of interest for the current analysis. In the report, the Commission acknowledged the mandate of the politicians to decide on replacing the policy of containment by one of strong response. However, it found that in deciding to go to war, the government did not consider the whole range of options, including that of continuing the policy of 'containment', or combining political and diplomatic moves with military strikes below the 'escalation level', or military preparations without immediate military action. While the reasons that the Commission considered such deliberation to have been necessary are not directly relevant to the legality of Israel's response under international law,178 its finding on the absence of any discussion whatsoever, is. If the course of action was not debated, neither before going into battle nor during battle, then it could not l ~ ~ Commishave been established that no alternative measures were a ~ a i 1 a b l e .The sion conceded that a potential argument for taking immediate military action was that any delay would result in international pressure not to take military action.Ig0 However, under international law, if continuing the policy of containment and not resorting to force had been sufficient, it should have been preferred. Moreover, the Commission found that there was no systematic debate regarding the suitability of the military measures undertaken to the declared objectives of the war.''' This applied both with regard to the overall objectives of the operation, and with regard to
176. Government Decision 525 of 17 September 2006. 177. So named after its chairman, former justice Eliyahu Winograd. 178. The Commission determined that such options were necessary for Israel to maintain for Israel the full range of responses to the abduction. 179. Commission of Inquiry into the Events of the Military Campaign in Lebanon 2006 (Winograd Commission), 'The Second Lebanon War, Interim Report' (April 2007) para. 25. 180. Ibid., para. 24. 181. Ibid., para. 29.
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the choice of an aerial campaign as opposed to a land campaign1'*. The absence of deliberation as to the necessity and proportionality of the action may raise doubt on the legality of the action under international law.
6.
CONCLUSIONS
The analysis highlights the evolving role of irregular forces, and its impact on existing international legal norms. Many related issues have long been under debate, such as the qualification of repeated cross-border incursions as armed attacks, or the standard for measuring proportionality in self-defence. Relatively recent developments and perceptions shed new light on these issues, although a full picture of any new law is slow to emerge. Each development is unique in its circumstances. The 911 1 attacks, the construction of the Separation Barrier in the West Bank, and the conflict in Lebanon, differ in the magnitude of the attacks, their frequency, their territorial source, and their political background. In this respect the Lebanon conflict re-introduces, albeit with new characteristics, an old challenge, namely the regulation of conflict between a state on the one hand, and an irregular force acting from the territory of a passive neighboring state, on the other hand. A few tentative conclusions may be possible at this stage. First, the wide acceptance of Israel's claim to self-defence, in a marked difference to past reactions, reflects the shifting attitudes towards acts of irregular military forces, particularly when characterized as terrorist acts. Second, there appears to be greater acknowledgement that the term 'armed attack' must be interpreted with elasticity to accommodate not new, but increasingly visible, phenomena. Finally, the recognition of a right to self-defence against an irregular force requires a more careful exploration of the relationship between the victim state and the host state. For example, the extensive criticism of Israel's excessive use of force may eventually overshadow the acknowledgement of its right to self-defence. This conflict is therefore likely to play a role in the development of international law in many of the issues considered here.
182. The commission noted that the decision to carry out attacks only from the air was from the start clearly insufficient to prevent rocket firing on civilian settlements in Israel, para 23. The latter issue is a tactical one, which concerns ius in bello more than the question of the legality of the resort to force. The former, however, is a strategic question which falls within the ius ad bellurn sphere.
INTERNATIONAL HUMANITARIAN LAW FROM A FIELD PERSPECTIVE - CASE STUDY: NEPAL'
P.J.C. Schimmelpenninck van der 0ije2
1.
INTRODUCTION
In various ways international humanitarian law (IHL) influences the lives of a countless number of people on a daily basis. Among them are people taking a direct part in hostilities, medical or religious personnel, the civilian population, humanitarian workers and journalists. For humanitarian workers, for example, this body of international law can provide a legal basis for their presence and activities in the field, and for their protection during situations of armed conflict. In this article the author gives a personal account of promoting respect for IHL in a country in conflict. The author worked as a field delegate for the International Cornmittee of the Red Cross (ICRC) in Nepal from July 2004 to July 2005. The experiences described are the author's alone and do not necessarily express the official viewpoint of the ICRC. Among other sources the background information in this text is based on non-confidential ICRC publications, UN documentation, reports by human rights organisations, as well as newspaper articles.
2.
THE CHRONOLOGICAL CONTEXT OF THE ARMED CONFLICT IN NEPAL
The year 2006 was an important one in Nepalese history. The warring parties signed a peace agreement after a decade of bloody conflict. To name but a few effects of this conflict, the civil war claimed the lives of more than 13,000 people, damaged the infrastructure throughout the country and severely disrupted the Nepalese tourist industry. The fate of hundreds of Nepali is still unknown. The roots of the conflict can be found in the geographical, political, social and economic reality of Nepal. Some of the causes of the outbreak of hostilities, therefore, can be traced back over centuries. A more recent process that influenced the present-day situation was that of the 'Panchayat' (meaning 'Assembly'), or non-
1. O P.J.C. Schimmelpenninck van der Oije, 2007. 2. P. Schimmelpenninck van der Oije, M.A., LL.M., is legal adviser on IHL, Netherlands Red Cross. This article reflects the viewpoint and experiences of the author and does not necessarily express the official viewpoint of the Netherlands Red Cross.
Yearbook of International Humanitarian Law
Volume 9 - 2006 - pp. 394-417
Case study: Nepal
395
party system (1960-1990). The Panchayat system was installed by the then ruling King Mahendra at a time when a large part of Nepal could still be described as a medieval oriental state.3 According to King Mahendra, the first attempt at parliamentary democracy (19.51-1960) had not brought the country the desired stability and development. He therefore dissolved Parliament in 1960 and declared all political parties illegal. Many political parties went underground and some of their
leaders, including politicians from Communist-oriented parties, spent many years in prison or in exile in ~ n d i a . ~ During the 'Panchayat' political system of government the King played a central role. A complex and large administrative structure was created. Elections were held for assemblies at local and national level, but those standing for election were forbidden from joining a political party. The King was head of state and ministers were appointed and removed by the palace. The palace also controlled the police, the army and the administration, including at the local level. Gradually some legislative reforms were introduced, for example through amendment of the Constitution. By 1988, however, it became clear that the cautious democratic process was not gaining ground. Rebellion against the system grew and it collapsed under pressure from a strong popular uprising in April 1990. Many researchers have argued that the new political order set up after April 1990, when democracy was first installed in Nepal, failed to include all sections of Nepali society.' Some groups felt that they remained outside mainstream politics and the reach of development programmes. The gap between urban and rural areas and between rich and poor continued to widen. The revolt by the Communist Party of Nepal (the Maoists) (hereinafter CPN-M), which meant the start of a civil war, was the outcome of a political struggle for a new democratic order. Successive governments ruling after April 1990, some of which changed before they could practically even start their work, failed to meet the expectations of many Nepali. Expectations had been influenced by age-old grievances resulting from inequalities embedded in the Nepali social and economic structure. Among other things, these inequalities were based on, or fed by, a lack of development and infrastructure, corruption at a national and local level, and the politicization of the police and the administration. They were also based on discrimination in general against lower Hindu castes and members of tribal communities in the civil service, the judiciary and national institutions such as radio and television broadcasting6
3. D.B. Bista, Fatalism and development. Nepal's struggle for modernization (Calcutta, Orient Longman 1991) p. 103. 4. Amnesty International, Human Rights Violations in the Context of a 'Maoist People 's War, Index No. ASA 31100111997, Report of I0 March 1997. 5. See, inter alia, A. Karki and 6. Bhattarai, eds., Whose war? Economic and socio-cultural impacts of Nepal's Maoist-Government conjlict (Kathmandu, NGO Federation of Nepal 2003) and A. Karki and D. Seddon, eds., The People's war in Nepal. Left Perspectives (New Delhi, Adroit 2003) and D. Thapa, ed., Understanding the Maoist Movement ofNepal (Kathmandu, Centre for Social Research and Development 2003) and M. Hutt, ed., Himalayan 'People's War. Nepali Maoist Rebellion (London, Hurst 2004). 6. Amnesty International, supra n. 4.
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Fighting first occurred on 13 February 1996. On that day, the CPN-M launched a 'people's war' from the mid-western region of Nepal. It was a reaction to the failed attempts by the National Congress-dominated government to establish a democracy and meet the demands of the CPN-M.~The aim of the armed struggle was to overthrow the existing regime, to establish a democratic republic and to transform its economy and society. In the following months, the Maoists attacked police stations, banks, offices of Village Development Committees, local landlords and . ~ police, being in charge of matters conpoliticians in the mid-westem r e g i ~ nThe cerning law and order, responded harshly.9 Scores of people, including possible prisoners of conscience, were arrested and remained in detention without trial. The government reactivated the Public Security Act of 1991 (2nd Amendment) which allowed for people to be detained for up to 12 months on grounds of 'the interest of the common people'. In the years to follow, the Maoists intensified their attacks throughout the country. In 1999 the CPN-M formally announced the formation of their People's Liberation Army (hereinafter PLA). The police in their turn allegedly engaged in operations using excessive force (such as the so-called Kilo Sierra operation in 1998), arrested arbitrarily and was linked to an increasing number of 'disappearances' from 1998 onwards. In 1999, peace talks took place, as well as, what turned out to be, the last multiparty parliamentary elections to date (May 2007). Whereas the civil war dragged on for years without much notice from the international community, Nepal hit the international headlines in June 2001 with the massacre of King Binendra and eight other members of the royal family in the palace. Binendra's brother Gyanendra took the throne under a cloud of suspicion. Under the new King the government adopted a harsher stance towards the Maoists. It has been argued that the 11 September 2001 attacks in the USA and their direct aftermath encouraged King Gyanendra and the government to adopt this stance." After 9/11 the Nepalese government expressed support for the US-led 'war against terrorism'." Later that year, the Indian Foreign Minister Jaswant Singh declared that the Nepalese Maoists were 'terrorists' and India pledged support for the government of Nepal. After the breakdown of peace negotiations with the CPN-M, a State of Emergency was declared on 26 November 2001. The Nepalese government, for the first time since the start of the conflict, deployed the Royal
7. The 'People's War' fought by the Maoists in Nepal is not to be confused with the Chinese socialist regime and its policy towards Tibetans. During the past few years, the Chinese post-Mao regime has indicated on various occasions that it does not support the Nepalese Maoists in their struggle and that it regards them as anti-government forces. See for example BBC, 'Nepal King Seeks Chinese Help', at
Case study: Nepal
397
Nepalese Army (RNA) to fight against the ~ a o i s t s .As ' ~ part of the emergency measures, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (aka TADO) was promulgated.13 The CPN-M was declared a 'terrorist organisation' under the Ordinance. The TAD0 granted the security forces (the police and the army) wide powers and also suspended several sub-clauses and articles of the Nepali Constitution. The rights of freedom of thought and expression, assem-
bly and movement, the right not to be held in preventive detention without sufficient grounds, rights to information, property, privacy and constitutional remedy were suspended throughout the country. People could now be arrested on the basis of being involved in 'terrorist' activities.I4 On 21 February 2002 the State of Emergency was extended by 3 months, and again extended in June until 27 August 2002. It was not officially extended after that date but by then it was evident that the armed conflict had become more intense. On 4 October 2002 the King took over all executive powers from Prime Minister Sher Bahadur Deuba in the so-called 'Palace Coup' which will be briefly discussed below. Security tightened during 2002 and increasing concern from (international) human rights organisations could be heard.15 One source categorises the situation up to this point as a 'low intensity' conflict with an estimated number of 1,800 people killed, hundreds reported missing and thousands displaced.16 By the end of October 2002, according to figures made public by the Ministry of Home Affairs and the Royal Nepalese Army, the number of people killed in the conflict since November 2001 had already reached 4,366. Amnesty International stated that at least half of these killings may have been unlawful. The vast majority of the victims were civilians targeted for their real or perceived support to the CPN-M; others were Maoists deliberately killed after they were taken prisoner, or killed
12. Hutt, supra n. 5, p. 11. 13. Under the Public Security Act of 1989 and its second amendment of 1991 it is allowed for a person to be detained for up to 90 days without charge. During the period of the conflict, 'disappearances' were facilitated by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA) 2002 which allowed the security forces to arrest suspects without warrant and detain them without charge. The Terrorist and Disruptive Activities (Control and Punishment) Ordinance 2004 (TADO) replaced the TADA, increased the provision for detention without charge or trial from 90 days to one year and established special powers to check 'terrorist and disruptive acts'. The Constitution provides for the right of any Nepali citizen to file a petition in the Supreme Court to challenge any law that imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by the Constitution. People did invoke this right and writs of habeas corpus were also issued by the Court in a significant number of cases related to persons held under the PSA or TADO. The functioning of the judiciary, however, was severely slowed down and less effective during the insecure situation caused by the armed conflict. See Karki and Seddon, supra n. 5, p. 37. 14. Onesto, supra n. 7, p. xiv. 15. Amnesty International, Nepal. A deepening human rights crisis, A1 Index No. ASA 3110721 2002, Report of 19 December 2002. 16. Karki and Seddon, supra n. 5, p. 38.
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instead of being arrested.'' Amnesty International also mentions the fact that 'Human rights abuses by the Maoists have included deliberate killings of an estimated 800 civilians considered "enemies of the revolution", hostage-taking for ransom, torture of people taken captive and deliberate killings of members of the security forces after they were taken captive.'I8 It was remarked that the difficulty faced by the security forces in determining who was a Maoist or not in the rural areas may well have influenced the number of civilians killed or injured.19At the same time, in the (strongly censored) Nepalese press, criticism was expressed about the apparently indiscriminate manner of the army operation.20 Earlier in 2002, Parliament had been dissolved on the recommendation of the then Prime Minister Sher Bahadur Deuba. He was dismissed himself by King Gynanendra in the 4th October 'Palace Coup'. The King assumed executive power and dissolved the Council of Ministers. The elections which were scheduled for November were indefinitely postponed. There was no elected government in Nepal which was active at any level (national, district or village). The state acknowledged that the Maoists were in effective control of about 25 percent of the country and had significant influence over the rest.2' The Maoist claimed an active presence and support in virtually every district in the country.22 In May 2003, the US State Department added the CPN-M to one of its official lists of 'terrorist' organisations. Military support by India, the US and the UK for the Nepalese government increased. From 29 January to 27 August 2003 a ceasefire was declared and new rounds of negotiations took place. The government agreed to remove the 'terrorist tag' from the CPN-M. AAer failed negotiations the armed conflict intensified. In 2001, this resulted in a considerable increase in the scale and intensity of the conflict and a growing number of reports of human rights and IHL violations by both sides. Despite the seven-month truce, more people were killed after arrest in 2003 than in 2002.'~ The TAD0 remained effective
17. 'The Commander of the Armed Services told Amnesty International in September 2002 that it is the army's mission to "disarm and defeat" the Maoists. According to army commanders interviewed by Amnesty International a "Maoist" is anyone who gives shelter, food or money to the armed Maoists. The fact that much of this "assistance" may be given under threat from the Maoists was not fully recognized. Killings of Maoists in "encounters" with the security forces are reported on a daily basis compared to very few reports of Maoists being injured or arrested, which suggests that at least some units of the security forces have adopted a policy of deliberately killing suspects rather than arresting them. Many of the victims are civilians, including women and children, deliberately killed on suspicion of providing food, shelter or financial assistance to the Maoists.' See Amnesty International, 2003 UN Commission on Human Rights: A timefor deep reflection, A1 Index No. IOR 41102512002, Report of 1 December 2002. 18. See under 'Nepal' in Amnesty International, supra n. 17. 19. Karki and Seddon, supra n. 5, pp. 45-46. 20. Hutt, supra n. 5, p. 12. 21. In May 2002, see Karki and Seddon, supra n. 5, p. 43. 22. Ibid. 23. Informal Sector Service Centre (hereinafter INSEC), Nepal. Human Rights Yearbook 2004, p. 8.
Case study: Nepal
399
throughout 2003 and the Constitution remained practically suspended. The World Bank wrote in its Country Assistance Strategy (2004-2007): 'Nepal risks spiralling into a widespread armed conflict and a breakdown of state institutions.' Up to February 2005, three successive Prime Ministers either resigned or were dismissed by the King (who had also appointed them) in the absence of a sitting parliament. Amnesty International mentioned that during 2003 and 2004, Nepal had had the
highest rate of reported 'disappearances' in the During 2004 and 2005, a further deterioration in the political and security situation in the Himalayan Kingdom could be witnessed. The parliamentary vacuum caused successive governments to rule through Ordinances. In June 2004, a fourparty government was formed which unsuccessfdly called for peace. The rule of law deteriorated hrthelZ5and widespread insecurity and terror, linked to the conflict, existed.26At the end of August the newspaper Nepali Times headlined that 10,000 people had lost their lives in relation to the conflict since its start in 1996. A Nepali human rights NGO called Informal Sector Service Centre (INSEC) mentioned in its 2004 Yearbook that there had been 11,231 deaths since the start of the conflict. The majority of them were allegedly civilians. The violent conflict was said to be the main reason for widespread violations of human rights and I H L . ~ ~ The INSEC Yearbook featured for the first time a chart with 'Killings by bomb blast and land mine^'.^' INSEC also claimed that until then up to 38,191 people had been displaced by the conflict. Other sources mentioned more than 100,000 displaced persons.29 On 1 February 2005 King Gyanendra dismissed the ruling government and declared a State of Emergency. This was the second State of Emergency in three years. Fundamental rights such as the freedom of assembly and expression, the right to information and privacy and rights related to preventive detention were suspended. Several hundred party activists were arrested and the media were re~tricted.~' Nepal's close allies India, the UK and the USA threatened to suspend military aid this time, while several development agencies cut off support to the government. The King revoked the State of Emergency on 29 April 2005, but continued to exercise executive authority in Nepal as Chairman of the Council of Ministers. At the same time, an agreement was signed between the government of Nepal and the United Nations High Commissioner for Human Rights concerning the es-
24. Amnesty International, Nepal: A decade ofsuffering and abuse, Press Release of 10 February 2006. 25. INSEC, Nepal. Human Rights Yearbook 2005, p. xi. 26. Ibid., p. xii. 27. Ibid., pp. iv-v. 28. Ibid., p. viii. 29. Norwegian Refugee Council, Internal Displacement. Global Ovewiew of Trends and Developments in 2004 (March 2005) and Internal Displacement. Global Ovewiew of Trends and Developments in 2005 (March 2006). 30. ICRC, Annual Report 2005. Nepal, pp. 173-176.
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tablishment of an office in ~ e ~ a On l . ~20' April 2005, the Human Rights Commission under agenda item 19 adopted resolution 2005178 during its 61st session. Among other things, the resolution called upon the Nepalese government 'to ensure full and unimpeded access without prior notice, of the National Human Rights Commission of Nepal, the Office of the High Commissioner for Human Rights and the International Committee of the Red Cross to all persons held in detention, including places of detention under the authority of the Royal Nepalese Army'. It was also requested that the High Commissioner for Human Rights would establish an office in Nepal with the mandate '(. ..) to monitor the situation of human rights and the observance of international humanitarian law, including investigation and verification nationwide through international human rights officers (...)'. Both parties to the conflict welcomed the establishment of the UN office publicly and in communications to the High Commissioner. Government forces and Maoists clashed frequently, especially in western areas of the country. The far-west and far-east districts saw an unprecedented number of attacks on government buildings and acts of retaliation in areas not previously affected. Throughout 2005 the CPN-M regularly called general strikes (bandhs), targeting all those who refused to comply. On 3 September 2005 the CPN-M unilaterally declared a three-month cease-fire, extending it by another month soon after.32During this period it signed a 12-point understanding with an alliance of seven political parties, which included a call for the election of a constituent assembly under international supervision. The CPN-M and the political parties agreed to work towards ending what they called an autocratic monarchy, to accept the outcome of multiparty elections and thus to boycott the forthcoming elections in 2006. The palace did not acknowledge the cease-fire and refused to discuss it. The parties responded by organising protests in the capital and in the districts. On 2 January 2006 the CPN-M ended its ceasefire and soon afterwards fighting between the Maoists and security forces spread to almost all 75 districts of ~ e ~ a ? ~ . Human Rights Watch reported that civilian casualties soared.34Maoists increasingly attacked urban areas and sought refuge among civilians, while security forces were reported to be using helicopters to drop mortar shells in civilian areas. On 19 January 2006, a curfew was imposed and mass arrests were carried out by
3 1. The agreement was signed on 10 April 2005. In May 2005, the High Commissioner for Human Rights established a human rights monitoring mission in Nepal. Mr Ian Martin was appointed as representative of the High Commissioner. 32. The Maoist Chairman Prachanda had rejected peace talks with the new government in a very rare voice-recorded Press Statement broadcast by the BBC on 12 February 2005. The next day. Maoist spokesman Krishna Bahadur Mahara told the BBC that their previous demands for a constituent assembly, an interim government and a round-table conference were no longer relevant and that they would now focus on the complete abolition of the monarchy. Maoists also held rallies in New Delhi and other Indian cities. 33. Human Rights Watch, World Report 2007, Nepal Chapter. 34. Ibid.
Case study: Nepal
!
i
40 1
the government. Telephone services were shut down.35Despite (inter)national opposition, the government continued to push for local and parliamentary elections in February, which were widely seen as an attempt by the King to legitimise his rule.36Security forces were reported to be using excessive force against protesters. Following the failed elections, a broadly based opposition movement instigated street protests by hundreds of thousands of Nepalese throughout the country on 4 April 2 0 0 6 . ~The ~ royal government used force. A total of 18 people were killed and some 4,000 injured. After 19 days of widespread public demonstrations, protests and strikes, King Gyanendra announced, on 21 April, that he had relinquished executive power and invited the opposition to form a government. On 24 April the House of Representatives was reinstated. It removed the King as cornmander-inchief, but allowed the monarch to retain his ceremonial authority. At the beginning of May, the CPN-M and the government declared a cease-fire. They signed a Code of Conduct on 26 May. In November 2006, the government and the CPN-M signed a comprehensive agreement to implement a peace process, establish a constituent assembly, redraft the country's constitution, and establish an interim government. The (no longer Royal) Nepali army and the CPN-M agreed to an arms management pact under which each side would hand in its weapons and withdraw most troops to barracks under UN supervision - the mandate of the United Nations Mission in Nepal (UNMIN) started on 23 January 2007. The parties also promised to avoid recmiting anyone younger than 18 years of age for military purposes. The government released hundreds of detainees held under the Public Security Act and the TADO. The strict limitations of freedom of speech and association were removed. Maoist cadres began to operate openly in former government-held areas such as Kathmandu and accepted other political parties to operate in areas under their control. Human rights and IHL violations decreased and casualties caused by armed clashes reduced to almost zero.38 This might be the end of a tale of war and suffering, but it is probably too early to tell. At the time of writing (May 2007) the situation is still rather unpredictable. The current political transition period is marked by incursions. The southern plain bordering India, known as the Terai, witnesses marginalized ethnic groups de-
35. Amnesty International, Human Rights Watch and the International Commission of Jurists, 'Nepal: Mass Arrests Spark Fear of Rolence. Crackdown on civil society ahead of elections', Joint statement of 20 January 2006. 36. Amnesty International, Nepal: a decade ofsujfering and abuse, Press release of 10 February 2006. 37. United Nations Office of the High Commissioner for Human Rights in Nepal, The April Protests. Democratic Rights and the Excessive Use of Force. Findings of OHCHR-Nepal's Monitoring and Investigations, Report of 21 September 2006. 38. 'Maoists and Ministers', The Economist, 3 April 2007: '(.. .) over 60 people have died since the beginning of the year (. ..) 123 people died in political or state-sponsored violence in the three months to the end of January (. ..) In all there were 640 "human-rights violations" such as murders, abductions and torture during that period.' As a source for the above-mentioned figures the National Human Rights Commission (of Nepal) is mentioned.
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manding autonomy. Protests and violent incidents are reported daily. A breakaway Maoist faction announced in March that it would terminate its cease-fire if the government failed to meet its demands.39In Kathmandu as well as in other parts of the country weekly demonstrations and protests are being organized by alliances of indigenous groups. Further protests and violence seem likely in the absence of a favourable compromise between ethnic groups and the Seven-Party Alliance gov-
ern men^^' On 1 April 2007 five Maoist ministers were sworn into a Cabinet of twenty-two members by Prime Minister Girija Prasad Koirala. The election of the Constituent Assembly which will adopt a constitution for the country has been delayed because regulations governing the process are not yet ready. A new date for those elections will have to await until the end of the monsoon season and the major holiday period which will probably mean November 2007 at the earliest.
3.
THE WARRING PARTIES AND INTERNATIONAL HUMANITARIAN LAW
3.1
The ~ a o i s t s ~ '
The top-down political structure of the CPN-M at the time of the author's mission consisted of the Standing Committee followed by the Politburo and the Central ~ o m m i t t e eComrade .~~ 'Prachanda' or Pushpa Kamal Dahal was Chief of Operations while Baburam Bhattarai headed the political wing of the CPN-M called the United People's Front. Rumours about leadership disputes were frequent. In February 1999 the Maoists announced the formation of a regular 'People's Liberation Army' (hereinafter PLA), headed by a Central Military Commission. From that moment onwards, military activities began to increase in scale, scope and fre-
39. The group is reportedly called the Janatantrik Terai Mukti Morcha and is demanding the withdrawal of cases against its cadres and economic benefits for the relatives of those killed during recent violent protest actions in the south-eastem Terai region as a precondition for negotiations. 40. P. de Wit, 'Minderheden eisen stem in nieuw Nepal', NRC Handelsblad, 1 March 2007. See for more general information on 2006, inter alia, International Federation of Red Cross and Red Crescent Societies, Programme Update. Nepal: 2007 Outlook, at ~http://www.ifrc.orglcgi/pdf~appeals.p1? annua106MAANP00102.pdfi. See also the Press Release by the United Nations Secretary-General's Special Representative on Nepal to mark the publication of the first quarterly report on the activities of the United Nations Mission in Nepal (UNMIN) 4 May 2007. The Special Representative stated, amongst other things, that the present conflicts were not the direct outcome of the armed conflict but were related to the problems of traditionally marginalized groups, including the Madhesi - who had pressed their claims through a movement attended by a great deal of unrest and violence between January and March 2007 - the Jamjati, the Dalits and women in general. It is noted in the report that some of the underlying causes of the conflict are yet to he tackled. 41. S. Sharma, 'The Maoist Movement: An Evolutionary Perpsective', in Thapa, supra n. 5 . See also <www.raonline.ch> ->Nepal->peace democracy->information links->civil war. 42. Five regional bureaus in their tum direct various sub-regional bureaus, district committees, area committees and cell committees. See also Karki and Seddon, supra n. 5, p. 26.
Case study: Nepal
403
quency. The PLA consisted of six guerrilla battalions, which received orders from their individual chief commissars, who were Central Committee members. Government estimates dating from early 2003 indicate that the CPN-M's strength amounted to approximately 5,500 'combatants', 8,000 'militia', 4,500 'cadres', 33,000 'hard-core followers', and 200,000 'sympathizers'. These categories were used by the Nepalese government and do not represent categories based on IHL. In September 2004, the CPN-M announced plans to expand the PLA to a 100,000strong 'people's militia'.4' 3.2
Government and King - security forces
From 1996 to 200 1 government security operations were conducted by the Nepal Police (hereinafter NP). After the break down of peace negotiations in November 2001, the Royal Nepalese Army (hereinafter RNA) was mobilised to combat the growing insurgency. At the time the strength of the RNA was around 52,000 and its main experience was in international peace keeping operations and ceremonial activities at home. The Armed Police Force (hereinafter APF) was established in 2002 as a semi-military arm of the police. In November 2003 the 46,500-strong police force and the 15,000-strong armed police force were placed under the 'unified command' of the RNA for joint counter-insurgency operations. In February 2005 the strength of the RNA was believed to be 78,000 and planning to expand At that time, not counting other bodies such as the National Inup to 100,000.~~ vestigation Department, state security forces approximately totalled 140,000. 3.3
Applicability of international humanitarian law
In 1964 Nepal ratified the four Geneva Conventions of 1949, applicable to international armed conflict. In addition, Nepal is a party to several other IHL related con~entions.~"he Nepali Treaty Act of 1991 stipulates the prevalence of interna-
43. See e.g., 'Nepal Maoist open strategic offencive in people' war', at <www.nvor.org>->Topics>Nepal->lO October 2004. See also the statement by CPN-M Chairman Prachanda of 31 August 2004, 'Against Imperialism, Comprador-capitalism, Fascism and all Kinds of Reaction', at <www. portland.indymedia.org>. 44. International Crises Group, Nepal :r royal coup: making a had situation worse, Asia Report No. 91 of 9 February 2005, p. 6. 45. Le., the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, the 1936 Proces-verbal relating to the Rules of Submarine warfare set forth in Part IV of the Treaty of London of 1930, and the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. Nepal is a signatory to the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destmction. Nepal has also ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the 1989 Convention on the Rights of the Child.
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tional treaties to which Nepal is a party if any conflict exists between domestic and international law.46 To date, Nepal has not signed the two Additional Protocols of 1977, the second of which regulates the application of IHL in non-international armed conflict.47It can be argued that the conflict in Nepal was a classical example of a non-international armed conflict; a political group decided to take up arms and to fight the established authorities. In such cases Article 3 common to all four Geneva Conventions applies. Next to this rudimentary set of rules, rules of customary international humanitarian law were also applicable in the context of the conflict in ~ e ~ aNepal 1 . ~has~ yet to become a party to the Statute of the International Criminal Court.49During the armed conflict, Nepal was a signatory to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed ~onflict.~' This treaty establishes the age of 18 as a minimum for any direct participation in hostilities and for compulsory recruitment. It also rules out recruitment - whether compulsory or voluntary - by non-state armed forces. 3.4
Commitment in words and actions
Both parties to the conflict expressed their commitment to abide by the Geneva Conventions on many occasions and in different ways.51 According to INSEC, the Maoists underlined in various statements, articles from senior leaders, Party documents, and during interaction with human rights activists, ICRC and the media the importance of IHL.~*They claimed they felt obliged to follow the letter of the Geneva Conventions.
46. Section 9 of the Treaty Act 2047 (1991). 47. Nepal did sign the Third Additional Protocol to the Geneva Conventions of 2005 establishing an additional emblem (the Red Crystal). 48. See J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law. Volume I : Rules (Cambridge, Cambridge University Press 2005). 49. Nepal has ratified a large number of international human rights conventions, but some human rights, such as the right to assembly and speech, can be suspended during conflict or during situations such as a state of emergency. The 1990 Constitution of Nepal contains legal provisions governing the introduction and administration of a state of emergency. However, already in 1994 the UN Human Rights Committee deplored the lack of clarity in these provisions (particularly Art. 115). See High Commissioner on the human rights situation and the activities of the Office of the High Commissioner of Human Rights, including technical cooperation, in Nepal, Index No. Al601359, Report of 16 September 2005. 50. Nepal ratified the Optional Protocol to the Convention on the Rights of the Child on 3 January 2007. Article 7.6.1 of the 22 November 2006 Comprehensive Peace Agreement stipulates that neither party will use or enlist children, and that the parties should provide for their rehabilitation. 5 1. INSEC, Nepal. Human Rights Yearbook 2005, p. 122. 52. Ibid., p. 108. See also a quote from Maoist Chairman Prachanda concerning the treatment of 'prisoners of war' as published in Karki and Seddon, supra n. 5, p. 253. In the same source on pp. 279-280, see also a statement by Baburam Bhattarai (Standing Committee Member of the CPNM) of 4 September 2002 concerning the applicability of IHL in the context of a non-international armed conflict in Nepal and the necessity of 'checking' on war crimes (committed by the other side).
Case study: Nepal
405
The government translated the Geneva Conventions into Nepali; human rights celIs (dealing with various matters relating to IHL) were formed in the Home Min~ (armed) police force; on several occasions IHL-related declaraistry, R N A ~and tions were published such as 'His Majesty's Government's commitment on the Implementation of Human Rights and International Humaniarian ~ a w ' . ~ ~ The ICRC's offer of humanitarian services was accepted by both sides. Civil society assisted in spreading knowledge about the rights and duties of the warring parties, and about the importance of the protection of civilians. The ICRC and various human rights organisations provided training and seminars (e.g., to civil and military authorities) on IHL and human rights. Many Nepali organisations and the media contributed to spreading knowledge about IHL through the radio, newspapers, etc. At the same time, many open-source publications can be found containing information about alleged IHL and human rights violations committed by both sides.55If only half of those cases could be confirmed, it adds up to a high number of serious violations of IHL and of non-derogable human rights. Maoists were supposedly responsible for the deliberate and arbitrary killing of civilians (such as family members of security personnel, workers and leaders of political parties, as well as government oficials) and unlawful killings of combatants (for example, unarmed security personnel). Eye-witness accounts describe various violations, including beheadings, beating victims with hammers or lacerating them.56Allegations further include hostage taking, torture, extortion, looting of civilian property, recruitment and deployment of minors for the armed struggle, indiscriminate attacks with improvised explosives, and human rights abuses through a mobile court system (the so-called 'People's Courts' which heard complaints at grassroots level and gave verdicts on the spot).57
See also 'Nepal: Maoists Offer Self-Criticism After Bus Bombing', at <www.rwor.org>->Topics>Nepal->24 July 2005, where it is stated that CPN-M Chairman Prachanda made it clear in his statement of 14 June 2005 that 'killing civilians - deliberally or even unavoidable accidents - remains completely against party policy'. 53. See ICRC, Annual Report 2005. Nepal, p. 176. 54. Declaration by Prime Minister Surya Bahadur Thapa of 26 March 2004, INSEC, supra n. 25, pp. 106-107. 55. The conflict was increasingly being reported in the international press and by (inter)national organisations. See, inter alia, TNSEC, Nepal. Human Rights Yearbook 2005, pp. 123-128, and Amnesty International, Report 2002. Nepal, Index No. POL 10/001/2002, and Amnesty International, Nepal. Widespread 'disappearances' in the context of armed conflict, Index No. ASA 31104512003, Report of 16 October 2003, and Amnesty International, Nepal. A long ignored human rights crisis is now on the brink of catastrophe, Index No. ASA 31102212005, Report of 18 February 2005, and Office of the High Commissioner for Human Rights, Nepal. Investigations into violations ofinternational humanitarian law in the context o f attach and clashes between the Communist Party of Nepal (Maoists) and Government Securiy Forces (January-March 2006), Report of 18 April 2006. See also International Crises Group, supra n. 44. For general information on IHL violations in Nepal see ICRC, Annual Report 2005. Nepal, pp. 174-175. 56. INSEC, Nepal. Human Rights Yearbook 2005, p. 9. 57. Karki and Seddon, supra n. 5, pp. 54-55.
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Alleged IHL violations by the security forces included arbitrary detention, disappearances, death in custody, the killing of persons hors de combat, indiscriminate attacks, torture, unfair trials, the use of excessive force and deliberate and arbitrary killings of civilians.58Instances were recorded where people who were arrested and detained under the TAD0 were killed on the basis of (unsubstantiated) charges of attempted escape.59Many of the detainees falling under the mandate of the ICRC (so-called 'security detainees') were held under several strongly criticised rules and regulation^.^' Until today, impunity for those suspected of having committed these violations is one of several issues of the utmost concern. Furthermore, allegations of (continuing) use of child soldiers by the CPN-M exist6' and more than 800 cases of disappearances are still unaccounted for.62 The Comprehensive Peace Accord agreed by the Government of Nepal and the CPN-M provided for the establishment of a Truth and Reconciliation Commission (hereinafter TRC). Hopehlly, the legislation which is to be drafted and which is necessary to establish a TRC will also give the TRC the mandate to investigate violations of IHL and human rights committed during the armed conflict between the Government of Nepal and the CPN-M from the start of the Maoist insurgency (13 February 1996) to the conclusion of the Comprehensive Peace Accord (21 November 2006). Notions of such violations should be clearly defined. As required under international law, the Commission should not recommend amnesties or similar measures of impunity with respect to crimes under international law, such as war crimes, genocide, crimes against humanity, extra-judicial killings, enforced disappearances and torture.
58. Human Rights Watch, Clear Culpability: 'Disappearances' by Security Forces in Nepal, Report of February 2005, and Human Rights Watch, Nepal: Security Forces 'Disappear' Hundreds of Civilians. King's Putsch Unleashes Abusive Army, Press Release of 1 March 2005, in which B. Adams, Asia Director for Human Rights Watch states: 'Maoist forces have a horrendous record of killings, torhlre and intimidation, but the response can't be to unleash an army that has been responsible for so many 'disappearances' and other egregious human rights abuses'. See also Human Rights Watch, Country Summary Nepal, January 2006. 59. INSEC, Nepal. Human Rights Yearbook 2004, pp. 8-9. 60. See UN Working Group on Enforced or Involuntary Disappearances E/CN.412005165/Add.1, Report of 28 January 2005. 6 1. See Human Rights Watch, Children in the Ranks. The Maoists' Use of Child Soldiers in Nepal, Report of February 2007, and ICRC, Nepal: ICRC activities in 2006, Operational update of 3 1 December 2006. 62. ICRC, Nepal: ICRCseeks to clarify thefate of more than 800 missingpersons, Press Release of 14 February 2007.
Case study: Nepal 4.
A FIELD PERSPECTIVE
4.1
The Red Cross in Nepal
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All three components of the International Red Cross and Red Crescent Movement, namely the ICRC, the International Federation and the national societies, are present in Nepal and work on the basis of the same seven fundamental principle^.^^ All 186 National Red Cross or Red Crescent Societies have a permanent presence in their home countries. The Nepal Red Cross Society, founded in 1964, is one of them.641t seeks to decrease the population's vulnerability to health crises and disasters by implementing community-based projects via its many local branches and volunteer^.^' The Nepal Red Cross was one of the few organisations that were able to continue its humanitarian activities throughout the country during the conflict. A representative of the International Federation (the body which coordinates all Red Cross and Red Crescent Societies) has been based in Kathmandu since late 2003. The main task of the Federation in Nepal is to strengthen the capacity of the Nepal Red Cross in project management and reporting, as well as coordination and partnership building. The Federation and several National Societies (fiom Belgium, Denmark, Japan, Norway, Sweden and Switzerland) are working with the Nepalese Red Cross in a number of different fields, such as the prevention of eye infections, improving access to drinking water, water purification and emergency preparedness training of volunteers. With the support of the ICRC, the Federation and the media, the Nepalese Red Cross launched a national campaign to combat misuse of the Red Cross emblem. Only when people are aware of the meaning of the emblem (and its legal basis in IHL and often in national legislation), can they appreciate and respect its life-saving value during armed conflict. On the basis of Common Article 3 to the Geneva Conventions, an impartial and humanitarian organisation such as the ICRC can offer its services to the parties in the conflict. Both parties accepted the ICRC and the protection and assistance package it offered. As the ICRC does in many other countries where it has a pre-
63. The seven fundamental principles of the International Red Cross and Red Crescent Movement are: humanity, impartiality, neutrality, independence, voluntary service, unity, universality - see . 64. See the website of the Nepal Red Cross Society at ~http:!!www.nrcs.org!>. 65. For example, First Aid Services provided by the Nepal Red Cross Society during political demonstrations. The following example serves to demonstrate just one of many problems the country faces next to the effects of the armed conflict. The Nepal Red Cross Society, through its comrnunitybased health care programmes, seeks to combat maternal and infant mortality due to post-partum haemorrhage. An estimated 35,000 women and babies die each year due to unsafe childbirth and neonatal practices, discrimination against women and the lack of access to health care. Estimates claim that this silent tragedy has so far claimed over 25 times more lives than the conflict. See the Federation website for more information at <www.ifrc.org/photoiwdr200611 l.asp> and
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sence, the organisation signed a so-called Headquarters Agreement with the government of Nepal. These agreements help the ICRC to fulfil its mandate conferred to it by IHL, the resolutions of the International Red Cross and Red Crescent Conference and the Statutes of the Red Cross and Red Crescent Movement. The agreements govern the status of the ICRC's delegations and their staff. In some districts the CPN-M demanded (local) development organisations to register with the 'new regime' or to subscribe to basic operating guidelines. The ICRC never did so, on the basis of its impartiality, neutrality and independence. This was generally respected by the Maoists. The ICRC initially worked in Nepal out of its regional delegation in New Delhi. An office was opened in Kathmandu in 2001, followed by smaller offices in the west and east of the country. The ICRC's primary aim in Nepal was to protect and assist people affected by the fighting between the government and the CPN-M. It did so by serving as a neutral intermediary between the parties, visiting detainees, strengthening compliance with IHL and improving care for the wounded. The ICRC and Federation worked closely with the Nepal Red Cross Society to assist conflict-affected populations, including displaced people, and to maintain family links. The promotion of humanitarian values, the Fundamental Red Cross and Red Crescent Principles and the principles of IHL, was essential for strengthening the role of the Nepal Red Cross Society as a neutral and independent organisation in conflict-affected Nepal. 4.2
The ICRC in ~ e p a 1 ~ ~
In short, the mandate of the ICRC is to alleviate the suffering of people who do not or no longer fight. It does so by providing protection and assistance. Throughout the conflict, the focus of the ICRC operation in Nepal was protection. The ICRC visited persons deprived of freedom in connection with the conflict in prisons, police stations, military detention facilities and Maoist detention facilities. The objective of these visits was to ensure that detainees were kept in good physical and psychological conditions of detention, were treated humanely (in accordance with IHL and other internationally recognised standards) and were in contact with their family. The ICRC checked the premises, held private talks with prisoners and collected written family messages (so-called Red Cross Messages). At the end of a visit, the ICRC shared its findings with the detaining authorities in a confidential fashion. Release checks were being undertaken to verify whether detainees falling under the mandate of the ICRC, who were said to have been released, had indeed returned home safely. The ICRC also served on several occasions as a neutral in-
66. ICRC, Nepal: ICRC activities in 2004, excerpts from an Operational Update of 19 March 2005 at . See for general information about the ICRC in Nepal the following website,
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termediary accepted by both parties to the conflict to facilitate the release and safe return of detainee^.^' Furthermore, the ICRC followed up violations of IHL allegedly committed by the security forces and PLA against the civilian population or against persons hovs de combat. ICRC teams throughout Nepal collected eye-witness accounts and submitted these orally and in writing to the parties to the conflict, reminding them of
their obligations under IHL. As part of promoting compliance with the Geneva Conventions the ICRC lectured to security forces, the CPN-M, government representatives, civil society and Red Cross personnel on IHL and on human rights as far as they are applicable in internal armed conflict. The ICRC continuously encouraged the ratification of more IHL instruments and their incorporation into national legislation. It assisted the Nepali Red Cross Society financially in reaching out to victims of the conflict and raising awareness as to the importance of the Red Cross emblem as a symbol of protection among the population. Assistance activities were aimed at helping the civilian population as well as war-wounded on both sides. It included improving water supply systems in remote villages affected by the conflict and in prisons. Access to and quality of treatment for wounded fighters and civilians was improved by assisting rehabilitation services and the provision of war surgery training to medical personnel. Minerisk education was instigated via the Nepal Red Cross Society. At the time of writing (May 2007) the ICRC focus has changed together with the political situation in Nepal - described by the ICRC as 'internal disturb a n c e ~ ' .Since ~ ~ May 2006, the priority for the ICRC has been the problem of missing persons.69From 1998 onwards the ICRC had regularly submitted requests concerning missing persons to both sides, demanding that their families be informed about their whereabouts. It recently published a list with the names of 812 persons reported missing by their families in an attempt to obtain more information about their fate."
67. See e.g., ICRC, Nepal: Eighteen detainees released under ICRC auspices, Press Release 05163 of 19 July 2005 and ICRC, Nepal: The long walk home - 62 armed forces and securib personnel released under ICRC auspices, Press Release OSIS 1 of 15 September 2005, and ICRC, Nepal: Two policemen and two civilians released, Press Release 06138 of 26 April 2006. 68. ICRC, Nepal: ICRCprovides humanitarian aid for victims of internal disturbances, Press Release 06137 of 26 April 2006. 69. ICRC, Nepal: ICRC activities in 2006, Operational update of 3 1 December 2006. 70. ICRC, Nepal: ICRC seeks to clarrb the fate of more than 800 missingpersons, Press Release of 14 February 2007.
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4.3
Humanitarian law in the Himalayas
What made working for the ICRC in Nepal seem relevant was, firstly, the fact that both parties to the conflict had a public face. Admittedly, sometimes one party was more visible than the other and it was not always clear who belonged to which side, who was taking a direct part in hostilities or who was in control. This could even vary between day and night-time. Both parties, however, worked with a certain structure and command hierarchy. Their political objectives were relatively well known, as was the prevailing ideology. A second essential factor was the fact that the ICRC was able to maintain a working relationship with the civil authorities1RNA and with the CPN-M. Not surprisingly, the process of building up a relationship based on trust took a long time. As explained below, the ICRC was not always able to do its work according to its mandate and had to take action accordingly, but overall both sides seemed to understand and appreciate the mandate and activities of the ICRC. The organisation had freedom of movement and could repeat visits to the same places throughout the conflict, be they remote districts, ordinary villages or locations of detention. Thirdly, our team sometimes felt it was able to 'make a difference' during the course of our mission - sometimes even during the course of one field trip. For example, by offering protection to Nepali people, when detainees could be registered (which decreases the possibility of disappearances) and when their families could (finally) be informed about the fate of the missing person, when a follow-up visit to a place of detention made clear that conditions had improved, when we confronted a party to the conflict with an alleged violation of IHL and it was followed by an open reaction and useful discussion, when a release check confirmed that someone had been released and was safe, or when training ended in more understanding about IHL and the ICRC. Next to this we could appreciate the moments when there was mutual understanding and good cooperation with the Nepali Red Cross Society and its many local chapters and volunteers, or when people positively remembered the ICRC from previous visits by former colleagues. Last but not least, the Red Cross emblem offered protection in Nepal, as did our foreign appearance (one field team generally consisted of an interpreter and delegate, both ex-patriates). All the above mentioned activities kept the ICRC quite busy. Let me describe, as an example, the last ten minutes of a field trip to the Mount Everest district. As the team was waiting for the aircraft to arrive - which is never certain until the last minute because of rapidly changing weather conditions - a man approached us to write a Red Cross Message to a close family member in prison. While talking to him, a former 'client' of the ICRC (a security detainee who had been released) arranged a cup of tea for us. As we were about to take a sip the doctor of a local hospital approached us. He was immediately surrounded by soldiers who carefully listened to what he discussed with us. We talked about non-confidential topics such as the protection of medical personnel in wartime and the use of the Red
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Cross emblem. There was no time for a private conversation with him so we gave our contact details and some last information material. Suddenly a scream and excitement as one of the waiting tourists was bitten by a dog. Everyone looked at us because we bore Red Cross emblems - surely we were medics? We quickly helped the girl as best as we could while trying to explain to the gathered crowd that we were not, in fact, doctors. Nevertheless, a boy approached us to ask for medicine for his dying grandmother. Meanwhile, volunteers from the local Red Cross chapter approached us to discuss some last relevant issues but we were interrupted once again, this time by a local journalist who wanted to know our view on the 'Maoist problem'. Next, a group of giggling girls asked me whether I was actually married to the interpreter and how many children we had. A police officer who we had met the day before came with a follow-up message from his superior but did not want anyone to hear. We walked away from the centre of attention which caused some villagers to fear that we had been arrested. A group of tourists started to take photographs in an attempt to protect us when, out of the blue, the fifteen-seat aircraft appeared over a row of stunning mountain peaks. It was flown by one of the six qualified female pilots in Nepal and landed within seconds on a very bumpy, 500-metre long airstrip. Three chairs were taken out of the plane because a woman with a severely damaged back had to be flown to Kathmandu. Because of this, three passengers, some of whom had been waiting for days, would have to give up their seats. An elderly couple, their family member being very ill in a Kathmandu hospital bed, pushed us forward and said: 'Off you go. We need you to do your work more than anything else at the moment. Take our seats and reach as many people as you can.'
4.3.2
Frustrations and challenges
These positive experiences, unfortunately, were countered in various ways. Frustration could occur when having discussions with arms carriers from both sides about the conduct of hostilities, while they did not seem to have any idea about IHL or pretended not to have one. We met angry family members of victims who scolded us for not doing enough, or we stood powerless next to hghtened villagers who did not know whom to trust anymore. The impact of the armed conflict on the daily lives of the civilian population reached far, mentally as well as physically. Damaged infrastructure and road blockades slowed everyone down, including the country's economy. Many families had negative experiences with both sides. During one field trip we met a woman whose son had joined the Maoists some years ago. No news since. Her husband had recently been arrested by the army. No news since. She was alone and made a confused impression. We spoke to her in the middle of a corn field, while sitting down on a reed mat provided by some villagers. She must have been at least 60. We felt cold and stiff. She could not answer some of our most basic questions but repeated facts which were not relevant for our electronic detention database records. After we had said goodbye, we felt slightly relieved that the conversation was over. I looked back. She stood there on that little hill and was still staring at us. Again I greeted her but she turned her
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head and walked out of sight. Had she understood anything that we had said to her? In my mind I vowed that I would make a strong intervention on behalf of her husband during the scheduled meeting the next day. It worked. We received an answer and arranged that she could see her husband and bring him clothes. The next day she did not show up at our meeting point, so we had to continue our journey back without having spoken to her. Later that day a man passed us on the trekking trail. He told us that he was from the same village as the woman we were supposed to meet yesterday. She had committed suicide that very morning by taking poison. An important ICRC protection activity is to monitor the humanitarian environment of the civilian population by gathering allegations of violations of IHL by both sides. These allegations are brought directly to the attention of the warring parties through confidential discussions and reports. During the armed conflict in Nepal the ICRC constantly urged all parties to adhere to the law.71'Delegates go to the field, sometimes for ten days or so, very often on foot (. ..) The delegates also note down allegations by villagers of how they have been adversely affected by the conduct of hostilities, or badly treated by different formations, which may be the Maoists, the Royal Nepalese Army or the police. The ICRC intervenes with the authorities in the hope that they will take the necessary measures to prevent reoccurrence - and punish the perpetrators'.72 The effect of our efforts was not always easy to measure. Did they really want to find out who was responsible or did they already know? Were orders actually given? Was this an isolated incident or did we detect a pattern? Was an investigation reopened because of an ICRC intervention or was it because the UN and Amnesty International had publicly called for the same action? Related concerns presented themselves as well: 'Will the parties harass the persons we talked to after we have left the spot? What can we do to avoid it?' Sometimes we wished we were 'simply' handing out bags of rice. As described earlier, both parties in Nepal had a public face. In some regions of the country, the field teams had to deal with a wide range of command levels from both sides during the same field tip: meeting a highly educated army officer who had just returned from an IHL training course in San Remo, Italy, or drinking tea with an English-speaking high-ranking Maoist who had done his PhD in India. It also entailed talking to a 16-year old fresh recruit who could read nor write while she did carry an AK 47, only to bump into an insecure-looking young army captain afterwards whose first wartime post was running a very remote camp while all he ever wanted was to earn good money during a UN peace-keeping mission.73Obviously communication did not always go smoothly at all levels and at all times. In
7 1. ICRC, Nepal: ICRC activities in 2006, Operational update of 3 I December 2006. 72. ICRC, Nepal: The authorities have understood that we must have contact with both sides, interview with F. Medert (head of the ICRC delegation in Nepal) of 4 May 2006. 73. Nepal can be found among the 10 leading contributing nations to UN peacekeeping operations. It contributed 3.451 personnel in 2004 (as per 31 December 2004) and 3,466 in 2005 (as per 31 December 2005) - see the website of the United Nations Peacekeeping Monthly Summary of Con-
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4 13
the ICRC Annual Report of 2005 an example is given: 'The ICRC met members of the CPN-M leadership at district and regional level and submitted reports on the conduct of hostilities and the obligations to respect and protect civilians and detainees. It also visited and registered some of the people in CPN-M's custody and facilitated releases of detainees when they occurred. However, it had difficulty establishing the high-level and sustained dialogue in order to coordinate their activities in the areas of shared concern (. . .) Although the PLA indicated an interest in learning more about IHLhuman rights law, the ICRC had dificulty maintaining the direct contact with its leadership needed for the planning and organisation of a formal and systematic programme of instruction. Delegates did, however, meet PLA groups in the field and organised sessions with them on IHL and human rights when they had the chance.' We experienced frustrating moments while working with the government side as well. The annual ICRC Report of 2005 reads clearly: 'The [detention] visits went smoothly in jails and police stations run by the Home Ministry. In contrast, ICRC teams encountered problems during visits to camps and barracks under the authority of the RNA. In April, ICRC suspended its visits to these military facilities. The RNA and ICRC then created a high-level working group to serve as a forum to discuss solutions to the problems. By the end of the year, the working group had taken measures to address some of the issues raised by the ICRC."~ In reality unforeseen factors constantly complicated the work. We visited a blacksmith one day to talk to him about the disappearance of his son. The caste system in Nepal has officially been abolished but in practice people still suffer from it. Blacksmiths used to belong to the lower castes. We tried to take an Allegation of Arrest so that we could enter his son's name and details in our ICRC protection database, make interventions to the responsible side and try to trace, hopefully visit and register him. The blacksmith was at home, sitting next to his wife, but hardly wanted to speak. It became clear that their son had been taken but details were not shared with us. We tried in many ways. The whole village gathered around us. Everyone had something to say about it, making the family even less willing to share information with strangers. At one point it seemed that the situation had become difficult for the family, so we left without any information about the disappeared son. Was it the increasing fear of retaliation by either side? Was it a lack of education? Maybe they had never seen a foreigner? Could his wife and daughter not speak to us (we could see they wanted to) because of the inferior position of women in the Hindu caste system? Was it a combination of all these factors? Was there anything else we could have done? We continued our way in silence. On the basis of IHL, a family has the right to know the fate of their be-
tributors of Military and Civilian Personnel, UN Department of Peacekeeping Operations . 74. See also ICRC, Nepal: Resumption of visits to detainees in military barrackr, regional news release of 9 March 2006, where it is stated that visits to RNA barracks had resumed countrywide starting that week.
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PJ. C. Schimmelpenninck van der Oije
loved ones. At the same time, we cannot accept rumours as the basis for intervention and we need the consent of the family to take action. When being involved in this type of work one has to accept that perfection cannot be reached no matter how hard one tries or how well one prepares oneself. Making sure that one knows which IHL rules to talk about in which situations and trying to find the right tone. Forming a solid team with the interpreter as it can severely hamper the ICRC work when one does not. Trying to show patience at the right moment but knowing when to be persistent. Trying to grasp the social and political dynamics of the conflict in which one is working, but steering away from any politically-charged discussion as one represents a neutral and impartial, nonreligious organisation. Realising that one's team might be the only representation of the ICRC or any international organisation people might ever see in this remote part of the country. 4.3.3
Fragments of humanitarian trekking
During a cold autumn field trip we were given shelter in the house of a poor family. We could sleep on the ground in the same room as the grandmother. Gratefully we accepted. The whole family gathered around the grandmother on the bed. We explained about ICRC, our mandate in Nepal, the emblem, and I hung the ICRC flag outside to indicate our presence to all. It happened to be a Hindu holy day so the grandmother ordered the children to read out sacred stories and conduct some rituals. As part of his personal evening rituals, the interpreter in turn started to utter prayers to the God of the Evangelist Community in Nepal. The children were fascinated. Everyone silently stared at me, the only one not visibly engaged in any religious activity. So I turned to the Geneva Conventions and felt eternally grateful to be able to prepare for the next day's meeting. On my lap, papers containing questions from 'the field' (Nepal), submitted by 'the delegation' (us) to 'Headquarters' (ICRC in Geneva) and answered by the latter (in French since 1863). Is a non-governmental army allowed to use the Red Cross emblem to indicate their medical staff! Is a soldier on leave a legitimate military target? If a security detainee claims to be the victim of torture but fears retaliation, if ICRC makes an intervention what are the options left? I tried to get into the necessary mind-set for tomorrow's discussion, anticipating the answers which I might get when addressing the use of improvised explosive ordinances. While temperatures dropped, the children tucked themselves in. Closely against one another with snotty noses. Outside, both armies were paying unexpected visits to unknown houses, trekking in silence through forests. Granny's eyes stared at me throughout the night. On the road somewhere, we were in a hurry. A beautiful sunset had begun and curfew time approached. Out of the blue, the ICRC jeep was stopped by a group of angry armed young followers of Mao. Information about IHL and the ICRC followed. All I ever learned about the emblem while processing cases of emblem misuse for the Netherlands Red Cross Society came in handy now. The group appeared to associate our jeep with a shooting incident involving a jeep carrying a Red Cross emblem. After we explained to them the no-weapons policy of the
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ICRC and the meaning of the Red CrossiRed Crescent emblems, they calmed down and started to act more respecthlly towards us. We were then asked the usual questions: 'Where are you from? What do you know about Nepal? What do you do for us? Where does the ICRC get its money from? Do you support our struggle?' Most of our answers focused on impartiality and neutrality, and what that really implied. Finally, we felt safe enough to continue our journey; they trusted us now. We shook hands and hurried on in order to be back before dark, as security rules did not allow for night-time movements. During a field trip in the summer of 2004, we had been walking for 3 days. On this particular field trip we had to walk because our vehicle could not pass a road blockade. According to the civilians living close by, the pile of rocks had been put there by Maoists. At the highest CPN-M level it had been confirmed that the ICRC had freedom of movement in Nepal and was allowed to drive during transport blockades called by Maoists. However, as there is always the risk of hidden explosives in a physical blockade, ICRC rules were not to touch anything. We therefore left the jeep behind. Everything we brought with us on a trip we carried ourselves, as we did not make use of porters (the underlying thought being that it would be safer for them and us, considering the ICRC's confidential way of working). So we plodded along with flyers and booklets in our backpacks. The landscape was beautiful; green coloured hills and rice paddies, waving corn, relatively large houses with thatched roofs and women with nose piercings that would make European girls feel shy. One could see more and more Maoist graffiti on houses, red flags hanging in the middle of village squares. That evening we reached the right persons and enjoyed a Dal Bath meal - the national dish. It was pitch dark, with an astonishing night sky stretched out above us. The next day we would get access to a group of people being held by the Maoists. During our dinner, several political activists and armed fighters stood eagerly discussing, heads bent toward each other. One held an electric torch and lit the Nepali translation of the Geneva Conventions, held by the other. The ICRC did not allow its field teams to carry cameras because of security reasons. At this particular moment, I sincerely regretted it, but at least the materials we had brought seemed to have found a good audience. When King Gyanendra declared the state of emergency on 1 February 2005, we were in the field. While our worried family members tried to reach the delegation, all flights to and from Nepal were cancelled and mobile telephone networks and the internet were cut off. Radio and television were taken over, media houses, offices of Human Rights organizations and Colleges were monitored by army personnel. Dozens of senior political leaders including former Prime Ministers were put under house arrest and security forces arrested a few hundred political leaders, journalists, and human rights activists. Where we stayed, telephone lines had not been working for months. Everyone spoke about the 'Coup Royal' but people seemed slightly sarcastic and weary about the situation. Their attention was focused more on the bhande (transport strike) called by the CPN-M. In this part of the country, a movement stop influenced daily life more than a Royal Proclamation. By now our schedule had been changed countless times and we were basically stuck in the field. However, we tried to make ourselves useful by following
41 6
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up some cases of alleged IHL violations, doing release checks, visiting a hospital and meeting the subchapter of the Nepali Red Cross. As far as we were concerned it was a field trip like any other. A commander once snapped at us: 'Who do you expect us to be, God? Always doing the right thing?' No, he did not need to be divine; he needed to be a professional. Of course it is easier to talk about the law than to actually apply it. In the end, however, it is not the ICRC's job to emphasise this with the waning parties. For various reasons they decided to fight, making it their responsibility to apply IHL. Still, I preferred parties snapping at us and engaging in dialogue, than having to sit with a commander who nodded politely but did not seem (willing) to register anything we said.
5.
CONCLUSION
What is it like to be working on the basis of IHL? The aim of this article was to share with the reader some experiences with regard to that question, in this particular case from the point of view of a humanitarian aid worker. Nepal was taken as a case study because the author worked there as a field delegate for the ICRC. The ICRC cannot talk about the content of its discussions with arms carriers in order to sustain its impartiality and neutrality. It needs to be impartial and neutral in order to be continuously able to reach victims of armed conflict, so that it can help to protect and assist them. The author therefore described the role of the ICRC in Nepal in general, and gave a non-exhaustive account of persoal impressions, describing certain dilemmas and activities. It was stated that Nepal finds itself once more in turbulent times. A peace agreement was reached during 2006, so far ending a decade-long armed struggle between the government and the Maoist opposition. The same year also witnessed a drastic and historic change with the re-establishment of democracy, signalling the end of Nepal as a monarchy. The security situation has meanwhile improved and is causing less disruption to normal life. However, the present government, controlled by an alliance of seven parties and the Maoists, is still facing a very sensitive and unpredictable political environment. Although the ceasefire is respected by all parties, forced collection of 'donations', policing measures and other unwelcome activities continue. A lack of consent among the major political parties seems to remain. It is based on key issues such as the continued use of weapons and defining the position of the King in the interim constitution. The marginalisation of various ethnic groups and the monopoly of political rule by the urban elite formed a structural socio-economic and political feature of Nepalese society before the civil war started in 1996. The introduction of democracy in 1990 had not been able to change that. If these issues are not addressed sufficiently this time, it might not be the end of fighting but a mere break. Impunity for alleged violations of IHL should also be addressed. IHL has not been designed to address a country's political problems. IHL also does not regulate the legality of reasons for fighting, nor does it offer solutions to
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end it. It describes the rights and duties of waning parties and protected groups and objects during wartime. If more people know about these rules, the possibilities for them to be applied increase considerably. Although IHL is not designed to outlaw war, its application results in alleviating human suffering during war. By limiting negative effects during war, IHL can positively influence the (peace) process afterwards. For a humanitarian worker, for example, these essential aspects of IHL are vital for the appreciation of his or her work. Especially during moments when there does not seem to be much incentive to continue or when the effects of one's work cannot be measured. The commander of one of the parties to the conflict in Nepal once asked us: 'What do you think, will we win this war if we stick to IHL?' From a (very) shortterm perspective, not necessarily. If you destroy an area with heavy explosives, for example, there might be nothing or no one left. Theoretically, you might consider this a victory, but did you win in reality - let alone in a legal, moral or humane way? Admittedly, from a humanitarian perspective it is difficult to argue that in war there are any winners at all. From a longer-term perspective adherence to IHL can no doubt form an important part of winning. The people you need most after the guns fall silent are the civilian population, and more often than not also the parties you fought with during the war. Protecting civilians and persons hors de combat against the negative effects of war, as best as possible, no doubt forms one of the most effective ways of ensuring their respect. Compliance with IHL, more than anything else, can offer a chance to win the peace. This might well be the case in Nepal.
CORRESPONDENTS' REPORTS
CORRESPONDENTS' REPORTS A guide to state practice in thejeld of international humanitarian law
Algeria with commentaries by KAMEL
Ireland with commentaries by RAY
AND ADELMAGED 423 FILALI Australia with commentaries by AMYBARRY-
MACAULAY, ANITACOLES, PURNIKA DHARMADASA, ALISON DUXBURY, JESSICA LATIMER AND JAMES MAY 427 Bahrain Bosnia and Herzegovina with commentaries by LEJLA
VUJINOVIC
439
439
Belgium with commentaries by ERIC
DAVID
463
Canada with commentaries by JOSEPH
RIKHOF
464
Colombia with commentaries by RAFAEL
PRIETO SANJUAN Comoros Denmark with commentaries by PETER
47 1 474
TAVERNIER
478 478
478
Hungary with commentaries by ESZTER
KIRS 483 India with commentaries by NILENDRA KUMAR 485
Yearbook oflnternational Humanitarian Law Volume 9 - 2006 - pp. 42 1-640
487 49 1
49 1 RONEN Italy with commentaries by VALENTINA
DELLA FINA,VALERIA EBOLI, ORNELLA FERRAJOLO, SILVANA 519 MOSCATELLI Jordon Kuwait Lebanon Libya Lithuania with commentaries by RYTIS
SATKAUSKAS Mauritania Morocco The Netherlands with commentaries by NICO
KEIJZER AND ELIES VAN SLIEDREGT
AND ANDREAS LAURSEN 474 OTKEN
Djibouti Egypt France with commentaries by PAUL
MURPHY Iraq Israel with commentaries by YAEL
533 533 533 533
533 536 536
537
New Zealand with commentaries by TREASA
DUNWORTH 539 Occupied Palestinian Territories with commentaries by MUSTAFA MARI 542 Oman 546 The Philippines with commentaries by SOLIMAN M. SANTOS 546 Qatar 555 Saudi Arabia 555 Somalia 555
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Spain with commentaries by ANTONI
PIGRAU Sudan Sweden with commentaries by OLA
555 567
567 ENGDAHL Switzerland with commentaries by ROBERTA 572 ARNOLD Syria 577 Timor-Leste with commentaries by EMILY BELL 578
Tunisia United Arab Emirates Uganda with commentaries by
EMMANUEL KASIMBAZI
60 1 60 1
602
United Kingdom with commentaries by PETER
ROWE
606
United States of America with commentaries by BURRUS
M. CARNAHAN Yemen
622 640
Correspondents' Reports are compiled and edited by Michelle Lesh, in cooperation with Jann Kleffner and Timothy L.H. McCormack ftom information provided to the YIHL by its correspondents. The assistance of Do Hung Viet is very gratefully acknowledged. The section does not purport to be a fully inclusive compilation of all international humanitarian law-related developments in every state, reporting in this volume mainly developments since the beginning of 2006 until the end of 2006 that have come to the Yearbook's attention. Legal developments from early 2006 that were noted in volume 8 of the YIHL are not repeated here. Readers are thus advised to consult this section in conjunction with Correspondents' Reports in volume 8. We apologise for this inconvenience. Further, some 2005 humanitarian law-related developments came to our attention after volume 8 went to press and could not be noted there. For the sake of completeness, we have included them here. Reference is also included to a number of legal developments which are not strictlyspeaking related to IHL but which are nonetheless interesting and relevant for our readers, in particular relating to justice issues, jurisdictional questions, jus ad bellum, state security, human rights, refugees and internally displaced persons, and terrorism. Where citations or dates or other details have not been provided, they were not available or obtainable. The YIHL is actively seeking new correspondents, particularly in Africa, Asia and Latin America. Interested persons and anyone who is willing to contribute information should contact the Managing Editor at [email protected].
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ALGERIA' Implementation o f the Presidential Decree ofNational Reconciliation
*
National Commission for the implementation of the Ordinance and Presidential Decrees related to the enforcement of the National Charter on Peace and ~econciliation.~
This Commission was created by a decision of the President of the Algerian Democratic s ~ in Algiers on 27 Feband Popular Republic in a meeting of the Council of ~ i n i s t e r held ruary 2006.~ 1. Members of the Commission: This Commission is a regrouping of the Minister of Internal Affairs, the Minister of Foreign Affairs, the Minister Delegate to the Ministry of Defence, the Minister of Justice, the Finance Minister, the Minister of Labour and Social Security, the Minister of Employment and National Solidarity, the Director of National Security, the Head of the 'Gendarmerie Nationale' and the Director of the Public Administration (Fonction publique). On 6 March a meeting of this Commission was held in Algiers and the Prime Minister informed its Members that the Ordinance and the Decrees related to National Reconciliation were available to the public at large and in particular for those who will benefit from the measures taken by the new laws.5 2. New Mechanisms: New mechanisms have been established at the local level to avoid obstacles that may occur during the implementation of the new laws related to national reconciliation, these are: - A Local Commission has been created and is presided over by the Wali who is the state and government representative at the local level; The list of the missing which has been established at the national level should be sent before 15 March 2007 to the Walis at the local level in order to enable them to respond to the claims of parents of disappeared persons. These claims will be legal after the judiciary has established and recognised that the missing are dead; - The list of dead terrorists which has been established at the national level should also be sent before 15 March 2007 to the Walis in order to enable them to conduct social investigations on the social conditions of terrorists' families who are eligible for assistance from the state in the context of the national solidarity. -
1. Information and commentaries provided by Kamal Filali, Professor of International law, University of Constantine, Expert Member of UNCRC, Algeria. 2. 'Texte integral du communique de la chefferie du gouvernement' in Algirie Presse Service, 7 March 2006, <www.aps.dziadwelcome.asp>. 3 . The Council of Ministers is presided over by the President of the Republic and composed of all Ministers of the Republic. Article 77 of the Constitution of Algeria dated 28 November 1996. Available at: People's Democratic Republic of Algeria, Presidency of Republic: General Secretariat of Government, <www.joradp.dziHFRIConsti.htm~. 4. Algerie Press Service, supra 2. 5 . Ibid.
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All the Ministries and Central Administration that have a role to play in the implementation of national reconciliation should create a mechanism for follow up reporting in order to help and assist local administration in the enforcement of their duties related to national reconci~iation.~
Indemnisation of the Kctiins of the National Tragedy On 24 September 2006 the indemnisation process of the victims of national tragedy started. According to the Minister of National Solidarity 2 640 families were going to be beneficiaries of indemnisation. These families will receive an amount of one million Algerian Dinars. The families that will benefit from the new law are those who have limited or no income and have lost one family member who has been recognised by the state as a dead terrorist and consequently a victim of the national tragedy.' Evaluation ofthe First Year of Enforcement of the National Charter on Peace and Reconciliation On 7 March 2007 the National Commission for the implementation of the Ordinance and Presidential Decrees related to the enforcement of the National Charter on Peace and Reconciliation made an evaluation of its work after one year of existence. According to this evaluation, law suits have been dropped in relation to 2 226 persons. More than 45 000 claims for indernnisation have been filed before courts throughout the national territory in relation to the families that have lost one of their own that has been recognised as a terrorist. Among these families 10 000 received their indemnity. As far as families of the missing are concerned 800 among this category have filed for financial r e c ~ v e r y . ~
KAMELFILALI The Arab League Model Law on the Crimes within the KC~urisdiction'~ Most of the Arab States have always supported the creation of an international criminal justice system capable of bringing to justice the perpetrators of serious violations of humanitarian law. They have seen the establishment of the International Criminal Court (ICC) as a major victory to humanity in general and to the Arab people in particular." However, it is regrettable that, despite the fact that the Arab States were among the most
6. Ibid. 7. Report on Algeria in 7 YIHL (2004) pp. 445-446. 8. N. Oulebsir, 'Un million de dinars pour chaque famille' in Le Jeune Indkpendent, 25 September 2006 <www.jeune-independant.com/>. 9. Naima. B 'Extinction des poursuites judiciaires a l'egard de 2 226 personnes' in Le Jeune IndPpendant, 7 March 2007 <www.jeune-independant.com/>. 10. Information and commentaries by Judge Adel Maged, Counselor at the Egyptian Court of Appeals, on secondement to the UAE Ministry of Justice as Legal Advisor on International Law and Treaties; Honorary Professor of Law at Durham University (UK). 11. See, e.g., Arab League Council Resolution K 6096 - D. A. (1 15) - G2 - of 12 March 200 1, in which it emphasised the importance of establishing the ICC, providing it with necessary guarantees to enable it to do its mandate independently and impartially, to exercise its jurisdiction on all persons
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supportive of the establishment of the ICC, only three countries (Jordan, Djibouti and Comoros) have ratified the Statute of the International Criminal Court (ICC statute).12 It seems that the political climate surrounding the ICC in the Arab World may be one factor adversely affecting the ratification process; arguments related to national sovereignty and political interference tend to play a substantial role in this area. Even though the number of ratifications of the ICC Statute in the Arab region is limited, Arab States show interest in the current normative development of international criminal law. Evidence of this is the draft of an Arab Model Legislation on the crimes within the jurisdiction of the ICC. Arab officials understand that a state willing to be a party to the ICC Statute should have in place national legislation in conformity with international law so that it will be in a position to prosecute any crime within its sphere of jurisdiction. This would ultimately protect their national (judicial) sovereignty. Thus, there is consensus among scholars and government officials that each Arab country should adopt a legislation that deals with the international crimes enshrined in the ICC Statute. On 3 - 4 February 2002, the Department of Legal Affairs of the Arab League organised a regional seminar on the implications of the ratifications of the ICC Statute. It was entitled 'Implications Arising from the Ratification of or Accession to the ICC's Statute in the National Legislation of the Arab Countries'. The seminar concluded by issuing various recommendations. One of the general recommendations called for drafting a Model Arab Law on the crimes within the jurisdiction of the ICC (MAL), which should also comprise common legal principles and procedures according to applicable international standards. There were also recommendations specifically addressed to Arab States willing to become parties to the ICC Statute and other recommendations for Arab States that are not willing to become States Parties. It was recommended for the first category of states that they have to work on enacting national legislation that cover all acts criminalised in the ICC Statute to avoid the deprivation of their judicial jurisdiction by the ICC. As to the second group of states, it was recommended that they should also make necessary efforts to criminalise, in their national legislation, crimes laid down in the ICC Statute to avoid having their citizens brought to trial before the ICC. Recognising that, the Arab League has made considerable efforts to draft the MAL: In its Resolution No. 453- D18-2511012002 the Council of Ministers of Justice of the Arab League stressed the necessity to prepare the Model Law. It assigned this task to the Committee of Arab Experts and Representatives of Arab States to Coordinate Arab Positions on International Conferences and Treaties (Committee of Arab Experts). - According to a Memorandum of Understanding between the Department of Legal Affairs of the Arab League and the International Committee of the Red Cross (ICRC), the latter prepared a draft Model Law on the Crimes falling under the Jurisdiction of the ICC. - The draft Model Law was submitted to the Committee of Arab Experts during its meeting in June 2002. The Department of Legal Affairs of the Arab League decided to circu-
without discrimination or selectivity and to adhere to the principles of international criminal justice and implementing the provisions of international humanitarian law among all states. 12. Jordan, Djibouti and Comoros deposited their instruments of ratification of the ICC Statute on l I April 2002, 5 November 2002 and 18 August 2006, respectively.
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late the draft among the respective Arab ministries of justice to have their observations and comments on the draft. - Some criticisms were directed at the ICRC draft as it has a treaty drafting style, which is not suitable for national legislation. In addition, it only fits States Parties to the ICC Statute. - The United Arab Emirates (UAE) proposed to submit a modified Arab Model Legislation that would suit both States Parties and non-States Parties to the ICC Statute. - Accordingly, the UAE Minister of Justice established a committee of experts, the task of which is to draft workable domestic legislation codifying the core crimes included in the ICC Statute. - The UAE Draft was concluded in 2004 and was sent to the Arab League which has circulated it to the competent departments of the Arab ministries of justice requesting their comments and observations. - On 19 September 2005, the Committee of Arab Experts submitted its final revised Arab Model Legislation draft to the Council of Ministers of Justice of the Arab League. - On 29 November 2005, the Council of Ministers of Justice of the Arab League adopted Resolution No. 598- D21-29/11/2005 approving the Model Law, asking the Department of Legal Affairs to circulate it among Arab countries with a view to using it as guidance in drafting their own national legislation comprising the ICC core crimes. The MAL consists of two chapters comprising 13 Articles. The first chapter covers general principles of criminal law, particularly the terms of the national application of penalties, the terms of the application of the irrelevance of official capacity principle, the condition for initiation of investigations, the ne bis in idem principle, the non-applicability of the statute of limitations for the crimes included in the MAL, the non-applicability of special amnesty for the crimes listed in the MAL, the responsibility of commanders and other superiors, and the principle that superior orders is not a ground, in general, for excluding criminal responsibility. Chapter two deals with the crimes within the ICC jurisdiction and details their elements. It covers the crime of genocide, crimes against humanity and war crimes. Furthermore, the last article of the MAL (Article 13) covers the crime of aggression. It defines acts of aggression in conformity with UN General Assembly Resolution 33 14 (XXIX). The MAL on international crimes constitutes the first attempt in the Arab world to incorporate the principles of international criminal law (as contained i.n the ICC Statute) into domestic legislation. It was drafted in such a way as to allow non-States Parties to incorporate it into their national criminal law. ADEL MAGED
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AUSTRALIA'^ Cases 1. Application of Article 1F of the Refugee Convention
*
SRYYYv. Minister,for Immigration and Multicultural and Indigenous Affairs (2005) 86 ALD 5 1 1 (17 March 2005),
<www.austlii.edu.au//cgi-binldisp.pl/au/cases/cthlFCAFC/2005/42.html?query=s~yyy %20~%20minister>. In 2005 the Full Court of the Federal Court of Australia considered a case involving the application of Article 1F of the Convention Relating to the Status of Refugees ('Refugee onv vent ion').'^ SRYYY (real name suppressed for anonymity), a former member of the Sri Lankan army, applied for a protection visa in Australia on the basis that if he returned to Sri Lanka he would be killed. During the application process he disclosed that he had been involved in interrogating Tamil civilian detainees, including children, and that he had assaulted and threatened the detainees in order to obtain information.15 The Minister's delegate rehsed to grant the protection visa on the grounds that there were serious reasons for considering that the applicant had been 'complicit in the crimes against humanity and war . ' ~ Administrative Appeals Tribunal ('AAT') affirmed crimes of the Sri Lankan ~ r m ~ 'The the delegate's decision and the case was appealed ultimately to the Full Court of the Federal Court on the basis that the AAT had committed an error of law. The Full Court first considered whether the AAT had fallen into jurisdictional error by applying the definitions in the Rome Statute of the International Criminal Court ('Rome statute')." The applicant argued that the use of the Rome Statute in the case would offend the principle of nullum crimen sine lege, given that the Rome Statute had not come into force at the time that the alleged conduct had occurred.18 The Full Court rejected any requirement that an instrument had to be adopted or in force at the time that the alleged crime took place, while at the same time acknowledging that the crimes in the Rome Statute had 'crystallised into crimes in international law at the date of the statute'.19 This finding removed any concerns as to retrospective criminalisation of conduct. Although the Court rejected the idea that an international instrument had to be in existence at the time that an alleged crime took place, it recognised that a particular instrument may be more appropriate than others in determining criminal liability depending on where an act had taken place.20
13. This entry was prepared by Amy Barry-Macaulay, Anita Coles, Pumika Dharmadasa, Alison Duxbury, Jessica Latimer and James May on behalf of the Australian Red Cross International Humanitarian Law Advisory Committee (Victorian Division). 14. 1951, 189 UNTS 137. 15. SRYYY V.Ministerfor Immigration and Multicultural and Indigenous AfJhivs (2005) 86 ALD 511, 513 ('SRYYY). 16. Ibid. 17. 1998,2187 UNTS 90. 18. S R W a t p . 531. 19. Ibid., at p. 535. 20. For example, the Statutes of the ICTY and ICTR would be the most suitable instruments for dealing with crimes committed during the conflicts in the former Yugoslavia and Rwanda respectively, ibid., at p 534.
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Secondly, the applicant submitted that the AAT had failed to correctly apply the relevant definition of a crime against humanity in the Rome Statute. The AAT appeared to have confused the elements of a crime against humanity and a war crime in finding that the 'Sri Lankan army was involved in systematic persecution of a civilian group' (as required in a crime against humanity) and thus concluding that there were serious reasons for considering that a war crime had been committed by the applicant.21 The Full Court upheld this element of the claim, stating that the AAT had 'failed to address the essential elements of [a crime against h u m a n i t y ~ ' The . ~ ~ case indicates the necessity of addressing all elements of the offences listed in the Rome Statute. Finally, the case demonstrates the importance of determining whether any relevant defence applies when considering whether a refugee applicant may have committed an Article 1F offence. The applicant submitted that the AAT had failed to consider whether he was entitled to claim the benefit of a defence under Article 33 of the Rome Statute, in particular, the defence of superior orders. The Court upheld the importance of determining whether a defence applied in the context of Article lF(a), stating that '[wle are unable to accept the proposition that a person may be said to have committed a crime when that person has a defence which, if upheld, will absolve or relieve that person from criminal responsibility'.23 The Full Court upheld the appeal and ordered that the matter be remitted back to the AAT to be determined according to law. The AAT reheard the matter and handed down a new ~ considering each element of crimes against humanity the decision on 5 April 2 0 0 6 . ~After Tribunal made a new decision finding that SRYYY had knowingly participated in the torture of innocent civilians who were, for practical purposes, under his control, and he knew that this was part of a widespread or systematic attack by the Sri Lankan army against the civilian population. The Tribunal therefore held that Australia owed no protection obligations to the applicant on the basis of Article 1F of the Refugee Convention.
*
SRHHH v. Minister for Immigration and Multicultural and Indigenous Affaivs [2005] AATA 1020 (14 October 2005), <www.austlii.edu.au//cgi-bin/disp.pllaulcases/ctaa2OO5/l020.html?query=srhhh>.
In October 2005 the AAT reviewed the Minister for Immigration's decision to refuse to grant a protection visa, under Article 1F of the Refugee Convention, to an Afghani man. The Minister's delegate decided that the applicant had been involved in the torture, murder and imprisonment of Afghani citizens between 1987 and 1989 while performing military service with the communist secret police known as K ~ A D . 'The ~ AAT considered in detail the evidence with respect to the applicant's activities during this time. It noted that for the purposes of the exclusion in Article 1F it is not enough for an applicant for rehgee status to have been a willing collaborator with a regime that has committed war crimes or crimes
21. SRYYI: at p. 540. 22. Ibid., at p. 541. 23. Ibid., at p. 544.
24. SRYYYv. Minister,for Immigration and Multicultural Affairs [2006] AATA 320, 5 April 2006. 25. Khademat-e-Ittela' at Dowlat, or state information services.
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against humanity.26The AAT considered the International Criminal Court's (ICC) processes regarding the requisite standard of proof.27 It also considered that the definition of crimes against humanity and war crimes as used in the Refugee Convention derived from international instruments available at the time of the Convention's drafting, with the most comprehensive being found in the 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal at Nuremberg (IMT).~' The AAT ultimately held that the evidence did not establish that the applicant was any-
thing other than a conscripted soldier in a security battalion, serving in a propaganda role. The AAT held that this did not constitute disentitling conduct within Article 1 ~The. AAT ~ ~ therefore remitted the matter back to the Minister to reconsider the protection visa application.
*
SROOOO v. Minister for Immigration and Multicultural and Indigenous Ajfairs [2006] AATA 9 1 (3 February 2006), <www.austlii.edu.aulcgi-binlsinodisp/au/cases/cthlaat2006/91 .html?query= SR0000>.
In early 2006 the AAT reviewed a decision of the Minister's delegate not to grant a protection visa on the grounds that the applicant had participated in crimes against humanity in Afghanistan between 1984 and 1992, while employed by KhAD. The AAT considered whether the applicant should be precluded from being granted protection on the basis of Article I F of the Refugee Convention. The AAT began its discussion by accepting that mere membership of KhAD was not sufficient to ascribe to the applicant conduct amounting to the commission of war crimes or crimes against humanity. The AAT found KhAD agents were involved in the torture and murder of thousands of suspects. However, the Tribunal found that KhAD was a large organisation and the applicant was not aware of or involved in any crimes against humanity or war crimes. The AAT stated at the outset that 'the most recent and authoritative international law definition of war crimes and of crimes against humanity is contained in the Rome Stat ~ t e ' . ~The ' AAT therefore looked to the definition in the Rome Statute, and also noted that the IMT Charter and Article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ('Geneva Convention I V ' ) ~ 'were relevant to the proceedings. Ultimately, the AAT found that the evidence did not lead to a finding that the applicant was involved in or aware of the commission of any crimes against humanity or war crimes and so did not examine the international legal position.
26. SRHHH v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020 at para., 164 ('SRHHH'). 27. Ibid., at paras. 176-177. 28. 1945,82 UNTS 279. 29. SRHHH, at para., 180. 30. SROOO v. Ministerfor Immigration and Multicultural and Indigenous AjJairs [2006] AATA 91atpara., 11. 3 1. 1949,75 UNTS 287 ('Geneva Convention IV').
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*
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SZCWP v. Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 9 (20 February 2006), <www.austlii.edu.au//cgi-bin~disp.pl/au/caseslcthlFCAFC/2006/9.html?query=szcwp>.
In early 2006 the Full Federal Court handed down another decision involving consideration of Article 1F of the Refugee Convention. SZCWP, a Nepalese citizen, had been refused a protection visa on the basis of the exemption in Article IF. The issue before the Full Federal Court was whether the Tribunal had erred in finding that the applicant had committed crimes against humanity andfor war crimes. The applicant had been a member of a Nepalese Maoist group that advocated the use of force to effect social change. The applicant had claimed that he did not personally kill anyone, but he had participated in non-violent activities on behalf of the group. This was done with knowledge of the group's readiness to use violence (including murder), if that was needed to achieve its goals. The attacks were directed towards landlords and members of the Nepalese police. The majority held that there was sufficient evidence before the AAT for a finding to be made that the applicant satisfied the requirements of Article l ~ ( a ) The . ~ ~applicant had argued that during the time of the applicant's activities the police, who were the main targets of the Maoists, would not come within the definition of 'civilian population ', within the elements required for a crime against humanity. Justice Downes rejected this argument noting that the police are not part of the armed forces, and the fact that they sought to repel an attack by the Maoists did not change their status.33 Justice Wilcox, in a minority opinion, held that the Tribunal had erred in law as there was no evidence that the applicant personally killed any person, or that any killing was carried out on his behalf by a subordinate, the crime of murder (as a crime against humanity), could not be e ~ t a b l i s h e d Justice . ~ ~ Wilcox noted that 'there is no authority that suggests it would be enough to satisfy Article 7.l(a) [of the Rome Statute] that the person is an associate or accomplice of persons who have carried out killings'.35 Justice Wilcox also held that the Elements of Crimes document, adopted by the Assembly of State Parties of the Rome Statute, makes it clear 'in respect of murder, mutilation, cruel treatment and torture, that the relevant person must have done the act; it is not enough that the person may have associated with others who so acted'36. His Honour was of the opinion that there was not enough evidence to hold that the applicant had committed the crimes of which he had been accused. However, as Justice Wilcox was in the minority, the Court found that Australia owed no protection obligations to the applicant on the basis of Article 1F.
*
VWYJ v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1 (16 March 2006), ~www.austlii.edu.auNcgi-bin/disp.pllaulcases/cth/FCAFC/2006/1 .html?query=vwyj >.
32. SZCWP v. Minister,for Immigration & Multicultural & Indigenous Affairs 120061 FCAFC 9, see para., 76 per Gyles J and para., 118, per Downes J. 33. Ibid., at para., 119. 34. Ibid., at paras. 42-43. 35. Ibid., at para., 42. 36. Ibid., at para., 63.
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The Full Court of the Federal Court again considered whether the AAT had committed an error in finding that the applicant was not entitled to a protection visa on the basis of Article lF(a) and (b) of the Refugee on vent ion.^^ The Minister's delegate had refused to grant a protection visa to a Lebanese man on the basis of his participation in the massacre of civilians in a Palestinian refugee camp in 1982. The AAT subsequently found that there was a high probability that the applicant was engaged directly in the slaughter of civilians during the massacre. The Full Court considered whether the AAT had fallen into error in considering the
Rome Statute and the statutes for the ICTY and ICTR, as these instruments came into operation well after 1982 (the date when the massacre took place). The Court referred to the fact that the AAT had found that the mass murder of innocent civilians during a period of armed conflict satisfied the definition of a war crime under the IMT Charter. As such the AAT found that the applicant had committed a war crime within the meaning of Article IF (a) of the Refigee Convention, and had also committed a serious non-political crime within the meaning of Article lF(b). The AAT only considered the subsequent international statutes when determining whether the applicant could avail himself of the defence of superior orders or duress. Such consideration could only have been in the applicant's favour. Ultimately, it found that no such defence was available to the applicant. The Full Court therefore held that the AAT did not fall into jurisdictional error and dismissed the appeal. 2. Extradition * Dragan Vasiljkovic v. The Commonwealth of Australia [2006] HCA 40 (3 August >; and 2006), <www.austlii.edu.au/adcaseslcthlhigh~c~2006140.rtf Dragan Vasiljkovic v. Minister for Justice and Customs 13 October 2006 FCA 1346,
<www.austlii.edu.auiau/cases/cth/federalct/2006/1346.rtf>. The High Court of Australia considered the constitutionality of extradition legislation in 2006. The challenge was brought by Dragan Vasiljkovic, a naturalised Australian citizen and a citizen of Serbia and Montenegro. On 12 December 2005 Croatia issued a warrant for Vasiljkovic's arrest on the ground that in 1991 and 1993 he had committed two counts of war crimes against prisoners of war and the civilian population.38 On 19 January 2006 an Australian magistrate issued an arrest warrant for Vasiljkovic and on 20 January 2006 he was remanded in custody under the Extradition Act 1988 (Cth) ('the Act'). On 25 January 2006 Vasiljkovic made an application to the High Court challenging the legality of his detention and the validity of part of the Act and the Extradition (Croatia) Regulations 2004 ( ~ t h )Under . ~ ~ these Regulations no evidence is required to be provided
37. VWYJ v. Minister jbr Immigration and Multicultural and Indigenous AJairs [2006] FCAFC 1. The applicant sought to appeal a decision of a single judge who had refused to grant an extension of time to file an appeal against the Tribunal's decision. The Full Court granted the extension of time but dismissed the appeal on its merits. 38. Dragan Vasiljkovic v. The Commonwealth of Australia [2006] HCA 40 per Gleeson CJ at paras. 1-3; per Gummow and Hayne JJ at paras. 61-68; Kirby J at paras. 125-137 ('Vasiljkovic'). See 'Referral of Special Case to High Court of Australia', April 2006, High Court Registry, High Court of Australia website ~www.hcourt.gov.au/registry/matters/April06Nasiljkovic.rtP. 39. See 'Referral of Special Case to High Court of Australia', April 2006, supra 38.
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by the extradition country in order to commence the extradition process.40 Vasiljkovic argued this situation was constitutionally invalid because it authorised his detention without requiring that a prima facie case regarding the alleged offences be established. Therefore, this amounted to penal legislation as there was no basis on which to test the charges.41 Vasiljkovic also argued that the Regulations that established the extradition arrangements with Croatia were invalid because they were not made pursuant to a treaty with The High Court of Australia, by majority:3 dismissed the application. It held the legislation was a valid exercise of the Commonwealth's constitutional powers.44 It held that the Regulations were valid even though there was no formal extradition treaty between Australia and The Court held that the extradition of persons for alleged crimes in another jurisdiction, including the extradition of suspected war criminals, were matters of both international concern and physically external to Australia, and the Commonwealth therefore had the power to legislate.46 The Court also held that Vasiljkovic has been validly detained prior to a determination by the government as to whether he was to be extradited, given that extradition inevitably involves a deprivation of ~iberty.~'The Court also found that the Regulations were valid, despite extradition arrangements with other countries requiring aprima facie case to be established before extradition could be c o n ~ i d e r e dGlee.~~ son CJ held that the 'no evidence rule', although controversial because it involved an interference with human rights, was a question of legislative policy not constitutional validity.49 The matter was remitted to a magistrate to consider Vasiljkovic's eligibility for surrender to Croatia for extradition. Vasiljkovic made a new application to the Federal Court of Australia to restrain the government from extraditing him to Croatia, on the basis that the charges of war crimes brought against him by Croatia were not crimes in the relevant Australian State in which the extradition process was sought.50 Vasiljkovic argued the charges were war crimes exclusively under the Geneva Convention Relative to the Treatment of Prisoners of war5', Geneva Convention IV and the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts5* and had no equivalent
40. Extradition (Croatia) Regulations 2004 (Cth), reg. 4. See s., 19(3) of the Extradition Act. 41. Vasiljkovicper Gleeson CJ at paras. 6-15; Gummow and Hayne JJ at paras. 70 and 72; Kirby J at para., 170. 42. Ibid., per Gummow and Hayne JJ at para., 71. 43. Ibid., Gleeson CJ; Gummow and Hayne JJ; Heydon J (concurring with Gummow and Hayne JJ); Kirby J dissenting. 44. Ibid., per Gleeson CJ at paras. 6, 36; Gummow and Hayne JJ at paras. 85-88. See: Zentai v. Republic ofHungary [2006] FCA 1226 at para., 26. 45. Vasiljkovicper Gleeson CJ at paras. 7-10,30; Gurnmow and Hayne JJ at paras. 74-77. 46. Ibid., per Gleeson CJ at paras. 6-8; 47. Ibid., per Gleeson CJ at para., 34; Gummow and Hayne JJ at paras. 109-113; Kirby J at para., 177. See: Barton v. Commonwealth (1974) 131 CLR 477 at 503. 48. Vasiljkovicper Gummow and Hayne JJ at paras. 69-72. 49. Ibid., per Gleeson CJ at paras. 10-15; 34. Cf., per Kirby J at paras. 158-164. 50. Dragan Vasiljkuvic v. Minister for Justice and Customs [2006] FCA 1346 (13 October 2006) ('Customs').
51. 1949,75 UNTS 135 ('Geneva Convention 111'). 52. 1977, 1125 UNTS 609.
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basis in Australian State l e g i ~ l a t i o nThe . ~ ~ Court adjourned the application on the basis that the State magistrate should first determine Vasiljkovic's eligibility for surrender under the Act, before the question raised could be de~ided.'~ At the end of 2006 the matter remained within the Australian court system.
*
Zentai v. Republic of Hungaly & Ors [2006] FCA 1226, <www.austlii.edu.adauicases/ cthlfederal-ct/2006/1226.rtf>.
The Republic of Hungary sought the extradition of Charles Zentai for war crimes. The applicant, Zentai, sought a declaration that sections of the Act were invalid as being beyond the legislative power of the Commonwealth. The applicant argued that the Act conferred fkctions on State magistrates without legislative approval by a State; that State officials such as magistrates did not have the capacity to act in international affairs such as extradition; and that it was constitutionally incompatible for a State magistrate to exercise federal executive powers. On 12 September 2006 Justice Siopis dismissed the challenge on all three grounds, holding that the Act was valid as it did not confer executive power on State magistrates. Rather, the power to be exercised was a non-judicial function (persona designate) and not in the magistrates capacity as State officials.55Not only did the Magistrates Court Act 2004 (Western Australia) provide the requisite legislative but State officials could perform tasks in international affairs for the Commonwealth in a personal capacity." Accordingly, the applications were dismissed. Targeting during armed conjlict * Conflict in Iraq As discussed in the 2004 Yearbook of International Humanitarian ~ a w , " the Australian Defence Force (ADF) contributed to a number of efforts and operations in Iraq as part of the US-led Coalition Provisional Authority ('the CPA'). Specifically, during the conflict in Iraq in March 2003, Australia influenced coalition military policy in relation to targeting. Details of this are summarised in a book published in 2006 by Greg heri id an.'^ During the 'conventional combat phase', Australia was a member of the final targeting board which approved the targets that the coalition would hit, including which individuals were to be targeted and what weapons could be used. The United States, Britain and Australia as members of the coalition had the ability to veto any target nominated.
53. Customs, at para., 28. 54. Ibid., at paras. 29-30. 55. Zentai v. Republic of Hungary [2006] FCA 1226 per Siopis J at paras. 24-25 ('Zentai'). 56. Under s.6(5) of the Magistrates Court Act 2004 (WA) the Governor of WA could confer on the magistrate ' ... functions of another office or appointment ...' which His Honour held covered Commonwealth functions: Zentai at paras. 10-12, 32-35. 57. Zentai at para., 40. 58. See the Australian entry in 7 YIHL (2004) pp. 449-451. 59. G. Sheridan, The Partnership: The Inside Story of the US-Australian Alliance Under Bush and Howard 1st edn. (Sydney, University of New South Wales 2006) pp. 70-73.
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In his book Sheridan states that Australia vetoed a number of targets on the basis that certain targeting would have been against the coalition's strategic objectives, militarily unnecessary and against the laws of armed conflict. At one stage, when the coalition was expecting a fight to enter Baghdad, Australia vetoed three of five proposed US air force weapons systems on the basis that the bomb proposed to be used was not accurate for a radius of less than 16 metres and was unsuitable for use in a built-up area. In an interview, the Defence ~ i n i s t e r ~stated ' that Australia's targeting policies differed from the US in that they were more restrictive, due to the fact that Australia is a party to various conventions that the United States is not, such as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, ('Ottawa onv vent ion')^' and the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed ~ o n f l i c t s . ~ ~
Deployment of Australian troops In 2005 and 2006 Australia troops were located in Iraq, Afghanistan, the Solomon Islands and Timor-Leste. In November 2006 Australia had 1 400 ADF personnel contributing to the reconstruction and rehabilitation of Iraq, 360 conducting reconstruction and providing air mobility in Afghanistan, 925 assisting with peace and stability in Timor-Leste, 140 serving with the Regional Assistance Mission in the Solomon Islands and 50 personnel in Tonga supporting the Tongan security forces in stabilising the situation following riots on ~ 300 ADF personnel were also deployed on security tasks in 16 November 2 0 0 6 . ~Around the Australian maritime protection zone.64 On 24 May 2006 Timor-Leste requested that Australia send defence forces to Timor-Leste to help in maintaining and re-establishing public order amidst ongoing gang violence.65On 26 May 2006 Australia confirmed it would continue the deployment of almost 1 800 ADF personnel to ~ i r n o r - ~ e s tOn e . ~28 ~ May 2006 the Australian Federal Police (AFP) confirmed that a 45-member team would be deployed to Timor-Leste in support of the ADF force effort, to assess the situation on the ground in Timor-Leste and provide advice to the ADF in relation to law and justice issues.67 Australia has stated that it is probable that
60. ABC Television, 'Hill backs PM's statement on targeting policies', Lateline, 18 March 2003 ~www.abc.net.au/lateline/content/2003/s8 10463.htm>. 61. 1997, [I9991 ATS3. 62. 1977,1125 UNTS3. 63. Department of Defence, 'ADF Operations Update Media Brief' (Press Release, 23 November 2006) <www.defence.gov.au/media~SpeechTpl.cfm?entId=6157>. 64. Department of Defence, Global Operations (2003) Department of Defence <www.defence.gov. au/globalops.cfm>. 65. The Commonwealth Treasurer (Peter Costello), 'The Acting Prime Minister's Press Conference on the Subject of East Timor', (Press Conference, 24 May 2006) . 67. Australian Federal Police, 'AFP Deploy to East Timor' (Press Release, 28 May 2006) Cwww. afp.gov.au/media~releases/nationaV2006/afp~deploys~to~east~timor2~.
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Australian trwps will remain in Timor-Leste until May 2007.~ku1esof Engagement were set by the ADF, in agreement with the Timor-Leste authorities, as to the force composition and its role and cooperation with the Timor-Leste Defence ~ o r c e s . ~ ~ On 17 November 2006, following a request from the Government of Tonga after mass rioting, Australia and New Zealand announced that a joint force of military personnel and police would be deployed in ~ o n g a . ~Australia ' sent approximately 50 ADF personnel and 34 AFP officers to support the Tongan Security Forces and the Tongan Police service." The Department of Defence stated that the deployed troops would be armed, but did not reveal the specifics of its Rules of ~ n ~ a ~ e m e n t . ~ * In April 2006, the Australian Government deployed up to 110 troops to the Solomon Islands, followed by approximately 70 AFP officers, after an outbreak of violence in Honiara and in response to a request from the newly-elected Prime Minister and caretaker Prime Minister of the Solomon ~ s l a n d s . ' ~
Detention ofAustralian citizen at Guantanamo Bay * Parliamentary debate In 2005 and 2006 David Hicks, an Australian citizen, continued to be held in detention by the United States in GuantAnamo Bay. Mr Hicks was captured in Afghanistan in early December 2001. Mr Hicks was transferred to Guantanamo Bay in January 2002. He was charged by US authorities on 10 June 2004 with three offences: conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy. Following ~ the the Supreme Court of the United States' decision in 2006 in Hamdan v. ~ u m s f e l d , 'that Military Commission process was illegal and in violation of the Geneva Conventions, 75 the original charges against Mr Hicks could not proceed. As at 31 December 2006 Mr Hicks remained in detention without charge. The Australian government has stated that Mr Hicks
68. Minister for Foreign Affairs (Alexander Downer), 'Transcript, Interview Sunday program' (Transcript, 28 May 2006) . 69. The Commonwealth Treasurer, Press Conference, 24 May 2006, supra 65; 53. 70. Prime Minister John Howard, 'Transcript of the Prime Minister the Hon John Howard MP Joint Press Conference with the Prime Minister of New Zealand, Helen Clark on the Subject of Tonga' (Transcript, 17 November 2006) ~http:lIpandora.nla.gov.adpan/1005212006122 1-0000Iwww.pm.gov. aulnewslinterviewslInterview2256.html~. 7 1. Department of Defence, 'ADF Support to Tonga' (Press Release, 18 November 2006). 72. Ibid. 73. Prime Minister John Howard, 'Transcript of the Prime Minister the Hon John Howard MP Press Conference on the Subject of Troop Deployment to the Solomon Islands' (Transcript, 19 April 2006)
-
-
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cannot be prosecuted in Australia as the activities he is alleged to have carried out were not offences under Australian law at the time they were alleged to have been committed. The Australian Government repeatedly stated that it was pressuring the United States to charge Mr Hicks and to bring him to trial as promptly as possible. Senator Hill stated in Parliament that the Australian Govemment will 'continue to make representation to the Americans . . . that there be an early resolution of this matter'.76 Senator Hill went on to say that the interest of the Australian Government was 'to ensure that the trial [of Mr Hicks] is fair and is conducted as promptly as possible'.77 Senator Ellison, representing the Attorney-General, made it clear in Parliament that the Australian Govemment 'believes that this man [Mr Hicks] should be brought to trial and we are saying to the United States that that should be done as soon as possible'.78 Senator Ellison went on to say that the Hamdan court proceedings 'necessitated a delay in the proceedings of the charges . . . [but] we believe that the military commission is an appropriate way to deal with him'.79 In February 2006 the Attorney-General outlined in Parliament the commitments the United States had made to Australia in relation to David Hicks, prior to the handing down of the Hamdan decision, which included assurances from the United States that: - it would not seek the death penalty in Mr Hicks' case; - it would work towards agreeing to a prisoner exchange program so that Mr Hicks could serve any penal sentence imposed in Australia; - conversations between Mr Hicks and his lawyers would not be monitored by the United States; - the prosecution in Mr Hicks' case did not intend to rely on evidence requiring closed proceedings from which Mr Hicks could be excluded; - Mr Hicks' trial would be open to the media and Australian officials (subject to any necessary security restrictions); - the Australian Government could make submissions to the Review Panel which would review Mr Hicks' Military Commission trial; - should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with the client; - Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial; and - an independent legal expert sanctioned by the Australian Government may observe the trial of Mr ~ i c k s . ~ ' Following the Hamdan decision, Senator Ellison stated that the Australian Govemment had 'indicated in the strongest possible terms that all of the safeguards and concessions that we
76. Senate Hansard, 10 May 2005, p. 29 (Senator Hill representing the Minister for Foreign Affairs). 77. Ibid., p. 30. 78. Senate Hansard, 6 December 2006, p. 70 (Senator Ellison representing the Attorney-General). 79. Ibid. 80. House ofRepresentatives Hansard, 27 February 2006, p. 150 (Phillip Ruddock).
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obtained ... [prior to the Hamdan decision] will be applied and we received those assurances [from the US ~overnment]'.~' The Australian Government noted in Parliament that in 2005 the International Committee of the Red Cross was given access to Guantanamo Bay and met with Mr ~ i c k sIt. also ~~ said that the US 'has consistently said that Guantanamo Bay detainees are being treated in a manner consistent with the principles of the Geneva on vent ion'.^^ In 2005 and 2006 a number of Motions were put forward in the Upper House of the Australian Parliament (the Senate) by non-government parties calling o n the Australian
government to ensure the immediate repatriation of David Hicks to Australia, or that he receive a fair trialg4None of the Motions were successful given the government's majority in the Senate. The Senate did, however, acknowledge the comments of Lord Goldsmith, the United Kingdom's Attorney-General, who condemned the US military tribunals on the basis that they failed to 'offer sufficient guarantees of a fair trial in accordance with international standards'." In 2006, the Senate agreed to a government member's Motion that supported and encouraged the Australian government's position regarding David Hicks and noted the procedural safeguards provided by the US Military Commissions Act 2 0 0 6 . ' ~ A private member's bill, the Removal of Recognition of US Military Commissions (David Hicks) Bill 2006, was presented to the senate," but did not reach the requisite number of votes required for it to be referred to the Legal and Constitutional Affairs Committee for examination. The Foreign Affairs, Defence and Trade Legislation Committee and the Legal and Constitutional Legislation Committee of the Senate (the Senate Estimates Committees) discussed the Australian government's position regarding the incarceration and impending military trial of David Hicks throughout 2005 and 2006. In 2005 and 2006, in response to questioning in the Senates Estimates Committee the Australian government supported the 'military commission process (as) a fair and reason-
8 1. Senate Hansard, 6 December 2006, p. 69 (Senator Ellison representing the Attorney-General). 82. Senate Hansard, I0 May 2005, p. 30. 83. Senate Hansard, 16 October 2006, p. 28 (Senator Coonan representing the Minister for Foreign Affairs). 84. Commonwealth of Australia, Parliamentary Debates, Senate: 10 August 2005, 95 (Senator Bob Brown); 7 September 2005, 84 (Senator Allison on behalf of Senators Brown, Stott-Despoja and Kirk); 28 March 2006, 51 (Senator Natasha Stott-Despoja); 11 May 2006, 8 (Senator Natasha StottDespoja); 14 June 2006, 103-104 (Senator Bob Brown); 15 June 2006,8 (Senator Bartlett on behalf of Senator Stott-Despoja); 21 June 2006, 90 (Senator Natasha Stott-Despoja); 9 August 2006, 127 (Senator Natasha Stott-Despoja); 16 August 2006, 85 (Senator Bob Brown); 17 August 2006, 5 (Senator Natasha Stott-Despoja); 9 November 2006, 7 (Senator Natasha Stott-Despoja); 4 December 2006, 49 (Senator Keny Nettle); 5 December 2006, 48-49 (Senator Keny Nettle); 6 December 2006, 98-99 (Senator Keny Nettle); 7 December 2006, 7 (Senator Natasha Stott-Despoja); 7 December 2006, 10 (Senator Keny Nettle). 85. Commonwealth of Australia, Parliamentary Debates, Senate, 11 October 2005, 67 (Senator Natasha Stott-Despoja). 86. Commonwealth of Australia, Parliamentary Debates, Senate, 9 November 2006, 12 (Senator Barnaby Joyce). 87. Commonwealth of Australia, Parliamentary Debates, Senate, 7 December 2006, 19 (Senator Keny Nettle).
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able process',88 and maintained the government's position that Mr Hicks' case should be resolved as quickly as possible.89The government stated that it had been assured that the appropriate standards were being met in relation to the impending trial of David Hicks and his continuing incarcerati~n.~~ Late in 2006 it was revealed to the Senate Estimates Committees that the last Australian consular visit to David Hicks on 27 September 2006 had been unsuccessful as Mr Hicks had refused to meet with the consul-general.9' It was later reported to the Senate Estimates Committees that on two previous occasions when David Hicks had accepted consular visits he had been punished in some way which is why he had later refused the consul-general visit.92 Australian government representatives denied any knowledge of the punishments following consular visits and noted that 'it would be a matter of very great concern . . . if Australians in detention overseas were punished for simply drawing to the attention of consular officials concerns they have about the conditions of their d e t e n t i ~ n ' . ~ ~ On 9 November 2006 a number of prominent Australian lawyers, ADF personnel and scholars submitted a legal opinion to the Australian federal Attorney-General concerning the legality of the Military Commissions established under the Military Commissions Act of 2006 The legal opinion considered whether the Military Commissions would breach Common Article 3 of the Geneva Conventions, whether the Military Commissions were inconsistent with the decision of the Supreme Court of the United States in Harndan and whether the Military Commission would contravene Australian law. The legal opinion concluded that any trials conducted under the Military Commissions Act 2006 would violate Common Article 3 of the Geneva Conventions. Furthermore, the legal opinion noted that the Military Commissions Act 2006 suffers the same essential defects as previous United States law and accordingly any trial held under the Military Commissions Act would be inconsistent with the Harndan decision. Finally, the legal opinion asserted that 'a trial conducted before a Military Commission established under the Military Commission Act 2006 would contravene the standards for a fair trial under Australian law'.
AMYBARRYMACAULAY, ANITACOLES, PURNIKA DHARMADASA, ALISON DUXBURY, AND JAMES MAY JESSICA LATIMER
88. Commonwealth of Australia, Senate Estimates Committee, Legal and Constitutional Legislation Committee, Senate, 14 February 2005,20. 89. Ibid., 25. 90. Commonwealth of Australia, Senate Estimates Committee, Foreign Affairs, Defence and Trade Legislation Committee, Senate, 2 November 2006, 83. 91. h i d . 92. Ibid., 12 1 (Senator Faulkner). 93. Ibid., (Mr R. Smith). 94. A. Bymes et al, 'David Hicks - Military Commissions Act 2006 - Compliance with Common Article 3 of the Geneva Conventions ,the Hamdan Decision and Australian Law', 9 November 2006. The Opinion has been delivered to the Human Rights Law Resource Centre Ltd ('HRLRC') and to the Law Council of Australia. The Law Council of Australia supplied the Opinion to the Federal Attorney-General, the Hon Philip Ruddock MP. The Opinion is available at <www.hrlrc.org.au/files/IZQF2TUDOX~Hicks%20-%200pinion%20on%2OWar%20Cmes.pdD.
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BAHRAIN See Arab League Model Law in the Algerian section.
BOSNIA AND HERZEGOVINA~~ 2005 International Committee of the Red Cross (ICRC)
*
Access to detainees
The ICRC obtained access to war crime suspects held under the jurisdictions of the State Court and the Ministries of Justice at entity level and visited people detained by NATO. Twenty nine detainees were monitored individually during five visits to five detention facilities.96 Following the transfer of the mandate of the Stabilization Force (SFOR) to the EU Force (EUFOR) and NATO headquarters, the ICRC was advised that indicted war crime suspects and members of their support network would be held exclusively by NATO headquarters. . . . [Tlhe ICRC received an immediate notification and was granted access to three persons held by NATO.~'
*
Training sessions
ICRC participated in international humanitarian law (IHL) training sessions for legal professionals at the War Crimes Chamber (WCC) in Sarajevo and Entities' courts. The ICRC also held workshops with both entity teams and trained 13 military instructors. In addition, the ICRC conducted IHL courses for members of the armed forces of Bosnia and Herzegovina (BiH) and countries involved in NATO's Partnership for Peace Following an agreement with all 10 cantonal ministries and the Ministry of Education of the Federation of Bosnia and Herzegovina (FBiH), training in the Exploring Humanitarian Law (EHL) Program was completed by 28 teachers from 22 schools. Also in the Mostar and BrEko District teachers were trained in the EHL program. In the Republika Srpska (RS) the ICRC promoted integration of the program into the secondary-school curriculum. Three IHL dissemination sessions were held for students of the law faculties of the Universities of Sarajevo and both Mostar law facu~ties.'~ Srebrenica Commission * Working Group
95. Information and commentaries by Lejla Vujinovic, LLM. 96. International Committee of the Red Cross, 'ICRC Annual Report 2005: Bosnia Herzegovina', p. 227, <www.icrc.orglWeb/Eng/siteeng0.nsf/htmlalW6PNLH8/$FILE/icrc~ar~O5~bosnia~he~egovi na.pdf?OpenElement>('ICRC Annual Report 2005'). 97. Ibid. 98. Ibid., pp. 227-228. 99. Ibid., p. 228.
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Implementing a decision of the High Representative, in January 2005 the RS appointed a working group to study documentation produced by the Srebrenica Commission. It was established by the authorities of RS to investigate the Srebrenica massacre, with the purpose of identifying those implicated. In its first report in March, the working group presented a list of 892 suspects still reportedly employed in RS and BiH institutions. In April 2005 the preliminary list was forwarded to the Prosecutor of BiH. In September 2005 a further list was presented by the working Missing Persons * ICRC
The ICRC provided legal and technical assistance to the authorities in charge of creating official central records on missing persons, of implementing the Law on Missing Persons and of establishing the Missing Persons Institute. The agreement establishing the Missing Persons Institute, signed by the Council of Ministers and the International Commission on Missing Person in August, was ratified by both Houses of Parliament in ~ecember.'"
*
Exhumation of mass grave
In June 2005 the exhumation was completed of a secondary mass grave in Lipje, near Zvornik, containing the incomplete bodies of approximately 240 people. The mortal remains are believed to be victims of the Srebrenica massacre. Of the estimated 7 000 - 8 000 Bosniaks killed in Srebrenica in July 1995, by June 2005 approximately 2 000 had been exhumed and identified.lo2 Refugees * According to the United Nations High Commissioner for Refugees field mission in BiH between January - May 2005 approximately 3 000 refugees and internally displaced persons returned to their pre-war homes.Io3 Accountability ofpeacekeeping forces * Compensation claim
In January 2005 the Starovlah family received a reply from the NATO headquarters in Sarajevo rejecting their claims for compensation. On the night of 3 1 March - 1 April 2004 Orthodox priest Jeremija Starovlah and his son were seriously wounded when United States
100. Amnesty International Report 2006, 'Europe and Central Asia: Bosnia-Herzegovina'
102. Ibid. 103. Amnesty International, 'Europe and Central Asia Summary of Amnesty International's Concerns in the Region. January - June', December 2005, .
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(US), United Kingdom (UK) and Multinational Specialised Troops of the NATO-led SFOR conducted a raid in Pale in a Serbian Orthodox church and in the nearby priest's residence, reportedly in an attempt to apprehend Radovan ~ a r a d i i 6 . l ~ ~ War Crimes Chamber The WCC of the State Court of BiH was established in January 2005 and officially started its work in Sarajevo on 9 March 2005.
*
The WCC tries perpetrators' cases referred to it by the ICTY pursuant to Rule 11 bis of the ICTY Rules of Procedure and ~ v i d e n c e . " ~This provision of the Rules of Procedure and Evidence allows the ICTY to refer a case to national authorities with jurisdiction after the confirmation of an indictment but before the commencement of the trial. Five judicial panels are allocated to the WCC. Each panel comprises of two international judges and one local judge, who is the presiding judge of the panel. Within the WCC there are five regional prosecution teams, and a sixth team to address allegations arising from the Srebrenica massacre. LO6 The WCC hears the most serious 'highly sensitive' cases. The remaining cases are tried under the jurisdiction of the ~ n t i t i e s . " ~
*
Memorandum of Understanding between the State Investigation and Protection Agency and the Prosecutor's Office of BiH concerning the cooperation in the area of criminal investigations of violations of IHL, signed 12 October 2 0 0 5 . ' ~ ~
The WCC and the War Crimes Unit of the State Investigation and Protection Agency signed a Memorandum of Understanding (MOU) regulating the terms of cooperation.
The State Investigation and Protection Agency (SIPA)
*
Memorandum of Understanding between the State Investigation and Protection Agency and the Registry for Section I and Section I1 of the Criminal and Appellate Division of the Court of BiH and the Special Departments of the Prosecutor's Office of BiH on cooperation in the area of witness protection and witness support, signed 1 March 2005.'09
SIPA entered into a MOU with the Registry of the State Court for the coordination of activities regarding witness protection. Pursuant to the MOU, the Witness Protection Sup-
104. Ibid. 105. Mission to Bosnia and Herzegovina of the Organization for the Security and Co-operation in Europe, 'War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and ('OSCE Report'). Obstacles', March 2005, p. 10, <www.oscebih.org/documents/l407-eng.pdD 106. Human Rights Watch, 'Looking for Justice: The War Crimes Chamber in Bosnia and Herze('Human Rights govina', February 2006, p. 8, ~http:/ihnv.org/report~/2006/ij0206/i~0206webpd Watch Report, 'Looking for Justice"). 107. OSCE Report, supra 105; p. 10. 108. Human Rights Watch Report, 'Looking for Justice', supra 106; p. 13. 109. Human Rights Watch Report, 'Looking for Justice', supra 106; p. 29.
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port Unit was established within the Registry to provide technical and material assistance to the SIPA Witness Protection ~ e ~ a r t m e n t . ' "
*
Training in war crimes prosecutions for prosecutors and the police took place in December 2005 and January 2006. Each attendee was offered a five-day training organised by SIPA and the interior ministries and training centres from both entities, with the focus on practical issues concerning investigation and some specific aspects of substantive IHL."'
ICTY * Referral of cases to the WWC The ICTY Appeals Chamber referred the first case to the WCC in Sarajevo on 1 September 2005.''~ In accordance with that decision, Mr. StankoviC was physically transferred to Bosnia on September 29,2005, to stand trial before the WCC for charges of crimes against humanity, including enslavement and rape.'13 The ICTY Appeals Chamber referred the second case of Gojko JankoviC to the WCC in Sarajevo on 15 November 2005."~ He was transferred to the Court of BiH in Sarajevo on 8 December 2005."~The third case of ieljko Mejakid, MomEilo Gruban, DuSan FuStar and DuSko KneieviC was referred to the WCC in Sarajevo on 20 July 2005."~ At the end of 2005, the accused have not yet been transferred to BiH.
*
The ICTY Chief Prosecutor has entered into an agreement with the Organization for Security and Co-operation in Europe pursuant to her authority under Rule 11 bis (D) (iv) of the Rules of Procedure and Evidence to monitor the Rule I lbis trials in Bosnia. This agreement was concluded on 19 May 2005."~
110. Ibid. 111. Ibid. 112. Prosecutor v. Radovan Stankovid, International Criminal Tribunal for the former Yugoslavia, Case No.: IT-96-2312-AR11 bis.1, Decision on Rule 11 bis Referral, (Appeals Chamber), 1 September, 2005, para., 30. 113. Human Rights Watch Report, 'Looking for Justice', supra 106; p. 6. 114. Prosecutor v. Gojko Jankovid, International Criminal Tribunal for the former Yugoslavia, Case No.: IT-96-2312-AR11 bis.2, Decision on Rule 11 bis Referrals, (Appeals Chamber), 15 November, 2005. 115. Court of Bosnia and Herzegovina, 'News: Gojko JankoviC transferred to Bosnia and Herzegovina', 8 December 2005, <www.sudbih.gov.ba/?id=96&jezik=e>. 116. International Criminal Tribunal for the former Yugoslavia, 'Press Release, Zeljko Mejakic, Momcilo Gruban, Dusan Fustar and Dusko Knezevic transferred to Bosnia and Herzegovina', 9 May 2006, ~www.un.org!ictylpressrea112006/p1076-e.htrn~. 117. Decision No. 673, 556th plenary meeting, PC.Dec1673, 19 May 2005, ~www.osce.org1docu ments1pdf~documents12005105114401- 1.pdB.
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* A MOU formalising cooperation between the Office of the Prosecutor (OTP) of the ICTY and the Special Department for War Crimes was signed on 2 September 2005."'
Criminal Defence Support Section * O K 0 (Odsjek krivnice odbrane) is the Criminal Defence Support Section, which was created to provide legal assistance to defendants in war crimes cases. In 2005, OKO, with assistance from the International Committee of the Red Cross and the American Bar Association Central European and Eurasian Law Initiative (ABACEELI), organized training for seventy-five lawyers in Sarajevo and Banja Luka on the international law of armed conflict and new elements of the domestic criminal law.'I9
Council of Ministers * Decision on reimbursement of the costs of criminal proceedings pursuant to the Criminal Procedure Code of BiH adopted on 10 February 2005, by the Council of Ministers of ~ o s n i aIz0. High Judicial and Prosecutorial Council * Working group On 28 November 2005, representatives of the High Judicial and Prosecutorial Council (HJPC), ministries of justice and the chief prosecutors at both national and entity level formed a working group to assess the necessary number of prosecutors in the prosecutorial office and to propose the necessary structural changes. On the same day, the HJPC established another working group to assess the overall ability of the courts and prosecutorial offices to effect war crimes prosecutions.'21
Human Rights Commission * Decision on Non-Implementation of a Decision, Case no. CHI9913 196, 7 September 2005.
Avdo and Esma PaliC v. Republika Srpsk is a case of forced disappearance during the armed conflict in BiH. The Human Rights Chamber ruled that RS was responsible for this case. RS authorities have made little progress in their investigations. [Tlhe Human Rights Chamber found in December 2000 that Republika Srspska violated the right to life, the right to liberty and security of person, and the freedom from inhuman and degrading treatment, in connection with the incommunicado detention and eventual disappearance of Col. Avdo Pali[C]. A military commander of the Bosnian
118. Human Rights Watch Report, 'Looking for Justice', supra 106; p. 19. 119. Ibid., p. 24. 120. Ibid. 12 1. Human Rights Watch, 'A Chance for Justice? War Crime Prosecutions in Bosnia's Serb Republic', March 2006, p. 4, < h t t p : / i h n v . o r g / r e p o r t s / 2 0 0 6 i b o s n i a 0 3 0 6 ~ ('Human . Rights Watch Report, 'A Chance for Justice").
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Army, Pali[C] was forcibly taken away by Bosnian Serb forces on July 27, 1995, in the presence of United Nations soldiers. Republika Srpska launched an investigation following the Chamber's decision, but on September 7, 2005, the Human Rights Commission under the Bosnian Constitutional Court found that the investigation was inadequate and that the Chamber's December 2000 decision had not been implemented.'22 Centerfor Judicial and Prosecutorial Training Training
The Center for Judicial and Prosecutorial Training in Republika Srpska organized two trainings in 2005. The first seminar, in April, offered a general introduction to war crimes prosecutions. In June 2005 the head of the Special Department for War Crimes in the Office of the Prosecutor of Bosnia and Herzegovina gave a lecture on the new Bosnian legislation related to war crimes.'23 Association of Women-Victimsof War * Participation in trial
The Association of Women-Victims of War includes hundreds of women who were victims of rape and other war crimes. In October and November 2005, the NGO facilitated the participation of rape victims in the trial against Momir Skakavac, at the district court in Trebinje, following repeated trips of the district prosecutor to Sarajevo to meet the victims. The association has also submitted a number of affidavits (witness testimonies) to the Special Department for War Crimes in the Office of the Prosecutor of Bosnia and ~ e r z e ~ o v i n a . ' ~ ~ Defence Reform * The Presidency of BiH published its 'Defence White Paper of Bosnia and Herzegovina' in June 2 0 0 5 . ' ~ ~ * The Defence Reform Commission published its 'Defence Reform Commission 2005 Report: AFBIH: A Single Military Force For the 21st Century' in September 2 0 0 5 . ' ~ ~
The Defence Reform Commission's recommendations address two broad themes: the creation of a single defence establishment and single militaly force in Bosnia and Herzegovina under fully fimctioning state-level command and control; and, the restmcturing of the Armed Forces of Bosnia and Herzegovina to meet the requirements of the foreign, defence and security policy aspirations of the state - specifically, collective
122. 123. 124. 125.
Ibid., p. 17. Ibid., p. 24. Ibid., p. 30. Allied Joint Force Command Naples, <www.afsouth.nato.int/NHQSA/WhitePaper/web-eng.
pde. 126. Allied Joint Force Command Naples, <www.afsouth.nato.int/NHQSA/2005%20DRC% 20Report/Report2005-eng.pdD.
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defence and security. The underlying premise behind these two themes is the attainment of NATO standards in order to facilitate the integration of Bosnia and Herzegovina in Euro-Atlantic processes and organisations - principally Partnership for Peace and in the future NATO and the European Union. Iz7 Cases 1. Verdicts
*
JakovljeviC and others, Banja Luka District Court, 11 February 2005.
The defendants, wartime members of the Prijedor police, were accused of the illegal detention in 1995 of Roman Catholic priest Tomislav MatanoviC and his parents, who were found murdered in 200 1. The origins of the prosecution lie in a July 1997 decision by the Human Rights Chamber ordering Republika Srpska to report to the Chamber on the results of the investigation into the case. Republika Srpska failed to implement the decision until November 2000, when an investigative team from Republika Srpska reopened the case after heavy pressure from the (now defunct) United Nations Mission in Bosnia and Herzegovina. In October 2001 Republika Srpska police discovered the bodies of Father Matanovi[C] and his parents in the well of their family residence in Rizvanovi[C]i, near Prijedor. Autopsies revealed that their hands had been handcuffed and that each had been shot in the head. lz8 This war crimes trial ended in February 2005 with the acquittal of all 11 defendants. The investigation into the murder of Tomislav MatanoviC and his parents is still ongoing.lz9
*
Drago Radakovid, Draiko Krndiju. Radoslav Kneievid case, Banja Luka District Court, 17 November 2005.
The district court in Banja Luka convicted three former police officers for the killing of six Bosnian Muslims in Prijedor in March 1994. RadakoviC and Krndija were each sentenced to 20 years and Radoslav KneieviC to 15 years imprisonment. The judgment refers to the war in Bosnia and Herzegovina as an internal armed conflict, without making any reference to the legal reasoning that led the ICTY judges to arrive at the opposite concl~sion."~
127. Ibid., p. 1. 128. Human Rights Watch Report, 'A Chance for Justice', supra 121; p. 17. 129. Humanitarian Law Center, 'War Crimes Trials Beofre National Courts1 Bosnia and Herzegovina, Press Release: First War Crimes Trial in Republika Srpska', 6 April 2005, <www.hlc-rdc.org/ english/War~Crimes~Trials~Before~National~Courts~osnia~and~He~egovindindex.php?file=l134. htmb. 130. Human Rights Watch Report, 'A Chance for Justice', supra 121; p. 24.
446
*
Correspondents' Reports
Nikola Dereta case, Banja Luka District Court, 5 December 2005. The Banja Luka district court convicted Nikola Dereta, a former soldier in the Republika Srpska army, on December 5, 2005, for the killing of a Bosnian Muslim and the attempted killing of the victim's father in September 1993.
The court sentenced him to 13 years in prison.'31
*
Dragoje RadanoviC case, Trebinje District Court, 9 December 2005.
Dragoje RadanoviC was convicted of the illegal detention of four Bosnian Muslim civilians in April 1992. On 9 December, the Court sentenced him to two years imprisonment.'32
*
Tomo MihajloviC case, Zenica Cantonal Court, June 2005.
The accused, a former police officer in the RS, was sentenced to four years imprisonment for war crimes committed in 1992 against the non-Serb population in the TesliC area.133
*
Goran VasiC case, Sarajevo Cantonal Court, 15 June 2005.
The accused, a former member of a Bosnian Serb paramilitary group, was sentenced to a six year prison term for the cruel and inhuman treatment of prisoners of war detained in the Sarajevo suburb of NediariCi in 1 9 9 2 . ' ~ ~
*
Boro KrsmanoviC case, Sarajevo Cantonal Court, 5 December 2005.
The accused was found guilty of war crimes against civilians and sentenced to four years imprisonment. 135
*
Salem PinjiC case, Mostar Cantonal Court, 17 January 2005.
The accused was found guilty of war crimes against the civilian population. In 1992, as member of the Army of BiH, he killed a Serb female civilian who has been detained in the village of Bradina, KonjiC Municipality. He was sentenced to seven years imprisonment.136
* Miralem OmanoviC case, Mostar Cantonal Court, 20 January 2005.
131. Ibid.,p 10. 132. Ibid. 133. Amnesty International Report 2006,supra 100. 134. Ibid. 135. See Research and Documentation Center Sarajevo, <www.idc.org.ba/monitoring/krsmanovic.
htmb. 136. Amnesty International, 'Summary of Amnesty International's Concerns in the Balkans January - June 2005',
~http://web.amnesty.org/library/Index/ENGEURO50012006?open&of=ENG-BIH~.
Correspondents' Reports
447
The accused was charged with war crimes against civilians and was found guilty of killing three prisoners of war. The Court sentenced him to 14 years imprisonment.'37
*
Drago Palameta case, Mostar Cantonal Court, 4 October 2005.
The accused was indicted for war crimes against civilians. He was found guilty for inhuman treatment of civilians and participation in the illegal detention of civilians and sentenced to one year and six months imprisonment.'38
*
Konstantin SimonoviC case, BrEko District Court, 18 October 2005.
The accused was found guilty for war crimes, including torture, against non-Serbs detained in the Luka camp near BrEko and sentenced to six years i m p r i ~ o n m e n t . ' ~ ~ 2. Ongoing Trials at the end of 200.5: * CanPar Veselin case, Sarajevo Cantonal Court. The accused was found guilty of war crimes against civilians. As a member of the Serb military forces he participated in the imprisonment of civilians in concentration camps. He was sentenced to 11 years imprisonment. Upon appeal the FBiH Supreme Court issued a decision by which the prison sentence was reduced to nine years. In response to an application by the defendant the Human Rights Chamber issued a decision ordering the reopening of the criminal proceedings. The main trial recommenced on 23 November 2 0 0 5 . ' ~ ~
*
Milan Seielj case, Cantonal Court Sarajevo.
The indictment against Milan ~ e ~ ewas l j confirmed on 1 December 2005. SeSelj is accused of war crimes against civilians. According to the indictment the accused, as police officer of the ViSegrad police, together with other individuals of paramilitary Serb formation, attacked the unprotected towns of Cmi Vrh and Kabmik and afterwards threatened and tortured civilians, thereby behaving inhumanely and killing Bosniaks in the attacked towns.I4'
*
Samir BejtiC case, Sarajevo Cantonal Court.
The accused was charged with war crimes against civilians and aggravated murder. He is accused of having committed these crimes in 1992 - 1993 as a member of the Tenth Mountain Brigade of the BiH ~ r m ~ . ' ~ *
137. See Centre for Peace, Non-Violence and Human Rights, <www.centar-za-mir.hr/pdfkultura% 20miraX20-%20sudjenja%20final.pdB. 138. See Centre for Peace, Non-Violence and Human Rights, <www.centar-za-mir.hrisudenje-bih. P~P>.
139. Amnesty International Report 2006, supra 100 140. Ibid. 141. Kantonalno tuiilaStvo Kantona Sarajevo, <www.tuzilastvoks.gov.ba/stream/optumiceiindex. php?sta=2&pid=5lo>. 142. OSCE Report, supra 105; p. 57.
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Correspondents ' Reports
* Abduladhim Maktouf case, Court of BiH, Sarajevo - Section I for War Crimes. The accused was sentenced to five years imprisonment for his role in the abduction of nonBosniak civilians, who were beaten and ill-treated in a detention camp in OraBac and one of whom was beheaded. The sentence was quashed on appeal in November 2005 and a retrial ordered. '43
*
Gojko JankoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
On 8 December 2005 the accused was transferred from the UN Detention Unit in Scheveningen to BiH following a decision rendered by the ICTY. The amended indictment brought against the accused by the Office of the Prosecutor of the ICTY on 7 October 1999 charged the accused on the basis of individual criminal responsibility for crimes against humanity and for violations of the law and customs of war. On the basis of Criminal Responsibility in his Capacity as Superior he was charged with crimes against humanity and with violations of the law and customs of war. These crimes are alleged to have been committed in the FoEa region and its e n ~ i r 0 n s . l ~ ~
* Boban $irniiC case, Court of BiH, Sarajevo - Section I for War Crimes. The accused is charged with crimes against humanity, including persecution, murder, forcible transfer of civilians, imprisonment, torture, rape, enforced disappearance of persons and other inhumane acts of a similar character.145
* Dragoje PaunoviC case, Court of BiH, Sarajevo - Section I for War Crimes. The Court confirmed the indictment against the accused on 14 September 2005. He was charged with crimes against humanity, including murder, persecutions and other inhumane acts of a similar ~ h a r a c t e r . ' ~ ~
*
h l j k o MitroviC case, Mostar Cantonal Court.
MitroviC is accused of war crimes against civilians in Grbavica, municipality of Novo Sarajevo from May 1992 to the end of 1995. According to the indictment the accused allegedly treated civilians inhumanely, enforced labour of non-Serb civilians and threatening civilians. The main trial started on 16 December 2 0 0 5 . ' ~ ~
143. See Court of Bosnia and Herzegovina, <www.sudbih.gov.ba~files/docs/presude/2005/Mak touf-BHS-K-127-04.pdO. 144. See Court of Bosnia and Herzegovina, 'Press Release: Gojko JankoviC transferred to Bosnia and Herzegovina', 8 December 2005, <www.sudbih.gov.ba/?id=96&jezik=e>. 145. See Court of Bosnia and Herzegovina, <www.sudbih.gov.ba~filesldocsloptumiceiSIMSIC~ OPTUZNICA-BHS.pd@. 146. Ibid. 147. Centre for Peace, Non-Violence and Human Rights, <www.centar-za-mir.hr/sudenje-bih. P~P>.
Correspondents' Reports
*
449
BoSko PreviSiC case. Mostar Cantonal Court.
The accused was indicted for war crimes against civilians and war crimes against prisoners of war committed in the period 8 June 1993 - 22 December 1993. He was in charge of supervising the prison in Gabela and was charged with killing civilians, severely injuring civilians, knowing of the killings of civilians, torture and inhuman treatment of civilian detainees. The main trial was scheduled for 14 -15 November 2005, but the accused was still on the run.I4'
Missing Persons * According to the ICRC on 30 August 2006 13 862 persons were still unaccounted for since the former conflict in B ~ H . ' ~ ~ * The Court of BiH granted a number of appeals filed by citizens of BiH due to disappearances of persons during the war. The Court found a violation of the right not to be subjected to torture or to inhuman or degrading treatment or punishment under Article I1 3 (b) of the Constitution of BiH and Article 3 of the European Convention on Human Rights (ECHR),"' as well as right to family life under Article I1 3(f) of the Constitution of BiH and Article 8 of ECHR. The Council of Ministers of BiH, the Government of the FBiH and the Government of RS were ordered to forward to the appellants all accessible and available information in terms of investigation on circumstances under which the disappearance occurred and violent death of members of their families to urgently and without further delay conduct investigation on disappearance and violent deaths of members of the appellants' families.I5'
Srebrenica Working Group * The Srebrenica Working Group published a list of names recording every individual serving in an official, police or military function in the Srebrenica area at the time of genocide in Srebrenica. The list is used by the BiH Prosecutor's Office and is the basis for investigations. The recently-released report on the Srebrenica massacre lists the names of more than 17 000 Bosnian Serb soldiers, police officers and officials involved in the k i 1 1 i n ~ s . l ~ ~
148. Ibid. 149. International Committee of the Red Cross, 'Regional News: 18,000 persons still missing in the Balkans', ~www.icrc.org/web/eng/siteengO.ns~tmliserhia-montenegro-news-300806!OpenDocu merit>.
150. 1950,213 UNTS 222. 151. Constitutional Court of Bosnia and Herzegovina, Press Release, 12 March 2006, <www.ccbh. baienglpresslinde~.php?pid=368&sta=3&pkat=507&kat=505>.
152. Human Rights Watch Report, 'Looking for Justice'supra 106; p. 11.
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Correspondents' Reports
Criminal Defence Support Section (OKO) * O K 0 organised two seminars on 'Defence in Criminal Proceedings' with a specific focus on war crime trials held in Sarajevo from 18 - 20 September 2006 and in Banja Luka from 2 - 4 October 2 0 0 6 . ' ~ ~ * O K 0 organised two seminars on 'International Humanitarian Law', held in Sarajevo from 16 - 18 October 2006 and in Banja Luka from 30 October - 1 November 2 0 0 6 . ' ~ ~ Peace Implementation Council Steering Board * On 22 December 2006 ambassadors of the Peace Implementation Council's Board expressed grave concerns about the decision of the BiH Council of Ministers to create a national review mechanism to address the issue of police officers denied certification by the International Police Task Force (IPTF). It was stated that such mechanisms would violate UN Security Council Resolutions and Annex 11 of the Dayton Peace Agreement. 155 Armed Forces * The BiH Presidency failed to meet the legally required deadline for approving the decision on the structure and stationing of the Armed Forces of B ~ H . " ~ * 'Under the new Law on Defence, effective 1 January 2006, control of the armed forces was transferred to the State of BiH, and the entity-level armies and Defence Ministries are to be d i s ~ o l v e d . " ~ ~ ICTY * The ICTY Appeals Chamber upheld the decision to refer the Mejakid and others case to BiH on 7 April 2006. They were physically transported to the WCC on 9 May 2006.
ieljko MejakiC, MomEilo Gruban, DuSan FuStar and DuSko Kneievic are charged with confining in inhumane conditions, murdering, beating, sexually assaulting, harassing, humiliating and psychologically abusing Bosnian Muslims, Bosnian Croats and other non-Serbs in Omarska and Keraterm camps in Prijedor, Bosnia and Herzegovina, between May and August 1992. It is alleged that ieljko MejakiC was the Commander of the Omarska Camp at that time, MomEilo Gruban was a guard shift commander at the Omarska Camp and that DuSan FuStar performed the same duty at the Keraterm Camp. As for DuSko Kneievic, according to the indictment, he did not appear to hold an offi-
153. Protecting the Rights of the Accused, <www.okobih.ba/?jezik=E>. 154. Ibid. 155. See OHR: Office of the High Representative, 'Press Release: Peace Implementation Council Steering Board: BiH Institution Must Respect Human Rights', 22 December 2006, <www.ohr.in/print/ ?contentPid=38781>; 1995,35 ILM 172. 156. OHR: Office of the High Representative, 'Press Release: High Representative Concerned by BiH Presidency's Failure to Approve BiH Armed Forces Structure by Legally Required Deadline', 4 July 2006, <www.ohr.intlohr-dep~presso/pressr/default.asp?content~id=37589.~. 157. Organization for the Security and Co-operation in Europe, 'Feature: Speaking with one voice on defence issues in Bosnia and Herzegovina', <www.osce.org/item/l8911 .htmB.
Correspondents ' Reports
45 1
cia1 position in either the Keratem or the Omarska camp, but had sufficient authority to be able to enter and leave the camps as he wished.'58
*
Decision to transfer the case of Mitar RaSevic and Savo TodoviC to the authorities of BiH, 5 September 2006. RaSevic and TodoviC are charged with persecutions, murder, torture, imprisonment, and enslavement committed against Bosnian Muslims and other non-serbs imprisoned in the 'KP Dom' detention facility in FoEa between April 1992 and October 1994. According to the indictment, RaSevic was the commander of the 'KP Dom' guards and TodoviC was part of 'KP Dom's' senior management, including as its Deputy Commander from April 1992 to August 1 9 9 3 . ' ~ ~
*
The decision to refer the case of Pasko LjubiEiC to BiH is the fourth referral decision of the ICTY. The indictment confirmed by the ICTY charged PaSko LjubiCiC with the criminal offence of crimes against humanity and violations of the laws or customs of war. According to the indictment the accused bears individual and command responsibility for crimes allegedly committed by the Military Police of the Croatian Defence Counsel during the armed conflict in Central ~ o s n i a . ' ~ '
Law on Citizenship * The BiH 'Driavna komisija za reviziju odluka o naturalizaciji stranih driavljana' [State Commission for the Revision of Decisions on Naturalization of Foreign Citizens] started its operations in March 2006. With regard to 'Zakon o izmjenama I dapunama zakona o driavljanstvu Bosne i Herzegovine' [Law on Amendments to the Law on Citizenship of Bosnia and Herzegovina], which entered into force in November 2005, the Commission is tasked with reviewing the status of citizens who acquired BiH citizenship between 6 April 1992 and 1 January 2006. The Commission can propose to the Bosnia and Herzegovina Council of Ministers to withdraw the citizenship of, among others, those who are deemed to have obtained it not in accordance with the relevant regulations, or on the basis of false information. . .. Reportedly, the activities of the Commission may affect approximately 1,500 individuals, many of whom are reported as having come to BiH to join Bosnian Muslim (Bosniak) forces as volunteer foreign fighters during the 1992 - 95 war, or to work for Islamic charities during and after the war. 161
158. Court of Bosnia and Herzegovina, 'News: The Mejakic and others case transferred to Bosnia and Herzegovina', 10 April 2006, <www.sudbih.gov.ba/?id=l34&jezik=e~. 159. Court of Bosnia and Herzegovina, 'News: ICTY decision to transfer the case of Mitar RaSeviC and Savo TodoviC to the authorities of BiH', 6 September 2006, <www.sudbih.gov.bai?id= 222&jezik=e>. 160. Court of Bosnia and Herzegovina, 'News: ICTY accused PaSko LjubiEiC transferred to Bosnia and Herzegovina', 22 September 2006, <www.sudbih.gov.ba/?id=23O&jezik=e>. 161. Amnest International, 'Public Statement: Bosnia and Herzegovina: Withdrawal of citizenship must not result in human rights violations', 16 June 2006, .
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Correspondents' Reports
High Representative Decision Enacting the Law on Amendment to the Law on Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the use of Evidence Collected by ICTY in Proceedings before the Courts in BiH, 19 June 2006. <www.ohr.int/decisions/judicialrdec/default.asp?content~id=37437>. Decision Enacting the Law on Amendments to the Criminal Procedure Code of BiH, 19 June 2006. <www.ohr.in~decisions/judicialrdec/default.asp?content~id=37429>. High Representative amended the Criminal Procedure Code to extend the duration of post-indictment from one year to three years for the most serious cases, including war crimes, 16 June 2006. ~www.ohr.in~ohr-deptlpresso/pressr/default.asp?content~id=37434>. The High Representative signed a Registry Agreement with the Presidency of BiH, transferring responsibilities originally given to the registrar to a Transition Council comprised primarily of representatives of the BiH institutions. Inter alia, the power to appoint internationaljudges and prosecutors is transferred from the High Representative to the High Judicial and Prosecutorial Council, signed August 2006. <www.ohr.int/print/?content-id=37785>. Cases 1. Verdicts
* Abdulahim
Maktouf case, Court of BiH, Sarajevo - Section I for War Crimes, 5 April
2006. According to the final verdict the accused was found guilty of being an accessory to the taking of three Croat civilians as hostages by the "El Mujaheed" unit in Travnik in 1993.In committing these acts the accused committed the criminal offence of war crimes against civilians. He was sentenced to five years
*
Dragoje PaunoviC case, Court of BiH, Sarajevo - Section I for War Crimes, 26 May
2006. The Court found the accused guilty of crimes against humanity and sentenced him to 20 years imprisonment. According to the verdict, in the period between May - September 1992,the accused ordered and carried out persecution against the Bosniak civilian population from the Rogatica area on political, national, ethnic, cultural and religious grounds by committing murders and other inhumane acts.'63 On 27 October 2006 the Appellate Panel confirmed the first instance verdict.164
162. Court of Bosnia and Herzegovina, ~www.sudbih.gov.baJfilesldocsipresudel2OO6/MaktoufE BHS-KPZ-32-05.pdB. 163. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/presude/2006/Pa BHS-X-KR-05-16.pdD. 164. Court of Bosnia and Herzegovina, ~www.sudbih.gov.b~filesldocslpresude/2006/ XKRZO5 16-PAUNOVIC-DRAGOJE-PRESUDA.pdP.
Correspondents' Reports
*
453
Boban Sirnii~case, Court of BiH, Sarajevo - WCC, 11 July 2006.
The Court found the accused guilty of crimes against humanity and sentenced him to five years imprisonment. The panel found the accused guilty of aiding in the enforced disappearance and rape of Bosnian civilians in the 'Hasan Veletovac' school premises in ViSegrad, which occurred as part of widespread and systematic attacks by the Serb Army, police and paramilitary groups directed against the Bosniak civilian population in the area of ViSegrad between April -July 1992.'"5
*
Marko Samardija case, Court of BiH, Sarajevo - Section I for War Crimes, 3 November 2006.
The Court found the accused guilty of crimes against humanity and sentenced him to 26 years imprisonment. On 10 June 1992 the accused, as commander of the 3rd Company of the Sanica Battalion within the 17th Light Infantry Brigade, ordered his soldiers to remove all Bosniak male civilians in the BrkiC and BalagiC Brdo villages from their houses and to take them to the Jezerine plain. All men between the ages of 18 - 60 were taken with their hands behind their backs to the courtyard of the Biljanina Primary School. Some of these Bosniak men were detained in classrooms from which they were brought out in groups of five - 10 and executed. The accused and his subordinates moved the remaining men, while beating them, onto buses and they were transported to LaniSte where most of them were killed. He also took part in the gathering and transfer of the bodies of the victims. These bodies were exhumed from the LaniSte, Crvena Zemla and Biljani mass graves during 1996. At least 144 persons were killed with the use of firearms.'66
*
KovaEeviC Nikola case, Court of BiH, Sarajevo - Section I for War Crimes, 3 November 2006.
The accused was found guilty of crimes against humanity and sentenced to 12 years imprisonment. According to the verdict, in the period May - August 1992, he participated in a wide and systematic attack by the Army of the RS of BiH against the civilian population of the Sanski Most municipality, in which he committed, aided and instigated the persecution of Muslims and Croats. The accused, alone or together with other members of the military and the police, detained and tortured civilians in various facilities. In June and July 1992 the accused participated in taking detained civilians to the ManjaEa camp and in beating civilians upon their arrival at the camp. On 6 June 1992 the accused took part in the severe beating of a number of civilians who were brought to the ManjaCa camp, causing grievous injuries. The accused also participated in the removal of the bodies of these civilians, which were never found. He also took part in the forcible transfer of 60 civilians to the ManjaEa camp. The detainees were placed on a single truck and crammed under a tarpaulin so that at
165. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docslpresude/2006/Simsic~ BHS-X-KR-05-04.pdB. 166. Court of Bosnia and Herzegovina, <www.sudbih.gov.ba~files/docs/presude/2006/Marko~Sa rnardzija~-F're~uda~-~BHS~pdf~.
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Correspondents ' Reports
least 19 of them suffocated. The bodies of these victims were exhumed from the 'USCe Dabar' mass grave in Sanski ~ o s t . ' ~ '
* Radovan StankoviC case, Court of BiH, Sarajevo - WCC, 14 November 2006. The accused was found guilty of crimes against humanity and sentenced to 16 years imprisonment. In the period August - October 1992 the accused, as a member of the Miljevina battalion (within the FoCa tactical brigade), participated in a wide and systematic attack of the Army of the Serb Republic of BiH against the non-Serb civilian population of the FoCa municipality. Together with other individuals he formed a detention centre for women in the 'Karaman House', which was known by soldiers as 'The Brothel'. Together with other individuals, he brought to this detention centre, held captive, and supervised at least nine women, most of whom were juveniles. He claimed one of the detainees for his own use, forcing her to have sexual intercourse with him every night except for a period of a few days after he had been wounded. He frequently raped her while other individuals were present in the same room. In October 1992 he transferred this detainee to another location where he forced her to have sexual intercourse with him and to perform forced 1 a b o ~ r . I ~ ~
*
Nedo Samaradiii. case, Court of BiH, Sarajevo - Section I for War Crimes, Sarajevo, 13 December 2006.
According to the first instance verdict delivered on 7 April 2006, the accused was found guilty of crimes against humanity and sentenced to 13 years and four months imprisonment. The offences that the accused was convicted of were committed in the period between April 1992 - March 1993 in, among other locations, the Rataje village and in the socalled 'Karaman House' in Miljevina, municipality of ~ 0 ~ a . l ~ ~ According to the final verdict, delivered on 13 December 2006, the accused was again found guilty of crimes against humanity but sentenced to 24 years imprisonment. The accused, as a member of the Army of the RS, together with other soldiers, conducted the persecution of the Bosniak civilian population on national, ethnic, religious and gender grounds. He forced victims into sexual slavery, raped them, and conducted other inhumane acts, intentionally causing them great suffering, serious physical injuries and harm to their health. In the period between June - September 1992, together with Nikola BrEic and Radovan StankoviC, he held several Bosniak women as sexual slaves in the 'Kraman House' in Miljevina, which was used as a detention camp for women. The women were forced to engage in sexual intercourse with soldiers coming into the house on a daily basis. The accused personally forced detained women to have sexual intercourse with him.l7'
167. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/presude/2006Mikola~Ko vacevic---Presuda---BHS.pdD. 168. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfiles/docs/presude/2006JRadovan~ Stankovic--_Presuda---BHS.pdD. 169. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfilesldocs/presude/2006/Samardzic~ BHS-X-KR-05-49.pdB. 170. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/presude/2006Medo~Sa mardzic--_drugostepena-Pre~uda~--BHS.pdB.
Correspondents' Reports
*
455
Nikola Andrun case, Court of BiH, Sarajevo - Section I for War Crimes, 14 December 2006.
The accused was sentenced to 13 years imprisonment. The Court found the accused guilty of war crimes against civilians. In 1993, he acted in capacity of the Deputy Commander of the Gabela Detention Camp in the Municipality of Capljina, and as a member of the Knez Domagoj Brigade of the Croatian Defence Council (HVO). He tortured and participated in the torture of detained civilians, behaved in an inhumane manner towards the detainees and used methods of intimidation and terror. The accused, together with another individual, transferred a detainee to the police station in Capljina where he participated in physically and mentally abusing this detainee. Together with the commander of the Gabela Detention Camp, on two occasions in August and September 1993, the accused transferred a group of Bosniaks from the Gabela Detention camp to the Silos detention camp near Capljina with the intent of preventing representatives of the ICRC from registering the detainees. 171
*
Samir BejtiC case, Sarajevo Cantonal Court, 13 July 2006.
The accused was found guilty for war crimes against civilians and sentenced to 14 years and six months imprisonment.'72
*
Novo Rajak case, Sarajevo Cantonal Court, 26 November 2006.
The accused, as the police officer in the ViSegrad police station, was found guilty of war crimes against civilians in ViSegrad in April, May and June 1992. Together with members of Serb paramilitary forces, he participated in attacks on the villages Cmi Vrh and Kabernik. He threatened, arrested, tortured and mistreated Bosniaks and participated in the criminal offence of murder. The Court sentenced him to 14 years imprisonment.'73
* Milanko
VujanoviC case, Banja Luka District Court, 3 March 2006.
The defendant was indicted in March 1993 for the killing of civilians on 19 October 1992 in Blagaj Rijeka near Novi Grad. The Court found the accused guilty for war crimes against civilians and on 3 March 2006 sentenced him to 20 years imprisonment.'74
*
Zikrija Ljevo and others (Vernes ZahiroviC, BeCir OmanoviC, Habib Cbpelj, Husnija OruCeviC) case, Mostar Cantonal Court, 29 March 2006.
171. Court of Bosnia and Herzegovina, <www.sudbih.gov.balfilesldocslpresude~ Andrun---Presuda---BHS.pdP. 172. Voice of America News, ~www.voanews.cornibosnian~archivei2006-0712006-0713-voa4. cfm>. 173. See Nezavisne Novine [Independent News], 'Novo Rajak osuden na 14 godina zatvora' ['Novo Rajak sentenced to 14 years imprisonment'], <www.nezavisne.com/vijesti.php?vijest= 2803&meni=6>. 174. Banja Luka District Court, <www.okruznisud-bl.com/index.htm>.
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Correspondents' Reports
The accused were found guilty of war crimes against prisoners of war. Zikrija Ljevo was sentenced to seven years imprisonment. Vemes ZahiroviC was sentenced to two years imprisonment. BeCir OmanoviC and Husnija OruEeviC were each sentenced to one year and six months imprisonment.
* Momir Skakavac case, Trebinje District Court, 24 March 2006. This war crimes trial involved charges of inhuman treatment, illegal detention, and rape. According to the indictment, in early June 1992 Momir Skakavac forcibly took Bosnian Muslim Atif Hambo from his house in Miljevina (near Fo[E]a); Hambo was never seen again. During the summer of 1992, Skakavac and other members of the Bosnian Serb army allegedly kidnapped three Muslim women from their apartments. The women were taken to a cattle farm and forced to work there. . ..[B]etween August and November 1992, Skakavac allegedly visited a house in which a Muslim women, "no. 120", was held prisoner, and raped her on several occasions. 'I6 On 24 March 2006 the trial ended with the acquittal of the defendant.17'
*
Fikret Boskailo case, Trebinje District Court, 6 April 2006.
The defendant was originally charged with war crimes for violating international law applicable in wartime arising out of the pillage of civilians' property and large scale illegal and arbitrary destruction and appropriation of property in the area of Capljina in 1992. '78 The trial ended with the acquittal of the defendant on 6 April 2 0 0 6 . ' ~ ~
2. Ongoing trials at the end of 2006 * MitroviC Petar and others (MiloS Stipar, Milenko TrijiinoviC,Brano DiiniC, Aleksandar RadanoviC, Slobodan JakovljeviC, Miladin StevanoviC, Velibor MaksimoviC, Dragiia ZivanoviC, Bvanislav Medan, Milovan MatiC) case, Sarajevo Cantonal Court. The accused are indicted for the crime of genocide committed in Srebrenica in 1995 pursuant to Article 171 of the Criminal Code of BiH. The trial started on 9 May 2006 and is still ongoing.180
*
Radislav Ljubinac case, Court of BiH, Sarajevo Section I for War Crime. -
175. OK0 War Crimes Reporter, Issue 3 (2006), p. 29, <www.okobih.ba/files/docs/Reporter/2006~ 3-OKO-WCR.pdB. 176. Human Rights Watch Report, 'A Chance for Justice', supra 121; p. 10. 177. DAN1 Magazine, ~www.bhdani.com/default.asp?kat=fok&broj~id=467&tekst~rb=3~. 178. Ibid. 179. Infobiro, ~ w w w . i d o c . b a / d i g i t a l a r c h i v e / p u b l i c / b r o w s i n g / b s /code/O 1.01.04/year/2006/month~4iday/7/codel/Ol.01~. 180. Court of Bosina and Herzegovina, < w w w . s u d b i h . g o v . b a / f i l e s / d o c s i o p t u m i c e ~ P TUZN1CA.pdP.
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On 15 May 2006 the indictment was confirmed against the accused. He was charged with crimes against humanity. The offences outlined in the indictment were allegedly committed between May - November 1992 in the area of the Rogatica municipality. Thc accused was charged with participation in the persecution of the Bosniak population from the area of 1x1 Rogatica on political, national, ethnic, cultural and religious grounds.
*
Dragan ZelenoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
Section I for War Crimes of the Court of BiH issued an order according to which Dragan ZelenoviC is to be immediately transferred to the ICTY in The Hague. The amended indictment which the ICTY confirmed on 7 October 1999 charged him with crimes against humanity and violations of the laws of customs of war in the area of FoEa, between July November 1992. According to the allegations in the indictment, he was one of the subcommanders of the military police and a paramilitary leader in FoEa. On 8 June 2006, at the Sarajevo International Airport, the accused was handed over to the BiH State Border Service by Russian Federation a u t h ~ r i t i e s . 'On ~ ~ 8 July 2006 he was physically transferred to The Hague. 'The indictment alleges that he raped, sexually assaulted and participated in gang-raping of women in a number o f . . . places, including the gang-raping of a 15-year-old girl in the Buk Bijela detention center in July 1992'."~ ZelenoviC pleaded guilty to seven counts in the indictment, where rape and torture were qualified as crimes against humanity. The same acts were cumulatively charged in the indictment as violations of the laws or customs of war. The prosecution dropped those charges after the accused pleaded guilty.'84 At the end of 2006 the sentencing judgement was still pending.
*
Goran and Zorun DamjanoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 9 June 2006 and the trial started on 21 September 2006. The accused are charged with war crimes against civilians. According to the allegations in the indictment Goran and Zoran DamjanoviC, as members of the Army of the Serb Republic of BiH, took active part in the beatings of a group of 20 - 30 male Bosniak prisoners in Bojnik, Novi Grad municipality, Sarajevo on 2 June 1992.Is5
181 . Court of Bosnia and Herzegovina, 'News: Cases in trial or on appeal against verdict X-KR-051 154 - Ljuhinac Radisav', <ww.sudbih.gov.ba~?opc~a=predmeti&id=30&~ezik=e>.
182. Court of Bosnia and Herzegovina, 'News: Dragan Zelenovic to be transferred to International Criminal Tribunal for former Yugoslavia (ICTY)', 9 July 2006, <ww.sudbih.gov.ba/?id=l66&jezik= e>. 183. lnternational Criminal Tribunal for the Former Yugoslavia, 'Press Release: Dragan Zelenovic in Tribunal Custody', I0 June 2006, ~www.un.orglicty/pressrea112006/p1089-e.htm~. 184. Sense Tribunal, 'ICTY: Dragan Zelenovic', 16 February 2007, . 185. Court of Bosnia and Herzegovina, 'Cases in trial or on appeal against verdict: X-KR-051107 Damjanovid Goran and Zoran', <www.sudbih.gov.ba~?opcija=predmeti&id=32&jezik=e~.
458
*
Correspondents' Reports
Goran Bencun and Zdravko Bozik case, Court of BiH, Sarajevo Crimes.
-
Section I for War
On 3 July 2006 [a] preliminary proceeding judge ordered custody of one month for Goran Bencun and Zdravko BoziC. The Prosecutor's Office of BiH suspects these two persons of participating, as members of the Republika Srpska Army, in the murders of Bosniak civilians from Srebrenica, in the area of Pilica in July 1995. The authorities of the United States of America deported Bencun and BoiiC to BiH on June 30,2006 for breaches of immigration reg~1ations.l~~
*
Gojko Jankovii case, Court of BiH, Sarajevo - Section I for War Crimes.
According to the second indictment the accused was charged with the criminal offence of crimes against humanity. It is alleged that between April 1992 - February 1993 the accused, as the leader of a paramilitary group, ordered, committed, aided and incited the rape of a Bosniak woman in the area of ~ 0 E a . l ~ ~
*
Pasko LjubiEi'C case, Court of BiH, Sarajevo - Section I for War Crimes.
The criminal proceedings involving Mr. LjubiEic have been referred to the authorities in BiH by a decision of the ICTY Referral Bench made in accordance with Rule 11 bis of the ICTY's Rule of Procedure and Evidence. On 22 September 2006 the accused was transferred to BiH. He was charged with crimes against humanity, war crimes against civilians and violating the laws and practices of warfare. The indictment alleges that in the period between January - July 1993 the accused participated in a widespread and systematic attack on the Bosniak civilian population of the Vitez and Busovaca municipalities by HVO forces. Allegedly, the accused was the commander of the 4th Military Police Battalion, which was active in the Central Bosnia Operative Zone (CBOZ) of the HVO. It is alleged that he exercised both formal and de facto control over the members of the HVO Military Police in the CBOZ and that on 25 January 1993 the accused gave an order to members of the 4th Military Police Battalion to attack the Bosniak civilian population of Busovaca, which resulted in the death of 27 Bosniak civilians. It is further alleged that the accused ordered the looting and destruction of Bosniak homes and businesses and that he personally participated in this attack. On the morning of 16 April 1993 the accused allegedly participated in the planning of an attack on the villages of AhmiCi, Nadioci, PiriCe and Santidi and conveyed orders to members of the 4th Military Police Battalion. This included an order that all adult Bosniak men be killed and the entire Bosniak population of the villages expelled. During this attack, around 100 Bosniak civilians were killed, the entire Bosniak population of the villages was expelled, their homes were destroyed, numerous persons
186. Court of Bosnia and Herzegovina, 'News: Custody ordered for two war crimes suspects' 3 July 2006', <www.sudbih.gov.ba/?id=18l&jezik=e>. 187. Court of Bosnia and Herzegovina, ~www.sudbih.gov.b~files/docsloptuznice//Gojko~Janko vic~-~Optuznica~-~BHS~-~O4Juli2006.pdB.
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suffered serious mental and physical injuries, and the two mosques in the village of AhmiCi were blown
*
MejakiC ~ e l j k oand others (Morntilo Gmban, DuSan FuStar, Dus'ko KneieviC) case, Court of BiH, Sarajevo - Section I for War Crimes.
On 9 May 2006 the accused were transferred to BiH from Scheveningen. The indictment was confirmed o n 14 July 2006 and the trial started o n 2 0 December 2006. The accused
were charged with the criminal offence of crimes against humanity. The indictment alleges that from April 1992 until the end of 1992 the accused directly participated in the systematic imprisonment of non-Serb civilians in the camps Omarska, Keraterm and Trnopolje, in the context of widespread and systematic attacks carried out by the Army of the RS, Territorial Defence, police and paramilitary units against the non-Serb population in the Prijedor area.I89
*
Zdravko BoiiC and others (Mladen BlagojeviC, ~ e l j k oZarid and Zoran ~ivanovik)case, Court of BiH, Sarajevo - Section I for War Crimes.
The accused were charged with crimes against humanity. The indictment alleges that, as members of the Military Police at the Bratunac Light Infantry Brigade of the Army of the Republic of Srpska (VRS), the accused, inter a h , planned, ordered, instigated and committed offences within a widespread and systematic attack in July 1995 against the Bosniak civilian population of the Srebrenica enclave. Further it is alleged, that on the night between 13 - 14 July 1995, the accused guarded, controlled and secured the detention of 2 000 - 3 000 unarmed Bosniak civilians at the Vuk KaradiiC Primary School in Bratunac by using force or the threat of force. They also allegedly participated in the abuse, beatings and cruel treatment of the detainees. In addition the indictment further alleges that Zdravko BoiiC and Mladen Blagojevic, together with six other members of the VRS, executed at least five unarmed Bosniak civilians in the Vuk KaradiiC Primary school on the night between 13 14 July 1995. According to the indictment, on 14 July 1995, at the Grbavci School in Orahovac, ieljko ZariC and Zoran i i v a n o v i ~separated three unarmed civilian Bosniaks from the other detainees and killed them by firing from automatic firearms.lgO
*
Mitar RaSeviC and Savo TodoviC case, Court of BiH, Sarajevo Crimes.
-
Section I for War
188. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/optuznice//F'asko~Lju bicic---Optuznica--BHS.pdD. 189. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocs/optuzniceiMejakic~optuz nica.pdfi. 190. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/files/docs/optumice//Zdravko~ Bozic---Optuznica---BHS.pdP.
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This case was referred to the authorities in BiH on 5 September 2006 from the ICTY.'~'The accused were physically transferred to BiH on 3 October 2 0 0 6 . ' ~ ~
*
Nenad TanaskoviC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment against the accused was confirmed on 6 October 2006 and charged him with crimes against humanity. It is alleged that he, in the period from April through June 1992, as a reserve policeman, participated in a widespread and systematic attack by the Army of the Serb Republic of BiH, police and paramilitary formations against the Bosnian Muslim civilian population in the territory of the ViSegrad municipality. It is hrther alleged that during this attack hundreds of civilians were killed, tortured, beaten, raped, illegally deprived of their liberty, detained in inhumane conditions and forcibly transferred out of the territory of this municipality. On 3 1 May 1992, the accused allegedly, together with a group of paramilitary soldiers, attacked undefended villages occupied by Muslims and formed a human shield using the captured civilian male residents and threatened to kill anyone who attempted to run away.Ig3
*
Niset Ramit case, Court of BiH
-
Section I for War Crimes.
On 12 October 2006 the indictment against the accused was confirmed. The trial started on 18 December 2006. He was charged with the criminal offence of war crimes against civilians. It is alleged that on 20 June 1992 as the member of a sabotage unit of the Visoko Territorial Defence Headquarters, the accused committed breaches of the Geneva Convention relative to the Protection of Civilian Persons in time of War ('Geneva Convention I V ' ) . ' ~It~ is hrther alleged that, after a group of Serb civilians were surrounded and arrested, the accused escorted them to the Youth club in the village of HlapEeviCi, Visoko municipality. On their way towards the youth club the accused allegedly stopped the group and shot a number of them using a machine gun, which killed four people and wounded two.'95
*
Radrnilo Vukovii. case, Court of BiH - Section I for War Crimes.
The indictment against the accused was confirmed on 13 October 2006 and charged him with war crimes against civilians. It is alleged that in June 1992, as a member of the military
191. International Criminal Tribunal for the Former Yugoslavia, <www.un.orglictylrasevic/appeall decision-eltod-acdec060904e.pdB. 192. Court of Bosnia and Herzegovina, 'News: ICTY accused Mitar RaSeviC and Savo TodoviC transferred to Bosnia and Herzegovina', 3 October 2006, <www.sudbih.gov.ba/?id=238&jezik=e>. 193. Court of Bosnia and Herzegovina, ~www.sudbih.gov.bdfiles/docs/optuznice//Tanaskovic~ BHS-KT-RZ- 146-05.pdB. 194. 1949,75 UNTS 287. 195. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocsloptumiceMiset~Ramic~ optuznica.pdP.
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46 1
forces of RS, the accused physically abused a woman, threatening her life, and took advantage of her unconsciousness to rape her several times.'9h
*
Kreio LuGC case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 26 October 2006 and charged the accused with crimes against humanity. It is alleged that during attacks aimed at the Bosniak civilian population in the municipalities of KreSevo, Kiseljak, BusovaEa and Vitez, the accused, in his capacity as a commander of the Military police of the Croatian Defence Council in KreSevo, inter alia, committed and participated in the imprisonment and torture of civilians. Further, it is alleged that in June and July 1993, at the headquarters of the Military police in KreSevo, the accused tortured prisoners of Bosniak ethnicity brought from the camp "Sunje" and ordered his subordinate police officers to do the same.l9'
*
Marinko Marit case, Court of BiH, Sarajevo - Section I for War Crimes.
The Court confirmed an indictment which charged the accused with war crimes against civilians. It is alleged that as a member of the Croatian Defence Council Knez Domagoj Brigade (in his capacity as an investigator in the Brigade's security and information service) in the second half of 1993 in the Gabela Camp, Municipality of Capljina, the accused acted contrary to the provisions of Geneva Convention IV. At the time the indictment was issued the accused was on the run.198
*
MomEilo MandiC case, Court of BiH, Sarajevo Section I for War Crimes -
Mandic's trial started on 6 November 2006 and he was charged with the criminal offence of war crimes against civilians and crimes against humanity It is alleged that, on 6 April 1992, in his capacity as Assistant Minister of the Interior of the so-called Serb Republic BiH, the accused planned, instigated, ordered and aided the unlawful confinement and inhuman treatment of civilians during an attack against the Training Centre for Personnel of the RBiH Ministry of 1nteri0r.l~~
*
Zoran JankoviC case, Court of BiH, Sarajevo Section I for War Crimes. -
The indictment of 6 November 2006 charged the accused with crimes against humanity. Inter aha, it is alleged that on 29 April 1992, together with another individual and a group of members of paramilitary formations, the accused captured a group of Bosniak civilians who had been hiding in the forest area of the Snagovo village in the municipality of Zvor-
196. Court of Bosnia and Herzegovina, ~www.sudbih.gov.bdfiles/docs/optuzniceiRadmilo~Vuko vic-optuznica-BHS.pdP. 197. Court of Bosnia and Herzegovina, 'Cases in trial or on appeal against verdict, X-KR-061298 LutiC KreSo', ~ww.sudbih.gov.bd?opcija=predmeti&id=40&jezik=e>. 198. Court of Bosnia and Herzegovina, ~ w w . s u d b i h . g o v . b d f i l e s / d o c s / o p t u z n i c e i n k o ~ Marie---Optuznica---BHS.pdP. 199. Court of Bosnia and Herzegovina, <ww.sudbih.gov.bdfiles/docs/optuznice//Mandic~(War~
Crimes)_BHS.pdP.
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Correspondents ' Reports
nik. After capturing the group, the accused and his accomplices allegedly took them to an area known as 'RaSidov Han' in Snagovo where, by shooting from automatic riffles, they killed 36 people and wounded three. On the same day, the perpetrators allegedly burned the bodies of the murdered victims to cover up the crime.200
*
~ e l j k Lelek o case, Court of BiH, Sarajevo Section I for War Crimes. -
The indictment charged the accused with the criminal offence of crimes against humanity. Inter alia, it is alleged that as a police officer in Visegrad, the accused committed acts of murder, torture and rape in the period of May, April and June 1992 during a wide and systematic attack of the Serb army, police and paramilitary formations, against the Bosniak civilian population of the ViSegrad municipality. Allegedly, in early June 1992, together with two other individuals, the accused drove two Bosniak women to the Mehmed PaSa SokoloviC Bridge. One of the two women carried a baby who was under the age of six months. Vlatko Pecikoza threw the baby into the air, while the accused allegedly stabbed the baby as it fell, then forced the mother to drink the baby's blood. Subsequently the accused allegedly killed both women. According to the indictment, during the same period, the accused, together with Milan LukiC, raped a woman, assaulting her on ethnic and religious grounds. Further, it is alleged that this woman was raped on a daily basis over a period of 10 days and physically and mentally mistreated by the accused and others while she was held captive.201
*
Marko RadiC, Dragan Sunjib and Damir Brekalo case, Court of BiH, Sarajevo - Section I for War Crimes.
The indictment was confirmed on 1 December 2006 and charged the accused with crimes against humanity in relation to the following items: murder, imprisonment, torture, sexual violence, persecution, and other inhumane acts. It is alleged that during the period between July 1993 - March 1994, in their capacity as officers and members of the Bijelo Polje battalion of the Second Brigade of the HVO, who took part in an attack against the Bosniak civilian population of the Mostar Municipality, the accused planned, ordered and instigated attacks on Bosniak civilians. Further it is alleged, that Marko RadiC, in his capacity as commander of the Ivan ~taniC-CiCosabotage unit, and later as commander of the Second Brigade of the HVO, is responsible for the killing of prisoners who were killed by persons over whom he had effective control. In September 1993, Damir Brekalo allegedly brought a woman to Marko RadiC and he forced her to have sexual intercourse with him and then ordered an unidentified HVO soldier to rape her. Allegedly, in the period between August 1993 - March 1994, in his capacity as Deputy Commander of Vojno prison facility, Dragan SunjiC participated in establishing the prison facility, and in arresting and unlawfully detaining Bosniak civilians in that prison. The accused allegedly had authority and control over the conditions of the prison facility as well as people working in it. In August 1993, the
200. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba~files/docs/optuznice/Zoran~Janko vic-optuznica.pdB. 201. Court of Bosnia and Herzegovina, ~www.sudbih.gov.balfiles/docs/optumice//Zeljko~ Lelek---Optuznica---BiH.pdP.
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463
accused Damir Brekalo allegedly beat two prisoners who were performing forced labour at front lines in Bijelo Polje, Mostar and on the same evening executed them. In July 1993, the accused allegedly raped a woman in Bijelo ~ o l j e . ~ ' ~
*
Marko Samaradt-ija case, Court of Bosnia and Herzegovina, Sarajevo War Crimes.
-
Section I for
The main trial started on 1 February 2006. The accused was charged with crimes against
humanity. It is alleged that in July 1992 he initiated, aided and participated in the killing of about 250 civilians during the armed and systematic attack on civilians in Biljana, Kluj municipality.203 LEJLAVUJINOVIC
BELGIUM~'~ Legislation * The Law of 5 August 2003 on the Punishment of Grave Breaches of International Humanitarian Law. The law was amended on 22 May 2006.*05 The reasons and the goal of this amendment ~ will not be repeated have been widely stated in the Correspondent's Report for 2 0 0 5 ~ 'and here.
*
The Law of 29 March 2004 relating to cooperation with the Intemational Criminal Court and the Intemational Criminal Tribunals
This lawzo7was amended by the Parliament on 1 July 2006 in order to extend the scope of cooperation to the Special Court for Sierra Leone (SCSL) and to the Extraordinary Chambers for Cambodia (ECSC).~'~ As rightly observed by the Minister of ~ustice,"~the SCSL has not been established by the Security Council in the framework of Chapter 7 of the UN Charter. The SCSL results from an agreement concluded in 2002 between the UN and Sierra Leone.
202. Court of Bosnia and Herzegovina, <www.sudbih.gov.ba/files/docs/optuznice/o~ Radic---Optuznica---BHS.pdP. 203. Court of Bosnia and Herzegovina, ~www.sudbih.gov.ba/filesldocs/optuznice/SAMARDZI JA-OPTUZNICApBHS.pdB 204. Information and commentaries by Eric David, Professeur ordinaire, Free University of Brussels. 205. See 6 YZHL (2003) pp. 466-468. 206. See 8 YlHL (2005) pp. 397 and 402. 207. M.B. [Belgian official journal], 1 April 2004; for the contents of the law, see the report on Belgium 7 YIHL (2004) pp. 456-457. 208. M.B., 29 July 2006 and 2 August 2006. 209. Doc. p a d , Chamhre, 27 Oct. 2005, Doc. 51 20511001, p. 4.
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Correspondents' Reports
The same observation has been made about the ECsC which were established by a Cambodian law adopted in 2001 and modified in 2004 after the conclusion of an agreement in 2003 between the UN and Therefore, in both cases, Belgium is not formally obliged to cooperate with the SCSL or the ECsC and this is stressed in the law which provides that Belgium 'may follow up a request for cooperation' (emphasis added) coming from the SCSL (Article 59) or from the ECsC (Article 65). However, these courts have been established in order to allow a better application of IHL, and Belgium has already received some requests for cooperation.2i2 That is the reason why Belgium decided to adopt the legal instrument enabling it to answer the SCSL's and the ECsC's judicial cooperation requests in a positive way. For the time being, Belgium is not concerned by the presence in Belgium of suspects prosecuted by the SCSL or the ECsC; consequently, the law confines itself to requests relating to the collection of evidence or the protection of witne~ses."~The requests must be sent to the Belgian Minister for Justice (Articles 60 and 66) and they are performed according to the proceedings provided for by the Belgian law (Articles 62 and 68). ERICDAVID
CANADA~'~ Immigration and Asylum * Report (Ninth Annual Report, Canada's War Crimes Program, Activities for the Period of 1 April 2005 to 3 1 March 2006) The first opportunity to screen persons for involvement in international crimes occurs outside Canada when visa officers examine applications of persons who want to come to Canada for past nefarious behaviour. If a person who has been involved in war crimes or crimes against humanity manages to enter Canada, officers in Canada may take action against that person whether they are in the refugee stream, the immigration process, the citizenship process, or even if they have become a Canadian citizen but they hid their war crimes activities when they originally immigrated to Canada. Canadian missions abroad investigated a total of 3 024 potential war crimes cases in the fiscal year 2005 - 2006. Visa offices identify potential war crimes cases through security screening and refer many of them to the Modern War Crimes Unit of the Canadian Border Services Agency (CBSA). Analysts with geographic expertise provide analysis and recommendations on immigrant cases. During the fiscal year 2005 - 2006, visa officials prevented a total of 367 persons from coming to Canada because of allegations of war crimes or crimes against humanity. This number is divided between the refusal of 290 visitors and 77 persons who wanted to settle in Canada on a permanent basis. This includes those re-
210. Ibid., 21 Febr. 2006, Doc. 51 23061001, pp. 5-6, 10. 21 1. Ibid. 212. Ibid., Rapport Mahoux, 25 Apr. 2006, Doc. 3-166113. 213. Ibid., Doc. 51 20511001, p. 5, and Doc. 51 23061001, p. 8. 214. Information and commentaries by Joseph Rikhof, Senior Counsel, Manager of the Law, Crimes against Humanity and War Crimes Section, Department of Justice and Part-time Professor, International Criminal Law, University of Ottawa.
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fused specifically for possible involvement in war crimes or crimes against humanity, those who withdrew when asked for more information and those who were investigated for allegations of war crimes but were refused for other If a potential war criminal manages to enter Canada or is identified as already living in Canada, CBSA officials take the appropriate enforcement action. Persons claiming refugee protection must first complete a Personal Information Form (PIF). After 11 September 200 1, a decision was made to begin front-end screening of refugee claimants, by screening all PIFs for security concerns as well as for possible war crimes or crimes against humanity.
PIFs that raise concerns about possible war crimes are referred for a second, in-depth review that can result in a request by CBSA officers to take part in the refugee hearing process called an intervention. During the fiscal year 2005 - 2006 CBSA officers conducted 1373 in-depth reviews resulting in the filing of 237 interventions before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) based on allegations of war crimes or crimes against humanity. During the same period, CBSA received a total of 123 decisions from the RPD in cases where CBSA had intervened earlier to seek exclusion based on war crimes concerns; 40 individuals were excluded from refugee protection, 53 were not excluded, but were refused as not being credible, and 30 were found to be refugees. When allegations of war crimes or crimes against humanity are made against persons in Canada who are not refugee claimants, the CBSA refers these cases to admissibility hearings before the Immigration Division (ID) of the IRB. Some ongoing refugee cases are also referred to admissibility hearings and the refugee claim is suspended pending the decision. During the fiscal year, 12 admissibility hearings were opened for non-refugee claimants and 22 for asylum seekers. Four refugee claimants and one non-refugee claimant were found inadmissible for war crimes or crimes against humanity and were deported. Two refugee claimants and one non-refugee claimant were found not to be inadmissible based on war crimes or crimes against humanity. The remainder of the cases are pending decision. In 2005 - 2006, 41 persons considered war criminals were removed from Canada. Removal may be delayed for a number of reasons, including court proceedings, problems obtaining a travel document, or a moratorium on removals to that country because of war or serious civil conflict. As of 3 1 March 2006, there were 59 unexecuted removal orders, down from the previous year's cumulative total of 72.216 Cases
*
Application of Article 1(F) of the Convention relating to the Status of Refugees ('Refugee on vent ion')^'^ and section 35(l)(a) of the Immigration and Refugee Protection Act
The Federal Court issued 22 judgements in 2006 of which 19 decisions of the RPD of the IRB pertaining to the exclusion clause lF(a) (crimes against peace, war crimes and crimes against humanity) of the Refugee Convention were examined as part of judicial review
215. Ninth Annual Report, Canada's War Crimes Program, Activities for the Period of April I , 2005 to March 31, 2006 <www.cbsa-asfc.gc.calsecurity-securite/wc-cgiwc-cg2006-eng.html~, 216. Ibid. 217. 1951, 189 UNTS 137.
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Correspondents ' Reports
proceedings as well as one decision of the ID of the IRE3 and two by visa officers outside Canada involving section 35(l)(a) (genocide, war crimes and crimes against humanity). This is the second highest number of court decisions since 1992 when the Federal Court turned its attention to such cases for the first time signalling a continued interest in this area of law which started a year earlier. All cases dealt with the parameters of complicity of persons involved in crimes against humanity and originated from Central America, South America, Asia and Africa and included the following: ~olombia,2"Sri ~ a n k a ? 'ern?^' ~
218. There were four cases from Colombia, all of which involved members of the Colombian army and in all cases the courts overruled the complicity finding of the RPD. Corrales Murcia (IMM-189505, 6 March 2006); Ruiz Blanco (IMM-4587-05, 19 May 2006); Torres Rubianes (IMM-7245-05, 29 September 2006); and Bonilla Vasqurz (IMM-7285-05,27 October, 2006). 219. There were three cases from Sri Lanka, namely Kasturiarachchi (IMM-2952-05, 7 March 2006) involving a member of the Sri Lankan National Police Force and the Court upheld the exclusion finding of the RPD that the applicant was complicit in the Sri Lankan Police Forces commission of crimes against humanity; Selvanayagam (IMM-5540-05, 29 June 2006) involving a Tamil police officer accused of complicity in crimes against humanity and the Court set aside the exclusion decision of the FWD; and Rathinasigngam (IMM-4111095, 17 August 2006) involving a Hindu Tamil citzen and the Court overruled the exclusion finding of the RPD. 220. There were two cases from Peru, one in which the Court upheld the exclusion decision of the RPD concerning a Peruvian police officer Loayza (IMM-2392-05, 9 March 2006) and another where the exclusion of a member of the Peruvian Navy was overruled Marinas Rueda (IMM-7772-05, 14 June 2006).
Correspondents' Reports
~l ~ a l v a d o r l ~~uatemala?" ' 227
~f~hanistan?"~ a n ~ l a d e s h , " ~
467
~ndia,"~Philip-
pines, ~ z b e k i s t a n , ~ ~l g' e r i a , * ~* n~ g o l a , * ~~' u r n n d i , ~ w ~ ' a n d a and ' ~ ~~ g a n d a . * ~ ~ A number o f general observations can be made from the 2006 jurisprudence. The first observation is that the Federal Court judges w h o were quite critical o f the findings o f the asylum and immigration decision-makers the year before agreed in 2006 in 15 instances with the finding o f involvement in crimes against humanity and overturned only seven decisions.234Not only were decisions overturned with respect to the application of the principles of complicity but also some were overturned on the basis that the RPD had incorrectly characterised a situation as constituting a crime against humanity.235 A s a second observation, the jurisprudence also continues to rely sporadically o n international criminal law, albeit not b y directly incorporating the case law of the ICTY o r ICTR but instead referring236 to the decision o f the Supreme Court o f Canada in the case o f Mugesera which had been decided the year before and which summarises the salient requirements o f crimes against humanity as established b y the international tribunals.237
221. The decision of the RPD to exclude a member of the National Guard and his wife who claimed they were verbally threatened by an armed gang in El Salvador was upheld by the Court in Hernandez Hernandez (Navarro), (IMM-28 18-05,25 January 2006). 222. In the Acevedo case (IMM-4365-05, 12 April 2006), the exclusion of a voluntary collaborator of the Guatemalan army and his son and daughter-in-law was upheld. 223. In the Hamidi case (IMM-10493-04, 14 March 2006), the exclusion of a person who had been a colonel in the KhAD of Afghanistan was overruled. 224. The decision of the RPD to exclude a member of the Bangladesh Awami League (AL), the political party that formed the National Government in Bangladesh at the time, was upheld by the Court in Chowdhuy (IMM-4920-05,7 February 2006). 225. The decision of the RPD to exclude a member of the Chinese Communist Party (CCP) who became the Department Head of the Judicial Burea was upheld in Hun (IMM-2720-05,4 April 2006). 226. In the Ghotara case (IMM-5312-05, 20 March 2006) the Court upheld the decision of the RPD to exclude a member of the Indian police force. 227. In the Sabadao case (IMM-4501-02, 7 March 2006) the Court upheld the decision of the RPD to exclude a lieutenant of the Philippine army. 228. In the Akvamov case (IMM-1780-05, 10 February 2006) the Court upheld the decision of the RPD to exclude a major of Regional National Security Committee in Tashkent and his wife and daughter. 229. The decision of the RPD to exclude a member of the Algerian group FIS (Islamic Salvation Front) was upheld by the Court in Chougui (IMM-7339-05, 17 August 2006). 230. The decision of the RPD to exclude an employee of the Angolan Ministry of Interior (MOI) was upheld by the Court in Justino (IMM-7347-05, 29 September 2006). 231. The decision of the RPD to exclude an employee and member of UPRONA (Unite pour le progres national), the party in power in Burinidi, was upheld by the Court in khburundi (IMM-428 105, 20 March 2006). 232. Tegan,va (IMM-6085-05, 12 May 2006) involved a Rwandan Hutu associated with the Revolutionary Movement for Development (MRND). The Court upheld the RPD exclusion decision. 233. The decision of the RPD to exclude a senior leader of the Lord Resistance Movement (LRM) in Uganda, who applied for admission as a sponsored applicant, was upheld by the Court in Obita (IMM- 1473-05, 10 February 2006). 234. The seven cases were Corrales Murcia; Hamidi; Ruiz Blanco; Marinas Rueda; Selvanayagum; Rathinasigngam; and Bonilla Vasquez. 235. Selvanayagam and Bonilla Vasquez. 236. The cases of Obita, Kasturiarachch, Selvanayagam and Bonilla Vasquez. 237. 2005 SCC 40. See Correspondents' Report on Canada in, 8 YlHL (2005), pp. 41 1-412.
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A third observation is the fact that more than half of the cases, namely 13 instances, dealt with persons with fairly high positions in their organisations, either in military or police organisations or in civilian entities. Examples of positions in the military are lieutenants and a captain in the Colombian armed forces238and a lieutenant in the Philippine armyz39 while police organisations are represented by a major of Regional National Security Coma ~chief ' inspector241and in the Sri Lankan police, a major mittee in ~ z b e k i s t a n , ~ n.~~~ in the Peruvian National and a colonel in the KhAD of ~ f ~ h a n i s t a High positions in civilian hierarchies have been considered in cases involving a high official of the Lord Resistance Movement (LRM) in ~ g a n d aa, high ~ ~ ~diplomatic official of the Burundian government,246a department head of the Judicial Bureau being in charge of two jails and four labour camps in and a senior economist of the Angolan Ministry of the ~nterior.'~~ None of these cases were decided on the basis of the international criminal law concept of command or superior responsibility but rather by using general principles related to complicity as established by the Canadian jurisprudence, especially that of the Federal Court of Appeal in the cases of Ramirez, Moreno, Sivakumav, Bazargan and arb.'^^ In this context the Obita case, involving the LRM, has provided hrther clarification for the complicit liability of a person who is involved in the political wing of an organisation which also has a military component, a so-called hybrid ~ r ~ a n i s a t i o The n . ~ Court ~ ~ was of the view that the Lord Resistance Army (LRA) had been involved in numerous crimes against humanity in Uganda and that the LRM was so intertwined with the LRA that the two organisations were essentially one group or effectively a single entity with a common purpose. Obita held a high position in the LRM and in that capacity he interacted with the LRA; he had knowledge of the atrocities committed by the LRA and became an advocate and active member of the LRA and as a result he was complicit in the crimes of the LRA. The fourth observation is also related to the concept of complicity. In 2005 the Federal Court in general accepted the Canadian version of the international criminal law concept of joint criminal enterprise (JCE) known in Canada as the six factor approach251(in addition to the more traditional forms of complicity of membership in a brutal organisation and aiding and abetting252which it continued to use in 2006). However, the Court was reluctant to
238. Corrales Murcia, Torres Rubianes and Bonilla Vasquez. 239. Sabadao. 240. Akvamov. 24 1. Kasturiarachchi. 242. Selvanayagam. 243. Loayza. 244. Hamidi. 245. Obita. 246. Kaburundi. 247. Han. 248. Justino. 249. For an examination of these principles and case law see J. Rikhof, 'Complicity in International Criminal Law and Canadian Refugee Law: a Comparison', 4 Journal of International Criminal Justice (2006) pp. 7 10-719. 250. Ibid., pp. 718-719. 25 1. See Correspondents' Report on Canada in 8 YIHL (2005), pp. 407-41 1. 252. See Rikhof 2006, supra 249; pp. 710-719 and Correspondents' Report on Canada, 8 YIHL (2005), pp. 407-41 1.
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apply the JCE theory to specific fact situations. This hesitation has been overcome in the 2006 jurisprudence. Persons were excluded on this basis in situations as diverse as the Uzbekistan police;53 the Sri Lankan police;54 the Colombian army,255the Philippine army,256the Minister of the Interior of ~ n ~ o l and a ~the ~ Algerian ' terrorist group FIS (Isla' but one of these seven situations the six factor analysis led to mic Salvation ~ r o n t ) . ~In~all exclusion where the Court examined in detail the factors of method of recruitment, duration of service with the organisation, final rank acquired, age, manner of disassociation and knowledge of the commission of atrocities by the organisation and concluded that the result of such factors established a close enough association between the person and the organisation that complicity could be inferred. The cases of Kasturiarachchi and Torres Rubianes make it clear that not all six factors are of equal importance and it would appear that of the six the factors age and method of recruitment might not figure as prominently as the other four criteria. Civil Law Cases * Zhang et al. v. Jiang Zemin et al. Decision of the Ontario Superior Court of Justice, 17 July 2006. The plaintiffs, who were Falun Gong practitioners, brought an action against Jiang, a former president of China, and others alleging persecution and torture and seeking a total of $20 million in damages. They attempted to effect service of the claim (a prerequisite to have the action initiated in a Canadian court) on China pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial ~ a t t e r s . * This ' ~ was not successfbl because the Chinese government refused to execute the request. The plaintiffs then tried to serve the claim under the State Immunity Act 1985 but were advised by the Department of Foreign Affairs and International Trade that this would not be possible since that Act only permitted service on the head of state while acting in a public capacity and the plaintiffs statement of claim had pleaded that the defendants had acted in a private capacity. The plaintiffs then brought a motion for an order dispensing with service of the statement of claim. The motion was granted on the basis that the plaintiffs had exhausted all their means to serve the defendants. In deciding that it was in the interests of justice to dispense with the service the Court took into consideration the fact that that the plaintiffs were alleging gross violations of fundamental human rights and international law and would be unable to pursue those claims unless the Court dispensed with service, and the impossibility of serving the defendants rested with the Chinese government.260
253. 254. 255. 256.
Akramov. Kasturiarachchi. Torres Rubianes although not in BoniNa Vasquez. Sabadao although in an indirect fashion by not mentioning or analysing the six factors but
instead making inferences to that end. 257. Justino. 258. Chougui although in an indirect fashion by not mentioning or analysing the six factors but
instead referring to a common purpose. 259. l965,2O UhJTS1361. 260. 82 O.R. (3rd) 306.
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Criminal Law Cases * Kunlun Zhang v. Attorney General of Canada, Federal Court of Canada, 2 March 2006. Mr. Zhang requested by letter dated 12 March 2004, that the Attorney-General of Canada grant consent for a private prosecution of 22 individuals for the alleged inflicted torture of Mr. Zhang, a Falun Gong practitioner, in China by individuals who are not Canadian citizens, including charges against the former President of China. The Attorney-General of Canada rehsed the request in the following terms: The case described in your correspondence does not demonstrate that the required threshold can be met. Much of the evidence is not available to Canadian authorities for investigation, assessment, or trial. The persons alleged to have committed the offences are not located in Canada, nor is there a reasonable prospect that they can be brought to trial in Canada. The policy also requires that a prosecution only take place if it is in the public interest to do so. It would not be appropriate, or in the public interest, to allow charges to be laid, and thereby identify and accuse persons of very serious offences, without a full police investigation and a reasonable prospect of being able to bring the case to trial. Mr. Zhang sought judicial review of this rehsal with the Federal Court, which was also denied.26'The Court indicated that [tlhe factors considered by the Attorney General in exercising prosecutorial discretion are "not readily susceptible to the kind of analysis the courts are competent to undertake". While a court must exercise extreme caution before embarking on any review of prosecutorial discretion, such discretion is not irreproachable. The Supreme Court of Canada has accepted that it would be possible to review an exercise of prosecutorial discretion in cases of flagrant impropriety or malicious prosecution. No such impropriety was found in the case at hand since the Attorney General's decision to exercise extraterritorial jurisdiction to prosecute an offence committed abroad gives rise to a number of clear obstacles, including the lack of evidence and difficulty in obtaining the cooperation of the State in which the offence was allegedly committed. These are factors, which the "Decision to Prosecute" policy takes into consideration. In the case at bar, the decision to rehse consent was based on such factors. In my view, this particular refusal in no way suggests that the Attorney General would refuse consent to prosecute in a case where these obstacles could be overcome.
*
Munyaneza Case, Quebec Superior Court, 20 November 2006.
261. T-769-05, 2 March 2006.
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On 19 October 2005 Desire Munyaneza was arrested by the RCMP, the first person
to be indicted under the Crimes against Humanity and War Crimes Act which had come into force in 2000. There are seven counts in the indictment. The first two are genocide for committing murders and serious bodily harm in the town of Butare in southern Rwanda in April 1994. The third and fourth are crimes against humanity by committing murder and sexual violence. The fifth, sixth and seventh are war crimes for committing murders, sexual violence and pillaging. Mr. Munyaneza was detained and bail was denied as a result of the seriousness of the allegat~ons.The tnal has not commenced but 1s expected to begin in early 2007. A motion was filed by Mr. Munyaneza seeking an order to quash or amend the indictment since the Canadian Criminal Code does not allow a count that charges an indictable offence other than murder to be joined in the same indictment to a count that charges m ~ r d e r . ~ The " judge in the case refused to allow the motion based on the fact that the accused was not charged with murder as such but murder as genocide, murder as a war crime and murder as a crime against humanity and these are not the offences contemplated in the section under c ~ n s i d e r a t i o n . ~This ~ ' court decision follows the trend set by the Supreme Court of Canada in the Mugesera case which implies that the contents of the underlying criminal acts of the international offences of genocide, war crimes or crimes against humanity, such as murder, torture or sexual assault are of a qualitative difference to domestic offences with the same nomenclature;2h4 as a result, the international jurisprudence for determining the parameters of such underlying criminal acts should be given preference over the national case law for similar sounding offences.
COLOMBIA^'^ Demobilisation and reintegration process * Constitutional Judgement C-370 of 18 May 2006 in re the unconstitutionality action against the Law No. 975 of 25 July 2005 'by which dispositions are enacted for the reincorporation of members of unlawful organised armed groups that contribute in an effective way to the attainment of the national peace and other dispositions for humanitarian agreements' [Demanda de inconstitucionalidad contra 10s articulos 2, 3, 5, 9, 10, 11.5, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 34, 37numerales5y 7, 46, 47, 48, 54, 55, 58, 62, 69, 70 y 71 de la Ley 975 de 2005 "Por la cual se dictan disposiciones para la reincorporacion de miemhros de grupos armados organizados a1 margen de la ley, que contribuyan de manera efectiva a la consecucion de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios ", y contra la ley en su integridad], (Ref.: File D-6032).
262. Section 589. 263. Case No. 500-73-002500-052. 264. See J. Rikhof, 'Hate Speech and International Criminal Law, the Mugesera Decision by the Supreme Court of Canada', 3 Journal oj'lnternational Criminal Justice (2005) pp. 1129-1130. 265. Information and commentaries provided by Rafael Prieto Sanjuan, Professor of Public International Law and IHL at the Pontificia Universidad Javeriana of Bogota.
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Correspondents ' Reports
Before an arduous, strong, and emotional political debate among different sectors in Colombia, the Constitutional Court examined numerous demands against the 'Law of Justice and Peace'. The Court declared its constitutionality as well as its partial unconstitutionality regarding certain articles. Furthermore, it specified the way in which the law had to be interpreted and applied. Therefore, before commenting on the ruling, it is important to note some of the most important aspects of its context. First of all, it is important to indicate that the armed conflict in Colombia has continued for more than four decades. During this time, an armed insurgency of communist and socialist ideas appeared in guerrilla form and tried to break the hegemony of the traditional political parties (liberal and conservative). However, this is an imperfect democracy, and although the constitutional regime has not been interrupted for half a century, situations of political exclusion have been known to have served as an excuse for the action of armed guerrilla groups. These guerrillas, whose communist ideas lost influence and sources of foreign financing in the 1990s, now turn towards illegal activities such as kidnapping, extortion and drug trafficking. Although these activities reduce their popular support, they increase their economic power to the detriment of the sovereignty of the state. On the other hand, facing the situation of a persistent military tie in the 1980s, a series of groups arose which tried to replace state organisations with paramilitary authorities. However, it became obvious that these organisations were not created by the state for the people's benefit. Although it is certain that the tolerance, complicity and even the legalisation of these groups took place on the part of the government, they have also been denounced. The state has fought them and even initiated judicial processes against several of its members. In the midst of these challenges, Alvaro Uribe Velez (dissident of the liberal party, but of a right-wing tendency) was elected president in 2002. He promised to defeat the guerrillas with the legitimate force of the state and obtain a process for the demobilisation and reintegration of the paramilitary group known as the Autodefensas Unidas de Colombia (AUC). This process was carried out effectively with the idea that members of guerrilla groups generally accepted the government's terms. The reality is that many critics arose from both political and international organisations regarding the reintegration of veterans into the system. These critics were especially concerned with the issue of impunity for serious and systematic violations of human rights and the ability for victims to participate in the process as Consequently, the government presented a law before Congress that was finally approved after much debate subject to an important number of constitutional issues2" that
266. For example, in the last press releases of the Office in Colombia of the United Nations High Commissioner for Human Rights: 'The regulations regarding the "Justice and Peace Law" do not adequately ensure due respect for the rights of victims', 4 January 2006, ~www.hchr.org.colpublico1 comunicados/2006/cp0601EN.pdB, reaffirmed on 13 October 2006, <www.hchr.org.colpublicolcomu nicadosl2006icp0641 .pdD. 267. See Constitutional Judgements (file number in parentheses): C-127106 (D-5966), C-400106 (D-6181), C-455106 (D-6079), C-476/06(D-6081), C-531106 (D-6028), C-575106 (D-5994), C-650106 (D-6029), C-670106 (D-6201) y C-719106 (D- 5964), available at the Court website: Corte Constitucional de Colombia, ~www.constitucional.gov.co/corte>.
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would be later the object of the actions before the Constitutional Court (here the most important decision).26xWe will now discuss the most important aspects of these requirements. Generally, the Constitutional Court (hereinafter, the Court) determined that all penalties imposed on criminals of the armed conflict must maintain a balance between the fundamental rights of the victims and the right to peace included in the National Constitution. Thus the ordinary penalty was suspended in favour of applying the alternative penalty pursuant to Article 24 of Law 975 providing between five to eight years imprisonment for those people found guilty. At the same time, objections arose and certain conditions were added to both the content and application of the law with regard to any detrimental effect that it could cause to the rights of the victims. First of all, as far as the rights of the victims to justice, the Court has declared unconstitutional the prohibition of greater penalties than those established by Article 20.2. If the processed person broke the law after the demobilisation, or if he or she does not confess to some of the crimes that could be proven against him or her later, then he or she will be subject to an accumulated sentence (according to the ordinary law) and not the alternative penalty (according to the special law). This grants the victims and their relatives the right to know the Secondly, the Court eliminated the term of six months that the public prosecutors had to investigate the crimes of people who would have demobilised themselves. Thus, the term begins not as of the moment of the demobilisation, but as of the moment when the public prosecutors initiate their investigation. In the same way, their prison terms will be counted as of the moment of their effective imprisonment and not of that period in which they would have been detained in a concentration zone (Article 3 1, unconstitutional). Thirdly, based on the principle of integral repair, the constitutionality was conditioned on Article 10, paragraphs 2 and 6, and Article 54.2, such that the demobilised persons declared guilty must make reparations to the victims with their own possessions regardless of the legality of their origin. Furthermore, each guilty person will have to respond to the damages that have been caused by other members of the unit (block or front) to which he or she was associated and to inform them of the disposition of those who disappeared in the area in which he or she operated. Finally, the Court held that Articles 70 and 71 were not in compliance with the legal process. This implies the non-admission of the sedition crime, that is to say, the rehsal to consider the paramilitaries as criminals of a political nature. However, this presents the possibility for extradition to other countries upon their requests. The social problem of reintegration of all veterans seems much more complex than the reintegration of its leadersZ7Oas well as the members of Congress or other government officials (councilmen, mayors, etc.,) that financed paramilitary activities. RAFAELPRIETO SANJUAN
268. The report for sentencing was presented by Judges Manuel J. Cepeda, Jaime Cordoba, Rodrigo Escobar, Marco G. Monroy, ~ l v a r oTafur y Clara I. Vargas. Dissenting Judges Jaime Araujo, Alfredo Beltran y Humberto Sierra. 269. Partial unconstitutionality of Art. 25, paras. 1 and 2 of Law 97512005. 270. 'According to the Office of the High Commissioner for Peace, the total number of collectively demobilized paramilitaries reached 3 1,671. However, a high percentage of demobilized persons were not participating directly in the hostilities, and some paramilitaries continue to shun demobilization, such as the Casanare Rural Self-Defence Group and the Cacique Pipinti Front. Most of the paramili-
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See Arab League Model Law in the Algerian section.
DEN MARK^" New Legislation * Law No. 542 of 8 August 2006 amending the Penal Code, the Administration of Justice Code and several other statutes (Strengthening of the effort to combat terrorism); text, in Danish only, available at www.retsinfo.dk). This law introduces amendments to existing Danish legislation considered necessary as a consequence of the Danish ratifications of the Council of Europe Convention on the Prevention of Terrorism of 16 May 2005 and the United Nations International convention for the Suppression of Acts of Nuclear errori ism.^^^ The legislation amending the Penal Code is based on a proposal from the Penal Law Council (Straffelovridet), made public in Government Commission report No. 1478 on Penal Law legislative protection against Terrorism, Copenhagen, 2006.
PETER OTKEN Cases * Case of Alleged Abuse of Iraqi Detainees by Danish Troops in Iraq, 2004. Reported in Ugeskriji for Retsvresen 2006, page 2927 (U.2006.29270, Danish only). For more than a year, during much of 2005 and 2006, the Danish public followed a trial in which five Danish military personnel were accused of mistreating Iraqi detainees during the spring of 2004. The alleged abuse took place in the context of the 2003 Iraq war and the subsequent occupation of that country. The Danish contingent has been operating outside the Iraqi city Basra, in southern Iraq, since mid 2003 and consists of an infantry battalion numbering around 500 men and women. On at least three occasions during the spring of 2004, Danish soldiers detained a number of Iraqis who were suspected of having participated in hostile actions against coalition forces in southern Iraq. The detainees were to be questioned by Danish personnel to determine whether (a) they posed a risk to coalition
tary leaders are detained in a high-security jail. Particularly disturbing is the fact that many middlelevel paramilitary cadres did not demobilize, or rearmed, and are now leading the new illegal armed groups that have been emerging in various parts of the country. These are characterized by close identification with organized crime and drug trafficking. It is a source of concern to the High Commissioner that political and economic structures created by paramilitaries in various areas and sectors of society remain in existence.' In: Human Rights Council, 'Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia. Doc'. NHRCi4148 of 5 March O/PDF/G0711410.pdf?Open 2007, para., 29, ~http:/ldaccessdds.un.org/doc/UNDOC/GEN/GO7/11411 Element>. 271. Information and commentaries by Judge Advocate Peter Otken, LL.M., The Judge Advocate General's Corps, and Prosecutor Andreas Laursen, LL.M., Ph.D., Special International Crimes Office, Copenhagen, as stated. The opinions expressed are solely the authors' personal views and cannot be attributed to any official Danish institution. 272. GA Res 591290, UN Doc. AiRESl591290, 14 September 2005.
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forces, in which case they would be handed over to the British force in the area; (b) they were common criminals, in which case they would be handed over to the local Iraqi authorities; or (c) they were to be released. The five defendants were an intelligence officer and four military police non-commissioned officers (NCOs). All five were charged under the Danish Military Penal Code (DMPC) with dereliction of duty under section 27.273Section 27 is a general and residual provision that covers those duties the violation of which is not specifically mentioned in other provisions of the DMPC. In the case at hand, the duties that the defendants were alleged to have violated were those found in the so-called Soldiers' Card and Commander's Card. Among the requirements of these cards are the duty to adhere to the laws of war, and to treat detainees with respect and dignity. In addition, violations of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ('Geneva Convention IV') Articles 27 and 3 1,274were alleged. Based on a legal opinion from the Danish Ministry of Foreign Affairs, which was not disputed by any of the parties, both the City Court and the High Court found that Geneva Convention IV was applicable to the situation in Iraq during the spring of 2004. The City Court briefly considered whether any of the detainees were covered by the Geneva Convention Relative to the Treatment of Prisoners of War ('Geneva Convention III'),*'~ but found this not to be the case.
The City Court Judgement delivered on 12 January 2006. The City Court found that in the context of questioning the detainees and in order to gain information from them, the Danish intelligence officer had assigned the detainees to kneel with their backs straight on the floor while they were questioned. If they moved, they were placed back in the original position. The intelligence officer was also found to have employed demeaning and derogatory language to address the detainees. The City Court found that the actions of the intelligence officer constituted a serious dereliction of duty under the DMPC. The NCOs were found to have forced the detainees to sit in uncomfortable positions and to have neglected to distribute water and blankets and defacto to have refused the detainees access to toilet facilities. Here, too, the Court found that the four military police NCOs were guilty of a serious breach of their duties. In sentencing the five defendants, the City Court took into account several circumstances surrounding the questioning of the Iraqis. The intelligence officer had, on a number of occasions, participated as an interrogation instructor in military exercises called 'Prisoner of War Exercises', in which officer cadets are trained in resisting interrogation. During the period when the intelligence officer participated in these exercises, the provisions of the ' ~ purposefully breached in order to prepare the cadets for poGeneva ~ o n v e n t i o n s ~were tential harsh treatment by enemy forces. On the basis of the testimony of the head of the
273. The DMCP was amended effective 1 January 2006 and since the relevant provision - section 27 in the amended code is less severe than the previous provision - section 15 - the more recent provision will apply according to the (general) Danish Penal Code, sections 2 and 3. -
274. 1949,75 UNTS 287. 275. 1949,75 UNTS 135.
276. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea,
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Danish Defence Academy, the Court found that the training that the intelligence officer had received at the Academy was now out of date. In spite of instructions given in October 2003 from the Army Operational Command to the Commanding Officer of the Danish Battalion in Iraq to issue directives for the handling of detainees, these were not in place. Furthermore, the intelligence oMicer had on a number of occasions approached higher ranking officers and the legal advisor in order to receive guidance concerning the treatment of detainees, without receiving any specific directions. Considering these mitigating circumstances, the City Court found that the punishment should be remitted according to the (general) Danish Penal Code, section 83. The High Court Judgement delivered on 6 July 2006.
The five defendants, however, appealed the judgement of the City Court to the High Court (0stre Landsret), arguing that they should have been fully acquitted and exonerated. The High Court was presented with more or less the same testimony and evidence as the City Court. Initially, the High Court remarked on section 27 of the DMPC. The High Court pointed out that the recent amendment of the DMCP'" had significantly limited the scope of criminal responsibility. Under the new provision, only a dereliction of duty that may be considered serious or gross is punishable. The High Court went on to point out that when determining whether a dereliction is serious or gross, the character of the act and its duration may be considered. Furthermore, whether the defendant's superiors were informed or maybe even approved of the behaviour in question are relevant factors. In this context, the High Court listed some of the mitigating factors mentioned by the City Court as relevant, not only as mitigating factors but possibly relevant in the initial determination of whether a dereliction of duty may be categorised as serious or gross. The High Court also reviewed the general features of the questioning conducted at the Danish army camp. The High Court found that the intelligence officer applied a specific technique in order to dominate the situation. As part of this approach, which was adopted partly for security reasons, the detainees were firmly escorted to the interrogation tent and were made to sit on the floor and questioning progressed at a high tempo and in a loud voice, including the use of coarse language. The intelligence officer had informed the interpreters beforehand that the questioning might be unpleasant, but that this approach was necessary in order to ensure that the detainees answered the questions. In regards to the described approach, the High Court found it was probably not entirely in accordance with the protection that Articles 27 and 3 1 of Geneva Convention IV seek to provide detainees. This finding was, however, obiter dictum, since, as the Court noted, this specific issue was not before the Court. The principal question was whether section 27 of the DMPC had been violated. The High Court then turned to a legal evaluation of three specific incidents. The central issue concerned the treatment of the detainees during the pre-interrogation detention and during the actual questioning. The charges against the intelligence officer followed by the charges against the NCOs will be discussed below. (i) The Intelligence Officer
1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention 111, supra 275; Geneva Convention IV, supra 274; (collectively, 'Geneva Conventions'). 277. See Danish correspondent's report in 8 YIHL (2005) pp. 419-422.
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With regard to the 9 March incident, two detainees had testified that they had to kneel on the floor with their backs straight during the questioning. The third detainee explained that he had to stand with bent legs. Based on the evidence, the High Court found that the detainees had to sit on the floor but the Court did not specify any particular position. The Court further found that the detainees were not able to change position, and that if they did they were placed back in the original position. The duration of the questioning was not entirely clear. One detainee stated that he was questioned three times, each time for one hour. A second detainee estimated that he was questioned for two hours. The defendant (intelli-
gence officer) explained that each session lasted about half an hour. The Court concluded that each session had been of a limited duration. Based on this finding and on the fact that none of the detainees had filed a complaint, the Court concluded that the treatment to which the detainees had been subjected, on its own did not entail any violation of the charged provisions (i.e., neither the Soldiers' and the Commander's cards nor Articles 27 and 3 1 of Geneva Convention IV). Concerning the 12 April incident, two detainees had testified that they had to kneel on the floor with their backs straight during the questioning. Neither had mentioned that they were physically held in the assigned position. Again the duration of the questioning was not entirely clear, but the Court characterised it as being of a 'shorter duration'. Based on this evidence and on the fact that none of the detainees had filed a complaint, the Court again found that the treatment did not entail any violation of the charged provisions. Finally, about the 9 June incident, the Court found that two of the detainees had to kneel on the floor with their backs straight during the questioning; in addition, one of the two had his ankles crossed behind him. A detailed time log was kept during this incident, and based on this log the Court found that the two detainees had been interrogated for about one and a quarter hours and one hour respectively. The latter detainee suffered from cramping after he was able to abandon the described position. He was subsequently examined by a doctor and found to have suffered no harm. Neither detainee filed a complaint about the treatment. As opposed to the two previous incidents, the Court found that this treatment violated one or some of the charged provisions. It would seem that the duration of the questioning in this latter incident was the distinguishing feature. The High Court, in the context of the charges against the NCOs, paid special attention to the testimony of the Danish battalion Chief Medical Officer. In court, he testified that a person would probably be able to sit on his knees with the legs crossed for about one hour before it became painful and possibly a little longer if the legs were not crossed. In court he was confronted with a statement made to investigators during pre-trial interviews, in which he had stated that the position with crossed legs would become painful after 20 minutes. In court, he answered that it would depend on the individual in question. Finally, the Court found that the intelligence officer had responded to one detainee who had said something like 'you might as well shoot me' by saying 'maybe we will do just that1. (ii)The military police NCOs. The four defendant NCOs were charged in the context of the 9 March and 12 April incidents, including having placed the detainees in stressful positions before the questioning and having assisted in keeping the detainees in the assigned positions during the questioning. They were also charged with not having provided blankets during the night time detention and having denied the detainees water and the use of toilet facilities. All in all, the Court only found that violations of the charged provisions had taken place with regard to the failure to provide blankets. With regard to the stressful positions, the Court reiterated its
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findings concerning the intelligence officer. The Court did not find that any charges over the denial of water or toilet access had been proven.
Conclusion. The High Court found that all five defendants had to some extent violated one or more of the provisions of the Soldiers' and the Commander's Cards andlor Articles 27 and 3 1 of Geneva Convention 1V. It remained to determine whether these violations were sufficiently grave to merit punishment under section 27 of the DMPC. This, the Court found, was not the case. In regard to the intelligence officer, the High Court found that she performed her duty in questioning the detainees. She employed the methods that she had originally been taught, which nobody had told her were no longer applicable. Furthermore, she was given no instructions, and nobody intervened. Finally, nobody was hurt and nobody complained. With regard to the NCOs, the High Court found that the fact that they neglected to hand out blankets did not constitute a serious or gross violation of their duties. Thus, all five defendants were acquitted of all charges.
ANDREAS LAURSEN
DJIBOUTI See Arab League Model Law in the Algerian section.
EGYPT See Arab League Model Law in the Algerian section.
Humanitarian Emergency Help * National Advisory Commission on Human Rights. Opinion on the French Initiative concerning humanitarian emergency help with the Government's answer [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur l'initiative franqaise en matibre de secours humanitaire d'urgence et reponse du Gouvemement]. Adopted 2 1 April 2005. After the Tsunami in South-East Asia in December 2004 France suggested to the UN Secretary-General some measures for a better coordination in assistance and relief operations. The National Advisory Commission on Human ~ i ~ hunderlined t s ~ ~that ~ the French initiative is strictly limited to emergency help operations in the case of natural or technological disasters and does not concern situations of international or non-international conflicts. But these events occur also in areas affected by internal disturbances and tensions, or even
278. Information and commentaries provided by Professor Paul Tavernier, Professor Paris-Sud University (Paris XI), Director, Centre de Recherches et d'Etudes sur les droits de I'Homme et le droit humanitaire (CREDHO). 279. Commission Nationale consultative des droits de I'Homme (CNCDH),<www.cncdh.fr/>.
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insurgency. The Commission emphasised the necessary access to people living in these areas and recommended that any conhsion with a military operation should be avoided. In its answer (30 August 2005), the government stated that the Commission's opinion was transmitted to the Secretary-General.
International Arms Transfers * National Advisory Commission on Human Rights. Opinion on the draft Frame Convention on international arms transfers and Government's answer [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur le projet de Convention-cadre sur les transferts internationaux d'armes et reponse du Gouvernement]. 23 June 2005. The Commission considered that the existing laws concerning arms' trade are not sufficient and encouraged the Government to promote the idea of a new (Frame) Convention limiting trade which leads to violations of human rights and humanitarian law. The Government responded (10 October 2005) that they supported, together with United Kingdom, the adoption in 1998 of the European Code of Conduct on Arms' Exports and that a new British initiative was taken in June 2005 in London during the Ministerial Conference of the G8.
Situations of Internal Disturbances and Tensions * National Advisory Commission on Human Rights. Opinion on respecting human beings fundamental rights in situations of internal disturbances and tensions [Commission Nationale consultative des droits de I'Homme (CNCDH): Avis sur le respect des droits fondamentaux de la personne humaine en situation de troubles interieurs et tensions internes au regard du droit international]. Adopted 22 September 2005. Humanitarian law applies to international and non-international conflict but not 'to situations of internal disturbances and tensions' (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 1, para., 2).280It's true that International Human Rights Law is applicable in all circumstances, but derogations are possible in time of public emergency threatening the life of the nation. In such situations there is a legis vacuum. The Commission suggested in its opinion that some guidelines or principles should be developed. According to the Commission, it is not necessary to negotiate a new legal instrument however a set of principles would remind states and non-state actors as well as individuals of their legal obligations. The Commission stressed the necessity of guarantee mechanisms both on an internal and international level. The Commission expressed its desire that the French Government takes some initiative for providing respect for fundamental rights of the human persons in that 'grey area' of so called situations of internal disturbances and tensions. That opinion was prepared by and is based on a more detailed report on the protection under international law of human beings in situations of internal disturbances or tensions. That report utilises some analysis presented in the PhD thesis of Alexandre Balguy-Gallois: Droit international etprotection de 1 'individu dans les situations de troubles intirieurs et de tensions internes. (University Paris I , 2003).
280. 1977, 1 125 UNTS 609 ('Additional Protocol 11')
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Cluster bombs/Cluster Weapon system * National Advisory Commission on Human Rights. Opinion on Cluster Weapon systems [Commission Nationale consultative des droits de l'homme (CNCDH): Avis portant sur les systkmes d'armes a sous-munitions]. Adopted 21 September 2006 The Commission reminded us of fundamental International Humanitarian Law principles, especially the principle of distinction and the principles of precaution and proportionality (Articles 48, 51 and 57 of Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed which is now ratified by France). France is one of 34 countries producing and keeping in stock cluster munitions. More than a hundred questions were addressed to the Government and three bills were proposed by Members of Parliament (see for example written question no 72252 of Mr. Jean-Michel Couve, Official, 9 August 2005, p.7676 and governmental answer in Official, 6 September 2005, p. 8353). The National Advisory Commission emphasised that cluster weapon systems produce serious damages for civilians, not only during the conflict, when they are used, but also after the conflict, as explosive remnants of war. The Commission is satisfied with France's foreseen ratification of Protocol V to the Conventional Weapons Convention 1 9 8 0 , ~ 'but ~ that protocol is not sufficient for solving the problem of cluster munitions, because it is not a specific instrument and that protocol will be applicable only to future conflicts. The Commission recommended that the French Government will introduce on the national level a ban for use, production, stocking and transfer of such weapon systems and suggested they will promote on the international level a legally binding instrument dealing specifically with cluster bombs and weapon systems. Remnants of War * Protocol on Explosive Remnants of War (Protocol V to the Conventional Weapons Convention 1980). France ratified that protocol on 3 1 October 2006. It entered in force on 12 November 2006. 2001 Amendment to the Conventional Weapons Convention 1980 * Publication of the 2001 Amendment to the 1980 Convention on conventional weapons The Amendment to the Conventional Weapons Convention 1980 was published in Decree no 2005-714, 21 June 2005, Official Gazette, 29 June 2005, p. 10 708. That amendment was adopted in Geneva on 21 December 2001 and entered in force on 18 May 2004. It increases the scope of the Convention to non international conflicts. It was ratified by France on 10 December 2002. Under French Law any international treaty, convention or
281. 1977, 1125 UNTS 3 ('Additional Protocol 1'). 282. Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V) 2003, CCWMSP/2003/2.
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agreement may be invoked before a court or tribunal only if it is published in the Official Gazette, or in another official publication. And under French practice, publication occurs after the entry into force of the treaty, convention or agreement. International Criminal Court (ICC) * ICC Prosecutor's Visit to Paris (May 2006) Mr. Luis Moreno Ocampo, Prosecutor of the International Criminal Court, paid a visit to
Mr. Philippe Douste-Blazy, Minister for Foreign Affairs in Paris in May 2006 to discuss cooperation between France and the ICC. An Agreement was signed on 11 May 2006 by the French Government and the Prosecutor providing for transmission of information. It was also underlined during the visit that the first accused person was transferred to the Court on 17 March 2006, with the assistance of French Army.
*
National Advisory Commission on Human Rights. Opinion on the Bill adapting French Law to the Statute of the International Criminal Court [Commission Nationale consultative des droits de 1'Homme (CNCDH): Avis sur le projet de loi adaptant la legislation franqaise au Statut de la Cour pCnale internationale]. Adopted 29 June 2006.
The opinion was given before the Bill was registered in Parliament. The Commission is satisfied that the Bill provides for adapting French Law to clauses included in the Rome Statute of the International Criminal ~ o u r t concerning ~'~ genocide, crimes against humanity and war crimes and also elements of crimes and general principles. However the Commission expressed its regret that the terms of the Bill are different from those included in the Rome Statute. That is in contradiction with the position adopted by the European Union on 16 June 2003 and will possibly lead to an application of Article 17, para., 1, which provides that a case is inadmissible when it is being investigated or has been investigated by a State which has jurisdiction over it 'unless the State is unwilling or unable genuinely to carry out the investigation or prosecution'. The Commission stressed some precise discrepancies between the Rome Statute and the draft, especially concerning statute of limitations (imprescriptibility) (Article 29) and war crimes (Article 8). The Bill introduces a distinction between 'crimes' and 'criminal offence' ("delit" in French) which does not appear in the Rome Statute. The Commission deeply regrets the confusion introduced in the Bill between jus ad bellum and jus in bello with the reference to Article 51 of the United Nations Charter and they criticised the definition of genocide for including a 'concerted project'; on the contrary, apartheid is not included in crimes against humanity. Moreover there are no provisions concerning universal jurisdiction though the principle of complementarity implies a generalisation of such a jurisdiction. The Commission hopes that France will reconsider its declaration under Article 124 of the Rome Statute.
482
*
Correspondents' Reports
Bill adapting Criminal Law to the institution of the International Criminal Court [Projet de loi portant adaptation du droit penal a l'institution de la Cour pCnale internationale]. Registered by the Presidency of the National Assembly on 26 July 2006.
That Bill was not yet discussed. Cases 1. Iraq War Comit6 contre la guerre en Zrak et autres. State Council [Conseil dlEtat], 30 December 2003, Florence Poirat, Revue Gdn6rale de Droit International Public, 2004 no 2, p.543546.
*
English and American planes were authorised to fly over the French territory during the war against Iraq. The French Government based its decision on the common use between allies and a Committee against the War in Iraq put that decision before a French administrative tribunal. The State Council dismissed the claim considering it does not fall within its jurisdiction because the government's decision could not be separated from conducting foreign relations and thus was an Act of State ('acte de gouvernement' in French). Moreover, the higher administrative tribunal added that Article 6 of the European Convention on Human RightszR4could not be usefully invoked 2. French Guantanamo's Detainees * Nizzar Sassi et al., Court of Cassation, Criminal Chamber, 4 January 2005, Florence Poirat/ Nicolas Haupais, Revue Gdnirale de Droit International Public, 2005 no 2, p.488-500. The Court of Cassation quashed the judgement of the Chamber of the instruction of the Court of Appeal in Lyon because it did not review the detention conditions under the Geneva Convention Relative to the Treatment of Prisoners of and the International Covenant on Civil and Political That decision is a procedural one but it could lead to wider prospects. 3. Death penalty in war times * International Commitments on abolition of the Death Penalty, Constitutional Council [Conseil constitutionnel], decision no 2005-5241525lDC of 13 October 2005, Florence Poirat/Guillaume Le Floch, Revue Gknerale de Droit International Public, 2006 no 1 , p.206-2 17. The Constitutional Council ruled that the second optional Protocol to the International Convention on Civil and Political Rights, aiming at the abolition of the death penalty,287which
284. 285. 286. 287.
1950,213 UNTS221. 1949,75 UNTS 135. 1966,999 UNTS 17 1 . 1991, 1642 UNTS414.
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abolishes the death penalty except in war time and which can not be denounced is contrary to the 'essential conditions of national sovereignty exercise' ['conditions essentielles d'exercice de la souverainete nationale'] and thus it is inconsistent with the Constitution. Therefore the optional protocol can only be ratified after the Constitution is amended. That is not the case with Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circums t a n c e because ~ ~ ~ ~ there is a clause authorising denunciation. 4. International Criminal Tribunal for Rwanda * Decree no 2005-729,29 June 2005 publishing the Agreement between the Government of the French Republic and the United Nations Organisation concerning the execution of penalties delivered by the International Criminal Tribunal for Rwanda, signed in Arusha on 14th March 2003 ; Oficial Gazette, n0152, 1 July 2005, p. 10866, doc no 10. PAULTAVERNIER
Production of Military Equipment * Act CIX12005 on the authorisation process related to production of military equipment and military services [2005. Cvi CIX. torveny a haditechnikai termekek gyartasanak es a haditechnikai szolgaltatasok nyi?jtasanak engedelyezesCrol]. Adopted on 3 October 2005. Oficial Journal (Magyar Kozlony), No. 138 (IX. 19.) <www.complex.hulkzldab' t0500109.htm/t0500 109.htm#kagy 1>. Protection of Cultural Property * Parliamentary Resolution 4812005 (VI. 4) on the ratification of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed [4812005. (VI. 4.) OGY hatarozat a kulturklis javak fegyveres 6sszeiitkozes eseten valo vCdelmero1 szolb 1954. evi Hagai Egyezmeny Masodik Kiegeszito Jegyzokonyvenek megerositeserol]. Adopted on 30 May 2005. Oficial Journal (Magyar Kozlony), No. 75 (VI. 4.) <www.complex.hu/extemal.php?url=3~. Status of Forces Agreement * Parliamentary Resolution 5612005 (VI. 10) on the ratification of the EU-SOFA on the status of military and civil staff of military forces ordered to European Union institutions and military and civil staff deployed for military actions of the European Union in connection with preparation for and accomplishment of tasks, including trainings mentioned in para., 17 (2) of the treaty on the European Union [5612005. (VI. 10.) OGY hatarozat az Europai Unio tagallamai kozott, az Europai Uniorol szolo szerzod6s 17.
288. 2002, ETS 187. 289. Information and commentaries provided by Dr. Eszter Kirs, Department of International law,
University of Miskolc. 290. 1999,38 ILM 769.
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cikkknek (2) bekezdeskben emlitett feladatok, koztiik gyakorlatok, elokCszitesevel 6s vkgrehajtasaval osszefCiggCsben az Europai Unio rendelkezesere bocsathato parancsnoksag Cs hadero europai unios intezmenyekhez kirendelt katonai torzsenek es polgar1 allomanyanak, valamint az Europai Unio ezzel osszefiiggtsben torteno fellCptse celjab61 a tagallamok rendelkezesre bocsatott katonai torzsCnek es polgari allomanyanak jogallastir61 (EU-SOFA) szolo Megallapodas megerositi.serol]. Adopted on 6 June 2005. Oficial Journal (Magyar Kozlony), No. 77 (VI. 10.) <www.complex.hu/external. php?url=3>. Education * The ICRC Regional Delegation for Central Europe (Budapest) organised the 1st Regional Friedrich Born Essay Competition open for undergraduate and postgraduate students and young practitioners and the 2nd Regional Friedrich Born Moot Court Competition on International Humanitarian Law which took place on 15 19 November at the Eotvos Lorand University, Budapest. -
Protection of Cultural Property * Act XXIXl2006 on the promulgation of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and on the modification of the Act IV11978 on the Criminal Code [2006. evi XXIX. torveny a kulturalis javak fegyveres osszeutkozes eseten valo vedelmerol szo16 1954. evi Hagai EgyezmCny Mhodik Kiegeszito Jegyzokonyvenek kihirdeteserol 6s a Biinteto Torvenykonyvrol szolo 1978. evi IV. torveny modositasar61] Adopted on 6 February 2006. Oficial Journal (Magyar Kozlony), No. 21. (11. 23.) ~www.cornplex.hu/kzldat/tO600029.htrn/ t0600029.htm>. International Criminal Court * Act XXXI/2006 on the promulgation of the Agreement on the privileges and immunities of the International Criminal Court [2006. h i XXXI. torvkny a Nernzetkozi Buntetobirosag S t a ~ t u m aReszes ~llamainakElso Kozgyiilese altal, 2002. szeptember 10en, New Yorkban elfogadott, a Nemzetkozi Biintetobirosag kiv8ltsigairol es mentessegeirol szolo Megallapodas kihirdeteserol] Adopted on 6 February 2006. Oficial Journal (Magyar Kozlony), No. 2 1. (11. 23 .) . Additional Distinctive Emblem of the Red Crystal * Act LXXVIIV2006 on the promulgation of the Protocol additional to the Geneva Conventions of 12 August 1949 relating to the adoption of an additional distinctive emblem (Protocol 111) [2006. evi LXXVIII. torveny az 1949. augusztus 12-en alairt Genfi Egyezmenyek egy tovabbi megkulonbozteto jelveny elfogadasarol szolo, Genfben, 2006. junius 19-Cn alairt Kiegeszito Jegyzokonyvenek (111. Jegyzokonyv) kihirdetkserol] Adopted on 9 October 2006. OfJicial Journal (Magyar Kozlony), No. 129. (X. 20.)
<www.complex.hu/kzldat~t0600078.htm/t0600078.htm>.
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Nuclear Weapons * Act LXXXII12006 on the promulgation of the Agreement between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the European Atomic Energy Community and the International Atomic Energy Agency in implementation of Article 111, (1) and (4) of the Treaty on the Non-Proliferation of Nuclear weaponsz9' and its Additional Protocol [2006. Cvi LXXXII. tiirveny a nukleiris fegyverek eltejedesenek megakadalyozasarol szolo szerzodes 111. cikk ( 1 ) 6s (4) bekezdesenek vegrehajtasarol szolo biztositkki megallapodas es jegyzokonyv, valamint a megallapodashoz csatolt kiegeszito jegyzokonyv kihirdeteserol] Adopted on 30 October 2006. Official Journal (Magyar Kozlony), No. 137. (XI. 10.) <www.complex.hu/ kzldat/t0600082.htm/t0600082.htm>. Participation to Peacekeeping Operation * Parliamentary Resolution 4412006 (X. 10) on the Hungarian Participation to the UN Peacekeeping Operation (UNIFIL) in Lebanon [4412006. (X. 10.) OGY hatarozat az ENSZ libanoni bekefenntarto missziojaban (UNIFIL) valo magyar rCszvCtelrol]. Adopted on 9 October 2006. Oflcial Journal (Magyar Kozlony), No. 124 (X. 10.) <www.complex.hu1external.php?url=3>. With its resolution 4412006 (X. 10) the Parliament authorised the government to send six military cartographers to Lebanon and approved that the government had deployed 12 border guards in order to work in the United Nations Interim Force in Lebanon (UNIFIL). ESZTER KIRS
Cases * Union of India v. Satyanand Singh Administrative separation of a Non-Commissioned Officer (NCO) of the regular Army who was examined by a medical board and found to be suffering from Neurotuberculosis on account of AIDS was upheld by Madhya Pradesh High The Court held that AIDS is not an ordinary sexually transmitted disease as it causes gross limitation on physical capacity and stamina. Regulations for the Army para., 355(f) stipulate that a soldier is not to be discharged from service solely on account of his having contracted a sexually transmitted disease (STD). But if the STD affects the immune system, corrodes stamina, incapacitates a man, a person working in the Army would come within the ambit and sweep of Rule 13 of the Army Rules and no fault can be found with the discharge.
*
Union of India v. Mohamad Yasin Ansari
291. 1968,729 UNTS 161. 292. Information and commentaries by Nilendra Kumar. 293. Reported in (2007) Military Law Journal MP.
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Correspondents ' Reports
In this landmark judgement294Allahabad High Court held that the combatant forces, and especially the Army, can understandably retain personnel with a particular degree of disability. The Court held it cannot extend the large scale benefit given by Parliament under the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 even to a lower category of disabled persons, i.e., who are less than 40% disabled. The controversy related to a discharge from the military service due to disability without disability pension. The disabilities were suffered while in service. The petitioners had sought relief of reinstatement into the service until the age of superannuation.
National Human Rights Commission * Annual Report National Human Rights Commission (NHRC)'s annual report for 2003 - 2004 was tabled in both houses of Parliament on 7 and 8 March 2006. The report contained amongst other matters a chapter entitled Review of Laws, Implementation of Treaties and other Intemational Instruments on Human Rights. This included humanitarian law instruments such as the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts ('Additional Protocol I ' ) . ~The ~ ~full text of the annual report is available on the Commission's website: <www.nhrc.nic.in>.
*
UN Convention against Torture
NHRC called for ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('Convention against ~ o r t u r e ' ) The . ~ ~instrument ~ was signed by Govemment of India in 1997 but is yet to be ratified.
*
National Human Rights Institutions
NHRC India has been nominated to represent the Asia Pacific Region in the International Coordinating Committee (ICC) of National Human Rights Institutions (NHRI).
*
Civilian killings
During September 2006 NHRC took suo-motu cognizance on the killing of three civilians by the Army in Kupwara District of Jammu & Kashmir. The Commission took notice of a newspaper report published in The Hindu (a newspaper based at Chennai) dated 13 August 2 0 0 6 . The ~ ~ ~Commission, after observing the report, said that if its contents were true, they raise a serious matter of violation of human rights of citizens. The Commission directed that a copy of the newspaper report be send to the Defence Secretary, Govemment of India for
294. 295. 296. 297. 2006.
Reported in (2006) Military Law Journal, Allahabad 177. 1977, 1125 UNTS3. 1984, 1465 UNTS 85. S. Bukhari, ' 3 civilians mistakenly killed by Army in Kupwara' in The Hindu, 13 August
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his comments within two weeks. However it is not known whether a report was received or what were its contents.
*
National legislation on refugees
During 2006, the NHRC indicated a need for a National Legislation to deal with the problem of refugees in India and has recommended the same to the Indian Government. The Government has accepted it in principle. The Commission stressed that there has to be a clear definition of refugees so that it is not confused with other forms of migrant population. This issue needs to be addressed so that the benefits percolate to the bona fide refugees.
NILENDRA KUMAR
IRE LAND^^' International Criminal Law/International Humanitarian Law * International Criminal Court Act 2006, No. 3012006. Adopted and entered into force 3 1 October 2006. <www.oireachtas.ie/documents/bills28/acts/2006/a3006.pdf>. The International Criminal Court Act 2006 (the Act) was passed as the final version of the International Criminal Court Bill 2003, whose purpose was to give legal effect to the Rome Statute of the International Criminal Court of 17 July 1998 ('Rome The Rome Statute created the International Criminal Court (ICC), whose jurisdiction extends over genocide, crimes against humanity, war crimes, and the crime of aggression (as yet to be defined for the purpose of the Statute). The Act coordinates substantive and procedural Irish criminal law with the needs of the ICC, joining official support for the ICC with provisions ensuring Irish legal sovereignty. Part 1 outlines the terminology and definitions for the Act and sets guidelines for judicial interpretation of its provisions. Section 2, subsection 3, declares that 'judicial notice shall be taken of the [Rome] Statute,' thereby incorporating the statute into domestic courts' decisions. Part 2 outlines domestic jurisdiction in ICC offences. Section 9 defines 'ICC offence' as a crime within one of the following four categories: genocide, a crime against humanity, a war crime or an ancillary offence. Because the Rome Statute addresses the crime of genocide, section 7 repeals the Genocide Act 1973. Section 10 describes the punishment for those offences as ranging between confiscation of property and life imprisonment. Section 12 establishes the scope of ICC territorial and personal jurisdiction over Irish nationals. (The ICC does not have universal jurisdiction, or jurisdiction over an offence committed in any state by a person of any nationality.) Section 13 establishes complementarity. A key element of the Rome Statute, complementarity preserves the supremacy of domestic law so long as the national courts are able or willing to put suspected perpetrators of international crimes to trial.
298. Information provided by Ray Murphy, Irish Centre for Human Rights, National University of Ireland, Galway, Ireland. 299. 1998,2187 UNTS 90.
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Part 3 provides a framework for the interaction between the ICC and the Minister of Justice, Equality, and Law Reform within the context of requests for the arrest and surrender to the ICC of persons under Irish jurisdiction. It implements the Rome Statute's Article 91(2)(c) requirement that the surrender procedures are no more burdensome than those applicable to extradition requests to which Ireland is a party. The Act balances Irish sovereignty with its participation in an international court by allowing the Minister to challenge and postpone ICC requests for a person's arrest and surrender (sections 17- 19). Section 25, subsection 6, permits the appeal to the Supreme Court of a surrender order, but only on a point of law. Part 4 addresses ICC requests to freeze assets and enforce its orders. Section 38 permits the High Court to freeze property and assets upon the ICC's request to the Minister, subject to certain limitations. Section 40 provides for a process through which the High Court can enforce ICC reparation orders. Part 5 addresses ICC requests for identification evidence. Section 50 includes provisions designed to protect civil liberties, including limitations regarding the use of the evidence (subsection 3) and a consent requirement (subsection 4). Section 51 allows for the issuance of search warrants so that the Garda Siochana (police) may comply with ICC evidence requests. Section 52 addresses ICC requests for evidence from those other than the persons under ICC investigation or arrest; those persons shall have the same rights as they would in an Irish court (subsections 4-5). Section 53 applies to the questioning of a person whom the ICC suspects has committed an offence within the jurisdiction of the Court; such a person must consent to be questioned and must know his or her rights, and the questioning must be videotaped (subsections 4-5). Sections 54-56 address procedural issues related to summonses and other judicial documents and the transfer of persons. Part 6 (Miscellaneous) addresses the situation of the ICC sitting in Ireland, providing for the legitimacy of Court orders (section 58), the power of the Prosecutor (section 59), and the privileges and immunities of court members (section 60 and 61). Defence Forces and international operations * Defence (Amendment) Act 2006, No. 2012006. Adopted and entered into force 23 December 2006, <www.oireachtas.ieldocumentslbills28/acts/2006lA2006.pdb.
Ireland's status as a neutral state limits the Permanent Defence Force's activity abroad and complicates its involvement in international peacekeeping missions. When an international United Nations (UN) force went to the Congo in 1960, Ireland passed the Defence (Amendment) Act 1960 to temporarily authorise the participation of Irish forces in the mission. Section 7 of the Defence (Amendment)(No.2) Act 1960 repealed the previous statute and established permanent authorisation for the participation of troops from the Permanent Defence Force in international police missions abroad. This permanent authorisation had builtin limitations: it required that the UN Security Council or the General Assembly establish the force, and it required previous approval of Dail ~ i r e a n n(Irish parliament) in certain circumstances. The subsequent Defence (Amendment) Act 1993 vaguely defined the 'International United Nations Force' envisaged in the 1960 and 1993 Acts as an 'international force or body established by the Security Council or General Assembly of the UN'. As peace operations became increasingly independent from the UN, such as the 1995 - 1999 mission in Macedonia that lost its UN mandate and became EU-led, these restrictions began to preclude Irish forces from participation altogether. Ireland reiterated its commitment to
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restricted involvement in international military forces at the Seville European Council in June 2002, where it made a National Declaration that Irish Defence Forces could not participate in overseas operations without satisfying the 'triple lock' mechanism of UN, Irish Government, and Dail ~ i r e a n n(parliament) authorisation. These statutes and policies failed to clarify the position regarding Irish Defence Force's potential involvement in non-UN authorised humanitarian operations and EU-led peacekeeping or monitoring missions. The Defence (Amendment) Act 2006 (hereby referred to as the Act) sought to clarify some o f these issues.
Section 1 of the Act clarifies the definition of 'International United Nations Force' to reflect the changes in UN-supported international peace operations and the rise of UN-sanctioned operations conducted by regional organisations. The Act defines such a Force as 'an international force or body established, mandated, authorized, endorsed, supported, approved or otherwise sanctioned by a resolution of the Security Council or the General Assembly of the United Nations' (emphasis added). This section also includes a definition for what 'training' means for military personnel abroad. Section 2 amends the Defence (Amendment) (No. 2) Act 1960 and Defence Act 1954 to reflect the provisions of Section 1 of this Act. Section 3 specifies for which purposes the Government may despatch Permanent Defence Force personnel abroad other than for service in international UN forces. Such purposes include training, reconnaissance, representative duties, humanitarian tasks, sporting events and inspections. Section 4 states that all members of the Permanent Defence Force, even those who enlisted prior to the passage of the Act, are liable for overseas service in UN operations and in missions outlined in section 3. This new approach updates the 1960 and 1993 Defence Acts, which had exempted military personnel who had enlisted prior to the enactment dates of those statutes. Subsection (2) of the Act exempts those who enlisted prior to 1 July 1993 from all overseas service except for service as part of an international UN-established policing force. Section 8 allows a contingent or member of the Permanent Defence Force to assemble overseas prior to deployment as part of an International UN Force, so long as the Dail ~ i r e a n n(parliament) has passed a resolution authorising the despatch. This section is intended to allow for rapid response deployment of supplies and troops. Section 12 repeals sections 3 and 4(7) of the Defence (Amendment) (No.2) Act 1960, section 296 of the Defence Act 1954, and the entire 1993 Act. Section 13 provides for an annual report from the Minister of Defence to Dail ~ i r e a n n (parliament) regarding any overseas operations from the previous year. This Section preserves a provision that already existed in the now-repealed 1993 Act. Criminal law * Criminal Justice Act 2006, No. 2612006. Adopted and entered into force 16 July 2006,
<www.oireachtas.ie/documentshills28/acts/2006/A2606.pdB. This Act amends Irish criminal law with recommendations from reports prepared by the Department of Justice, Equality, and Law Reform. The Act was intended to make the Garda Siochana (police) more effective and restructure youth justice. Part 1 of the Act addresses Preliminary and General Matters, such as the definitions contained in the Act, regulation-making powers, and expenses and funding.
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Part 2 increases the investigative powers of the Garda Siochana with regards to crime scenes, searches and seizures, arrest procedures, and forensic sampling. This Part relies upon the reasonableness standard in the designation of a place as a crime scene (section 5), in the issuance of a search warrant (section 6), in the use of force during the execution of a search warrant (section 6, subsection 2), in the taking of suspected evidence without a warrant (section 7), and in the extension of a person's detention during the investigation of an offence (section 9). It remains to be seen how this codified reasonableness standard will be interpreted and applied by the courts. Part 2 allows the arrest without warrant of persons who obstruct or attempt to obstruct the execution of a search warrant or who give a false or misleading name or address to the Gardai executing the warrant (section 6, subsection 3). Part 2 also increases police power to detain suspects (section 9), to compel suspects to agree to a photograph and fingerprinting (section 12), and to retain photographs, palm prints, fingerprints, and forensic samples in the absence of proceedings (sections 13 and 14). Section 14 allows for mouth swabs and saliva samples to be taken without consent. Part 3 changes the common law rules surrounding the admissibility of certain witness hearsay statements. The result is to increase the circumstances under which such statements are admissible for the truth of the matter contained therein. Section 16 outlines the circumstances under which statements made to the Gardai outside of court can be admissible during trial. Part 4 addresses appeals in criminal proceedings and extends the prosecution's ability to seek appellate review. Section 21 permits the Attorney-General or Director of Public Prosecutions to refer a question of law to the Supreme Court without prejudice. Section 23 amends the Criminal Justice Act 1993 to allow a court to extend the deadline for the prosecution to apply for the review of a sentence. Part 5 amends the firearm acts to strengthen laws that govern civilian firearm use. The Act both tightens regulatory measures and increases fines and penalties for firearm violations. Part 7 updates the criminal law regarding organised crime and conforms Irish law to the government's obligations under the United Nations Convention against Transnational Organized crime3'' and the EU Joint Action regarding criminal organisation. Section 71 addresses the offence of conspiracy as committed both inside and outside the state by or against Irish nationals. Section 72 concerns organised crime, allowing for the conviction of persons who assist a criminal organisation to commit a serious offence without requiring the prosecution to prove that the organisation actually committed the offence, that the person actually helped the criminal organisation, or that the person knew the specific nature of the offence. The remainder of the Act, inter aha, addresses the misuse of drugs and creates new offences relating to drug importation (Part 8), obligates drug trafficking offenders to provide the authorities with certain information (Part 9), changes the range of sentences available to the courts (Part lo), and provides for civil proceedings as a response to adult and child anti-social behaviour (Parts 1 1 and 13). RAYMURPHY
300. GA Res 55/25, UN Doc. AIRESl55125, 15 November 2000.
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IRAQ See Arab League Model Law in the Algerian section.
Government Action 1. Second Lebanon War
*
Identical letters dated 12 July 2006 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A1601937-S/2006/5 15 (12 July 2006) .
Following Hizbollah's incursion into Israel in which it abducted two soldiers and killed others, Israel opened a military campaign ('Operation Change of Direction'). On the same day it sent the following message to the UN Secretary-General and President of the Security Council: It is with a great sense of urgency and grave concern that I write you this letter of strong protest about the grave events occumng today on Israel's northern border with Lebanon. This morning, Hezbullah terrorists unleashed a barrage of heavy artillery and rockets into Israel, causing a number of deaths. In the midst of this horrific and unprovoked act, the terrorists infiltrated Israel and kidnapped two Israeli soldiers, taking them into Lebanon. Responsibility for this belligerent act of war lies with the Government of Lebanon, from whose territory these acts have been launched into Israel. Responsibility also lies with the Government of the Islamic Republic of Iran and the Syrian Arab Republic, which support and embrace those who camed out this attack. These acts pose a grave threat not just to Israel's northern border, but also to the region and the entire world. The ineptitude and inaction of the Government of Lebanon has led to a situation in which it has not exercised jurisdiction over its own territory for many years. The Security Council has addressed this situation time and time again in its debates and resolutions. Let me remind you also that Israel has repeatedly warned the international community about this dangerous and potentially volatile situation. In this vacuum festers the Axis of Terror: Hezbollah and the terrorist States of Iran and Syria, which have today opened another chapter in their war of terror. Today's act is a clear declaration of war, and is in blatant violation of the Blue Line, Security Council resolutions 425 (1978), 1559 (2004) and 1680 (2006) and all other
301. Information and commentaries by Dr. Yael Ronen, Ono Academic College, Israel. The reporter is grateful to Mr. Shlomi Zachary for his assistance in gathering information for the report; and to Ms. Ady Schonmann, Legal Advisor's Office, Ministry of Foreign Affairs; Lt. Nimrod Karin, International Law Dept., Military Advocate General's Office; and Lt. Nir Keidar, Office of the Legal Advisor for Judea and Samaria, for their comments on previous drafts. Responsibility for errors remains with the reporter.
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relevant resolutions of the United Nations since Israel withdrew from southern Lebanon in May 2000. Israel thus reserves the right to act in accordance with Article 51 of the Charter of the United Nations, and exercise its right of self-defence when an armed attack is launched against a Member of the United Nations. The State of Israel will take the appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorizes our citizens.. .
*
'IDF~" response to Hizbollah Aggression from the Territory of Lebanon' Government Decision 258, 12 July 2006 <www.pmo.gov.i1/PM0/Government/Decisions/2006/07/des258ht (in Hebrew). <www.pmo.gov.il/PMOEng/Archive/Press+Releases/2OO6/O7/spokegove 120706.htm> (in English).
The Government adopted the foklowing decision: Following Hizbollah aggression from Lebanese temtory: a. A very grave event occurred today inside the temtory of the State of Israel. A Hizbullah force crossed our northern border and attacked a routine IDF patrol. As a result of this attack, eight soldiers were killed, soldiers and civilians were wounded and the invading force abducted two soldiers to Lebanese territory. b. This action, along with the events of the past month, creates a new and complex reality that compels us to deal with it. Today's attack, like the 25.6.06 attack at Kerem Shalom, is the product of those who perpetrate terrorism and those who give it shelter. c. Israel views the sovereign Lebanese Government as responsible for the action that originated on its soil and for the return of the abducted soldiers to Israel. Israel demands that the Lebanese Government implement UN Security Council Resolution # 1559. d. However, there is no doubt that Hizbullah, a terrorist organization operating inside Lebanon, initiated and perpetrated today's action; Israel will act against it in a manner required by its actions. e. Israel must respond with the necessary severity to this act of aggression and it will indeed do so. Israel will respond aggressively and harshly to those who carried out, and are responsible for, today's action, and will work to foil actions and efforts directed against it. f. The international community understands that every country, including Israel, must act aggressively against enemy targets such as Hizbullah.. .
... The Prime Minister instructs the IDF to make efforts to avoid as much as possible harm to civilians. All must be done to avoid such injury, according to tradition and the sense of responsibility that we show to civilians of the other side.
302. Israeli Defence Force (hereafter 'IDF').
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* See also Israel's statement before the Security Council, SiPV.5489, 14 July 2006 <www.un.org/Depts/dhl/resguide/scact2006.htm>.
*
'Security Council Resolution 1701 Regarding a Cease Fire' Government Decision no. 373 of 13 August 2 0 0 6 ~ ' ~ <www.pmo.gov.illPMOIArchiveiDecisions/2006/08/des373.htm (in Hebrew). The Government of Israel declares that it has decided to accept Security Council Resolution 1701 and it will act in accordance with its commitments under this Resolution.
*
+
Statements by the Prime Minister, Minister of Foreign Affairs and other Government officials related to the conflict in Lebanon are available at <www.mfa.gov.il/MFA/Ter rorism-+Obstacle+to+Peace/Terrorism+from+Lebanon-+Hizbulla~izbull~+a~ack +in+northern+Israel+and+Israels+response+ 12-Jul-2006.htm>. Name of the military campaign in Lebanon in July - August 2006, Government of Israel Decision 1468, 25 March 2007 <www.pmo.gov.ilPMO/GovernmentiDecisions/2007/03/des1468.htm> (in Hebrew).
The Government decided that the military action in Lebanon in July - August 2006 shall be called 'The Second Lebanon War'.
2. Operation Summer Rains in the Gaza Strip On 25 June 2006 in the course of an infiltration and attack by Hamas members in the area of Kibbutz Kerem Shalom, an IDF officer and a soldier were killed, a soldier was abducted, and four others were wounded. + Cabinet communique of 25 June 2006 <www.mfa.gov.il/MFA/Government/Communiques/20O6/Political-Securi~+Cabinet +convenes+to+discuss+abducted+soldier+25-n-200 .htm>. 1. Israel views the terrorist incident that occurred today with utmost severity. The Palestinian Authority (PA) - the PA Chairman and the PA government - is responsible for the event with all this implies. 2. Israel will take all necessary actions in order to bring about the release of abducted soldier Cpl. Gilad Shalit. This objective has top priority and, to this end, the Cabinet approves all the preparations that were presented to it by the security establishment. 3. The PA will bear full responsibility for any harm to Cpl. Shalit. No person or organization will have immunity at this time. 4. The Cabinet approves the security establishment's recommendations to prepare and deploy the necessary forces in order to be ready for urgent military action as obligated by the PA's actions and intentions.
303. SC Res 170112006,UN Doc SIRESI1701, 11 August 2006. The Resolution calls for full cessation of the hostilities; deployment of the Lebanese Army and UNIFIL in southern Lebanon; Israeli withdrawal from southern Lebanon and the extension of Lebanon's control over all of its territory.
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*
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5. Prime Minister Ehud Olmert and Defence Minister Amir Peretz will decide to approve actions against targets among the terrorist organizations and the PA according to the recommendations of the security establishment. 6. Contacts will continue with the international community in order to maintain the international pressure on the PA leadership with the objective of bringing about Cpl. Shalit's release.. . Communique of the Political-Security Cabinet, 5 July 2006
<www.mfa.gov.i1/MFA/Government/Communiques/2006Political-Security+Cabinet +Communique+S-Jul-2006.htm>.
...The goals of the operation, as we have defined them from the outset, are and remain the release of abducted Cpl. Gilad Shalit and the cessation of the firing of rockets and mortars. Our position is, and remains, that there will be no negotiations on a release of prisoners in exchange for Cpl. Shalit and that Israel views the Palestinian Authority as responsible for returning Gilad to Israel safe and sound. Against the background of the abduction and the continued firing of rockets and mortars, including the firing of a Kassam rocket at Ashkelon, preparations must be made in order to bring about a change in the rules of the game and in the modus operandi vis-avis the PA and Hamas according to the parameters presented by the security establishment. The Cabinet authorizes Prime Minister Ehud Olmert and Defense Minister Peretz to instruct the security establishment to continue its preparations for prolonged and graduated security activity in order to achieve the goals that have been determined and to carry out approved actions as follows: * Striking at Hamas in the Gaza Strip and in Judea and Samaria, with emphasis on striking at institutions and infrastructures that serve terrorism; * Continuing and increasing counter-terrorist actions, including those aimed at Kassam cells; * Reducing terrorists' freedom of movement by continuing to section off the Gaza Strip and striking at infrastructures that serve terrorism; * Foreign Minister Tzipi Livni will continue to apply diplomatic pressure, via the international community, on the Syrian leadership in order to bring about the release of Cpl. Shalit; * Avoiding - as much as possible - harming the civilian population that is not involved in terrorism; * Responding comprehensively and immediately to all humanitarian needs. .. .
*
Cabinet communiquC of 9 July <www.mfa.gov.iVMFA/Government/Communiques/2006/Cabinet+Communique+9Jul-2006.htm>.
1. ...The Foreign Minister said that it was clear to all that Israel's right to defend itself includes actions against the firing of Kassam rockets and that Israel has a legitimate and uncontested right to act to bring about the release of Cpl. Shalit. Prime Minister Ehud Olmert summarized the Cabinet discussion as follows:
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... c. Regarding the conduct of military operations, there is no intention and no planning to reoccupy the Gaza Strip in order to remain there; ground actions are in order to achieve certain goals within a defined period. d. A timetable cannot be set for the above operation in advance. However, it does have an international dimension; the IDF has been fighting for almost two weeks and the international response to the results of the fighting has been low-key. The actions initiated by Defense Minister Peretz, and the Foreign Ministry's international activity, are being carried out in the proper measure and at the proper pace, thus allowing Israel military freedom of action and maintaining its ability to receive international backing. e. Israel's position on the prisoner issue is clear and unequivocal: 'We will not negotiate with Hamas regarding an exchange of prisoners.'
*
Further statements on Operation Summer Rains are available at <www.mfa.gov.il/MFA/
MFAArchive/2000~2009/2006/Gaza%20kidnapping%2025-Jun-2006~. 3. Internal IDF Law Enforcement regarding Operations in the West Bank * IDF reporting procedure concerning incidents involving Palestinians casualties ~www.btselem.org/Hebrew/Legal~Docurnents/2005 1120-Newgrocedure-formilia try-investigations.pdf> (in Hebrew). In November 2005 The IDF Chief-of-Staff introduced a new procedure for internal investigations of cases involving the IDF in which civilians not taking part in life-threatening hostilities are injured or killed. According to the procedure, the Chief-of-Staff will be informed within 48 hours of any incident in which a civilian not taking part in life-threatening hostilities is injured or killed. The procedure also applies in cases of doubt as to the involvement of the victim in such hostilities. The commanders of the operating forces are responsible for documenting and reporting any such incident immediately, insofar as possible. The area commander is responsible for the conduct of an investigative report to be forwarded to the Chief-of-Staff within no more than 21 days. In addition, the investigative report is forwarded to the Military Advocate General (MAG), who decides whether or not to order a criminal investigation. At the time of writing the procedure is under judicial review.
Legislation 1. Entry into Israel Citizenship and Entry (Temporary Provision) Law, 2003 Citizenship and Entry (Temporary Provision) (Extension of the Law's Application) Order, 17 July 2007, Regulation Compilation No. 6500 (17 July 2006) p. 1 0 0 2 . ~ ~ ~
*
304. See report on Israel in 8 YIHL (2005),p. 432
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The Government, upon approval of Parliament, extended the application of the Law by six months, until 16 January 2007. 2. Freedom of Movement in the West Bank * Directives on Traffic and Transportation (Restriction of Travel in Israeli Cars) (Judea and Samaria), 5767-2006 (not in force) <www.yesh-din.orglsite/imageslMilitary%2Oordero/02O-%20eng.pdfS.. <www.yesh-din.orglsite/images/HCJ196-07Eng.pdB. The directives were issued by the military commander in the West Bank on 19 November 2006. They prohibit residents of Israel from transporting non-Israelis in the West Bank in cars carrying Israeli registration. This prohibition is subject to exceptions, where the nonIsraeli passenger holds a permit to enter Israel or to work in the settlements. Also exempt from the prohibition are Israeli drivers of Israeli bus routes in the West Bank, Israelis transporting their immediate relatives; and soldiers and policemen. In early January 2007 a petition was submitted to the High Court of Justice against the Directives on the grounds that they create an apartheid regime, violating Articles 3, 13 and 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War ('Geneva Convention I V ' ) , ~ ' ~Article 85(4)(c) of the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts ('Additional Protocol I ' ) ~ ' ~as , well as international human rights law and Israeli law. Two days prior to the entry into force of the Directives, the military commander in the West Bank announced the freezing of the order because of both operational and unsettled legal issues. The order was later annulled.
Cases
1. Status of military campaign in Lebanon Beilin and Others v. The Prime Minister and Others HCJ 6204106, 6235106, 6274106 Supreme Court of Israel, Judgement of 1 August 2006
*
305. 1949,75 UNTS 287. 306. 1977, 1125 UNTS 3.
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ernment, the conflict with Hizbollah constituted military action under Article 40(b). The Court declined to intervene in the Government's discretion in not declaring war. 2. Human Shields * Minister of Defence and Others v. Adalah and Others HCJ Request for an additional hearing 10739105 Supreme Court of Israel, Judgement of 27 February 2006 107390.p03.pdB (in Hebrew).
The Minister of Defence and others requested an additional hearing before an expanded panel of the Court to reconsider its ruling prohibiting the use of Palestinian civilians in military operations (HCJ 3799102 Adalah and Others v. IDF West Bank Military Commander and The Court found no legal basis to hold another hearing. In an obiter dictum the Court added that the state had erred in interpreting the ruling as categorically prohibiting entry of civilians into areas of combat under any circumstances, even when at issue is the provision of humanitarian assistance. It noted that there may be circumstances in which the balance of considerations will have a different outcome from that reached by the Court in its landmark ruling. 3. Targeted Killings * The Public Committee against Torture in Israel and LAW v. The Government of Israel and Others HCJ 769102 Supreme Court of Israel, Judgement on 14 December 2006
The High Court of Justice handed down its decision on a petition filed in January 2002 against Israel's policy of targeted killings, which the state has been canying out officially since the outbreak of violence and hostilities (commonly known as 'the second intifada') in September 2000. The judgement, written by former Chief Justice Barak, began with the determination that the law applicable to the conflict between Israel and the terrorist organisations is the law of international armed conflict, because it transcends Israel's borders. Noting the primacy of the principle of distinction, the Court proceeded to examine the status of terrorist organisations and their members. It rejected the state's contention that a third category exists between 'combatants' and 'civilians' and determined that persons not qualifying as combatants ('unlawful combatants') are civilians, although they may not be entitled to protection from attack while they take direct part in hostilities. The Court agreed that Article 5 l(3) of Additional Protocol I reflects customary international law. It determined that 'hostilities' in Article 51(3) are 'acts which by nature and objective are intended to cause damage to the enemy', including the civilian population. The Court noted the lack of an agreed definition for the term 'taking a direct part' and reviewed existing literature on specific cases. It distinguished between persons performing combatant roles (such as collecting intelligence on the army, transporting unlawful combatants to or from the place of hostilities, operating weapons of unlawful combatants, supervising unlawful combatants' operations and providing them with services) and persons providing other services. It noted the difficulty in de-
307. See report on Israel in 8 YIHL (2005) p. 438.
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termining the status of a person driving an ammunition truck. The Court then distinguished between persons forcibly serving as human shields for terrorists, in which case they are not to be seen as taking a direct part in the hostilities but as victims of terrorism; and those who do so of their own free will, in which case they should be seen as taking a direct part in the hostilities. The Court also classified persons who decide on or plan an attack or send a person to commit the physical act of attack as 'taking a direct part' in the hostilities. With regard to the words 'for such time' the Court ruled that a civilian who took a direct part in hostilities once or sporadically but has since detached him-or-herself from the hostilities may not be subject to attack. On the other hand, the 'revolving door' phenomenon must be avoided, by which terrorists acquire immunity between attacks. The Court noted the difficulty in deciding individual cases falling between the ends of the spectrum. It then proceeded to make four points. First, that well-based information about the identity and activity of an individual is required before categorising that person; second, a civilian cannot be attacked if a less injurious means is available; third, after an attack is made on a civilian suspected of taking an active part at such time in hostilities, a thorough and independent investigation regarding the precision of the identification of the target and the circumstances of the attack upon him or her must be performed; and last, if innocent civilians are harmed during the attack, this amounts to collateral damage and must comply with the proportionality test. The Court concluded:
...we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.30R In a concurring opinion Deputy Chief Justice Rivlin pointed out that the judgement effectively creates a third category of individuals, which is extracted from the 'civilian' category. He emphasised the need to distinguish unlawful combatants from other civilians. Chief Justice Beinisch also concurred and added that the information required for classifying a civilian as taking a direct part in hostilities must be well based and strong. It must be convincing that the risk that the terrorist presents to human life includes continuous activity and not sporadic or one-off activity. According to Chief Justice Beinisch information of past activities may be used for determining the danger that the individual presents for the future. A significant level of probability as to the existence of life-threatening hostilities is also necessary. 4. Freedom of Movement
*
Ahmed Zaki Najar and Others v. ZDF Commander in the West Bank HCJ 11595105 Supreme Court of Israel, Judgement of 17 December 2006 115950.t24.pdB (in Hebrew).
The petitioner, a medical student studying in the West Bank, requested entry into Israel in order to take up medical residence in a Jerusalem hospital. He was denied entry into Israel
308. HCJ 769102 para., 60.
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on security grounds. In his petition he claimed that this denial was in violation of Israel's obligation to provide humanitarian assistance to the population of occupied territory. This obligation includes ensuring that population's day-to-day needs, especially in the medical area, are met and not interfering in the provision of medical services. He also claimed it was a violation of his right to education and employment. The Court ruled that the state's discretion in regulating entry into Israel encompasses refusing the petitioner's entry on security grounds. The provision of medical services does not depend on a specific individual. Without taking a position on Israel's obligations under the rights to education and employ-
ment the Court found that the content and weight of the information regarding the security risk presented by the petitioner justified the refusal of entry. The petitioner also asked to be registered as a resident of the West Bank and not be removed to the Gaza Strip. The Court took note of the respondent's commitment to permit the presence of the petitioner in the West Bank while at the hospital, and to consider a request from the Palestinian Authority for a change of abode if such a request is submitted.
*
Avocats Sans Frontidres and Others v. IDF Commander in the South and Other HCJ 42 12/06 Supreme Court of Israel, Judgement of 28 June 2006
The petitioners requested that the respondents be ordered to respond within a reasonable period of time to applications submitted by inhabitants of the Gaza Strip to enter Israel, including for the purpose of transit to the West Bank. The respondents informed the Court that applications submitted reasonably early would be responded to no later than three days prior to the requested date of travel. The Court ruled that this was too short a period for the applicant to take action if the application is denied, and suggested that the respondents respond within five to seven days prior to the day of travel, unless circumstances require otherwise. It then dismissed the petition in the absence of any concrete remedy required.
*
Salah Nahil Unes Ward and Other v. Military Commander in the West Bank and Other HCJ 3519105 Supreme Court of Israel, Judgement of 26 July 2006 1I05035 1 9 0 . ~ I2. p d P (in Hebrew).
The petitioner, registered in the Gaza Strip but residing in the West Bank with his family, was held in administrative detention from which he was released to the Gaza Strip. His request to move back to the West Bank was denied on security grounds. The petitioner challenged the decision on the grounds that: the West Bank and Gaza Strip are a single territorial unit; the respondents are not authorised to limit the right of inhabitants of these of residence to one areas to move between them; and following the Ajuri ~ase,~~\estriction area without an order is a violation of international and Israeli law. The respondents distinguished the case from Ajuri arguing that the latter case concerned interpretation of Article 78 of Geneva Convention IV, and its rationale did not apply to the present case, where the issue was the military commander's decision to deny a non-resident access to a territory under the commander's authority. During the course of litigation the respondents informed
309. HCJ 7015102. See report on Israel in 5 YIHL (2002) pp. 535-538
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the Court that the petitioner has been declared a fugitive from justice. They requested ex parte presentation of confidential intelligence information but the petitioner objected. The Court ruled that although the petition raised complex questions of principle, its core question related to the individual's situation. Since the petitioner's return to the West Bank had become impractical there was no point in debating the general questions raised. At the same time the Court recommended that the respondents establish a procedure that would enable a person to challenge the Palestinian population registry even if no restriction order had been issued.
5. Right to Worship * The Committeefor the Development of Hebron and the Muslim WakfAdministration in Hebron v. The State of Israel and Others HCJ 4661106 Supreme Court of Israel, Judgement of 27 June 2006
3 10. See report on Israel in 8 YIHL (2005) p. 432
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The petitioners argued that the prohibition on family unification of Israeli citizens and residents with Palestinian family members violates the right to family life. Since the Law affects primarily Israeli Arabs, it is also discriminatory. They further claimed that the Law was motivated by demographic rather than security considerations and is therefore unconstitutional. In a sharply divided judgement, the Court rejected the petition. The majority opinion upheld the constitutionality of the Law. The dissenting opinion of four judges found that the Law infringes upon the right to family life and equality in a disproportionate manner and should therefore be declared invalid.
7. Separation Barrier (also known as 'security fence') By the end of 2006, 115 petitions had been submitted to the Supreme Court concerning the separation banier. Of these 28 were terminated following a compromise between the parties or were stricken off, 41 reached judgement, and 46 were still pending.311 Petitions of Palestinians and Israelis against the route of the separation barrier: * Beit Sira Village Council and Others v. The Government of Israel and Others HCJ 5683104 and Neot Reut and Makabim Charities v. Prime Minister HCJ 9055105 Supreme Court of Israel, Judgement of 9 January 2006 (in Hebrew). * Mhamad Haled Alian and Others v. The Prime Minister and Others HCJ 4825106 and 4938104 Supreme Court of Israel, Judgement of 16 March 2006 (in Hebrew).
31 1. Al-Ram Local Council and Others v. Government of Israel and Others HCJ 5488104, 60801 04,3648105 Supreme Court of Israel, Judgement of 13 December 2006 (reported below).
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Shaher Ahdulkader Shtia and Others v. The State of Israel and Others HCJ 1348105 and 3290105, Supreme Court of Israel, Judgement of 17 July 2006
These cases concerned requisition orders of private land and the use of public property for the purpose of constructing the separation (HCJ 11395105 and 5634106 concerned a security fence unrelated to the separation barrier but the arguments and judgement followed the other cases.) In some instances the petitioners argued that in principle the construction of the separation barrier is unlawhl because it effectively annexes occupied territory. All the petitions argued that the specific routes of the separation barrier caused harm to Palestinian interests that are disproportionate to any military benefit that might be gained by the barrier. The petitions by Israelis argued the specific routes chosen did not provide them with sufficient security. The Court ruled that the applicable legal standards are those established in the Beit surik3I3and Mara abe3I4cases, namely that the military commander may establish a security barrier, including for the protection of Israelis, those residing in Israel as well as those residing in the West Bank, despite their not being 'protected persons' as defined under Geneva Convention IV. It also reiterated that the lawfulness of the settlements was irrelevant to the obligation of the military commander to ensure the life, dignity and freedom of any person in the occupied territory. Private land may be requisitioned for this purpose, as long as the requisition complies with the requirement of proportionality. In each case listed above the Court examined the specific route of the separation barrier. In all cases it found that the injury to the interests of the Palestinian protected population was not disproportionate to the security needs and rights of Israelis. The petitions were therefore rejected.
3 12. For earlier proceedings see report on Israel in 8 YIHL (2005) pp. 432-435 313. HCJ 2056104. See report on Israel in 7 YlHL (2004) pp. 504-506. 3 14. HCJ 7957104. See report on Israel in 8 YIHL (2005) pp. 433-434.
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In HCJ 9055105, 1998106 and 1767105 the Court also considered petitions by Israelis residents of both Israel and Israeli settlements in the West Bank, claiming that the contested routes do not provide them with sufficient security guarantees. The Court found that the existing routes provide sufficient security, and that enhancing the security of the Israelis further would have resulted in great injury to the Palestinians.
*
Head ofthe Council of Azoun and Others v. The State of Israel HCJ 2732105 Supreme Court of Israel, Judgement of 15 June 2006
The petitioners requested an order requiring the respondents to dismantle a segment of the separation barrier passing through their lands, constructed in order to protect the settlement Tsufin. The petition was submitted following earlier litigation in 2003 concerning the same segment, in which the state argued that the route was determined by military considerations alone, and undertook to build gates in the barrier to allow the petitioners access to their lands on the other side, as well as to take into account specific problems that would arise. In 2005 the Court issued an interim order barring the construction, after it had been revealed that the route of the barrier was determined not only by military considerations but also in order to include areas designated for the expansion of Tsufin in the 'Israeli' side of the barrier. In addition, the respondents had not fulfilled their undertaking to enable access to lands across the barrier. During the course of litigation the respondents informed the Court that the route of the barrier had been modified in the disputed segment. The existing segment would be dismantled within six months from the construction of an alternative segment in a new route. In the meantime gates would be opened and entry to land facilitated. The Court accordingly granted the petition and made the order definitive, declaring the disputed route of the barrier unlawful. It suspended the declaration until six months after the new barrier is built. The Court also criticised the respondents for not having provided it with the full picture as to the considerations guiding the original determination of the barrier's route.
*
Mayor of'Dahariya and Others v. Commander of the IDF in the West Bank HCJ 1748i 06, 1845i06, 1856106 Supreme Court of Israel, Judgement of 14 December 2006
The petition concerned the respondents' construction of a 41 kilometre long low concrete wall alongside certain roads in the southern Hebron hills area. The wall is 82 cm tall and 60 cm wide, with 24 gates along the entire length. The low concrete wall combined with the separation barrier creates an enclave comprising some 20 villages in which some 2 000 people reside, as well as the agricultural lands of residents outside the enclave. The petitioners challenged the construction of the concrete wall and demanded the revocation of the requisitioning of lands owned by Palestinian residents in the area upon which the low wall would be constructed. They argued that the concrete wall effectively reinstates a segment of the separation barrier which had previously been modified to comply with the Beit Surik ruling. They submitted an opinion issued by the Council for Peace and Security, a voluntary body of security experts which includes former high-ranking IDF officers, according to which the construction of the low wall would have a negative rather than positive impact
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on the security situation and is motivated by extraneous considerations such as the annexation of lands to Israel. Once again relying on the Beit Surik and Mara 'abe cases, the Court ruled that the construction of the concrete wall passed the first proportionality sub-test, namely that the route hlfils a security objective. However, the Court found that it was not the least injurious infringement upon the rights of the Palestinian population. Accordingly, the Court ordered the state to dismantle the almost-completed low concrete wall within six months. The ruling allows the IDF to construct an alternative barrier in the area, provided it would permit pedestrians and animals to move around freely. Israeli petitions against exclusion of settlements from the 'Israeli side' of the separation barrier:
* *
Tene Committee v. The Prime Minister HCJ 3680105 Supreme Court of Israel, Judgement of 1 February 2006 (in Hebrew).
These cases concerned Israeli settlements in the southern Hebron Mountain, which under the existing routes of the separation barrier remain on the 'Palestinian' side of the barrier. The petitioners requested modifications to the routes of the barrier so that the settlements fall within the 'Israeli' side, noting that the current route jeopardises the settlers' security. Furthermore, the separation barrier would separate them from their education and work places (in the Tene case) or impact negatively on their income from tourism (in the Susia case), and thereby infringe upon their basic rights. Again relying on the legal standards enunciated in the Beit Surik and Mara hbe cases, the Court ruled that in the circumstances the military commander found a proportionate balance between the need to protect the lives and safety of the Israelis in the settlements and security needs on the one hand, and the needs of the local population on the other hand. The Tene case, in particular, emphasises the personal extension of Israeli constitutional rights to Israelis residing in the West Bank. The decision incorporates these constitutional rights into the proportionality test balancing security against the needs of the local population. Petitions of Palestinians regarding the route of the separation barrier in the Jerusalem area: * Omar Salame and Others v. Military Commander; Central Command and Others HCJ 1073104 Supreme Court of Israel, Judgement of 6 August 2006
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'Israeli' side of the barrier or that in the alternative, the gate would be open at all times of the day. They argued that being permanent residents of Israel, most of them work, study and receive medical services in the city. The current route of the barrier, they argued, separates them from Jerusalem and causes disproportionate detriment to their rights to employment, education and medical services, as well as to their freedom of movement. They also expressed concern that their permanent Israeli residence might be revoked. The petitioners in HCJ 5488104,~'~ 6080104 and 3648105 comprise permanent residents of Israel, Israeli citizens and residents of the West Bank, all residing in a town adjacent to Jerusalem, which would be separated from the city by the separation barrier. In addition they argued that the construction of the separation barrier within the West Bank is unlawful because it limits the right of access within occupied territory, of which Jerusalem forms part. This limitation is unlawful because it aims to annex the relevant area to Israel. In both cases the Court ruled that the applicable legal standards are those established in the Beit Surik and Mara 'abe cases, namely that requisitioning of land (under Israeli law in this case) is lawful as long as it is proportionate to its objective. In this regard the respondents must take account of the need to ensure the state and public's safety, protect the human rights entrenched in Israeli law protecting Israelis residing in Israel, and the welfare of the Palestinian population governed by the international law concerning protected persons. The Court ruled that the proposed routes pass the proportionality test, namely that they fulfil the security objective, are the least intrusive infringement upon the rights of the Palestinians, and the injury to the population is not disproportionate to the benefit derived from the specific route. The petitions were all rejected.
*
*
Sheikh Sa'ed Neighborhood Committee and Others v. Director General, Ministry of Defence and Others Tel Aviv Magistrate Court sitting as Appeals Committee under the 1949 Law for Land Registration, Decision of 19 March 2006 The State of Israel v. Mhamad NaifShakir and 28 Others HCJ 7337105 and 4343106 Supreme Court of Israel, Decision of 30 July 2006
Sheikh Sa'ed is a West Bank neighbourhood bordering Jerusalem. Due to the topography of the area, access to the neighbourhood is available only through Jerusalem. The petitioners claimed that the route of the separation barrier along the municipal boundary of Jerusalem which would prevent their access to the city would cause disproportionate injury to their basic rights. The Court decided that since there is no indication that the residents of the neighbourhood themselves present a security threat to Israel, constructing the separation barrier along the existing route would cause the residents disproportionate injury. Accordingly the Court nullified the requisition order in the segment bordering Sheikh Sa'ed and referred the matter back to the respondents for consideration with a recommendation that the barrier be built east of the neighbourhood, in a way that allows the residents access to East Jerusalem. The state petitioned the Supreme Court against the decision. In the meantime, it requested an injunction allowing it to construct a temporary net fence along the existing
315. For earlier proceedings see report on Israel in 8 YIHL (2005) p. 433.
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route of the separation barrier, which could be crossed through a gate open 24 hours a day. The neighbourhood residents argued that the construction of the fence would cause disproportionate harm. The High Court of Justice granted the request, ruling that the net fence would not cause disproportionate injury to the neighbourhood's residents. This is the first time that a judicial authority has voided a segment of the separation barrier in the Jerusalem area. O-
Hebron Local Council and Others v. The State of Israel and Others HCJ 5968105 and 6353105 Supreme Court of Israel, Judgement of 1 March 2006 (in Hebrew).
The case concerned orders for the requisitioning of private land in the Hebron area for the purpose of constructing concrete walls around two military bases. In both cases the requisition was to be followed by transplanting olive and fruit trees from the requisitioned area. The orders had been partly modified by the respondents following appeals by the land owners. However, the petitioners claimed that the orders were motivated by unlawful discrimination and caused disproportionate injury to their rights. The Court ruled that requisition of land for essential military purposes was permitted under the law of occupation, embodied in the 1907 Hague Regulations annexed to Hague Convention (IV) Respecting the Laws and Customs of War on and^'^ ('Hague Regulations') and in the humanitarian provisions of Geneva Convention IV. Such needs include the protection of combatants and civilians present in the area. The Court upheld the proportionality of the measures taken. 8. Law Enforcement * Murar and Others v. The Milita y Commander in the West Bank and Other HCJ 95931 04 Supreme Court of Israel, Judgement of 26 June 2006 1104095930.n21.pdB (in Hebrew).
316. 1907.36 Stat. 2277.
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With regard to closure of areas in order to protect the Israeli settlers the Court ruled that in balancing between the freedom of movement and the right to property of the Palestinian population on the one hand, and the need to ensure the security of Israelis in the territory on the other hand, the closure of areas adjacent to Israeli settlements is in principle an appropriate measure, but must be also carried out in a proportionate manner. The extent of area to be closed must be the minimum necessary to protect the Israeli residents; the Palestinian farmers must be given the opportunity to complete any necessary agricultural activities; the closure must be carried out under written orders except in exceptional cases; and the order must be made known to those affected by it and an opportunity to challenge the order must be possible. With regard to protecting the Palestinian farmers the Court found the closure of land to be a disproportionate measure which violates their freedom of movement and right to property. Applying the first sub-test of proportionality, it indicated that there is no rational link between the measure and its purpose because it is an extremely unfair infringement on basic rights while giving in to violence and crime. It is unjust to close an area to Palestinians in order to protect Israelis but not to take the converse measure to protect Palestinians. In an obiter dictum the Court added that the closure also fails the second and third sub-tests of proportionality because it is not the least intrusive measure and it is disproportionate to the benefit which it provides. Instead, the Court noted, the areas should remain open to the Palestinians and the authorities must take all necessary measures to ensure their security there. Forces must be allocated for their protection, and effective limitations imposed against individuals who are in breach of the law and attack Palestinians. The Court expressed dissatisfaction with the existing means of protection of the Palestinian farmers' physical safety and property, and called for their immediate improvement. It said that the obligation of the respondent to prevent such injuries, entrenched in Article 27 of Geneva Convention IV, is one of the basic obligations of the military commander. The Court then proceeded to provide certain guiding principles in addressing the issue. First, action must be taken to ensure the personal security of the Palestinians, and when required, to physically protect them during the course of their agricultural work; this protection should be provided with the minimum disturbance to their work. Second, clear and unequivocal instructions must be issued to forces deployed in the area to ensure that the farmers are not denied access to their agricultural land, other than in exceptional circumstances. Third, security personnel should be allocated to protect the Palestinian residents' right to ownership. Fourth, an investigation must be opened upon receipt of a report of an attack, and security patrols must be dispatched for the purpose of uncovering such attacks. A full investigation must be carried out as quickly as possible. The Court concluded that the law enforcement investigative and prosecution mechanisms must be upgraded.
9. Removal of Illegally-Constructed Outposts * Peace Now and Dror Etkes v. Minister of Defence and Others HCJ 6357105 Supreme Court of Israel, Judgement of 18 January 2006 14.pdb (in Hebrew).
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In October 2004 the Judea and Samaria Planning and Construction Commission ordered the demolition of nine structures in the Amona outpost, on the ground that they were constructed without permits on private land designated for agricultural purposes. In July 2005 the petitioners appealed against the respondents' non-enforcement of the orders. The respondents repeatedly declared their intention to comply with the orders. In January 2006 the respondents declared that they would carry out the demolition by the end of the month, and the Court dismissed the petition as exhausted. At the same time it granted the request of the respondents to postpone the execution of the demolition order by a week. On 29 January 2006 the Court gave its judgement on a petition by the private respondents, now acting as petitioners, against the Minister of Defence, to stay the demolition until they regulate the status of construction. The Court dismissed the petition, inter alia on the ground that the petitioners were not acting in good faith. On 1 February 2006 the demolition orders were carried out.
* Peace Now and Dror Etkes v. Minister of Defence and Others HCJ 3008106 Supreme Court of Israel, Judgement of 3 1 May 2006 (in Hebrew). The petitioners requested that the Court order the respondents to show why they should not take all necessary actions to enforce area delimitation injunctions of 2004, setting in motion a legal procedure for evacuating six unauthorised outposts. The Court ruled that since the government, which had already expressed its commitment to remove the outposts, had shortly before changed following elections, it would not intervene in the process and timetable. 10. Rules of Engagement Samir A1 Hams and Others v. Chief Military Prosecutor and Others HCJ 741105 Supreme Court of Israel, Judgement of 14 December 2006 .
*
The case concerned the rules of engagement in force in October 2004 at a military post in the Gaza Strip. It followed an incident in which the petitioner's 13-year old daughter was shot to death upon entering an area surrounding the post, which was defined as a 'special security zone' into which entry of Palestinians was completely prohibited.317The petition was preceded by a military court-martial in which the commanding officer of the post was acquitted of the charge of confirming the girl's death by firing from close range. The petitioners first claimed that the rules of engagement in force in the area allowed the indiscriminate shooting to death of any Palestinian entering certain designated areas. They requested completion of the investigation of the rules. The Court examined ex parte the rules, which remain largely confidential. It noted that they are restrictive and cautious, and emphasise that the mere presence of an individual in the special security zone does not indicate that he or she poses a threat. They also stress the need to avoid injury to those not involved in combat and to exercise discretion. The Court found indications of a gap be-
3 17. For earlier proceedings see report on Israel in 7 YIHL (2004) p. 499.
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tween the official, written procedure and that which was made known to forces operating in the area. It therefore ordered the MAG to initiate an investigation to determine whether unlawful firing orders had been given to forces operating in the area. The petitioners also requested an investigation into whether soldiers involved in the incidents leading to the girl's killing had carried out manifestly unlawful orders. The Court found that the soldiers had been instructed to exercise discretion in opening fire. The conferral of discretionary power was not inherently unlawfd. The Court therefore rejected this part of the petition. 11. Immunity from Conflict-related Claims
* Adalah and Others v. The Government of Israel HCJ 8276105 and other cases, Supreme Court of Israel, Judgement of 12 December 2006
*
3 18. For the enactment of Art. 5C see report on Israel in 8 YTHL (2005) pp. 430-43 1
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The appellants had been incarcerated under the Incarceration of Unlawful Combatants Law 2002 (the on the ground that they are members of Hizbollah, and that they present a danger in view of their active personal involvement in terrorist attacks against Israeli targets. During the periodic review of their imprisonment in January 2006 the appellants challenged the constitutionality of the law, and alternatively its disproportionate use in their regard. In the latter respect they noted that the Administrative Detention Law is an appropriate and less injurious alternative measure. The District Court upheld the imprisonment orders. It postponed the decision on recourse to the law as opposed to administrative detention until the next review. The Supreme Court upheld the District Court's decision. Nonetheless it recommended that the authorities provide as detailed information as possible on the grounds for incarceration so that the individual would be able to prepare a defence against the incarceration order. With regard to the relationship between the Unlawful Combatants Law and the Administrative Detention Law, the Court noted that under the circumstances the appellants had not been detrimentally affected by the use of the Incarceration of Unlawful Combatants Law, because the periodic review process had begun soon after their incarceration and their matter was continuously before the District Court. In the subsequent periodic review the District Court reiterated its ruling in the Obeid 320 case, upholding the constitutionality of the Incarceration of Unlawhl Combatants Law 2002 and its compatibility with international humanitarian law. It stated that the category of 'unlawful combatant' is a product of international humanitarian law. Without ruling whether unlawful combatants are entitled to the status of protected persons, it noted that international law allows the detention of protected persons who endanger the state, e.g., under Articles 42 and 78 of Geneva Convention IV. The state has a wide scope of discretion in determining the security considerations. There must be a link between the individual and a threat to security, but it need not be direct, i.e., it need not rely on a hostile act by the specific individual against the state. Accordingly, Israeli legislation provides two bases for determining the threat presented by an individual: the commission of a hostile act and membership in a force carrying out hostilities. Furthermore, by providing a right to a hearing, judicial review and right of appeal, the Law gives greater procedural guarantees than Geneva Convention IV requires. With regard to the prohibition on holding hostages the District Court ruled that the purpose of the law was not to hold hostages but to incarcerate unlawful combatants whose release would endanger the state. Another argument of the detainees was that following the withdrawal from the Gaza Strip the state must release detainees hailing from that area. The Court ruled that the termination of occupation does not preclude the detention under the laws of armed conflict of persons such as the respondents, until hostilities cease. At the time of writing, the District Court's decision is pending an appeal.
*
The State of Israel v. Hussein hen Ali Sleiman and Two Others Misc Requests (Nazareth) 2743106 District Court of Nazareth, Decision of 19 October 2006.
319. See report on Israel in 5 YIHL (2002) pp. 527-528. Law available at <www.justice.gov.il/NR/
rdonlyres/7E86D098-0463-4F37-A38D-8AEBE770BDE6/O/IncarcerationLawedited 140302.doc>. 320. See report on Israel in at 6 YIHL (2003) p. 5 17.
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* Mhamad Abdulhamud Srur and Two Others v. The State of Israel M i x Criminal Requests 8780106, 8984106 Supreme Court of Israel sitting as Court of Appeals, Decision of 20 November 2006. The respondents, Hizbollah members, were arrested until the end of proceedings following criminal charges of membership in a terrorist organisation, unlawful military practice, services to unlawful organisation and other offences. They claimed POW status under Articles 4A(1) or 4A(2) of Geneva Convention Relative to the Treatment of Prisoners of War
('Geneva Convention III').~" With respect to Article 4A(1) they argued that in view Israel's response to Hizbollah's 12 July 2006 attack, namely the attachment of responsibility to Lebanon and the targeting of Lebanese infrastructure, Hizbollah must be regarded as part of Lebanon's armed forces; at any rate the respondent is estopped from arguing otherwise. Alternatively, Hizbollah constitutes a resistance movement with a formal role in the Lebanon national defence, thereby complementing the Lebanese Armed Forces. The Court ruled that the matter should be considered in the criminal trial. It noted that prima facie Hizbollah is a terrorist organisation whose members do not fulfil the four cumulative conditions of Article 4A(2) and operate from within the civilian population. Hizbollah is also designated a terrorist organisation under Israeli legislation. The respondents accordingly are not entitled to POW status. This was upheld by the Court of Appeals. In the appeal the appellants also argued that while their status is pending they should benefit from the doubt as provided by Article 5 of Geneva Convention 111. The Court of Appeals ruled that the competent tribunal may be either civilian or military. Accordingly the appellants could raise the argument as to status when the criminal trial begins. In the meantime, since there was no dispute that the appellants could be held in detention either under criminal procedure or as POWs, the appeals were denied.
NGO Reports 1. Second Lebanon War Amnesty International: IsraellLebanon: Deliberate destruction or "collateral damage"? Israeli attacks against civilian infrastructure (August 2006).
*
The report found that Israeli forces had committed indiscriminate and disproportionate attacks, pursuing a strategy which appeared intended to punish the people of Lebanon and their government for not turning against Hizbollah, as well as harming Hizbollah's military capability.
*
Amnesty International: IsraellLebanon: Under fire: Hizbullah's attacks on northern Israel (September 2006).
This report concludes that Hizbollah's bombardment amounted to direct attacks on civilians as well as indiscriminate attacks. The attacks also violated the prohibition under interna-
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tional humanitarian law on attacking the civilian population as reprisals, regardless of what abuses the enemy may be carrying out.
*
Amnesty International: IsraelILebanon Out of all proportion - civilians bear the brunt of the war (November 2006).
The report is based on field research in Lebanon and Israel in July, August and September 2006. It concludes that Israeli forces committed serious violations of international human rights and humanitarian law, including war crimes. In particular it found that Israeli forces carried out indiscriminate and disproportionate attacks on a large scale; carried out direct attacks on civilian objects; seemed to intend to inflict a form of collective punishment on the Lebanese population by attacking infrastructures and objects indispensable for the survival of the population; and failed to adopt necessary precautionary measures. With regard to Hizbollah, the report concludes that Hizbollah also committed serious violations of international humanitarian law, including war crimes, in particular by the indiscriminate nature of the weapons used and the direct attacks on civilians as well as indiscriminate attacks and attacks on civilians as reprisals. Hizbollah fighters did not take necessary precautions to protect civilians from the effect of Israeli attacks; it is not clear whether Hizbollah have used civilians as human shields.
*
Human Rights Watch: Fatal Strikes: Israel's Indiscriminate Attacks Against Civilians in Lebanon (August 2006) Volume 18, No. 3(E).
This report documents serious violations of international humanitarian law by the IDF in Lebanon. It claims Israel violated the principle of distinction. The pattern of attacks and the seriousness of the consequences indicate the commission of war crimes.
*
Intelligence and Terrorism Information Center at the Center for Special Studies: Hezbollah's use of Lebanese civilians as human shields: the extensive military infrastructure positioned and hidden in populated areas. From within the Lebanese towns and villages deliberate rocket attacks were directed against civilian targets in Israel (by Dr. Reuven Erlich (Col. Ret.)) (December 2006) <www.terrorism-info.org.il/malam~multimedia/English/eng~~tml~shields. htm>.
This study analyses two central concepts of Hizbollah's warfare. The first is the broad use of the Lebanese civilian population as a living shield; the second, viewing the Israeli civilian population as the primary target for the enormous rocket arsenal Hizbollah built up over a period of years. According to the study, both acts are war crimes under international law. They express the basic asymmetry between Israel, committed to moral conduct and intemational law, and a terrorist organisation operating in direct contravention of those laws. 2. General Conditions in the Occupied Territories * The Association for Civil Rights in Israel (ACRI): Shadow Report regarding Israel's consolidated tenth, eleventh, twelfth, and thirteenth periodic report to the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD)
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January 2006 <www.ohchr.orglenglishlbodieslcerdidocsingoslacri-ShadowReport.pdP. The report alleges discriminatory policy in a number of areas: house demolitions and discriminatory planning and enforcement policies in the West Bank; the permit regime in the seam zone between the separation barrier and the green line; segregationist and discriminatory practices leading to the destruction of the centre of Hebron and the expulsion of its Palestinian population; and immigration and access to citizenship of Palestinian residents of the Occupied Territories including East Jerusalem married to Israeli citizens and residents.
*
Amnesty international: Israel and the Occupied Territories - Road to Nowhere (December 2006).
The report documents human rights violations in the occupied territories since 2000. It summarises data on Palestinian civilian casualties, Operations Summer Rains in Autumn Clouds in the Gaza Strip, extrajudicial executions, the humanitarian crisis in the Gaza Strip, Israeli settlement in the West Bank, the separation fenceiwall, denial of social and economic rights, house and property destruction, impunity of Israeli soldiers and civilians with regard to unlawful killings and other abuses of Palestinians, detention of Palestinians by Israel, prevention of family unification, and the effect of the conflict on women. The report argues that the withdrawal from Gaza does not release Israel of its obligations as an occupying power. The report also documents Palestinian attacks against Israeli civilians and lawlessness and impunity in areas run by the Palestinian Authority.
3. Separation Barrier * B'Tselem Joint report with Birnkom - Planners for Planning Rights: Under the Guise of Security: Routing the Separation Barrier to Enable Israeli Settlement Expansion in the West Bank (December 2005) <www.btselem.orgiDownload/2005 12-Under-the-Guise-of-Security-eng.pdP. -
The report disputes the Government's contention that the separation bamer's route is based solely on security considerations and argues that one of the primary reasons for choosing the route of many segments was to place certain areas intended for settlement expansion on the 'Israeli' side of the barrier. The report analyses in depth the expansion plans of four settlements and reviews eight other cases in which settlement expansion plans significantly affected the bamer's route. Responding to the draft report, the Ministry of Justice noted the authority and duty of the military commander to consider security interests of protecting planned neighbourhoods in determining the fence's route. It emphasised the state's commitment to minimise to the extent possible any damages caused to private land owners and its attentiveness to suggested alterations in the barrier's route.
*
Bimkom - Planners for Planning Rights: Between Fences - Enclaves Created by the Separation Barrier (October 2006) <www.bimkom.orgldynContent/articlesigderotartl.pdf>(in Hebrew). <www.bimkom.org/dynContent/articles/gderot2pd (in Hebrew).
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The report argues that the separation barrier's route was planned so as to accommodate to the maximum extent possible the Israeli settlements and the lives of their residents, resulting in the creation of 21 enclaves. In the enclaves bound by the barrier and the Green Line, in which some 7 200 people live, a permit regime regulates every area of life, including the residents' presence in their own homes, hosting of family members from outside the enclave, entering adjoining settlements or Israel and more. Other enclaves, in which some 240 000 Palestinians live, are formed by the twists of the barrier itself or by roads prohibited to Palestinian movement. The report describes the creation of the enclaves, the legal regimes governing them, and their injurious effect on residents' lives. The report concludes by expressing doubt as to the long term viability of the communities within the enclaves. 4. Family Unification C B'Tselem joint report with Hamoked - Center for the Defence of the Individual: Perpetual Limbo: Israel's Freeze on Unification of Palestinian Families in the Occupied Territories (July 2006)
<www.btselem.orglenglishlPublicationsiSummaries/2OO6O7~Perpetua11Limbo.asp>. In 2000 Israel imposed a new policy for entry into the occupied territories which effectively prevents family unification between Palestinian residents of the occupied territories and their spouses from abroad, and prohibits foreign family members from visiting the occupied territories. The report reviews this policy and its consequences on the human rights of the Palestinians as well as their social, economic and emotional well being. It argues that the freeze policy is aimed at changing the demographic character of the occupied territory in violation of the right to family life protected by international human rights law and intemational humanitarian law. In response to the report, the Ministry of Justice noted that the Palestinian Authority had not been transferring requests for entry into the territories as required under the Interim Agreement, and that accordingly the matter should be taken up with the Palestinian Authority. It noted that other issues raised in the report were under deliberation in the Supreme Court.
5. Palestinian Prisoners * B'Tselem: Barred from Contact: Violation of the Right to Visit Palestinians Held in Israeli Prisons September 2006, Information Sheet <www.btselem.orglDownload/200609~Barred~from~Contact~Eng.pdfi. Israel holds in prison more than 9 000 Palestinians from the West Bank and Gaza Strip. The vast majority are held in prisons situated inside Israel's sovereign territory. Family visits to prisoners are possible only through an International Committee of the Red Cross (ICRC) program. The report examines the ICRC's program for family visits with prisoners, and describes the many difficulties that Palestinians who take part in the program face. It argues that holding prisoners and detainees in Israel is in breach of the international prohibition on transfer of civilians, including detainees and prisoners, from the occupied territory to the territory of the occupying state. Israel's disregard for this prohibition is one of the main reasons that the prisoners and their families are unable to exercise their right to visits in a reasonable manner. Responding to the report, the Ministry of Justice acknowledged the importance of family visits, but indicated that these are subject to security concerns. It
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indicated the exceptional procedures available to persons who are generally prohibited from entering Israel, for visiting imprisoned family members. It considered the existing policy a reasonable balance between security concerns and the right to family visits. The Prison Service's response to the draft report emphasised the efforts of the Service to improve visiting conditions within budget limits. Gaza Strip
*
B'Tselem: Act of Vengeance: Israel's Bombing of the Gaza Power Plant and its Effects,
September 2006, Status Report ~www.btselem.org/english/Publications/Summaries/200609Act_ofVengeance.asp>. On 28 June 2006, following the abduction of Cpl. Gilad Shalit, the Israeli Air Force attacked the only electrical power plant operating in the Gaza Strip and destroyed its transformers. The report was written three months later, when the 1.4 million residents of the Gaza Strip were still living without electricity for long parts of the day and night. The report describes the electricity sector in the Gaza Strip, the difficulties it has faced since the attack, and potential solutions. It surveys some of the consequences of the electricity shortage, and considers the legality of the attack on the power plant and its implications from the perspective of international humanitarian law. The report criticises Israel for targeting a civilian object. This is a violation of international humanitarian law. It suggests that even if disruption of the electric supply in Gaza could provide a definite military advantage, Israel failed to opt for a less harmful option such as reducing the supply of electricity. The report considers the obligation to ensure reasonable living conditions to the population and the limitations under Israeli administrative law on obtaining compensation for losses. The draft report was presented to the IDF but received no response. 6. Freedom of Movement * Gisha (Center for the Legal Protection of Freedom of Movement): Disengagement Danger: Israeli Attempts to Separate Gaza from the West Bank Briefing Paper (February 2006)
<www.gisha.org/english/disengagement-danger.htm>. The briefing paper describes the ways in which Israel acts to separate the Gaza Strip from the West Bank by restricting access between the two territories and establishing a domestic legal framework apparently aimed at sealing off Gaza from Israel and from the West Bank. These efforts contravene Israeli commitments in signed agreements and in military orders to treat the Gaza Strip and the West Bank as a single territorial unit. Severing the Gaza Strip from the West Bank threatens the viability of economic, cultural, and social life in the Occupied Territories, especially in the Gaza Strip, and undermines Palestinian institutions, including the educational and health systems, which are spread throughout the Gaza Strip and the West Bank.
*
Gisha: Limitations on Access to Higher Education for Palestinian Students (December 2006)
<www.gisha.org/english/report~/Position~Paper-Dec-O6.pdfi.
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This report, submitted to the Parliamentary Committee for Education, Culture and Sport, highlights two central components of Israel's security forces' policy that limit the ability of Palestinians to access education. One is the sweeping ban on the right of Gaza Strip residents to travel to the West Bank for studies. This ban is allegedly in violation of the obligation to permit civilian life to hnction properly in the occupied territories, and a contravention of the principle that the West Bank and Gaza Strip constitute a single territorial unit. The other policy component is the sweeping ban on the entrance into Israel of Palestinian students.
7. Law Enforcement * Yesh Din (volunteers for Human Rights): A Semblance of Law upon Israeli Civilians in the West Bank (June 2006) ~www.yesh-din.org/report/ASemblanceofLaw-Eng.pdB.
-
Law Enforcement
The report documents the findings of Yesh Din's monitoring of 92 investigation files opened at the Samaria and Judea District of the Israel Police, the vast majority in 2005 and 2006. It indicates a general phenomenon of inadequate law enforcement against settlers who commit offences against Palestinians. The report documents serious faults in all stages of the law enforcement process: IDF soldiers present on the scene show a grave tendency to ignore offences; Palestinian complainants face physical and bureaucratic difficulties; the investigation process is faulty; an overwhelming majority of files closed without indictments are submitted. The report also argues that the IDF does not view the protection of the Palestinian civilians as one of its tasks, and does not explain to its soldiers and commanders their duties in that regard. In response, the Samaria and Judea District Police highlighted that it was operating in accordance with the law and procedures. Its work was hindered by lack of cooperation by both complainants and suspects, by security constraints and lack of expertise among law enforcement authorities. At the same time, it was studying the specific cases recorded with the aim to improve its performance. The IDF's response indicated that the primary responsibility for law enforcement lay with the police. Nonetheless IDF members are routinely briefed to refresh awareness of the procedures. The IDF has also taken preventive measures against violation of the law. 8. Israeli Settlements and Property
*
Peace now: Offence after offence - report on private lands (October 2006) (in French).
The report claims that 130 settlements and illegal posts have been established partly or wholly on private Palestinian land and that 40% of the settled areas are on private Palestinian land. This contravenes the Israeli Supreme Court's 1979 ruling in the Elon Moreh case322 (in which it ruled that civilian settlements may not be established on private Palesti-
322. HCJ 390179
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nian land). The report further claims that the State of Israel had attempted to conceal the data.
9. Critique of NGO reports * NGO monitor I<www.ngo-monitor.org/index.php>. NGO monitor, an Israeli-based project, aims to generate and distribute critical analysis and
reports on the output of the international NGO community, and to publicise distortions of human rights issues in the Arab-Israeli conflict and provide information and context for the benefit of NGOs working in the Middle East. Its website routinely features critical analyses of the factual and legal claims put forward in NGO reports on the Israeli-Arab conflict.
Government and IGO Reports 1. Second Lebanon War Implementation of General Assembly Resolution 601251 of 15 March 2006 Entitled "Human Rights Council", Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kalin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Mission to Lebanon and Israel (7-14 September 2006), LJN Doc AIHRCl217.
*
The report contains the findings of the four special procedures mandate holders concerning the effect of the conduct of the hostilities by Israel and Hizbollah on the rights to life, health and housing of the civilian population in Lebanon and Israel, as well as on the rights of persons internally displaced by the armed conflict. The report notes that in addition to human rights law, the principles of humanitarian law are entirely applicable to the conflict. According to the report, Israel violated the principles of distinction, proportionality and precaution. The mission concluded that while cluster munitions did not per se violate international law, the manner in which they were used by Israel appears to have been inconsistent with the principles of distinction and proportionality. The mission accepted that Israel has devoted considerable professional resources to vetting targets for compliance with international humanitarian law. However, the principle of distinction was not always respected. With regard to Hizbollah, the mission concluded that its extensive use of Katyusha rockets towards heavily populated civilian areas constitutes a clear violation of humanitarian law. Prima facie this also amounted to a war crime. The mission also concluded that Hizbollah made at least some use of houses and other civilian sites to hide or conceal military activities. Responding to the report, Israel highlighted the absence of clear reference to Lebanon's obligations as a sovereign state under international law. These include obligations to prevent the use of its territory for hostile acts, to prevent the provisions of funds and equipment and other support to terrorist groups, and most specifically to disband and disarm Hizbollah (required under UNSC 1559 (2006)). It also noted that the report gives unwarranted legiti-
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macy to Hizbollah as a party to a conflict, and does not refer to its failure to distinguish its own combatants from Lebanese civilians. In addition, Israel rejected some of the report's specific allegations of violations of international humanitarian law.
*
Implementation of General Assembly Resolution 601251 of 15 March 2006 Entitled 'Human Rights Council' Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-211 UN Doc. AIHRCII2 (23 November 2006).
The Commission of Inquiry was mandated by the Human Rights Council '(a) to investigate the systematic targeting and killings of civilians by Israel in Lebanon; (b) to examine the types of weapons used by Israel and their conformity with international law; and (c) to assess the extent and deadly impact of Israeli attacks on human life, property, critical infrastructure and the environment'. The Commission highlighted a significant pattern of excessive, indiscriminate and disproportionate use of force by the IDF against Lebanese civilians and civilian objects; failure to distinguish civilians from combatants and civilian objects from military targets and to take appropriate precautionary measures; deliberate attacks by the IDF on civilians, civilian objects and civilian infrastructure, amounting to collective punishment; direct attacks on internationally protected persons; and excessive use of cluster munitions not justified by any reason of military necessity. The Commission found some evidence that Hizbollah used towns and villages as shields for their firings when most of the civilian population had departed the area, as well as UNIFIL and Observer Group Lebanon posts. The Commission found no evidence regarding the use of 'human shields' by Hizbollah.
*
UNEP: Lebanon - Post Conflict Environmental Assessment (January 2007).
The report contains the findings of a UNEP expert team research visit to Lebanon in October 2006. Among the issues examined by the team were weapons and munitions. The team found no evidence of penetrators or metal made of depleted uranium or other radioactive material. In addition, no depleted uranium shrapnel, or other radioactive residue was found. All remnants of weapons found at sites visited during the period of the assessment could be identified as being weapons of well-known design. The team also confirmed the use of white phosphorous-containing artillery and mortar ammunition by the IDF. The report identifies the huge number of cluster bombs with a low detonation rate dropped by the IDF over the last days before the ceasefire as the main remaining problem to return to normal life in the affected regions. 2. Occupied Territories * Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied since 1967 UN Doc. A/CN.4/2006/29 (17 January 2006). * Implementation of General Assembly Resolution 601251 of 15 March 2006 Entitled "Human Rights Council" Letter dated 19 March 2007 from the Permanent Mission of Israel to the United Nations Office at Geneva addressed to the President of the Human Rights Council UN Doc. A/HRC/41G/15 of 26 March 2007.
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The report notes Israel's successful evacuation of settlers and withdrawal of the IDF from the Gaza Strip but emphasises that the occupation of the territory has not come to an end. Israel still retains effective control over the territory through its control of airspace, territorial sea and external land boundaries, and continued assertion of military control by means of sonic booms and repeated air strikes into the territory aimed at targeted militants. The report criticises the continued construction of the Separation Wall and the hardship it causes to the Palestinian population. It notes that settlements continue to grow; settler violence remains a serious problem; the character of East Jerusalem is undergoing a major change as a result of the construction of the wall aimed at the completion of the annexation of Jerusalem; and Israeli policies in the Jordan Valley are designed to drive Palestinians from the area. Responding to the report, Israel protested the one-sided mandate of the Special Rapporteur, which allows him to create a distorted image, using an intentionally selective perspective, without permitting him to examine fundamental aspects of the entire context of the situation, such as Palestinian violations towards Israel. US State Department, 'Israel and the occupied territories: Country Reports on Human Rights Practices' (2007). The report reviews the human rights situation in the Occupied Territories during 2006. It states that killings by Israeli security forces and settlers remained a serious problem. It notes claims of physical abuse of Palestinians by IDF soldiers. It criticises the failure to enforce the law against settlers' violence towards Palestinians; continued use of targeted killing; difficulties in securing legal representation by interrogated Palestinians, although lawyers reported better access to clients than previously; failure to notify foreign consular officials in a timely manner after detaining their citizens; inadequacies in military court proceedings; IDF looting and destruction of property; restrictions on Palestinian home constructions; destruction by the IDF and by Israeli settlers of groves and irrigation systems; land confiscation for the construction of the separation barrier; limits on political expression in East Jerusalem and on access of the media to and in the occupied territories, including beating of journalists and firing on them; limitations on freedom of assembly and confrontations between the IDF and non-violent protestors; restrictions of movement throughout the Occupied Territories; restrictions on family unifications; and alleged IDF use of minors as human shields. YAELRONEN
ITALY~~~ Peacekeeping * Law No. 5 1 of 23 February 2006, 'Converting Decree No.237 of 30 December 2005 on extension of time concerning legislative delegations and urgent provisions' [Legge 23 febbraio 2006, n. 5 1, 'Conversione in legge, con modificazioni, del decreto-legge 30 dicembre 2005, n. 273, recante definizione e proroga di termini, nonche' conseguenti
323. Information and commentaries by the team of researchers at the Institute for International Legal Studies, National Research Council (CNR), Rome.
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disposizioni urgenti. Proroga di termini relativi all'esercizio di deleghe legislative']. Entered into force on 29 February 2006. Published in Gazzetta Uficiale No. 49 of 28 February 2006 <www.camera.it/parlamileggi/0605ll.htm>and Law No. 247 of 4 August 2006, 'Provisions on Italian participation in international operations' [Legge 4 agosto 2006, n. 247 'Disposizioni per la partecipazione italiana a missioni internazionali']. Entered into force on 12 August 2006. Published in Gazzetta Uflciale No. 186 of 11 August 2006 <www.parlamento.it/parlam/leggi/06247l.htm>. After a fierce political debate, and in conformity with Italian legislative practice concerning military participation in international missions, Parliament adopted two laws providing, each for a period of six months, the extension of the operations abroad for 2006 and authorking their respective expenditures. In detail, Article 39 of Law No. 5112006 extends until 30 June 2006 the participation of Italian military staff in the following missions: Enduring Freedom, Active Endeavour and Resolute Behaviour in Iraq and International Security Assistance Force (ISAF) in Afghanistan; Over the Horizon Force in Bosnia and Kosovo; Multinational Specialised Unit (MSU), Joint Enterprise, United Nations Mission (UNMIK) and Criminal Intelligence Unit (CIU) in Kosovo; NATO Headquarters Skopje (NATO HQS) in Fyrom; Albania 2 and NATO Headquarters Tirana (NATO HQT) in Albania; the European Union (EU) Mission in Bosnia-Herzegovina (BiH) called ALTHEA; the monitoring Mission of the EU in the former Yugoslavia-EUMM; the international Mission called Temporary International Presence in Hebron (TIPH 2); the peace process in Sudan and the United Nations Mission in the country (UNMIS); the EU police Mission in the Democratic Republic of Congo (EUPOL Kinshasa); the EU Border Assistance Mission in Rafah (EUBAM Rafah); the United Nations Peacekeeping Force in Cyprus (UNFICYP), with the new mandate established by Security Council Resolution 1 6 4 2 ; and ~ ~ NATO ~ Mission for humanitarian relief in Pakistan. For the same period, Law No. 5 112006 authorises the participation of Italian Police and Carabinieri (paramilitary police) in some operations such as UNMIK, the EU Missions in BiH and in Macedonia called respectively EUPM and EUPOL Proxima. In addition, Italian Police has been authorised to take part in cooperation programs in Albania and other Balkan countries and in the activities concerning the institution of an EU assistance mission in Moldavia and Ukraine for borders' administration and customs controls. The Law under examination also reaffirms the application of the Military Criminal Code of War to Italian military staff employed in international missions in Afghanistan and Iraq, while for military personnel participating in the other aforementioned operations the Military Criminal Code of Peace is applied. Further, Law No. 5 112006 provides Italy jurisdiction over crimes committed in Afghanistan and in Iraq against the Italian state or against citizens employed in international missions in those countries. The law authorises scientific research on the level of uranium and other toxic substances by Italian soldiers involved in international missions. A paragraph of Article 39 of Law No. 5 112006 is dedicated to the humanitarian Mission in Iraq, called 'Antica Babilonia'. It authorises the expenditure of 22 928 310 Euro for its
324. SC Res 164212005, UN Doc. SiRESl1642, 14 December 2005.
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operation until 30 June 2006. It is specified that the Mission
has the mandate to sustain Iraqi reconstruction and to give assistance to people in conformity with resolutions of the UN Security Council. In detail, the operative activities of the Mission are destined: to support social and economic development in favour of the most vulnerable people, to provide training in public administration, management and information technology; to develop means of communication; and to sustain the institutional and technical development of the country. Law No. 247/2006 has been adopted in order to delay until 31 December 2006 Italian participation in international missions mentioned in Law No. 5 112006 and to authorise the necessary expenditures. Regarding the Operation 'Antica Babilonia', it is important to recall that the new Italian Government, in office from 17 May 2006, led by a coalition of left-wing parties decided to withdraw troops from Iraq by the end of 2006. In fact, Article 1 o r Law No. 24712006 provides the extension of the humanitarian mission in that country until 3 1 December 2006, while Article 2 authorises the expenditure of 130 430 101 for the return of military staff from ~ r a In ~regards . ~ to~Italian ~ participation in international missions in Iraq, a political debate started on the adoption of Law No. 24712006 between the Government and the opposition (a coalition of right-oriented forces) that was against the withdrawal and wanted a reinforcement of the Italian contingent operating in Nassiriya. Nevertheless, for the majority there were no longer suitable political conditions to continue taking part in the 'Coalition of the Willing' led by the United States and the Mission was outside the legal framework of the UN. In addition, for the new Government the expenses of the Mission were u n s ~ s t a i n a b l e . ~ ~ ~ The Government expressed a different political view about Afghanistan where Italy takes part in operations decided by the UN and NATO, and also participates in operations because of its membership to the EU. This position has been criticised by the radical leftwing parties represented in the Government who wanted an 'exit strategy' from that country, like the Iraqi one. For these reasons, the Minister of Foreign Affairs, Mr. Massimo D'Alema, on the occasion of the parliamentary debate on refinancing of Missions in Afghanistan, said that the situations in these two countries are completely different. In Iraq a preventive war has been launched, while in Afghanistan missions have been decided in the framework of international organisations to which Italy is member.327
VALENTINA DELLA FINA~~'
*
Law No. 270 of 20 October 2006, Conversion into law of the Decree No. 253 of 28 August 2006 containing provisions on the intervention for the cooperation of development in Lebanon and the increase of Italian troops in the mission UNIFIL, as re-defined by UN Security Council Resolution 170 1 (2006). [ Legge 20 ottobre 2006, n. 270, Conversione in legge, con modificazioni, del decreto-legge 28 agosto 2006, n. 253, recante
325. The withdrawal started in autumn 2006. 326. See A. Parisi (ministro della Difesa), 'Nt indifferenti ne isolazionisti' in Corriere della sera, 14 June 2006. 327. See G. Sarcina, 'Afghanistan, D'Alema evoca le dimissioni' in Corriere della sera, 12 July 2006. 328. Valentina Della Fina is a researcher at the Institute for International Legal Studies of the National Research Council (CNR), Rome.
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disposizioni concernenti l'intervento di cooperazione a110 sviluppo il Libano e il rafforzamento del contingente militare italiano nella missione UNIFIL, ridefinita dalla risoluzione 1701 (2006) del Consiglio di Sicurezza delle Nazioni Unite], published in Gazzetta Ufficiale No. 25 1 of 27 October 2006 and entered into force on 28 October 2006. In Law No. 270 of 20 October 2006, the Italian Parliament converted a Governmental decree by modifying it. The Executive issued this on grounds of urgency329in follow-up of the UN Security Council Resolution 1701.330 The Law builds up two different missions in Lebanon. One has the humanitarian aim to aid the Lebanese population, by furnishing assistance in the field of health and in other areas.331 The second intervention is a very military one. Article 2 of the Law confirms the participation of an Italian military contingent to U N I F I L , ~ according ~~ to the mandate contained in UN Security Council Resolution 1701. ~ ~ Italian ~ armed forces have participated in it since UNIFIL was established in 1 9 7 % The its inception and have the leadership before Security Council Resolution 1701. Law No. 27012006 increases the Force according to para., 11 of Security Council Resolution 1701. The Italian Law establishes which domestic law is applicable to the military personnel employed in the framework of UNIFIL mission. The penal military code of peace applies when a low-intensity use of force is allowed and the penal military code of war applies only when a high-intensity use of force is allowed. In this case, according to the Italian Government, the level of intensity necessary in order to qualify the situation as an armed conflict is not reached and therefore the penal military code of peace is applicable. ~ ~applicable. ~ This Article Nevertheless, in addition, Article 9 of Law No. 6 of 2 0 0 2 is states some limitations to the rights of the indicted persons, due to special needs arising from an ongoing military operation or conflict situation. Furthermore, it provides for the red-handed imprisonment (flagrante delicto) of persons committing crimes set out in the penal military code of peace, such as disobedience (Article 173); rebellion (Article 174), mutiny (Article 175), insubordination with violence (Article 186). Even if the Law establishes that the penal military code of peace is applicable instead of the penal military code of war (which applies in every situation of armed conflict, not only war335),at the same time the Law provides for a sort of 'reinforcement' of its provisions. In
329. As allowed by Article 77 of the Italian Constitution. 330. SC Res 170112006, UN Doc. S/RES11701, 11 August 2006. 331. In conformity with para., 6 of the SC Res 1701 (2006). 332. United Nations Interim Force in Lebanon. 333. SC Res 42511978 UN Doc. SiRES1425, 19 March 1978 and SC Res 42611978, UN Doc. Si RES1426, 19 March 1978. 334. See V. Della Fina, Law No. 6 of 3 1 January 2002, 'Conversion in law, with modifications, of the Decree-law No. 42 1 of 1 December 200 1, concerning urgent dispositions for the participation of military staff to multifunctional operation called 'Enduring Freedom'. Amendments to the Military Penal Code of War, approved by Royal Decree No. 303 of 20 February 1941', in report on Italy in 5 YIHL (2002), pp. 549-550. 335. This modification to the Italian penal military code of war, in order to make it in conformity with international humanitarian law, was made by cited law 612002. In fact, Article 2 para., d) modifies Article 165 of the Italian penal military code of war, specifying that its field of application extends to all armed conflicts. The Italian penal military code of war applied, for instance, to military person-
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fact the powers of the military police are enlarged, with a consequent restriction of the human rights of the individuals. This is justified by the situation of ongoing military operations in which the acts constituting crimes are committed. This seems to be a compromise solution, due to the exigency to assure the effective repression of crimes even in a context not yet qualified as a conflict. Therefore, according to the low-intensity use of force mandate contained in Security Council Resolution 1701 Italy does not seem to consider its troops to be involved in an armed conflict. Law No. 270/2006 specifies that the aforementioned rules apply only to the personnel participating in the very military mission in the frame of UNIFIL (and not to the personnel employed for the cooperation of development). The legal status of the mission itself is taken into account under domestic law, by submitting it to the provisions of Law No. 15 of 2002, concerning some economic privileges for the troops participating in missions abroad.
VALERIA EBOL?~' Cases
1. Terrorism Order of referral to the Constitutional Court by the third penal Appeal Assize Court of Milan of 13 March 2006, in the frame of the proceeding on the case 'Bazar', concerning acts of terrorism committed by Tunisians nationals (questione di legittimita Costituzionale sollevata nell'ambito del process0 relative al caso Bazar, dinanzi alla terza Corte d'Assise d'Appello di Milano. Eccezione del 13 marzo 2006).
*
The first penal Assize Court of Milan delivered a decision on the so-called 'Bazar' case on 10 May 2 0 0 5 . ' ~The ~ crime of international terrorism provided for by Article 270 bis of the Italian penal code, committed by five Tunisian nationals, was at issue and the Court acquitted the indicted persons because of lack of evidence. In the aftermath of the decision, the Prosecutor appealed and the case was referred to the third penal Appeal Assize Court of Milan. The process was suspended on 13 March 2006 because of the promulgation of a new law, Law No. 4612006 (so-called 'Legge Pecorella'), which modifies Article 593 of the Code of Penal Procedure by preventing the appeal of the decisions acquitting the indicted persons. The judge of appeal referred to the Constitutional Court the question of whether the Law 'Pecorella' complies with Article 11 1 para., 2 of the Italian Constitution, because of the assumed lack of equality of the rights granted to the parties to the penal proceeding
nel employed in the missions in Afghanistan. See V. Eboli, 'Law No. 42 of 18 March 2003, Converting Decree No. 4 of 20 January 2003 and Containing Emergency Provisions on Prosecution of the Italian Participation in International Military Operations and Modifications to the Military Criminal Code of War', in report on Italy, 6 YIHL (2003),pp. 524-525. 336. Valeria Eboli (Ph. D. University "La Sapienza" of Rome) is Charged Professor of International Law at the University of Pisa /Italian Navy's Academy and consultant of the Institute of International Legal Studies, National Research Council (Rome). 337. See V. Eboli, 'Decision of the first penal Court [Assize Court] of Milan of 10 May 2005 on the case 'Bazar', concerning acts of terrorism committed by Tunisian nationals [Prima Corte d'assise di Milano, sentenza del 10 maggio 2005 sul caso Bazar]', in report on Italy, 7 YIHL (2005), pp. 466-467.
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(i.e., the Prosecutor representing the state on the one hand and the indicted persons on the other hand). As to the merits, the case under review concerns a presumed terrorist cell, recruiting personnel to fight for jihad and organising armed attacks. Following the suspension of the proceeding before the Court of Appeal, the case is pending.
VALERIA EBOLI
*
Mohammed Daki et al. case before the Supreme Court: Court of Cassation, First Penal Section, Judgement No. 1072, 11 October 2006 [published by the Electronic Documentation Centre of the Supreme Court of Cassation (C.E.D. Cassazione), <www.cortedicas sazione.it~>.~~~
This decision revokes the judgement delivered by the Third Court of Appeal of Milan on 28 November 2005 that absolved Mohamed Daki, Bouyahia Maher Ben Abdelaziz and Toumi Ali Ben Sassi from any breach of Article 270 bis of the Italian penal code. This norm deals with the crime of association for purposes of terrorism ('associazione con finalita di terrorism~'). It should be remembered that these foreign citizens were accused of being members of an Islamic fundamentalist group operating in the North of Italy (known as 'Ansar Al Islam') and of having recruited persons and collected funds to be sent to Iraq and other war zones in support of terrorist activity. On 24 January 2005, they were absolved by the judge at preliminary hearings in the Court of Milan, and this decision was confirmed, on 28 November, by the Third Court of Appeal. These judgements are principally based on the argument that activities carried out by the accused were not intended to create indiscriminate fear in the civilian populations, in the name of an ideology or religious faith, but to support 'Iraqi resistance' (in anticipation of the US attack of March 2003), by supplying volunteers recruited as 'combatants'. The judge's absolution derived from the fact that no evidence was shown, in either phase of the proceedings that the group's actions had included planning or conducting acts differing from legitimate 'guerrilla' activity that is, falling clearly within the category of terrorist acts.339 These conclusions - later reversed by judgement No. 107212006 of the Court of Cassation - were clearly based on an interpretation of the legal concept of terrorism whose keypoint is the distinction between 'acts of terrorism' and 'acts of violence committed in warfare by combatants', including irregular troops. The latter acts are not punishable under international law or Italian legislation, except in the event of breaches of international humanitarian law. In particular, the Court of Appeal inferred from relevant norms of international and EU law, with which Italian legislation complies, that acts of terrorism committed in warfare or in similar situations, such as foreign military occupation - only include unlawful acts -
338. Also published in 'Altalex', ~www.altalex.com/index.php?idstI-20&idnot=36174~. 339. See 0.Ferrajolo, Mohammed Daki et al. case, in report on Italy, 7 YIHL (2005),pp. 459-462.
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liable to create fear in the civilian population and to cause a serious prejudice to states or international organizations, provided that they are directed against the civilian population and intended for political or ideological purposes.340 On this point, the Court of Appeal refers to Article 270 sexies of the Italian penal code, defining 'behaviours for the purposes of terrorism',341 in conjunction with: a) Article 2.6 of the 1999 UN Convention for the Suppression of the Financing of error ism^^^ and EU Framework Decision No. 20021475lJHA on combating terrorism343(as regards to the definition of 'terrorist acts'); and b) the 1949 Geneva Conventions and Additional ~ r o t o c o l s ~ ~ ~ (as the international corpus iuris where the concept of 'armed conflict' and obligations established upon combatants, including irregular troops, are to be found). Therefore, since no evidence had been shown that - in the framework of the Iraqi war, and in the period under examination - any attack against the civilian population had been carried out in Iraq, the Court of Appeal deemed that Mohamed Daki and the other accused should be regarded as 'freedom fighters' and, thus, absolved from crimes under Article 270 bis. This judgement was challenged before the Court of Cassation (hereinafter 'the Supreme Court') by the Prosecutor in the Court of Appeal, principally utilising the argument that the international and national norms applicable in the case had been erroneously interpreted. This view is shared by the Supreme Court in judgement No. 1072 of 11 October 2006, whose reasoning can be summarised as follows. Firstly, EU Framework Decision No. 20021475 of which Article 270 sexies of the Italian penal code is an implementing norm - does not deal with acts committed in warfare. The Article, however, also contains a proviso extending its scope of application to 'any -
340. Mohammed Daki et al. case, Court of Appeal decision. 341. See V. Eboli, 'Law No. 155 of 31 July 2005, Conversion into law of Decree No. 144 of 27 July 2005 containing urgent provisions for the fight against international terrorism' ['Legge 3 1 luglio 2005, n. 155, Conversione in legge, con modificazioni, del decreto-legge 27 luglio 2005, n. 144, recante misure urgenti per il contrast0 del terrorismo intemazionale'] in report on Italy 7 YIHL (2005) pp. 453-55. 342. 1999, GA Res 109, UN Doc. A/RES1541109,25 February 2000. The 1999 Convention (which Italy ratified through Law No. 712003) establishes in Article 2 that the Convention applies to '(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of' armed conjlict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a govemment or an international organization to do or to abstain from doing any act' (emphasis added). 343. In European Union OjJcial Journal No. L 164 of 22 June 2002, pp. 3-7. 344. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'); Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977, 1125 UNTS 3 ('Additional Protocol 1'); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1977, 1125 UNTS 609 ('Additional Protocol 11').
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other behaviour described as an act of terrorism in treaties or other norms of international law that are binding on Italy'. Therefore, Article 270 sexies introduced into the Italian legal system not only the hypotheses of terrorist acts provided for in EU Framework Decision, but also a wider definition of acts of terrorism, resulting from Article 2.b of the 1999 UN Convention, which is binding on Italy. It therefore derives that the purpose of terrorism may result, under Italian legislation, also from acts committed during armed conflict (either international or non-international), provided that those acts are directed against non-combatants (those against military objectives being uniquely regulated by the Geneva Conventions and Additional ~ r o t o c o l s ) . ~ ~ ~ As a second point, the Supreme Court interprets Article 270 bis of the penal code as meaning that crimes of terrorism committed 'by a group of persons acting with common purpose' do exist not only when such criminal acts are committed, but simply by the fact of 'the constitution of a criminal organization of persons and means' through which the group intends to realise a program of acts of violence or attacks, with the purpose of terrorism. In the view of the Supreme Court, crimes to which Article 270 bis applies fall within the category of 'crimes of presumed risk' ('delitti di pericolo presunto'), and are punishable, for this reason, even before the planned or envisaged acts of violence are committed, because the preparatory activities, which are necessary - and necessarily prior - to those 346 criminal acts, are per se a crime of terrorism. In the opinion of the Supreme Court, this does not imply that members of an Islamic fundamentalist group could be prosecuted for mere participation in the group (as that would be inconsistent with the freedoms of religion and association). However, for Article 270 bis to apply, it suffices that evidence is shown in the proceedings that a criminal organisation with the purpose of international terrorism is in place, and able to effectively carry out its program of acts of violence, irrespective of whether these acts are eventually committed or not. From this point of view, the judgement of the Court of Appeal lacks a sufficiently thorough analysis of the relationship between the accused and Ansar A1 Islam, a group that the UN Security Council includes in the list of criminal organisations linked to A1 ~ a e d aThe . ~ Court ~ ~ of Appeal also omitted to ascertain whether the support given by Mohamed Daki and the other accused to the activities of Ansar a1 Islam (through collecting funds and facilitating the illegal entry into Italy of persons recruited to be sent to Iraq) objectively constituted, or was perceived by them, as 'a functional link' with that criminal organisation, which was, at the time, managing terrorist training camps in Iraq and other war zones. 348 Finally, in regards to argument that in the period in which Mohamed Daki and the others gave their support to Ansar A1 Islam no attack against the civilian population was carried out in Iraq, the Supreme Court remarked that even acts of violence committed in warfare against military objectives may constitute 'terrorist acts', when, in particular circumstances,
345. Mohammed Daki et al. case, Court of Cassation, No. 107212006, paras. 2.1. and 2.2. 346. On this point the judgement (para. 3) makes a renvoi to previous decisions of the Supreme Court: judgement of the Second Penal Section, No. 2499412006 (Bouhrama) and judgement No. 3542712005 of the First Penal Section, (Deissi). 347. SC Res 126711999, UN Doc. SlRES11267, 15 October 1999. 348. See Mohammed Daki et al. case, Court of Cassation, No. 107212006, para., 3, in fine, and para., 5 ff.
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there is certainty that they will inevitably cause serious prejudice to the civilian population, and thus contribute to spreading indiscriminate fear.349 In conclusion, the interpretation of Article 270 bis made by the Court of Appeal is illogical and erroneous; it resulted in the Court failing to consider certain aspects of facts relevant to the decision. For these reasons, the Supreme Court revoked the judgement, referring the case to a different section of the Court of Appeal, which will decide on the merits, in full conformity with the legal principles clarified by the Supreme Court. Judgement No. 1072/2006 of the Supreme Court, which authoritatively interprets Article 270 bis and Article 270 sexies of the penal code, is deemed one of the most important decisions on the legal conception of international terrorism yet delivered in Italian case law.350It should be questioned, however, whether this conception may be considered as firmly established, or susceptible to further developments, in line with the evolution of international law, and in particular in regards to the still controversial issue of acts of violence committed by 'freedom fighters'.35' In this regard, it seems useful to conclude by reporting the dictum of the Supreme Court according to which the renvoi made by Article 270 sexies to treaties and other norms of international law binding on Italy should be interpreted 'in a dynamic manner'; a proviso that automatically conforms Italian legislation not only to treaties already in force, but also to new rules that may develop in international law on this ORNELLA FERRAJOLO~~~
International Military Tribunals Law No. 64 of 6 February 2006 concerning ratification and execution of the agreement between the Italian Government and the UN for the implementation of the decisions of the International Criminal Tribunal for Rwanda, signed in Rome on 17 May 2004, and norms of adaptation of the internal judicial system [L. 64/06 Ratifica ed e.recuzione dell' Accordo fm il Governo della Repubblica italiana e le Nazioni Unite per l'esecuzione delle sentenze del Tribunale penale internazionale per il Ruanda, fatto a Roma il 17 marzo 2004, e norme di adeguamento dell' ordinamento interno], published in Gazzetta Ufficiale no. 53 of 4 March 2006 and in force on 5 March 2006. Law No. 64 of 6 February 2006 contains at the same time, in conformity with the Italian legislative practice, the authorisation for the President of the Republic (Head of State) to
349. Ibid., para., 6.4. 350. We recall that Article 270 his and Article 270 sexies were inserted in the penal code, respectively, in 2001 (Decree No. 37412001) and 2005 (Decree No. 144j2005, converted into Law No. 1551 2005); therefore, their interpretation is not yet well-consolidated. 351. On this point for one of the major obstacles encountered within the negotiating process of the UN Comprehensive Convention on International Terrorism, see 'Report of the Ad Hoc Committee established by General Assembly resolution 511210 of 17 December 1996, Eleventh Session (5, 6 and 15 February 2007)', General Assembly Official Record, Sixty-second Session, Suppl. No. 37 (A/62/ 37), Annex, para., 5. . 352. See Mohammed Daki et al. rase, Court of Cassation, No. 107212006, para., 2.2. 353. Ornella Ferrajolo is a senior researcher at the Institute for International Legal Studies of the National Research Council (CNR), Rome.
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ratify a treaty and its consequent implementing order (so-called 'ordine d ' e s e c u ~ i o n e ' ) . ~ ~ ~ The Treaty concerned is between the Italian Government and the UN for the execution in Italy of the decisions of the International Criminal Tribunal for Rwanda (ICTR), signed in Rome in 2 0 0 4 . ~This ~ ~ Agreement represents a follow-up of Law No. 181 of 2 August 2 0 0 2 ~relating ~ ~ to cooperation between the Government of Italy and the ~ r i b u n a and l~~~ that Law was explicitly taken into account in the foreword considerations to the Agreement. The Agreement itself provides for the enforcement in Italy of the judgements of the Tribunal, relating to the detention of the convicted persons in Italy. The Agreement also indicates the procedure of cooperation between the Italian Government and the ICTR, stating that the relationships are maintained between the Ministry of Justice of the former and the Registry of the latter. Article 3 of the receipt Agreement specifies that the conditions of imprisonment shall be governed by the Italian Law, but that the International Committee of the Red Cross (ICRC) shall inspect the conditions of treatment and detention ('at any time and on a periodic basis', Article 6 of the Agreement), following specific arrangements with the Ministry of Justice. The Reports of the ICRC will be submitted to both the Ministry of Justice and the President of the Tribunal and if the ICRC suggests any change in the conditions of detention, the President can ask the former to report to him about them. The treatment of imprisoned persons is a core point of the Agreement. The Preamble also recalls several UN documents relating to this, such as Basic Principles for the Treatment of Prisoners, adopted by the General Assembly with Resolution 4511 11358or the Standard Minimum Rules for the Treatment of Prisoners, approved by the Economic and Social Council (ECOSOC) with Resolution 663 C ( x x I v ) . ~ ~ ~ The Agreement therefore establishes that continuous information will be given by Italy regarding every event relating to detention and imprisoned persons. Furthermore Law. No. 6412006 partially modifies the aforementioned Law 18112002 on the cooperation between Italy and the ICTR. Article 7 para., 4 of Law 18 112002 established
354. International treaties are usually received by the Italian legal order through a law which makes reference to the agreement without repeating the text or translating it. So it comes into domestic law as it stands in international law. 355. The text of the 'Agreement between the United Nations and the Italian Republic on the Enforcement of sentences of the International Criminal Tribunal for Rwanda' is available at:
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that the Italian judge
charged with r e ~ o ~ n i sthe i n sentence ~ ~ ~ ~ of the ICTR, had to convert every penalty into imprisonment. It also added that the maximum term of detention was 30 years, in conformity with Italian criminal laws. The Agreement at issue and Law 6412006 modify this provision by stating that the duration of penalty cannot be changed, but that it has to be the penalty pronounced by the ICTR. This is a sort of exception to the applicability of Italian laws to detention. In this regard, a kind of primacy is granted to the judgement of the ICTR. This Law is very important for international humanitarian law. as is self-evident. Italy, by executing the Agreement with the UN for the enforcement of the judgements of the ICTR, contributes in a very effective way to the implementation of international humanitarian law. If the decisions of the ICTR are not executed, the Tribunal's aim would not be achieved, with a consequent impunity for convicted persons. This Law is in compliance with the obligations arising from the Geneva Conventions.
VALERIA EBOLI Transnational Organised Crime * Law No. 146106 of 16 March 2006 on Ratification and Implementation of the United Nations Convention against the Transnational Organised Crime and its Protocols adopted by the General Assembly on 15 November 2000 and 31 May 2001. [Ratifica ed esecuzione della Convenzione e dei Protocolli delle Nazioni Unite contro il crimine organizzato, udottuti dall'ilssemblea generale il 15 novembre 2000 e il 31 maggio 20011. Published in Gazzetta Uficiale no. 85 of 11 April 2006. With Law No. 146, Italy ratifies the United Nations Convention against Transnational Organised Crime, the supplementing Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the supplementing Protocol against the Smuggling of Migrants by Land, Sea and Air adopted by the UN General Assembly on 15 November 2000 and the supplementing Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition adopted by the UN General Assembly on 3 1 May 2001 .36' Transnational organised crime is considered to be one of the major threats to human security, impeding the social, economic, political and cultural development of societies worldwide. It is a multi-faceted phenomenon and has manifested itself in different activities, among others, drug trafficking, trafficking in human being, trafficking in firearms, smuggling of migrants. Furthermore, the proliferation of weapons and the growing links between the several forms of organised crime and terrorism facilitate the rise of so-called 'new conflicts'.362This is the reason why the aforementioned instruments constitute a relevant legal framework even within international humanitarian law.
360. According to Article 7 of Law 18112002 this is necessary in order to allow the execution of it in Italy. The competent judge is the Appeal Court of Rome. 361. See GA Res 55/25, UN Doc, AIRES/55/25,8 January 2001 and GA Res 551255, UN Doc, A/ RESl551255 of 8 June 2001. 362. See A. Picci, 'Territorio e violenza criminale nei territori soggetti ad operazioni di peace-keeping', 3 Rivista trimestrale di Scienza dell'amministrazione (2004) pp. 39-43.
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One of the most important contributions given by the Convention is the introduction of a shared definition of 'transnational crime' (Article 3). Under the Convention, an offence is transnational in nature if: a) it is committed in more than one state; b) it is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state; c) it is committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or d) it is committed in one state but has substantial effects in another state. The same definition has been included in Article 3 of the Law No. 1 4 6 . ~ ~ ~ Because of the mutatis mutandis clause, the main Convention provisions concerning cooperation in law enforcement, in particular those on extradition and mutual legal assistance are applicable to the Protocols. Referring to the latter, it is important to underline that they deal with the three most concerned transnational organised criminal activities. The first supplementing Protocol on 'trafficking in persons', provides the first definition of that term in a legally binding international instrument. Article 3(a) defines such trafficking as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other form of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The latter includes sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.364 The second optional Protocol deals with 'smuggling of migrants'. Pursuant to the provisions of Article 6, any conduct consisting in the procurement, oriented to obtain - directly or indirectly - a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident, is criminalised. As already mentioned, a particular form of organised crime is also represented by the trafficking in firearms. It is worthwhile to observe that the right to individual or collective self-defence is recognised in Article 51 of the UN Charter and each state has the right to acquire arms with which to defend itself. Nevertheless, the UN has raised the urgent need to combat the harmful effects of such activity for the security of each state. For this purpose, the third supplementing Protocol identifies as criminal offences, when committed internationally - (i) the illicit manufacturing and trafficking of firearms and their components and ammunition, and (ii) falsifying or illicitly obliterating, removing or alternating the making on firearms (Article 5). In this regard, Article 15 of Law No. 146, incorporating the Protocol's provisions, modifies Article 11 of Law No. 110 of 18 April 1975. In order to identify firearms, it specifies -
363. See G. De Amicis - O.Villoni, 'La ratifica della Convenzione ONU sulla criminalita organizzata transnazionale e dei suoi Protocolli addizionali' 718 Giurisprudenza di Merito (2006) pp. 16281638. 364. F. Franceschelli, 'Tratta di esseri umani e traffic0 di migranti: I'Italia ratifica la Convenzione ONU del 2000', 1 Diritti dell'uomo:cronache e battaglie (2006) pp. 62-68.
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that the latter should have, beyond the serial numbers and other identifying elements, the name or place of manufacture and the acronym of Republic of Italy, or of another country in the case that they have been imported from an EU country.3h5 Under the Convention and the Protocols, State Parties shall adopt such legislative and other measures as may be necessary to establish criminal offences in the circumstances indicated by these instruments. For this purpose, Article 18, para., 13 of the Convention provides that each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. In this regard, Law No. 146 identifies the Italian Minister of Justice as the central authority entrusted to implement the mentioned provision. Furthermore, it states that the Minister of Interior and the Minister of Justice shall annually inform the Parliament about the implementation of the Convention provisions concerning the relationships among States Parties on police and judiciary cooperation (Articles 16, 18 and 27). The Convention also affirms that the States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence covered by the Convention in cases where such transfer is considered to be the interests of justice (Article 2 1). In addition, under Article 12 of the Convention, each State Party shall adopt, within its legal system such measures as may be necessary to enable confiscation of proceeds of crime, property, equipment or other instrumentalities used in or destined for use in offences covered by the Convention. For this purpose, Article 11 of Law No. 146 foresees that whereas the confiscation of the proceeds of crime is not possible, the judge orders the confiscation of sums of money of equivalent value.36h The Convention also establishes that criminalisation of obstruction of justice (Article 23) and invites State Parties to introduce such a provision in their domestic legislation. With Law No. 146, Italy recognises this kind of crime modifying Article 377 of its penal code. SILVANA MOSCATELLI~~' International Criminal Court * Law No. 130/06 of 6 March 2006 on Ratification and Implementation of the Agreement on the Privileges and Immunities of the International Criminal Court, adopted in New York on 10 September 2002. [RatiJca ed esecuzione dell 'Accordo sui privilegi e le itnmunita della Corte penale internazionale,fatto a New Yovk il 10 settembre 20021. Published in Gazzetta Ujficiale No. 75 of 30 March 2006.
365. C. Ponti, 'Le Nazioni Unite e il controllo delle arrni da hoco illecite', 3 La Comunita internazionale (2006) pp. 545-563. 366. On this aspect, see G. Tona, 'Strategie di contrasto della ctmobilita patrimonialen del crimine transnazionale: dalla cooperazione giudizjaria al reciproco riconoscimento degli ordini di sequestro e confisca dei proventi del reato', 12 Rivistapenale (2005) pp.1285-1294. 367. Silvana Moscatelli is consultant of the Institute of International Legal Studies, National Research Council (Rome).
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With Law No. 130196 of 6 March 2006 the Italian Parliament authorised the ratification and implementation of the Agreement on privileges and immunities of the International Criminal Court ( I C C ) . ~ ~ ~ It should be remembered that the ICC is the first permanent Tribunal whose aim is the repression of the most serious crimes of concern to the international community, that is to say the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.369 Article 48 of the Rome Statute already recognises privileges and immunities enjoyed by the Court. Nevertheless, the adoption of a specific instrument (Law n. 130/96) was necessary because concrete definitions on privileges and immunities are fundamental to preserving the Court's independence and impartiality in pursuit of its aims. Under Article 2 of the aforementioned Agreement, the Court shall have international legal personality and shall also have the legal capacity (to contract, to acquire, and to dispose of immovable and movable property) as may be necessary for the exercise of its functions and the fdfilment of its purposes (as also provided by Article 4 of the Rome Statute). In this regard, it should be pointed out, on one hand that, under international law, the legal international personality of the I C C , ~ ~although ' recognised by the Statute, cannot be attributed by the Statute. Legal personality derives from the participation of the Court in the international community, through, inter alia, the exercise of its treaty-making power. On the other hand, providing legal personality in domestic law represents an obligation for a State Party. In this sense, the ICC is not in a different situation from international organisations.37 1 Under Article 7, the Agreement on Privileges and Immunities states the principle of inviolability of the Court's archive and documentation, wherever located and held. It also establishes inviolability of the Court's premises (Article 4). It is noteworthy to underline that not only the Court itself can enjoy immunities and privileges, but also representatives of states participating in the Assembly and its subsidiary organs and representatives of international organisations. In particular, they enjoy immunity from personal arrest, detention, legal process in respect to words spoken or written, and all acts performed by them in their official capacity. Their correspondence and documentation in whatever form are also inviolable. In this regard, we can observe that their immunities and privileges are not inconsistent with those of diplomatic agents in accordance with the 1969 Vienna Similar privileges and immunities are also broadened to extend to the witnesses to the degree necessary for their appearance before the Court. It is also necessary to add that the privileges and immunities conferred to judges, Prosecutor, deputy Prosecutor, Registrar and other personnel, pursuant to Article 15 through 22 of the Agreement, are 'granted in the interests of the good administration of justice and not
368. On ICC Statute, see S. Marchisio, 'Lo Statuto della Corte penale intemazionale', in 1 Diritti dell'uomo: cronache e battaglie (1998) pp. 49-52. 369. See the Rome Statute of the International Criminal Court 1998,2187 UNTS 90. 370. On the ICC structure and competence, see 0 . Ferrajolo, 'Corte penale intemazionale - Statuto', Agg. XI Enciclopedia giuridica del Diritto (2003). 371. See H. Ascensio, 'Privileges and immunities', in A. Cassese, 0 . Gaeta, J.R.W.D. Jones, eds., The Rome Statute ofthe International Criminal Court: A Commentary, vol. I, (Oxford, Oxford University Press 2002) pp. 289-295. 372. 1969, 1155 UNTS331.
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for the personal benefit of the individual themselves'. Consequently, they may be waived
and in certain circumstances such waiver is mandatory. 373 Under Article 12 of the Agreement, in the event that the Court in accordance with Article 3 of the Statute, decides to transfer its headquarter from The Hague to elsewhere, it may conclude with the state concerned an arrangement relating to the provision of the appropriate facilities for the exercise of its functions. Receiving the provisions the Agreement, Law No. 130 makes the Court enjoy, on Italian territory, of all privileges and immunities necessary for the fulfilment of its purposes as expressly mentioned in Article 3 of the Agreement. MOSCATELLI SILVANA
JORDON
See Arab League Model Law in the Algerian section.
KUWAIT See Arab League Model Law in the Algerian section.
LEBANON See Arab League Model Law in the Algerian section.
LIBYA See Arab League Model Law in the Algerian section.
Cases
Dailide case * Vilnius Regional Court judgement of 27 March 2006. * Appeal to the Lithuanian Court of Appeals 9 June 2006. Vilnius Regional Court has found 85 year old Algimantas Mykolas Dailide guilty of a helping the Nazis commit genocide against Jews in the Lithuanian capital during World War 11. As a result of his conviction, Dailide faced five to 20 years in prison, but the Vilnius Regional Court ruled that the 85 year-old man was too frail to serve a sentence. According to the Court 'The convicted is not a danger to society. He is relieved from criminal responsi-
373. D.A. Mundis, 'The Assembly of the State Parties and the Institutional Framework of the International Criminal Court', in 97 (2003) American Journal of International Law, pp. 132-147. 374. Information and commentaries provided by Rytis Satkauskas, lecturer at Vilnius University.
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bility and his criminal case is terminated.'375 The prosecution has demanded the minimum five year sentence under Article 100 of the Lithuanian Criminal Code 'Treatment of Persons Prohibited by International L ~ w ' It. has ~ ~been ~ established that Dailide worked for the Vilnius District Office of the Lithuanian Security Police, a repressive structure controlled by the Nazis. The Prosecutor General's indictment listed 15 persons who were persecuted for ethnic or political reasons and were deprived of freedom due to the criminal deeds Dailide allegedly committed.377The Court found him guilty of detaining two Jews who fled Vilnius ghetto. Dailide is the third person convicted of Nazi war crimes since Lithuania gained independence from the Soviet Union in 1991. None of the three elderly men have been required to serve time in prison. Aleksandras Lileikis, Dailide's boss in the Vilnius security police was put on trial in 2000, but the Court closed the hearing without passing a sentence because of his poor health. Similar to the Dailide case, a United States court revoked Lileikis' US citizenship after his role in the Holocaust came to light.378Kazimieras Gimiauskas, Lileikis' deputy, was convicted in 2001 when he was 94, but was given a suspended sentence after experts concluded that he was not mentally fit to take responsibility. Both Lileikis and Gimiauskas died soon after their trials. Lithuania Court of Appeals begun considering the appeal of the Vilnius Regional Court Dailide judgement 27 March 2006. Both the Prosecutor General and the convicted have appealed the judgement. In response to the Prosecutor's office complaints that the poor
375. 'Lithuanian man convicted but not jailed for WW I1 crimes' in Agence France-Presse, 27 March 2006. 376. According to this article, anyone who intentionally performed or supported state or organised policy and massively or systematically attacked civilians and killed them or caused grave harm to their health; created living conditions that caused persons deaths; trafficked persons; deported inhabitants; tortured, raped, participated in sexual slavery, forced prostitution, made pregnant by force or sterilised; persecuted any community of persons because of political, racial, national, ethnical, cultural, religious, gender or any other motives, prohibited by international law; detained, arrested or deprived persons of their freedom in any other way, when such deprivation of freedom is not acknowledged, or refused to give information about the fate or whereabouts of these persons; performed a policy of apartheid that is punishable by imprisonment for five to 25 years or life imprisonment. Translation from Prevent Genocide International ~www.preventgenocide.org/ltlLRBK99.htm>. 377. 'Lithuanian suspected of crimes against Jews to appear before court' in Baltic News Service, 25 November 2005; D.J.Ross, 'Lithuanian, 84, on trial for WW2 killings of Jews', Reuters, 20 March 2006. 378. For the action in the U.S. see United States v. Dailide, 953 F. Supp. 192 (N.D. Ohio 1997); United States v. Dailide 227 F.3d 385 (6th Cir. 2000); United States v. Dailide 316 F.3d 611 (6th Cir. 2003); Dailide v. United States Attorney Gen., 387 F.3d 1335 (I lth Cir. 2004); United States v. Lileikis, 929 F. Supp. 31 (D. Mass. 1996). See also United States Court of Appeals opinion No. 01-3820 (United States ofAmerica v. Algimantas M. Dailide) of 15 January 2003 by which the Court affirmed the order of summary judgement denying Dailide's collateral motions to the district court's previous order of summary judgement. 2003 FED App. 0019P (6th Cir.), also at
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health condition of the convicted has not been established, the Court has agreed to convene additional medical investigations of the convicted.
379
Reparations for War Damages * Russian President Vladimir Putin's special representative's declaration * Russian secret service justifies Soviet annexation of Baltic States. Russian President Vladimir Putin's special representative for relations with the European Union, Sergei Yastrzhembsky, met Lithuania's President Valdas Adamkus on 23 March 2006. Yastrzhembsky said that the issues connected with various historical assessments and with any claims, must remain in the past. The experience of most EU countries, Yastrzhembsky stated, showed that such issues should be solved from a modem perspective. Putin's aide stressed an example of relations between Germany and France a hundred years ago. Lithuania demanded that Russia compensate damage suffered by Lithuania during the Soviet occupation, but Moscow dismissed those claims. In the words of Mr. Yastrzhembsky: 'I can tell you for sure, Russia is not going to pay for the occupation damage. It is better to forget this discussion if we want our relations to move forward'. According to the Lithuanian commentators Lithuania should continue invoking the 'occupation damages' issue in order to bring the question of compensation for damage caused by the Soviet occupation up-to-date on the international scale. Even if it is understood that the present Russian administration will not accept entering into negotiations, the failure to advance the demands for redress may be interpreted as waiving them.3x' Besides, the Government should follow the line of the referendum of 14 June 1992, which formulated the demand to withdraw the USSR troops from the territory of the Republic of Lithuania and to compensate for the damage inflicted on the people of Lithuania and the ~ t a t e . " ~ Russia's foreign intelligence service (SVR) has declassified documents relating to the situation in the three Baltic countries in early 1940s and during World War 11. According to the chief spokesman of the intelligence service, Sergei Ivanov, 'these materials show that German-oriented policies conducted by governments in Latvia, Lithuania and Estonia threatened to turn these states into a staging ground for a German invasion of the Soviet Union'. Ivanov said, 'The archives contain special reports to the [Soviet] political leadership on secret talks between Latvian leaders and the Germans, about the inevitability of a future occupation of Estonia by German troops, and the readiness of the Lithuanian army to surrender to the Germans.' He also said declassified documents indicate that the United States and Great Britain accepted the entry of Soviet troops into the three Baltic States in
379. Lietuvos apeliacinis teismas, apeliacine tvarka pradijqs nagrineti Algimanto Mykolo Duilides baudiiamqjq bylq, paskyre teismo medicinos ek~pertizq,[Press release of the Lithuanian Court of Appeals], 8 June 2006, <www.infolex.ltiportal/start.asp?Tema=4916069>. 380. 'Russia won't pay Lithuania for 'occupation' RBC (Russian Business Consulting)' Moscow Times, 25 March 2006. 381. D. ialimas, ,'Lietuva privalo reikalauti soviety okupacijos ialos atlyginimo' [Lithuania Must Demand Compensation for Damage Done by Soviet Occupation] Geopolitika, cwww.geopolitika.lt/ index.php?artc=490>. 382. Resolution of the Supreme Council of the Republic of Lithuania No. 1-2683 of 30 June I992 on the decision adopted by the citizens of Lithuania on referendum of 14 June 1992. Valstyhes Zinios, (1992), NO.21-615.)
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1940 as a necessary and timely step. In June 1940, Russia accused Estonia of forming a conspiracy together with Latvia and Lithuania against it, and issued an ultimatum, demanding among other concessions that more Soviet troops be allowed to enter the three countries. In the following month, local communists loyal to the Soviet Union won parliamentary 'elections' in all three countries, and in August these parliaments asked the Soviet government for accession to the Soviet Union. As a result, the three states were formally annexed.383 Landmines
* *
Treaty Implementation Workshop in Minsk. Belarus Stockpile Destruction Event .
Lithuania cosponsored an international workshop on the implementation of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction ('Ottawa re at^')^^^ held in neighbouring Belarus from 22 - 24 May 2006. This event marked the beginning of a project to destroy Belarus' stockpiles of non-PFM antipersonnel mines - over 300 000 mines - managed by the NATO Management and Supply Agency (NAMSA). Belarus possesses a stockpile of almost 3.4 million PFM mines, which cannot be destroyed by open detonation because of their chemical explosives - will be destroyed through a project funded by the European Commission (EC) that is set to begin in January 2 0 0 7 . ~ ~ '
RYTISSATKAUSKAS
MAURITANIA See Arab League Model Law in the Algerian section.
MOROCCO See Arab League Model Law in the Algerian section.
383. 'Russian intelligence justifies Soviet annexation of Baltic states', 23 November 2006, RIA Novosti, . See also 'NATO-supported destruction of landmines on track in Belarus', NATO Update, 5 December 2006, <www.nato.int/docu/update/2006/12-december/e1205a.htm~.
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THE NETHER LANDS^'^ Cases 1. War Crimes Prosecutor v. G. Kouwenhoven, Hague District Court 7 June 2006, LJN: AX7098 (English translation: AY 5 160).
*
Kouwenhoven, a Dutch timber merchant, was inter uliu charged as a co-perpetrator, abettor or accomplice for his involvement in war crimes that were committed in the period between 1 December 2000 and 3 1 December 2002 in Liberia andor Guinea, West Africa, by persons belonging to one of the combating parties in an armed conflict in those countries. The Hague District Court found that during the internal armed conflict in Liberia in that period such war crimes (including torture rape, looting and acts of violence against civilians) had indeed taken place, possibly by security forces employed by the timber companies of which Kouwenhoven was director. However, the Court was not convinced by the evidence that Kouwenhoven, as a co-perpetrator, abettor or accomplice had been involved in those crimes. The Court did find Kouwenhoven guilty of having supplied weapons to Charles Taylor (then President of Liberia) andlor a legal entity in Liberia in the said period together and in conjunction with others, contrary to an arms embargo that, as a consequence of Security Council Resolutions 1343 (2001) and 1408 (2002),~'~ had been imposed on Liberia under the Dutch Sanctions Act 1977. The Court sentenced Kouwenhoven to eight years imprisonment, which is the maximum penalty that could be imposed for the offence. Both Kouwenhoven and the Prosecution have appealed to the Appeals Court in The Hague.
2. Extradition * Prosecutor v. K! A1 Delaema, Supreme Court of the Netherlands, 5 September 2006, LJN: AY3440, Nederlandse Jurisprudentie 2007, 10. The United States had on the basis of the extradition treaty between the United States and the Netherlands requested the extradition of Wesam A1 Delaema, a Dutch national born in Iraq, for having conspired to kill United States nationals in Iraq. According to the indictment, in or about October 2003, A1 Delaema had traveled from the Netherlands to an area in or around Fallujah, Iraq, where he had, together with co-conspirators, hid destructive devices in a road, which were to be detonated and would destroy American vehicles driving on the road and kill Americans in those vehicles. The extradition request was accompanied by the following statement by the United States authorities:
386. Information and commentaries by Professor emeritus Nico Keijzer and by Dr. Elies van Sliedregt, Associate Professor of criminal law at Vrije Universiteit, Amsterdam. 387. SC Res 134312001, UN Doc. SlRESl1343, 7 March 2001; SC Res 140812002, UN Doc. Sl RES/1408,6 May 2002.
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The Government of the United States assures the Government of The Netherlands that upon extradition to the United States, A1 Delaema will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, A1 Delaema will not be prosecuted before a military commission, (...); nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant. At the Rotterdam District Court's extradition hearing, A1 Delaema's defence lawyer claimed that the alleged conspiracy was not punishable, because it occurred in the context of an international armed conflict. The District Court rejected the plea, without discussing the issue of A1 Delaema's possible status as an Iraqi. Appeal has been lodged with the Supreme Court. The Supreme Court considered it a condition for the alleged conduct being justified to be that A1 Delaema belonged to the armed forces of a Party to the conflict. The Supreme Court held that insufficient facts and circumstances had been brought forward in this case to support the conclusion that this condition had been fulfilled. The appeal was rejected.
*
W A1 Delaema v. the Netherlands, Hague District Court, 9 December 2006, LJN: AZ4647.
This decision concerns a request for an injunction against extradition. The Minister of Justice by decree of 11 October 2006 decided to extradite Wesam A1 Delaema to the United States. In his decree, the Minister considered it to be sufficiently guaranteed that A1 Delaema, in case a custodial sentence would be imposed, should be enabled to serve his sentence in the Netherlands (this being a general condition for extradition of Dutch nationals). At the hearing of The Hague District Court, A1 Delaema put forward that by being extradited he would be exposed to the real risk of a flagrant violation of his rights under Articles 3 and 6 of the European Convention of Human Rights (ECHR).~'~ The Court held, however, that no facts or circumstances were put forward that would justify such fear. The injunction was refused. On 27 January 2007, A1 Delaema was extradited to the United States.
*
Kesbir v. The Netherlands: Supreme Court of the Netherlands, 15 September 2006, LJN: AV7387.
This decision concerns a request for an injunction against extradition. Turkey requested the extradition of Mrs. Kesbir to be prosecuted for being a member of the Presidential Council of the Partiya Karkari Kurdistan (PKK), for having been involved in the training of female terrorists, and for having participated in a number of armed assaults in Turkey. Defence counsel for Kesbir had argued that the offences with which his client was charged were not punishable under Dutch law because they concerned lawful belligerent acts committed during an internal armed conflict pursuant to Common Article 3 of the
388. 1950,213 UNTS 221.
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Geneva ~ o n v e n t i o n s . ~However, '~ the Supreme Court of the Netherlands had rejected this plea. Kesbir further claimed that by being extradited she would be exposed to the real risk of being tortured and maltreated in violation of Article 3 ECHR, and that her rights under Article 6 ECHR would be flagrantly violated. The Supreme Court had then urged the Minister of Justice to request from the Turkish authorities guarantees that Kesbir would be treated according to the norms laid down in the ECHR. The Minister had complied with the Supreme Court's suggestion and had asked for diplomatic guarantees. Having been assured by the Turkish Embassy that Kesbir would receive a fair trial and would enjoy the full rights emanating from the ECHR, the Minister had then decided to extradite her. Kesbir then in summary proceedings before The Hague District Court applied for an injunction forbidding the State of the Netherlands to execute the Minister's decision. The Hague District Court indeed prohibited Kesbir's extradition to Turkey. The Hague Appeals Court took into account that, notwithstanding recent unmistakable improvements, torture and similar practices still occur in Turkey, and it took notice of Kesbir's extremely vulnerable position, because of her high profile as a Kurdish woman, her high position within the PKK, and because of the serious accusations against her. The Hague Appeals Court therefore deemed the assurances given by Turkey not sufficiently specific and confirmed The Hague District Court's decision. It held that at least it should be guaranteed that the Turkish authorities will take care that no judicial or other functionaries will submit Kesbir to torture or any other kind of inhuman treatment, including sexual violence. The State lodged an appeal with the Supreme Court. The Supreme Court, considering that the Appeals Courts' judgement did not display any incorrect conception of law, rejected the appeal.
NICOKEIJZERA N D ELIESVAN SLIEDREGT
NEW
ZEAL AND^^'
Arms Control * Arms Amendment Bill (No. 3) 2005. * Parliamentary Debates, pp. 19779-1979 1 (12 April 2005)
<www.parliament.nzien-NZ/PBiDebatesiDebates/>. At the time of the last report, the Law and Order Select Committee of Parliament had conducted an examination of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Na-
389. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS 3 1 ('Geneva Convention 1'); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949,75 UNTS 85 ('Geneva Convention 11'); Geneva Convention Relative to the Treatment of Prisoners of War, 1949, 75 UNTS 135 ('Geneva Convention 111'); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS 287 ('Geneva Convention IV'); (collectively, 'Geneva Conventions'). 390. Information and commentaries by Treasa Dunworth, Senior Lecturer, Faculty of Law, University of Auckland. The assistance of Brigadier Riordan, ONZM, BA LLB(Hons), LLM(Comell), New Zealand Defence Force and Alex Smithyman, Minishy of Foreign Affairs and Trade are gratefully acknowledged. All opinions and any errors remain the author's own.
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tions Convention against Transnational Organized but had been unable to reach agreement as to whether New Zealand should accede to the ~ r o t o c o lNotwithstanding .~~~ the lack of agreement in Committee, Cabinet agreed that it should be ratified once legislation was put in place.393To that end, the Arms Amendment Bill (No. 3) was introduced to Parliament on 18 February and was read for the first time on 12 April 2005 and referred to the Law and Order Submissions on the Bill closed on 8 June 2005 but, probably reflecting the earlier but continuing lack of agreement in the course of the treaty examination process, the Committee is not due to report back to Parliament on the Bill until November 2007. Women in Armed Forces
*
*
Human Rights (Women in Armed Forces) Amendment Bill 2006. Parliamentary Debates, pp. 5249-5261 (6 September 2006) <www.parliament.nz/enNZ/PB/DebateslDebates/>.
New Zealand started the process of withdrawing its reservation to the Convention on the Elimination of all Forms of Discrimination Against Women ( C E D A W ) ~ with ~ ~ respect to service of women in combat roles in the Armed Forces and Police. New Zealand acceded to the CEDAW in 1985 and at the time reserved the right not to apply the provisions of the Convention in so far as they are inconsistent with policies of recruitment into situations involving armed combat. Reflecting that position, section 33 Human Rights Act 1993 provided that nothing prevented preferential treatment based on sex to any member of those forces who had the duty of serving in an active combat role. The CEDAW Committee, in its Concluding Comments to New Zealand's fifth report, invited New Zealand to reconsider its reservation. The Human Rights (Women in Armed Forces) Amendment Bill 2006 was introduced to Parliament on 24 August 2006. The First Reading was conducted on 6 September 2006 and referred to the Foreign Affairs, Defence and Trade Select Committee of Parliament for conide era ti on.^^^ The Select Committee reported back to the House on 15 December 2006, recommending that the Bill be passed. It is anticipated that the Bill will be enacted in 2007, paving the way for the reservation to be removed. There will, in fact, be no practical impact, because the Defence Force rescinded the policy of not allowing women in combat roles in 2000.~~' Attempted war crimes prosecution of Mosche Ya 'alon * Janfrie Julia Wakim v. Lieutenant General Mosche Ya'alon, Decision of His Honour
Judge A. Deobhakta on ex parte Application for Issue of Warrants to Arrest, CIV-2006004, 27 November 2006 (Auckland District Court).
391. UN Doc. AIRESl551255 (2001). 392. See 7 YZHL (2004) pp. 548-549. 393. The New Zealand Parliament, and thus its Select Committees, does not have the power to approve or disapprove of ratification of an international treaty - that remains an Executive prerogative. 394. New Zealand Parliamentary Debates, Vol. 625, pp. 19779-19791 (First Reading). 395. 1979, 1249 UNTS 13. 396. New Zealand Parliamentary Debates, Vol. 633, pp. 5249-5261 (First Reading). 397. Defence Force Order 0512000.
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* Janfrie Julia
54 1
Wakim v. Lieutenant General Mosche Ya'alon, Final Decision of His
Honour Judge A. Deobhakta, CIV-2006-004, 29 November 2006 (Auckland District Court). Mosche Ya'alon was Chief of Staff of the Israeli military from 9 July 2002 to 1 June 2005. The acts underlying the attempted prosecutions related to events which occurred on the 22 July 2002 when the A1 Daraj neighbourhood of Gaza City was bombed, in an attempt to target Salah Shehadeh, a commander of Hamas. At the time of the bombing, the Respondent was the Chief of Staff of the Israeli Defence Force. When Mosche Ya'alon arrived in New Zealand on a short visit, the Informant applied to the District Court seeking warrants to arrest the Respondent by way of a private prosecution. The Information alleged that Ya'alon had committed an offence against section 1l(1) International Crimes and International Criminal Court Act 2000 (NZ) and section 3(1) Geneva Conventions Act 1958 (NZ). Although both the International Crimes and International Criminal Court Act 2000 and the Geneva Conventions Act 1958 do have extra-territorial effect,398that is balanced by requiring the consent of the Attorney-General for prosecutions to proceed.399 The District Court found that the Informant had made out a prima facie case for the issue of arrest warrants and made the Before those warrants were executed, however, the Attorney-Genera1 filed a warrant staying further proceedings. The Court subsequently cancelled the arrest warrants. 40 1
Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel of 1994 * Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination of the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (November 2006) <www.parliament.nz/en-NZ/PB/Presented/SCs/>. Having taken a leading role in its negotiation, New Zealand signed the Protocol in September 2006. The Foreign Affairs, Defence and Trade Select Committee of Parliament completed international treaty examination in November 2006, clearing the way for ratificati~n.~ Before ' ~ that can happen, domestic legislation will need to be amended reflecting the expanded scope of the Protocol to include under the definition of United Nations Operations, peace building and emergency humanitarian operations.403
398. Sections 8 and 3(1) respectively. 399. Sections 13 and 3(5) respectively. 400. Janfrie Julia Wakim v. Lieutenant General Mosche Ya alon, Decision of His Honour Judge A. Deobhakta on ex parte Application for Issue of Warrants to Arrest, CIV-2006-004,27November 2006 (Auckland District Court). 401. Janfrie Julia Wakim v. Lieutenant General Mosche Ya hlon, Final Decision of His Honour Judge A. Deobhakta, CIV-2006-004,29November 2006 (Auckland District Court). 402. Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination ofthe Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (November 2006).
403. Section 2, Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980.
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol 111) New Zealand signed the Protocol on 19 June 2006 at the 29th International Conference of the International Federation of Red Cross and Red Crescent Societies in Geneva. Ratification is expected in 2007 when international treaty examination procedures have been completed. Minor amendments will be needed to domestic legislation to reflect the protection of the red crystal, including to the Geneva Conventions Act 1958 and the Flags, Emblems and Names Protection Act 1981. International Conventionfor the Suppression ofActs of Nuclear Terrorism * Report of the Foreign Affairs, Defence and Trade Committee, International treaty examination of the International Conventionfor the Suppression of Acts of Nuclear Terrorism (July 2006) < w w w . p a r l i a m e n t . n z / e n - N Z / P B / P r e s e n t e d ~ . New Zealand signed the Convention in 2005 when it opened for signature. International treaty examination was completed on 21 July 2006. The only remaining task before ratification is to complete the necessary domestic legislation which is expected to be enacted during 2007 as part of an amendment to the Terrorism Suppression Act 2003.
TREASA DUNWORTH
OCCUPIED PALESTINIAN T E R R I T O R I E S ~ ~ ~ The year has seen a shift in the type of violations of IHL committed in the OPT, as well as increased complexity in the parties involved in developments in the OPT which had IHL repercussions. Whilst Palestinian violence directed at the Israeli occupation army and Israeli civilians has continued to decrease, Israeli violations of IHL, and internal Palestinian violence have increased significantly, especially in the Gaza The West Bank situation remained similar to that which has prevailed during 2005: limited, close to no Palestinian violence and intense, disproportional Israeli military attacks against the Palestinian civilian population of the OPT. The list of Israeli violations of IHL is long, but this report focuses on the most notable of these, which include, in addition to wilful killing of civilians, wanton destruction of property, collective punishment, illegal expropriation of land to support the Israeli policy of continued and accelerated settlement expansion, and detention without trial. These and other violations of IHL were committed in the OPT, mostly by the Israeli occupation army, with official sanction and full impunity, as is demonstrated below.406
404. Information and commentaries by Dr Mustafa Mari, Professor of Law and Human Rights, School of Graduate Studies, Birzeit University, Birzeit, Palestine. The views presented here are those of the author and do not necessarily represent those of any group with which the author is affiliated. 405. Palestinian violence directed at Israeli targets has continued to decrease during the year, following unilateral ceasefire Palestinian groups declared during 2005. See report on OPT in 8 YIHL (2005) p. 478. 406. For information on these and other violations, see 'Israel and the Occupied Temtories' in Country Reports on Human Rights Practices - 2006, released by the Bureau of Democracy, Human Rights, and Labor, U S . Department of State, 6 March 2006, <www.state.gov/g/drl/rlsibrrpt/2006/
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Civilian deaths and extra-judicial killings As mentioned above, Palestinian violence directed at Israeli targets remained below levels which have prevailed during the preceding years since the beginning of the second Intifada. According to the Israeli human rights group, B'Tselem, 17 Israeli civilians and 6 Israeli security personnel were killed during 2006 as a result of Palestinian violence, compared to 41 civilians and 9 security personnel during 2 0 0 5 . ~ ~ ' While Palestinian violence has continued to decrease, violations of IHL principles and rules in the OPT, in some cases amounting to war crimes, perpetrated by the Israeli occupation army have risen during the reporting period. During 2006, B'Tselem has documented the killing by Israeli security personnel of 662 Palestinian civilians, compared to 190 during 2 0 0 . 5 . ~Of ~ ~those killed during 2006, 141 were minors, and 24 civilians killed during assassination operations of which they were not, by Israeli admission, targek409 Also according to B'Tselem, 327 of the 662 Palestinians killed during 2006 were killed during operations in which they did not take In addition, since 2000, 41 Palestinian civilians have been killed by Israeli civilians:" who settle illegally in settlements constructed in the OPT, contrary to IHL provis~ons.
Wanton destruction ofproperty The year 2006 also witnessed an increase in the number of houses demolished for alleged military purpose. According to Al Mezan Center for Human Rights, a total of 1 022 homes in Gaza, in which over 11 000 Palestinian civilians live, were destroyed by the Israeli occupation forces during 2006.~" Of these, 187 houses were totally destroyed and the remaining suffered partial destruction. B'Tselem puts the total number of Palestinian homes destroyed for alleged military purposes during 2006 at 3 18, which is much higher than the total of 17 for
78854.htm>. See also Human Rights Watch, World Report 2007 (January 2007) <www.hnv.orgl wr2k7/pdfs/israelopt.pdP; and the numerous publications of Al-Haq at <www.alhaq.org>,and B'Tselem at <www.btselem.org>. 407. Figures are correct as of 29 November 2007. See B'Tselem, Fatalities Statistics <www.btse lem.org/english/StatisticsiCasualties.asp>. Similar statistics are also provided by the Palestinian Independent Commission for Citizens' Rights (PICCR). See PICCR, Annual Report 2006 (in Arabic), Chapter 2 dealing with Israeli violations, ~www.piccr.org/dmdocuments/AnnualReport~/2006/arab/ part2.pdB. West Bank only statistics are available from Al-Haq, whereas Al Mezan Center for Human Rights reports on casualties in Gaza. See Al-Haq's Monitoring and Documentation Department, ~ i e l dReports (Quarterly publication) <www.alhaq.org/etemplate.php?id=69>;and Al Mezan, Taqrir Ihsai hawl: Jaraim Quwat a1 Ihtilal Bihaq a1 Sukkan a1 Madaniyeen Wamomtalakatehem Fi Qita ' Ghaza Khilal al 'Am 2006 (Statistical Report on Occupation Force's Crimes Against Palestinian Civilans and their Property in the Gaza Strip During 2006) <www.me~an.org/document/stat~2006~ar. pdP. 408. Figures are correct as of 29 November 2007. See B'Tselem, ibid. 409. Ibid. 410. Ibid. 41 1. Ibid. 412. See A1 Mezan, supra 407; p. 4.
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2 0 0 5 . ~ 'These ~ numbers do not include 50 houses in Jerusalem and 44 in the West Bank destroyed allegedly for lack of Despite Israel's formal announcement it has ceased the practice of punitive home demolition, Israeli forces have continued, and according to Human Rights Watch intensified, the destruction of homes in circumstances clearly indicating the destruction was carried out as penalty.415B'Tselem, in its numbers quoted above, did not report on punitive home demolitions in 2006, but the UN Special Rapporteur on adequate housing has also reported receiving 'alarming reports about deliberate attacks by Israeli forces resulting in the destruction of homes, civilian property and infrastructures in the Gaza Destruction of property during 2006 was not limited to house demolition, however. The year 2006 witnessed massive attacks on civilian infrastructure, especially in Gaza, which included destruction of main roads and bridges, and the near-total destruction of the only power station in the Gaza Strip, leaving major parts of the Strip without continuing electricity for months.417
Illegal settlement expansion and the continuing construction of the Wall The Israeli government and its occupation army continue the construction in the OPT of the Wall, despite the adoption on 9 July 2004 by the International Court of Justice of its Advisory Opinion on the legal consequences of its c o n ~ t r u c t i o n .Thus ~ ' ~ far, almost two thirds of the Wall has been fully or partially c ~ n s t r u c t e d . ~ ' ~ According to B'Tselem, using data provided by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the Wall places approximately 8.5 percent of the
41 3. See B'Tselem, Statistics on houses demolished for alleged military purposes <www.btselem. org/englishlRazinglStatistics.asp>. 414. See B'Tselem, Statistics on demolition of houses built without permits in East Jerusalem <www.btselem.org/English/Planning~and~BuildinglEast~Jerusalem~Statistics.asp~ and Statistics on demolition of houses built without permits in the West Bank (excluding East Jerusalem) <www.btse lem.org/English/Planning-and-Building/Statistics.asp>. 415. See, e.g., the discussion related to the decision by Israel, in November 2006, to destroy the home of Mahmoud Barud in Gaza, in Human Rights Watch, 'OPT: Civilians must not be used to shield homes against military attacks' (Press Release, 22 November 2006). See also Human Rights Watch, 'Statement on our November 22 Press Release' (16 December 2006). In the statement, Human Rights Watch concluded that: 'We recognize that it is important to view the planned destruction of Barud's house in light of Israel's longstanding policy in the Occupied Palestinian Territories, sharply increased in Gaza since June, of demolishing houses not as legitimate military targets but as a punitive measure.' Both Human Rights documents are available at ~www.hnv.orglenglishldocsl20061111221 isrlpa14652.htm>. 416. United Nations, 'UN expert urges Israel to stop destruction of houses and infrastructures in Gaza, calls for military sanctions' (Press Release, 10 November 2006) <www.unhchr.chihuricaneihur icane.nsflview0111978086BgBB4C9F4C12572220070A789?opendocument~. 417. See PICCR, supra 407; p. 203. 418. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. For more on the legal issues related to the construction of the Wall, see OPT report in 8 YIHL (2005) pp. 479-480. 419. See B'Tselem, Separation barrier statistics <www.btselem.orglEnglishlSeparation~Banier/ Statistics.asp>.
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territory of the West Bank west of the wall.'*' This and the fact that the Israeli occupation authorities require Palestinians wishing to enter affected temtory to seek an Israeli permit, which is generally hard to obtain, represents de facto (but still illegal) annexation of said territory.
The Israeli unilateral 'disengagement'from ~ a z a : a~year ~ ' later Whilst there was disagreement in academic circles as to the effect of the Israeli disengagement from the Gaza Strip on the territory's legal status, with Israeli scholars generally claiming Israel is no longer the occupier of the Strip, the year 2006 has been witness of events, including lengthy, deep and destructive incursions into the Gaza Strip, which left no question about Israel's status vis-a-vis said territory. The disengagement, decided by the Israeli cabinet in 2004, and camed out in 2005, was clearly adopted with the intention of maintaining Israeli 'effective control' over the Gaza Strip, without bearing the responsibilities which result from belligerent occupation. During 2006, the Israeli occupation authorities have repeatedly sealed off the Gaza Strip, invaded, prevented the travel of Palestinian civilians, including the highest ranking officials of the territory, and placed numerous, unprecedented obstacles to the free movement of goods from and to the Gaza Strip. According to A1 Mezan, Gaza border-crossings have been sealed off completely or partially for Gazan Palestinians by the occupying power for lengthy periods of time, with some crossings being sealed off completely for as many as 189 days during 2 0 0 6 . ~ ~ '
F