ICL Main Notes

Portions
Unit 1: Modern History of International Criminal Law
o International Military Tribunal

o International Military Tribunal of the Far East
o International Criminal Tribunal for former Yugoslavia
o International Criminal Tribunal for Rwanda
o International Criminal Court and the Rome Statute
Unit 2: Framework of International Criminal Law
o Enforcement
o Jurisdiction
Unit 3: Individual Criminal Responsibility

o Actus Reus
o Mens Rea
Unit 4: Defences in International Criminal Law
o Superior orders
o Duress
o Necessity
o Self Defence
o Intoxication
o Mistake of fact/law
o Mental Incapacity
Unit 5: Crimes under the International Criminal Court Statute:

o Genocide
o Crimes against humanity
o Crimes of Aggression
o War Crimes
o Other:
▪ Drug Trafficking
▪ Terrorism
Unit 6: Working and Procedure of International Criminal Court
UNIT 1: Modern History of International Criminal Law
Commerce and Trade led to interaction between sovereign states. This also led to the formation
of International Humanitarian Law (IHL) which deals with the means and methods of warfare.
The breach of IHL lead to the formation of International Criminal Law (ICL).
The subjects of ICL are individuals and not states because it is not possible to punish States
physically but only metaphysically. The Sates are not perpetrators and victims, individuals are.
The only function of a State is the ratification of the treaties which will punish the actual
individual behind the crime. It pierces the veil and holds Individuals responsible. This came
into being only after the First World War (WW1). Yet, Germany was humiliated and the
Oppressors were scot free. The oppressed were forced to compensate through their tax money
which became redundant and did not serve any purpose.
The first effort to hold individuals responsible was after the Second World War (WW2), the
Nuremberg and Tokyo Trials were held. Here, International bodies were set up to try
individuals for war crimes. However, the Cold War created a sort of tension due to which a
permanent body couldn’t be immediately set up. Both factions were worried that they will
create a powerful advantage for the other Bloc. In the mid-1970s, the talk to set up a permanent
criminal court came into being to prevent Drug Trafficking because of the transboundary
effects.
ICL is the point of intersection between Public International Law (PIL), IHL, International
Human Rights Law (IHRL) and Domestic Criminal Law. Depending on the perspective taken,
the view of ICL changes thus. The relationship between each of these and ICL is as follows:
o Domestic Criminal Law gave rise to Individual Criminal Responsibility

o IHRL deals with rights of perpetrator
o IHL deals with the rights of victim
o PIL deals with the rights of State
The ICL has always been reactionary. The tribunals created are ad-hoc.
ICL is not purely a field of international law. It is characterized by a cross fertilization between
domestic and international legislative, judicial and executive actions. Although the individual
arrived late on the scene as a full subject of PIL (Public International Law), She now sits front
and centre in ICL as victim and perpetrator. Modern ICL has gathered together unconnected
strands of PIL under one rubric. Some elements of ICL has their origins in the IHRL edifice.
Many multi-lateral treaties, conventions and covenants and the Human Rights machinery they
created concern themselves with the allocation of State Responsibility. Other treaties such as
Convention Against Torture (CAT) also envision criminal penalties for individuals who violate
treaty provisions. Thus, acts of genocide, torture and slavery may give rise to both State Civil
Responsibility as IHRL violation and to Individual Criminal Responsibility as ICL violations.
Other elements of ICL have their origins in IHRL also known as the Law of Armed Conflict.
The evolution or genesis of ICL
ICL proceeding following WW2 are created with launching the modern regime of ICL. It’s
taproots or antecedents can however be traced back for centuries across the globe. Some of the
features of the evolution of ICL are:
1) Many ICL norms developed well before there were judicial institutions available to
enforce them.
2) Until very recently, the design of much of the ICL system was ad-hoc and reactive to
world events rather than the result of any sort of coherent forward-looking process.
3) The history of ICL is marked by greater and greater incursions into arenas that were
historically the exclusive province of sovereign States. For example: Jurisdiction over
treatment of citizens.
o Just War Theory
With the advent of Christianity there was a slowdown in war because of
Christian Pacifism. However, both Augustine and Aquinas contributed in the
formation of Just War Theory. The War must be waged only to further the ends
of Justice: Self Defence, Aggressive Wars, Against Religion. Just War Theory
was formed upon the failure of Christian Pacifism.
Jus ad bellum- Right to wage war

Jus in bello- Right to regulation of war
Although early Christian Theology manifested an extreme Pacifism that

prohibited participation in war, by the time of St. Augustine (C.E.354-430) a
Theory of Just War had developed which stated that resort to War was permitted
only if the ends were Just. Other religious and National Traditions also
preserved the right to engage in war against “infidels” or to avenge a wrong. St.
Thomas Aquinas in his book “Suma Theologica”, set forth the following
requirements for a war to be considered “Just”:
▪ It must be authorized by a legitimate sovereign
▪ Must be necessary for the achievement of a just cause
▪ Must be for the right intention, i.e., the restoration of a good and just
order and not in furtherance of injustice.
By the 16th Century, jus ad bellum gave way to jus in bello which was more
concerned with the regulation of warfare rather than the right of war. By the late
19th and early 20th century, the concept of jus ad bellum almost entirely
vanished. This shift in emphasis from jus ad bellum to jus in bello still largely
describes the state of law of armed conflicts today. Although, the halting
development of the crime of terrorism and the crime of aggression tends to
revert back to the jus ad bellum tradition.
o Piracy
o Slave Trade
Piracy and the practices of slavery and slave trade were some of the earliest
international crimes outside of war that States co-ordinated amongst themselves
to criminalize and prosecute. This is the point of acceptance of Universal
Jurisdiction over activity that affects the efficient operation of the International
System or that implicates “Universal Moral Values”.
o IHL
Jus in bello.
War, armed conflict, IAC; NIAC: Does not cross national borders, Protracted
armed violence which does not include sporadic acts of violence or internal
disturbances, can be between 2 belligerent groups as well, these dissident armed
groups must be organized; Internationalized Armed Conflicts: Characterized by
the involvement of a third State in an NIAC on the side of the State that is
fighting the dissident group; Basic principles: Distinction, Limitation,
Proportionality, Military Necessity.
o WW2
Efforts to enforce ICL
The most popularly remembered trial for war crimes is that of (Sir) Peter Von Hagen Bach
in 1474. He was tried for the atrocities committed on the people of Breisach (Now part of
Germany) of which he was the Governor. He was tried before an ad-hoc tribunal of 28 Judges
from various regional city-states which were allies of the Holy Roman Empire. He unleashed
a reign of terror by openly looting, raiding and killing in order to gain supremacy. His defence
was that it was under Superior Order from the Duke of Burgundy (now a part of France),
Charles the Bold. His plea of Superior orders was rejected because of how specific his crimes
were. He was stripped of his Knighthood and sentenced to death.
The earliest recorded trial appears to be a Prosecution for war crimes by an English Court in
1305 AD of Sir William Wallace who is remembered for leading the Scottish resistance forces
during the struggle to free Scotland from English Rule. He was charged by an English Court
and convicted of waging a war against the English “sparing neither age nor sex, monk nor nun.”
World War 1
The murder of Archduke Franz Ferdinand of Austria-Hungary by Gavrilo Princip of Serbia

triggered the first World War. This fuelled the political turmoil of the Balkan States due to
multiplicity of religion and culture. The Serbian Nationalists wanted to settle the question of
the Serbian region and oust the Austria-Hungarian Government from the Bosnia and
Herzegovina. After the assassination, Serbia was backed by Russia and Austria-Hungary by
Germany which assented. The Austria-Hungary Government then issued an ultimatum to
Serbia and finally invaded Serbia. Eventually, France and UK also joined. The WW1 ended
with the Treaty of Versailles. Here, there is mention of an International Body to persecute
individual persons for committing International Crimes. Article 227 of the Treaty (which was
never enforced) provided a provision to prosecute Germany. In modern history this is the first
reference to the creation of a special body to persecute those who committed crimes during the
war.
The 1919 Treaty of Versailles, ending the war with Germany required Germany to accept full
responsibility for causing the war, make substantial territorial concessions and pay reparations.
Most important for the purposes of studying ICL was Art. 227 which envisioned the
establishment of an International Tribunal composed of representatives of the United States.
Great Britain, France, Italy and Japan to try the former German Emperor Kaiser Wilhelm
II who was thus, singled out for his central role in orchestrating German crimes during the war.
German atrocities included unrestricted Submarine Warfare, targeting civilians of undefended
towns, breaches of neutrality and according to the rest of Europe, initiating the war.
The allies convened a Commission on the Responsibility of the Authors of the War and on the
Enforcement of Penalties (CRAWEP) to enquire into culpable conduct by the central powers
during the great war aka WW1. Debates on International Criminal Responsibility ensued.
America raised vehement objections to it on the principle that ICR could pierce State
sovereignty so dramatically as to hold Heads of State and other State actors liable for the
collective actions of their sovereigns. Objectors also noted the lack of precedent for such a
project and pointed to the gasping lacuna in available substantive law. It was also argued that
the trials could create a dangerous precedent that might come back to bite the allies in
subsequent conflicts. The few countries who were in favour of holding international criminal
trials could not agree upon rules of procedure, venue, evidence, standard of proof and so on.
After the deliberations, finally, the 1919 Treaty of Versailles brought an end to the WW1.
According to Article 228, the lesser German defendants were to be tried by lesser Military
Tribunals of the Allied and Associated Powers. According to Article 229, mixed Military
Tribunals were to prosecute individuals guilty of criminal acts against the nationals of more
than one of the Allied and Associated Powers.
Principles of Extradition: Double Criminality and Speciality
In response to the new defence systems deployed during WW1, Treaties were drafted on
prohibiting the use of various means and methods of war. The Kellog-Briand pact or the Pact
of Paris 1928, endeavoured to regulate warfare. Initially it was a bi-lateral treaty between USA
and France, it was later opened to Global ratification. The pact failed due to its lack of clarity
on the concept of “Self-Defence”. Almost immediately after the Pact entered into force, it
became a nullity as Japan invaded Manchuria in 1931, Italy invaded Ethiopia in 1935 and
Germany invaded Poland in 1939.
Leipzig Trials
World War 2
Jewish hate and German reclamation of finances and territory. Series of changes in legislation,
Jew pushed out of power followed subsequently by actual physical attacks. The Jews were
attacked on 2 events: Night of Long Knives (30-06-1934) and Night of Broken Glass (9/10-11-
1938). Germany then invaded Poland which was the direct and primary cause of the war. The
first time the allied powers came together to establish IMT and IMTFE to try persons involved
in WW2.
The post WW2 period is a water-shed moment in the development of ICL. This period heralded
the development of 2 International Tribunals for adjudicating International Crimes. i.e., the
IMT and IMTFE.
The Nuremberg Legacy by Cherif Bassiouni
On August 8, 1945 the London Charter was signed opening the way for the prosecution of the
major war criminals of the European theatre of operations before the IMT sitting at Nuremberg.
The following year, the allies established the IMTFE in Tokyo, a counter-part tribunal for the
major war criminals of the Asia-Pacific. The two are legally distinguishable. The IMT was
established by a Treaty originally signed by the 4 major allies and acceded to 19 European
states. The IMTFE however, was established by the military order of General Douglas
MacArthur, the Supreme Commander of the Allied Forces in the Pacific.
Two types of trials took place at the IMT:
1) Major war criminals Trial where 24 persons were tried.

2) Allied Control Council at Europe Law Number 10 (CCL10) “subsequent
proceedings” were held. These were ad-hoc military tribunals that tried other war
criminals apart from the major war criminals.
UK wanted summary trials but USA wanted to protect the rights of the war criminals. This
change in stance by USA was to set a good precedent and because they didn’t want to repeat
what Germany did by not giving a fair trial. This proposition was mooted by Henry Stimson.
He stated that forcible annexation will not give rise to recognition. He was the Brigadier
General of USA and a lawyer by qualification.
One remarkable accomplishment for the IMT was that for all practical purposes, it was the first
International Criminal Tribunal in history ever established. This is even more remarkable
because the victors who established the IMT had an alternative- summary executions. The
British justified their position in favour of summary executions by arguing against the
excessive cost and more importantly by arguing that the Germans would effectively challenge
the trials and legal process. They also argued that the Germans would use these trials to
propagandize their claims and make martyrs of the war criminals.
The USA replied that such a trial would establish an important historic record and develop
what would hopefully become, lasting international legal standards. Moreover, the trials would
deter future leaders from similar conduct. The USA further argued that the risk of the
defendants becoming martyrs was very low considering the fact that the trials would reveal the
facts of each case which would be very overwhelming and thus very hard to sympathise with.
Finally, the position of USA prevailed and after months of discussions, the allies signed the
London Agreement (8th August, 1945) to which was attached the IMT Charter.
UK wanted summary trials; USA wanted to prosecute.
Justice Robert Jackson of the US Supreme Court (he didn’t have a law degree) and one of the
judges of the Nuremberg Trial was one of the primary mooters of the setting up of the military
tribunal.
Article 6 of the IMT Charter:
o For the punishment of European Axis Countries

o Major War Criminals
o Individual Criminal Responsibility
o Crimes under Article 6:
▪ Crimes against peace
• Criticism: “War of Aggression” is not defined.
▪ War crimes
• Criticism: Criminalized something that is prohibited. Further, no
explicit prohibition under domestic laws.
▪ Crimes against Humanity
• Large scale systematic acts of violence committed against
Humanity including: murder, enslavement, extermination,
deportation. Other inhumane acts.
• Charter says committed before and after war. Why before the
war? If the war started in 1939 but the cause of action arose
before that, they can be tried as well.
• All prosecution in racial, political or religious grounds….: This
later becomes a principle of Jus Cogens by virtue of genocide
convention.
• Whether or not in violation of the domestic law of the country
where perpetrated.
• Criticism: Retrospectivity of laws. And compulsory application
of international law in domestic sphere as well.
The subject matter jurisdiction of the two tribunals reflects the ideas being cast about in the
post WW1 period. Notwithstanding the original Ally’s reluctance about criminalizing the resort
to war, the Nuremberg and Tokyo Charters add Article 6(a) and 5 (a) respectively, enabled the
prosecution for Crimes Against Peace.
Prosecutable War Crimes were uncontroversially defined in Paragraph B of the Charters. The
Charter revived the concept of Crimes Against Humanity. Although little reference was made
in the judgment to the crime’s WW1 ancestry. The Crime of Genocide later, was culled out
from the definition of Crimes Against Humanity.
The problem concerning the charge of Crimes Against Peace was the absence of a specific
convention, declaring aggression a justiciable International crime for which Individual
Criminal Responsibility could be ascribed. There was no international legal document prior to
the IMT Charter and London Agreement to suggest that the conduct of these accused of Crimes
Against Peace could be individually penalized.
No protection accorded to Heads of State or Government if one is found in violation of the

principles of War. The first instance of Individual Criminal Responsibility that was explicitly
codified.
The Japanese Emperor however could not be tried owing to the Japanese social fabric.
Article 7 of the Charter eliminated the act of State Defence where the Head of State and Others
could have claimed that their conduct was inherent to National Sovereignty and thus, not
questionable by others.
Person committing atrocities will not be let free but his offences will be mitigated if he worked
under a Responsible Command or Superior. This mitigation is applicable only if there is no
other “moral choice”. However, if you had a choice, you should do the more “moral thing” to
do. It is only a partial defence. Your charge will not be reduced but your punishment will be
reduced.
The traditional defence of obedience to Superior Orders was disallowed in Article 8. Article 9
also introduced the new concept of “Group Criminality” and Article 10 provided for Individual
Criminal Responsibility based on Group or collective responsibility for membership in
criminal organizations.
Criticism
1. Principle of Legality was questioned for International Military Tribunal and

International Military Tribunal for the Far East. Legality means, at the time of the acts being
committed, they were not crimes. Application of ex post facto law. Tribunals said these laws
are already part of International Humanitarian Law. Counter: it merely prohibits, does not say
I will be punished, says States. Tribunal responded: Men not States commit acts.
2. Ad hoc status of Tribunals: No appeals available. If Allies decided guilty, no other court
has jurisdiction to entertain appeal.
3. No separation of powers. Allies picked judges, same judges chose applicable laws, they
drafted London Agreement, also judged. Allies only supplied lawyers.
4. Accused were only from Axis powers, and the judges only from Allies. Not allowed to
argue that they were acting as their enemies.
5. The accused were chosen arbitrarily
6. The entire process of trial was entirely under the control of the victors.
13 January, 1942 – St. James Declaration formally placed the trial of war criminals on the
Allied agenda during World War 2. It led to the establishment of a United Nations War Crimes
Commission on 20th October, 1943 in which 17 Allied nations joined together to pool their
investigations into enemy war crimes with the aim of bringing the perpetrators to justice.
During this time, the ‘United Nations’ were simply a war time coalition of countries engaged
in hostilities against the European Axis powers. Throughout its existence, UNWCC was
headquartered in London.
Brief of Judgment
24 Nazi leaders were indicted. One defendant was too ill to go to trial – Krupp. One committed
suicide – Ley. One was tried in absentia – Bormann.
Only 21 defendants were actually produced at the Trial. Of these 21, 3 were acquitted –
Schacht, Von Papen, Fritzche.
7 were sentenced to prison terms ranging from 10 years to life – Hess, Funk, Donitz, Raeder,
Von Schirach, Speer, Von Neurath.
11 were sentenced to die – Goring, Von Ribbentrop, Keiter, Kaltenbrunner, Rosenberg, Frank,
Frick, Stricher, Sauckel, Jodl, Seyss-Inquart.
Counts of guilt: Common plan, Crimes against peace, War crimes, Crimes Against Humanity
Nuremberg Legacy
These became customary international law and was reiterated in many international laws.
Tobar Doctrine, Wilson Policy, Stimson Doctrine]
Article 7: The official position of defendants, whether as Heads of State or responsible officials
in Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment. (Did not minimise liability due to status. This was easy in Germany as
Hitler killed himself. More difficult in Japan, did not prosecute Emperor to the hilt due to
cultural signification of emperor to people. Happened later in Yugoslavia).
Article 8: The fact that the Defendant acted pursuant to order of his Government or of a superior
shall not free him from responsibility, but may be considered in mitigation of punishment if
the Tribunal determines that justice so requires. (Superior’s orders is not a defence. Initially
the clause was supposed to not have any respite. But after deliberations, added second line to
include the situation of no Moral Choice. So, this clause of moral choice was included and also
mentioned in judgment).
Article 7 of the Charter eliminated the Act of State Defence where a Head of State, and others
could have claimed that their conduct was inherent to national sovereignty and thus not
questionable by others. The traditional defence of obedience to superior order was disallowed
in Article 8.
Article 9 also introduced the new concept of group criminality and Article 10 provided for
individual criminal responsibility based on group or collective responsibility for membership
in criminal organizations.
The problem concerning the charge of Crimes Against Peace was the absence of a specific
convention declaring aggression a justiciable international crime for which Individual Criminal
Responsibility could be ascribed. There was no International legal instrument prior to the
London Agreement and the International Military Tribunal Charter to suggest that the conduct
of those accused of crimes against peace could be individually penalized.
7 Nuremburg Principles
These were the principles of International Law recognized in the Charter of the Nuremburg
Tribunal and in the judgement of the Tribunal. This document released by the United Nations
International Law Commission became the starting point of fortification of International
Criminal Law and became customary principles of the same.
1. Individual Criminal Responsibility: Any person who commits and act which constitutes
a crime under International Law is responsible therefor, and liable to punishment.
2. Primacy of IL over ML w.r.t. International crimes: The fact that internal law does not
impose a penalty for an act which constitutes a crime under International Law does not relieve
the person who committed the act from responsibility under International Law.
3. Diminished Sovereign Immunity: The fact that a person who committed an act which
constitutes a crime under International Law acted as Head of State, or responsible government
official, does not relieve him from responsibility under International Law.
4. Superiors orders are a limited defence: The fact that a person acted pursuant to the order
of his Government or of a superior does not relieve him from responsibility under International
law, provided a moral choice was in fact possible to him.
5. Any person charged with a crime under International Law has the right to a fair trial on
the fact and law.
6. The crimes hereinafter set out are punishable as crimes under International Law. Article
6 paste from International Military Tribunal Charter.
7. Complicity in the commission of a crime against peace, a war crime, or a Crime Against
Humanity as set forth in Principle 6 is a crime under International Law.
International Military Tribunal for the Far East
[It was established consequent to a military order by Douglas MacArthur, Supreme

Commander of the Allied forces in the Far East. The draft charter came up in Jan 1946. Japan
had surrendered on 2nd September, 1945. In April, he came up with a final draft. Original draft
had judges from 9 countries. Second draft had judges from 2 other countries – India –
Radhabinod Pal, and the Philippines – Delfin Jaranilla. This was in response to the International
Military Tribunal’s criticism saying there were only Allied judges. Japan did not want to
become a European colony in the years leading up to World War 2. So, they became
excessively aggressive in annexing land. Invaded Manchuria, Rape of Nanking etc., General
Matsui Iwane wanted to break the Chinese spirit. So, he razed Nanking to the ground. 1,50,000
Prisoners of War were killed, 50,000 civilians were killed, 20,000 women were raped.
In 1941 bombed Pearl Harbor and pulled in U.S. to World War 2. Physical loss was
insignificant compared to humiliation U.S. faced. Hiroshima and Nagasaki happened and Japan
surrendered. The Allies marched into Tokyo and set up the Tokyo Trials. The Radhabinod Pal
was the only dissenting judge. When Japan had conquered Philippines, Bataan Death March –
80-mile march of persons captured in the city from Bataan. No water, no food, and no breaks.
J. Delfin Jaranilla was made to participate. He sat in judgment of these persons, so there was
criticism of him judging. Radhabinod Pal was a judge in Calcutta High Court. His judgment
ripped the Allies apart. Up to 1949-50 it was not even public. He said Japan did what she feared
would have happened to her to prevent her colonization. He was acting in her own self-defense.
The laws that were not applicable – legality. The crimes against peace and conspiracy to
commit them cannot be evaluated from random dates decades before. No end date – how far
back can you go. Article 5 and Article 6 of the two Tribunals are similar. War crimes, and
Crimes Against Humanity not a problem. Crime of aggression was the problem. He said
everyone committed the crime of aggression, especially since there is no start date from whence
crime of aggression is prosecutable from.
Comfort stations to keep breaking the spirit of their other colonies, and to keep boosting the
morale of their soldiers. Women from the colonies were placed in camps called comfort stations
to promote sexual slavery. When the Allies landed in Japan, they knew of this, and used them
for their solders. The judgment from the International Military Tribunal for the Far East did
not mention this at all. Was not considered a CAH in the list of charges or list of crimes.
Nobody was prosecuted for enslaving thousands of women.
Before International Military Tribunal for the Far East was set up, Japan started conducting its
own trials to protect its own soldiers and to not let them be prosecuted under foreign law. The
International Military Tribunal for the Far East still tried them and convicted them – Double
Jeopardy.
Now, the domestic trials lift a person normally under the jurisdiction of the ICC or other
tribunals ad hoc or permanent, then not liable. But if the trial is an eyewash, Double jeopardy
may be violated.]
Around 80 war criminal suspects were detained after 1945 and 28 men were brought to trial
before the International Military Tribunal for the Far East.
Of the 28, 2 died of natural causes,
1 had a mental breakdown during first day of trial – Shumei Okawa, he was sent instead to
asylum or psychiatric ward and released in 1948 as a free man,
Remaining 25 were all found guilty, of which 7 were sentenced to death, 16 to life
imprisonment, and the remaining 2 to lesser prison terms.
5 different opinions came out at the judgment.
The Australian judge William Webb, in his opinion pointed out that the fact that the Japanese
Emperor Hirohito was not indicted should have been considered.
The French Judge criticized the procedural shortcomings at the International Military Tribunal
for the Far East trial.
The Dutch judge Roling argued that no conspiracy existed and five of the defendants were thus
innocent.
The Filipino judge Delfin Jaranilla, said the sentences are too lenient.
[The only dissent was from the Indian judge Radhabinod Pal said all 28 were not guilty. They
may have committed atrocities, by they cannot be indicted. Cannot be charged because: no
defining of aggressive war, war crimes, where are Allies in dockets. Asked if this was justice
or formalized vengeance. Formalized revenge can only bring an ephemeral satisfaction with
every probability of ultimate regret
He said Japan fought wars to liberate Asia from Western colonization. All warring parties had
committed war crimes.
Dissent was in 7 chapters. Dissent was not published and was not allowed to be read out in
court. It was only released in 1952 once Allies left Japan. Only after that was it translated in
Japanese. He did not use the word innocent. But translators used words ‘innocence of Japan’
instead of ‘judgment of Japan’.
Chapter 1 – Preliminary questions of law]
Pal criticized with bitterness the judicial basis of the Tribunal in his very first chapter –
Preliminary Questions of Law.
“The so-called trial held according to the definition of crime now given by the victors
obliterates the centuries of civilization which stretches between us and the summary slaying of
the defeated in a war.”
“Formalized revenge can only bring an ephemeral satisfaction with every probability of
ultimate regret.”
[In another chapter, he said Crimes Against Humanity is indiscriminately killing civilian
populations, so using nukes is not a good idea, without naming U.S.]
In the second chapter titled ‘What is Aggressive War?’, he put forth his argument that the past
actions of the Western Powers should be considered before passing judgment on Japan’s acts.
“I would only like to observe once again that the so-called Western interests in the Eastern
hemisphere were mostly founded on the past success of these Western people in transmuting
military violence into commercial profit.”
[Allied powers criticized the Japanese of being racist, their education system said they were
superior etc., parroting narrative of the rulers. Pal admitted, but said every country is at fault
for this. As a defensive measure, we call upon ourselves as us v. them.]
The Tokyo Trial condemned the Japanese for their racial prejudice. The Japanese education
policy was changed and designed such to create in every youthful mind, a feeling of racial
superiority. Pal said that this is a failing common to all nations. Every nation is under the
delusion that its race is superior to all others. The western racial behaviour necessitates this
feeling as a measure of self-protection.
[Essentials of International Criminal Law by Ronald C Slye, Beth Van Schaack, 2009, Aspen]
Together, the International Military Tribunal and International Military Tribunal for the Far
East established many core principles of the field of International Criminal Law, and modern
Tribunals continue to cite these proceedings as persuasive authority.
The Nuremburg and Tokyo proceedings established that many violations of International
Humanitarian Law that had theretofore given rise only to State Responsibility, also gave rise
to individual criminal responsibility, even if the relevant treaty was silent as to criminal
penalties. When the defendants at Nuremburg argued that they could not be penalized for what
was only prohibited, but not criminalized, the Tribunal responded by saying that individuals,
not States or abstract entities commit crimes against International Law.
The Tribunals established the primacy of International Law over Domestic Law. In many of
the cases, the conduct for which the accused had been charged was authorized by domestic
law. The Nuremburg and Tokyo proceedings marked the very first time that the International
Community pieced the veil of sovereignty to hold governmental actors responsible. Two new
crimes came into existence: Crimes against Peace, and Crimes Against Humanity. These
inclusions were controversial in light of the legal principle nullum crimen sine lege nulla poena
sine lege. However, Nuremburg ruled it out stating the obvious wrongfulness of the actions.
Even though these Tribunals were plagued with the label of victors’ justice, it established a
clear precedent for the exercise of International Penal Jurisdiction as distinct from domestic
jurisdiction. This paved the way for the creation of future ad hoc international criminal
tribunals, special & hybrid internationalized courts, and eventually, the International Criminal
Court. These Tribunals confirmed that even high-ranking State officials could not hide behind
the immunity of their sovereign. In particular, the International Military Tribunal proclaimed
that the very essence of the Nuremburg Charter is that individuals have International duties
which transcend the National obligations of obedience imposed by the individual State. The
Tribunals convicted civilians and military men as well as private actors (financiers and
industrialists) for War Crimes and Crimes Against Humanity. Even though State action was
not an element of these crimes, the State is the source of inspiration for these abuses. For this
indirect involvement, International Humanitarian Law stops short of an answer. However
International Criminal Law evolved rules to hold these private actors responsible.
Adolf Eichmann
[Kidnapped on 20th May, 1960 from Argentina by Mossad agents. Took him to Israel.
Argentina protested at UN Security Council regarding violation of their sovereignty. Trial
began on 11th April, 1961 and concluded on 15th December, 1961 when he was sentenced to
death. He was hanged to death on 1st June, 1962. Before or after, Israel has never exercised
the death penalty. Eichmann was killed for the Genocide of the European Jewry. The term was
not part of Nuremburg or Tokyo as it had not been coined at the time. Raphael Lemkin coined
this term. The trial is important because it is the first trial in International history for the crime
of genocide. Secondly, because what people had gone through, countries could not criticize
Israel for their abduction. This overshadowed the violation of sovereignty, but it established
the precedent for the universal jurisdiction for genocide – it became a jus cogens principle. For
other crimes, armed conflict is required, but genocide does not.]
ICTY
Formation of ICTY
Cold war
[After World War 2, in 1948, cold war started, and ended in 1989. Once World War 2 ended,
the Allies forces occupied most of Europe. Germany was occupied by the US and USSR.
Germany was split into two. Berlin wall fell in 1990. Geographically, erstwhile Yugoslavia
separated southern and western Europe from USSR. USSR peak of communism. Non-
Alignment Movement by 5 countries including India. USA was interested in keeping
Yugoslavian together as it was a part of the NAM and was not aligned, it was key in preventing
the spread of Communism to Western Europe. It was held together by Josip Broz Tito.
Slobodan Milosevic became president. Even though Tito suppressed anti-nationalists,
Milosevich had a different agenda – separate Serbian State after Tito died. 3 events happened:
1. 1989 USSR fell, 2. 1990 Berlin Wall fell, 3. 1989-1992ish Eastern Europe democracies
started being established as communism left these countries.
After this, US did not care about Yugoslavia breaking up. Once they withdrew, all hell broke
loose. Slovenia declared independence first. World watched as Yugoslavia burned. It was of
no more interest to any more Security Council members. Once the fighting stopped or reduced,
they swooped in to punish them with the ICTY which was established with UNGA Resolution.]
From 1990 to 1992, all of Yugoslavia disintegrated into 6 countries. First, Slovenia declared
independence, then Croatia, then Bosnia & Herzegovina, Serbia, Montenegro, Macedonia, and
Kosovo.
International Criminal Tribunal for the former Yugoslavia was created in 1993, by decision of
the United Nations Security Council. This was the first time the Security Council had created
a judicial organ. Prior to this, in October, 1992, a resolution was passed by the Security Council
establishing a Commission of Experts to investigate the allegations of serious violations of
International Humanitarian Law.
Commission of experts established whose first chairman was Frits Kalshoven, a Dutchman.
The commission was established to find out who committed International Crimes in
Yugoslavia. He questioned the feasibility of establishing a tribunal even before the end of the
conflict. How can one find out what the armed conflict is, if it is still going on? So, he was
replaced by Cherif M. Bassiouni, and Egypt born American. After his report, the ICTY was
established.
Rape as a form of genocide was explored by Cherif Bassiouni. He was of the opinion that rape
is very stigmatized and aren’t reported because of which it does not become an ethnic conflict
and hence never proved to be genocide.
The ICTY statute was adopted by the UNSC on 25th May, 1993. Richard Goldstone of South
Africa was appointed as the Prosecutor.
The International Crimes listed in the ICTY as per subject matter jurisdiction were as follows:
• Article 2-Breaches of Geneva Conventions

• Article 3-Violation of the laws of customs of war
• Article 4- Genocide
• Article 5- Crimes against humanity
What is different from IMT and IMTFE is that Crimes against peace was missing and breaches
of GC was added.
Why was the ICTY not criticized for breach of Principle of Legality?
• Chapter VII, Art 52 of the UN Charter gave a collective Right of Self-Defence

• The Genocide conventions of 1948 defined genocide as a crime. It became a customary
international law.
• The GC in 1949 also became customary laws
• Crimes against Humanity derived from GC
• Any crime the undoing of which was over and above GC was already customary law at
that point.
• Individual Criminal Responsibility was also not a breach because of precedents.
The jurisdiction of ICTY was bound by time (temporal jurisdiction), territory and dealt with
issues regarding concurrent jurisdiction as well.
Temporal jurisdiction began on 1st January 1991. The territory extended to former Yugoslavia
as per Article 8 of the ICTY.
The 4 general categories of crimes within the jurisdiction of the tribunal are listed in Articles
2, 3, 4 and 5. Article 1 sets out three general limitations upon the jurisdiction of the tribunal.
Territorial limitation being the acts concerned must have been committed in the territory of
former Yugoslavia. The second limitation is temporal, being the commission of the act before
the beginning of 1991. Lastly, the acts committed must constitute serious violations of IHL.
However, now the serious violation of IHL has to be proved. Such violation must be more than
de minimus. Every act of killing will not be considered. The act when it is seen in context must
be seen as a grave violation of IHL. The first case that challenged the jurisdiction of ICTY is
the Prosecutor v. Tadic case. The court here clarified that there must be a minimum
requirement of an armed conflict to constitute serious violations of IHL. It is different from
sporadic violence.
The territorial and temporal requirements are fairly straightforward. However, the last of these
limitations means that violations of IHL within the jurisdiction of the ICTY must be more than
de minimus. It raises the question of how to distinguish serious violations of IHL from common
crimes under domestic law. The appeals chamber of the tribunal laid down that except for
genocide all the other crimes in the statute must be committed in the context of an armed
conflict.
Furthermore, without some clear criterion of distinction, IHL could be applied to any crime
committed in a war zone even if completely unrelated to the actual conflict. This would
seriously dilute the specific nature of IHL. The tribunal clarified in the Tadic case regarding
the importance of establishing a nexus between the act and the armed conflict.
FACTS OF THE TADIC CASE
The place where Greater Serbia was to be created (Conflict between Bosnian Serbs, Croats and
Muslims. Serbs generally committed the crimes). At the Prjidor, there were 3 camps. The most
heinous camp was at Omarsk. The camp was run for non-Serbs. Dusko Tadic was responsible
for the death of at least 800 civilians and they were driven out on foot. Before the actual case,
preliminary charges were filed with respect to jurisdiction of the ICTY to try the case.
As per Article 9 of the ICTY, the ICTY has con-current jurisdiction with the national courts.
However as per para 2 of Article 9, the ICTY has primacy and can ask the national court to
defer. This is why the jurisdiction was challenged in the case. The reason for primacy of ICTY
being, if the persons were tried by the national courts itself, then Serbs who are sitting as judges
will be biased and the trial will be sympathetic.
As per Article 9 of the ICTY, the International Tribunal and National Courts have concurrent
jurisdiction over serious violations of IHL within the Tribunal’s jurisdiction. This concurrent
jurisdiction is however, subject to the primacy of the competence of the ICTY tribunal.
According to the Statute, primacy means that at any stage of the procedure, the International
Tribunal may formally request National Courts to defer to its competence.
One reason for granting the International Tribunal such a broad primacy over National Courts
is to prevent multiple courts from simultaneously exercising jurisdiction over an accused. If
Courts from different nations were contemporaneously allowed to prosecute War Criminals
from the Yugoslav conflict, chaos could ensue. Simultaneous jurisdiction could cause
evidentiary problems resulting from different investigative procedures from each individual
system. Evidence could be destroyed or damaged if it had to be used for more than one trial.
The antagonism between Croats, Muslims and Serbs had been so intense that if the Courts
dominated by one of these groups were to try an accused war criminal of its own ethnicity, or
even a rival ethnicity, then, the National Courts proceedings would not be seen as impartial and
independent.
Article 9 should be read in consonance with Article 29. The SC did not want the ICTY to
progress into a permanent body to try all international crimes, which is why they were clear
regarding the concurrent jurisdiction and primacy of ICTY.
Article 10 states that there must be no double jeopardy. However, in exceptional circumstances
under Article 10, the persons can be tried by the ICTY even if the national courts have tried
the person. The ICTY will try the case if the accusations are grave but the trial of the accused
is for a lesser crime in the national courts. If the proceedings are impartial, and if the national
court has not diligently tried the case, it may be tried by the ICTY.
ICTY Rules of Procedure and Evidence came into being in February, 1994. The common law
system is adversarial and the civil law system follows an inquisitorial system. The SC was not
sure which system should be followed. Therefore, a modified adversarial system was adopted
and inculcated into the rules of procedure. The office of the Prosecutor will be involved in the
investigation. This office is part of the ICTY as well. The arguments are then presented before
the Judge chosen from amongst the Prosecutors.
In the realisation of the aforementioned articles, fair trial became an issue. The only way to
remedy this was by amendments. There were several evidentiary problems, some of them
being: how to collect evidence (civil law way or common law way), what type of evidence is
to be collected (corroborative or physical), if the same piece of evidence is used twice then it
decreases the authenticity of the evidence. For example, trial in National Court and the
subsequent transfer to ICTY. The other problem was regarding witnesses. The protection of
witness was very difficult because of heavy influence exercised upon them irrespective of
protection. Testimonies were struck down due to admissions of coercion by the witnesses. Even
in cases of rape victims, they never testified. Especially the male victims. These issues of fair
trials were daunting. But, no amount of amendments could make procedure perfect. They did
manage to convict affair majority but not perfectly.
Issues regarding fair trials: The ICTY needed rules of procedure and evidence to cement its
“fair trial” process and Article 15 of the Statute specifically requires the judges to adopt rules
of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and
appeals, admission of evidence and other appropriate matters. Many Governments and NGOs
submitted their proposals regarding the rules and procedures and finally, the Rules of Procedure
and Evidence for the ICTY was adopted in February, 1994. These rules were constantly
amended by the Judges as and when newer challenges were faced regarding the same. These
rules combine elements of the common law “adversarial system” and civil law “inquisitorial
system” to create a “modified adversarial model or approach”. However, a few main problems
encountered by the ICTY regarding fair trial were:
1. Evidentiary Problems
a. Damage or loss of evidence caused due to usage in multiple trials
b. Difference in procedure of collection of evidence resulting from different
investigative procedures
2. Witness testimonies could be potential suspect due to communal influence and
coercion.
In the Dusko Tadic Case an additional reason given was “Forum shopping”. (Specific term not
used. The Jurisprudence behind it was used). You shouldn’t have the choice to choose courts
in case of multiple options so that you can pick what is convenient for you. That is why ICTY
was given primacy.
The Tribunal observed in the Dusko Tadic case that allowing concurrent jurisdiction without
granting primacy to the tribunal would in effect permit the accused to select the forum of his
choice contrary to the principles relating to coercive criminal jurisdiction.
Tadic hated the Croats and Muslims because his mother was victimized by the Croats.
Therefore, he joined the Serbian Nationalist Forces and committed the atrocities.
As per Article 2 of the ICTY, the grave breaches of the GC of 1949 are crimes. The text of the
GC clearly lays down that GC applies to only International Armed Conflicts as per Common
Article 2. The issue in the current case was that it was still “Bosnia” and weren’t independent
fully functioning States. They were merely nations till 1995. They had to sign the “Dayton
Accord” to be formally declared a State. So, how does GC apply? How can you hold the non-
state actors and state actors responsible when there is no IAC in the first place?
There was controversy from the start about whether the ICTY should require proof of
International Armed Conflict as an element of grave breaches under Article 2 of its statute.
Before Dusko Tadic’s trial, his lawyers filed a preliminary motion challenging the Tribunals
jurisdiction to try him for crimes committed in the context of IAC. The Trial Chamber ruled
that Article 2 applied in all situations of Armed Conflict irrespective of its International or Non-
International character. This was reversed by the Appeals Chamber which concluded that acts
could be classified as “Grave Breaches” under Article 2 only if they were committed in the
context of International Armed Conflict.
The definition of “civilian protected persons” as provided in the 4th GC of 1949 provides that
persons protected by the Convention are those who at a given moment and in any manner
whatsoever find themselves in case of a Conflict or Occupation at the hands of a party to the
conflict, or Occupying Power of which they are not nationals. Then in the case in consideration,
how will the Nationals be “Protected Persons”? Who is the “Occupying Power”, that is a “High
Contracting Party”? The ICTY thus, stretched the jurisdiction.
Accordingly, the judgment of the Trial Chamber found all charges of “grave breaches” to be
inapplicable due to its conclusion that the victims were not “protected persons” as per GC 4.
Article 3 of the ICTY codifies Violations of Laws and Customs of War. The list codifies certain
examples but states that it cannot be limited to these. If not for the inexhaustive nature of this
Article, a lot of persons will not be indicted. Article 2 is limited to GC which can be applied
only to International Character of crimes. This article helps prosecute those who committed
crimes before it took international character.
Article three of the ICTY statute partially compensates for the limited applicability of Article
2 of the Statute by employing a much broader language. Article 3 has been derived from the
1907 Hague Convention (IVth Convention) which codifies Customary law of War. This was
also interpreted at Nuremberg and provides the basis for Article 3 of the ICTY Statute.
The examples under Article 3 include:
o Use of poisonous weapons to cause unnecessary suffering.

o Wanton destruction not justified by Military Necessity.
o Attack on undefended towns, etc.
o Wilful damage to cultural/educational institutions
o Plunder of public or private property.
Destruction of cultural property will mean that the future generations will have no idea
regarding your heritage. Does this not amount to genocide since there is no trace of the religion
which means there is no cultural inclination in the future generations. In fact, there need be no
nexus between International Armed Conflict and genocide. It can even happen in Internal
conflicts.
The ICTY Appeals Chamber in Tadic Case held that serious violations of IHL entail Individual
Criminal Responsibility under Article 3 even if committed in the context of Internal Armed
Conflict. This was the first time that the application of International Humanitarian Law was
reinforced with respect to Internal Armed Conflicts.
The ICTY finally closed down in December, 2017 after indicting 161 persons and sentencing
90 persons. 19 people were quitted, 37 proceedings were terminated or indictments withdrawn,
13 persons were referred to former Yugoslavian countries for Trial (Bosnia-Herzegovina,
Croatia and Serbia). Two persons were sent for re-trial at MICT, which is a residual mechanism
for criminal tribunals.
The trial chambers for ICTY and ICTR are different but the Appeals Chamber is the same. The
residual mechanism is also the same.
ICTR
History of the formation of ICTR
The ICTR was established on 8th November, 1994. The time period for prosecution was very
short, that is, April to July of 1994. It was referred to as 100 days of genocide. 8 lakh people
were killed in comparison to 60 lakh people killed during the Jewish genocide.
There were 3 groups: Hutus (roughly 85%), Tutsis and the pigmy group Twa, who were the
original residents of Rwanda. The genocide however affected only the Hutus and the Tutsis.
Rwanda was colonized by Belgium and gained independence in 1962. The Belgians favoured
Tutsis who were the political majority. This was because of their closer resemblance to
Caucasians. This disparity aggravated the situation.
In 1959, there was a Hutus revolution which drove a lot of Tutsis out of the country. The exodus
reduced the number of Tutsis even more, numerically. In exile, the Tutsis refugees formed the
Rwandan Patriotic Front (RPF).
In 1973, the Military Installed Major General, Juvenal Habyarimana grabbed power in Rwanda.
He was a Hutu Moderate. In the late 1980s, he stood unopposed and won the elections to
become President. In 1990, the Tutsis via the RPF entered Rwanda through Uganda and started
massacring the Hutus. This action of refugees, infuriated the Dictator President who started
persecuting Tutsi residents. Finally, in 1993, the RPF and the President came to an agreement
that there would be a transitional Government which would include RPF representation. The
Hutu extremists got agitated.
Suddenly on April 6th, 1994, the Plane carrying the President of Rwanda and the President of
Burundi crashed at Kigali (Capital of Rwanda). No one knows who did it, but the Hutus blamed
the Tutsis and went on a rampage against them. RPF took over the Government buildings by
July, and manipulated the Tutsis to kill their neighbouring Hutus. A mass murdering citizenry
caused utmost political turmoil.
Contrary to the Yugoslavian issue, the UN was quick to act. The UN Assistance Mission for
Rwanda (UNAMIR) was sent to broker a peace settlement between the interim Government
and the RPF. This failed. The Assistance Mission informed the Secretary General of probable
massacre and stated that they were underprepared to avert the crisis.
The Secretary General was requested by the Security Council to set up a commission of experts.
On 31st May, 1994, the Secretary General reported to the Security Council that the prima facie
evidence pointed to a genocide. However, a full-scale investigation was required to be
conducted to conclusively establish the nature of violations committed in Rwanda. This
investigation was to be conducted sooner than later, lest the evidence, and the live witnesses
were destroyed and/or dispersed. The UN kicked into action.
On the 1st of July, 1994, the Security Council requested the Secretary General to establish an
impartial commission of experts. On 18th July, 1994, the RPF unilaterally declared a cease-fire,
ending the civil war. RPF had gained power in Rwanda. 26th July, panel of experts set up.
Security Council by resolution 955 of 8th November, 1994, established the International
Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law Committed in the Territory of
Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States between 1 January, 1994 and 31
December, 1994.
The commission of experts stated that a tribunal needs to be set up. They suggested that the
ICTY mandate and jurisdiction be expanded to include Rwanda as well. This was deliberated
for a while and they wanted to conclude whether to expand or create a whole new Tribunal.
They did not expand it because there were plan dos ICC already. The ICTY showed signs of
metamorphosizing into the ICC. This implies that, without much amendment most states will
have to accede to the same statute. They did not want this which is why the ICTR was formed
separately.
The ICTR could not be located at Rwanda which is why the capital of Tanzania, Arusha is
where the trial chamber of the ICTR was set up. The Security Council decided that the seat of
the tribunal would be located in Arusha, in the United Republic of Tanzania. Initial suggestions
by the commission of experts for expanding the jurisdiction of ICTY to incorporate Rwandan
Crimes because a number of states feared that this would lead to the formation of a permanent
International Court. Like the ICTY, the ICTR is also a subsidiary organ of the Security Council
and both share a common appeals Chamber and Prosecutor. The Rwandan Tribunal was not
plagued by the problems that the ICTY faced relating to the absence of the accused or the lack
of State Cooperation since mist of the accused were already in Rwanda and in any event with
the exceptions of Congo and Burundi no other States had any national or other substantial
interest in shielding persons I their territory or withholding evidentiary material.
CRIMES UNDER ICTR
Article 2- Genocide
Para 1 states that crimes under para 2 and para 3 are punishable. Para 1 was to ensure
that genocide extends to para 3 as well. Otherwise only para 2 would have been made
applicable. The ICTR expanded beyond the traditional meaning of genocide. It
expanded it so much that it is unparalleled. The sociological and anthropological
definition, they cannot be different races, ethnicities or nationalities. To account for the
minor differences, para 1 played a major role. This was to render justice. However, it
was also criticized. The drafters of Genocide Convention never intended for the
expansion of genocide. However, the criticism was that genocide should not be
extended even more.
Is persecution of sexual minorities genocide?

Para 2 states the definition of genocide. It has been directly lifted from the Genocide
Convention.
Para 3 is inclusive and codifies every act that can be termed as genocide. For the
purposes of genocide, not just para two but these acts are punishable as well. This was
because acts like instigation is not usually punished and only actual harm is punished
as Genocide. There is a similar Article in ICTY but this was the first time it was
specifically mentioned. Complicity was made punishable. The ancillary crimes were
also tried as Genocide and not as attempt to commit genocide.
Article 3- Crimes Against Humanity
Article 4- Breach of Common Article 3 of the Geneva Conventions
Criticism of ICTR by the Rwandan Government
• Rwanda had an opposition to the ICTR because of the temporal jurisdiction. They
believed it was too short and that the time should be increased.
• Trial was not happening in Rwanda and the judges were not Rwandan
• No death penalties awarded because of evolving Human Rights Jurisprudence.
Prosecutor v. John Paul Akayesu
FACT- John Paul Akayesu was the governor of a province in Rwanda. He sanctioned violence
and made sure it was seen through. This case is in light of genocidal rape. He was charged
under Article 3 of the ICTR. First case where genocidal rape was coined as a term and punished.
JUDGMENT- The court stated that any physical invasion of a sexual nature that violates
personal dignity when inflicted by, at the instigation, or with the consent of person acting in an
official capacity. No definition for rape in International law. This is an observation by the court
where it interpreted Rape in light of Article 3.
Notional plurality of offences means that one can be punished under multiple provisions for
one crime. For example, rape is a Genocide and a Crime Against Humanity.
The court followed an adversarial form of Judgment. A lot of women who were sexually
assaulted gave testimonies which was based upon to prosecute even persons in high positions
of power. There was no proof of him committing rape, but he was tolerant of the Rape
happening which led to his persecution.
For the first time in the Akayesu case, the definition of Genocide as per the Genocide
Convention was used verbatim. Here the Court held that this was done in order to destroy the
Will of the Tutsi group. It was not just an opportunity for sexual gratification. It was essentially
to corrupt the bloodline of the future Tutsis. This was a measure to prevent birth as per Article
2, para 2 (d). The patriarchal society allowed for the child born of rape to be a Hutu. The women
were disowned, or mentally and/or physically incapable of reproduction.
The Court differentiated between “normal” rape and “genocidal” rape. The Tutsi women were
specifically targeted making it genocidal. Else, it would have been normal. The intention
behind the rape was looked into.
Article 2, para 2 (b) of causing bodily harm was also provoked by the Hutus during the rape of
Tutsi women.
Though there were no actual accusations were made against Akayesu, he was still charged
under Article 6, that is, Individual Criminal Responsibility.
However, major criticism is that what happened in Rwanda was that there was no Genocide in
the first place because there are no two different ethnicities. The Belgians forced this ethnicity.
Allison was the expert witness who stated that “if you feel like you belong (sense of belonging)
to a different group you are a different ethnicity”. Though they had different origins, they
weren’t very different ethnically. It was more of a political divide. Even Hutu moderates were
killed. The Court still called it an ethnic conflict and stated that it was genocide and is based
on ethnicity based on definition of the expert witness, anthropologist Allison and that Hutu
death was not genocidal.
Akayesu was charged under 15 grounds but he was guilty of 9. He appealed and the appeal was
dismissed by the Appeals Chamber. He was given life imprisonment which he is serving at
Mali.
The UN Assistance Mission was accused of being silent by-standers. However, they were not
mandated to do anything. Further, they were extremely unprepared. The Head of the Mission
requested for power but it was not given. The Arusha Accords was the name of the Peace
accord signed by the President with the RPF. Which allowed for the UN Assistance Mission to
be implemented. Another criticism is that there was no accountability of the persons at power
who were negligent. Like Kofi Anon was Vice Chair and continued to be the Head of UN. All
the nations were more interested in rescuing their own nationals and they did nothing.
The French Turquoise Mission.
Media Trial Case
FACTS- Ferninand Nahimana, Jean Bosco Barayaguriza ran the RTLM radio channel. Ngeze
published the Kangua Times. They instigated crime. The Rwandan people were highly
dpendent on this Media and these persons were accused of conspiracy to commit genocide
JUDGMENT- They appealed under 5 grounds:
1) They had a biased trial. However, the Court held that they could handle the pressure.
Nahimana said that he changed his counsel and stated that any evidences that was given
against him when he switched his lawyers should be excused because his Counsel
couldn’t peruse through it. He also claimed that he could not be present at a few trials
so that should be excused as well. The court rejected this contention but upheld the first
one.
2) The temporal jurisdiction of the court was criticised. The trial court took evidences from
even before the period of temporal jurisdiction. The trial court held that the crimes were
inchoate and continuous crimes. They have to be read continuously. However, the
appeals chamber rejected this contention and stated that they will only take evidences
from the period of temporal jurisdiction. They rejected the concept of continuous
crimes. However, the criticism of the judgment is that you can take evidence even
before.
3) They claimed that this was not genocide. The moderate Hutus were killed by the
extremist Hutus. Was the killing of “protected group” of Hutus genocide? Trial court
held that it was. The Appeals Chamber held that this was not genocide but Crimes
Against Humanity.
4) Nahimana could prove that he had no connection with RPLM. Not enough evidence to
show he played an active role. So, he was only punished for incitement and not for
actual commission
5) They claimed that they did not incite genocide but what they did was “hate speech”.
Court differentiated and stated that this was not “Hate Speech” and this is inciting
genocide and not “instigation” or “hate speech. Instigation is in official capacity.
Incitement is in any capacity.
The Appeals Chamber almost reversed the judgment. However, they had no choice because
there was not enough evidence. Their charges on genocide were dropped but others were held
like inciting genocide and conspiracy to commit genocide.
Conspiracy is a continuing crime. Therefore, the planning if continued into 1994 can be taken
as well. However, the Appeals Chamber dismissed this claim.
Jurisdiction of the ICTR
The Security Council was conscious on the one hand that there were no international elements
to the armed conflict between the Hutu Government and the RPF. On the other hand, the
Security Council wished for the civil war to be recognized as a well-planned campaign of
genocide. Although one may presume that the temporal jurisdiction of the ICTR spanning from
1st January to 31st December of 1994 is wider than the actual duration of the hostilities, there
was enough evidence to show that plans to commit genocide existed at least as far back as
1992.
Both the ICTY and ICTR penalized participation in the preparatory and execution stages of
prescribed offences (planning, instigation n, ordering, aiding, abetting). However, an accused
would only be found guilty if the offence charged was actually completed. This Rule however
was not made applicable to genocide (Which was lifted verbatim from the Genocide
Convention of 1948).
When ICTY and ICTR both have genocide why is ICTR considered first instance? ICTR work
started immediately. The Yugoslav countries were resistant. ICTR arrests were made quickly,
evidences were collected quickly and the trial took place quickly. Akayesu was the first person
to be officially convicted for genocide under the ICTR. Radislav Krstic was convicted of
Genocide by the ICTY in 2001. This was the first conviction. The first Tribunal to recognize
and punish for genocide was thus, the ICTR. Conviction and trials began much before in ICTR
than in ICTY.
Subject matter jurisdiction- The ICTR excludes the 2 crimes of Grave breaches of GC and
violations of laws and customs of war. The nature of armed conflicts in Rwanda was deemed
to be of an internal nature and not international. Both the ICTY and the ICTR include genocide
which is applicable irrespective of armed conflict. The drafters of the Rwanda statute decided
to include a provision specific to non-international armed conflict in Article 4.
Personal Jurisdiction- The 2 statutes include the same provision regarding the Individual
Criminal Responsibility of persons only differing in Article 6 of the ICTR which incorporated
the two-gender formula.
Pauline Nyiramashuko was the first woman to be convicted of genocide through he ICTR.
The Security Council was conscious on the one hand that there were no international elements
to the armed conflict between the Hutu government and the RPF and on the other, the UNSC
wished the civil war to be recognized as a well-planned campaign of genocide. Although, one
may presume that the temporal jurisdiction of the ICTR spanning from 1st January to 31st
December 1994 is wider than the actual duration of the hostilities. There was enough evidence
to show that plans to commit genocide existed at least as far back as 1992.
Both ICTY and ICTR penalized participation in the preparatory and execution stages of
prescribed offenses (planning, instigation, aiding, abetting, complicity etc.). However, an
accused would only be found guilty if the offense charged had been completed. This rule was
not made applicable to genocide (which was lifted verbatim from the Genocide Convention
1948).
Subject Matter Jurisdiction (Article 4)
The ICTR recognized two crimes of grave breaches of the Geneva Conventions and violations
of laws and customs of war. The nature of armed conflicts in Rwanda was deemed to be of an
internal nature and not international. Both the ICTY and ICTR include genocide which is
applicable irrespective of armed conflict. The drafters of the Rwanda Statute decided to include
a provision specific to NIAC in Article 4.
Personal Jurisdiction (Article 5)
The 2 statutes include the same provision regarding individual criminal responsibility only
differing in Article 6 of the ICTR, which incorporated the two-gender formula.
Territorial Jurisdiction (Article 7)
Article 7 of the Rwandan Statute specifies that the territorial jurisdiction of the tribunal extends
beyond the territory of Rwanda to the neighbouring states where violations of IHL have been
committed. The ICTY had only limited the territorial to the former SFRY.
Temporal Jurisdiction
INTERNATIONAL CRIMINAL COURT
Statutes for a permanent international criminal court were being drafted. This statute was
acceded 120 signed (eg. USA) and 21 abstained (eg. India). India did not like the idea of
international interference in their state trials (the statute allows ICC to defer the jurisdiction of
the state courts should the proceedings conducted be observed as an eyewash). They also had
stated that they were not in agreement with the fact that the statute did not recognize terrorism
as an international crime. India’s unrests in the Northeast and Jammu also meant that even
though India insists that those are internal disturbances, they may be classified as a Non-
International Armed Conflict. This implies the application of principles of IHL. Additionally,
the ICC provides for the highest sentence of life imprisonment while the IPC provides for the
highest sentence of the death penalty. This, coupled with the better conditions in the
international prison in the Netherlands are reasons for India to not want their criminals
(including Naxal militants and the Naxalite movements as a whole) to be tried by the more
liberal Rome Statute. Many other countries have shown a similar stance against the statute such
as Iraq, Iran, China and so on. America, despite signing the Statute during the Clinton
administration, have not ratified it
After the 1st World War, the League of Nations was supposed to have created a tribunal
competent to deal with the massacres that had taken place in Europe over the previous decade
or so. However, due to the failure of League of Nations, this was never achieved and the
discussion for a permanent international criminal court reignited again at the end of the Second
World War. A day before the adoption of the UDHR in 1948, the UNGA adopted a resolution
which mandated the ILC (International Law Commission to investigate into and prepare a draft
for a permanent international criminal court. However, in the early years of the Cold War, the
General Assembly suspended work on this project in 1954. Tensions between the two blocs
made progress impossible, both sides being afraid they might create a tool that could advantage
the other. The end of the cold war gave the concept of a permanent international court the
breathing space it requires. The United Nations resumed its considerations of the proposed
court in 1989. The creation of ICTY and ICTR in quick succession further accelerated the
process. On the 17th of July 1998, at the headquarters of the Food and Agriculture Organization
of the UN in Rome, 120 states voted to adopt the Rome Statute. Less than four years later, the
Statute had obtained the requisite ratification by 60 states for its entry into force which took
place on 1st July 2002. There are currently 122 state parties.
The ICC is composed of 4 organs: (Article 34 of the Rome Statute)
• Presidency- Overlooks the administration of the court. This body is elected

unanimously by the 18 judges of the ICC.
• Registry- The Registry overlooks the management of the court. The issues
regarding the Defence Counsel, Victims, Witnesses, outreach programs, etc are
dealt with by the Registry.
• Office of Prosecutor- The Chief Prosecutor is elected by the Assembly of State
Parties. (ASP) The ASP is the governing body for the ICC. It is composed of all
State Parties to the Rome Statute.
• Chambers for trial, pre-trial and appeal- Perusal of evidence, submission to the
court and re-examination occurs in the Court. The pre-trial chamber first looks
into the veracity of witnesses, evidence, jurisdictional issues, etc, so that there
are no unnecessary challenges. It discusses admissibility and the
maintainability, as well as punishment is dealt with by the Trial Chambers.
Core Legal Texts
There are 7 core legal texts:
1) Rome Statute
2) Rules of Procedure and Evidence
3) Elements of Crimes
4) Regulations of the Court
5) Regulations of the Registry
6) Regulations of the Office of the Prosecutor
7) Code of Professional Conduct for Counsel
The Rome Statute is composed of the Preamble and 13 other Chapters. Article 120 States
that there can be no reservations made to the Rome Statute. However, you may withdraw
from the Statue under Article 127. The withdrawal needs to be made one year in advance.
The withdrawal comes into effect one year from when such request is made.
Article 34 of the Vienna Convention on Law of Treaties states that only parties to the Treaty
are obligated to it and bound by it. The Rome Statute is the international treaty that founded
the ICC. It consists of a preamble and an additional 13 parts which establish the governing
framework for the Court. This was adopted at the Rome Conference on the 17th of July,
1998 and entered into force on 1st July, 2002. The Statute sets out the Courts jurisdiction
over Genocide under Article 6, Crimes Against Humanity under Article 7, War Crimes
under Article 8 of the and Crimes of Aggression under Article 8 bis (means ‘again’) by
virtue of an Amendment in 2010.
In addition to jurisdiction, it also addresses issues such as admissibility and Applicable

Law, the Composition and administration of the Court, Investigations and Prosecutions,
trials, penalties. Appeals and Revisions, International Cooperation, judicial Assistance and
Enforcement.
Jurisdiction
As per Article 34 of the VCLT of 1969, International Agreements are capable of binding
only contracting parties. They do not bind 3rd States without their consent. Practice suggests
however, that multi-lateral treaty arrangements may on the basis of political or legal reality
impose certain constraints on the behaviour of Third States.
Article 12 accounts for the preconditions of jurisdiction to ICC. Para 1 provides that State
parties accept jurisdiction. Article 5, the subject matter of the ICC is enumerated. Para 2
states that if a crime is committed on a registered craft or vehicle or if the person is a
national of a State party, even if the crime is committed on another jurisdiction may still
invoke the ICC. Para 3 states that acceptance of jurisdiction by virtue of para 2 should be
explicitly made by the State not party to the ICC. This acceptance is of voluntary nature.
However, Genocide has universal Jurisdiction. Here, no consent of non-party State is not
required. Can it be tried against the consent of the Non-Party State? This is the criticism.
Under Article 12 of the Rome Statute, the ICCs jurisdiction over a situation may be
triggered in any of the following cases:
1) Either where a situation takes place in the territory of, or by a national of a State Party
2) Where the territorial State or the State of the Nationality of the Accused are parties to
the Statute (Article 12, para 2)
3) Where the Security Council, acting under Chapter VII of the United Nations Charter,
refers a situation to the ICC Prosecutor (Article 13, para B)
Whereas under Article 12, para 1, a party to the Statute is subject to the automatic
jurisdiction of the court. Non-parties under para 2 can accept ICC’s jurisdiction with regard
to a specific situation by lodging a declaration to that effect. (Article 12, para 3)
Principles of Criminal Jurisdiction:
1) Territorial- Territory in which the crime is committed has jurisdiction over the criminals
2) Nationality- If the national of a State commits an extra-territorial crime, the State of the
National still has the right to prosecute
3) Passive personality- If the national of one country is victimized, the State of the Victim
has jurisdiction
4) Protective- Threat to invade sovereignty from outside the country can also be tried and
punished by the State that is being threatened. (Lord Haw-Haw case- Took British
citizenship of England and berated the Allies.)
5) Universal- Crimes against all of Human kind. Like Piracy, genocide, etc.
U.S.A. raised an issue saying, how can Rome Statute be applicable to Non-Parties. Further,
how can one exercise Universal Jurisdiction if there are some non-signatories and non-
parties. (Contradiction between Article 34 of VCLT and Universal Principle) The
resolution is under Article 13 para b of the Rome Statute. Chapter VII of the UN Charter is
the exception to disregard respect for sovereignty under Article 2(7) of the UN Charter.
This is the only way for the Universal Jurisdiction of the Rome Statute to kick in.
The USA vehemently opposed the jurisdiction envisaged under Article 12, para 2, because
this violates the rule that treaties can only bind contracting parties. This also comes in
conflict with most of the principles of Criminal Jurisdiction in International Law. Although
Article 12 refutes the application of Universal Jurisdiction, Article 13, para b (SC Referral)
empowers the ICC with Universal Jurisdiction. One such example being the conflict
ensuing at Darfur, a region in Western Sudan (with reference to third civil war in 2013)
The rebels fought against the local militias who were supported by the Government. The
militia were Arab (called Tanjaweed) while the rebels were Non-Arab population. Even
though South-Sudan was not part of the UN a UN Mission called UN AMID was sent. A
referral was made by the UN to the ICC and started investigating into the matter. For the
first time in history, an arrest was issued against Omar-al-Bashir, a sitting Head of
Government by the ICC. However, no trial has begun as of now. Here Universal jurisdiction
was triggered by a UN Referral to the ICC.
The reason for restricting the Universal Jurisdiction of the ICC to SC referrals is that if the
ICC were to exercise the Universal Jurisdiction normally enjoyed by States, it would mean
that the ICC is competent to exercise also, the pre-existing jurisdiction of the State parties
which they have delegated to the ICC.
Principle of Complementarity
The jurisdiction of ICTY and ICTR were concurrent and yet had primacy. However, since
the Rome Statute did not allow for reservations and in order to make sure maximum States
participate and to remove too much work, it made the jurisdiction complimentary. This
means that only if the State machinery fails will the ICC has jurisdiction. If the trial is an
eye-was or the State machinery has failed then the ICC steps in. This was to remove the
issues of ICTR and ICTY. This principle is encompassed in Article 17 of the Rome Statute.
The ICC can only investigate and prosecute core International Crimes when National
Jurisdiction are unable or unwilling to do so genuinely. The principle reflects a realisation
that it is preferable that such crimes are investigated and prosecuted in the country where
they occurred. This principle is realised in Article 17 by way of issues of admissibility.
Individual Criminal Responsibility
Article 25 of the Rome Statute deals with ICR. It has jurisdiction over:
1) Natural persons
2) Person who commits crime will be punished as per the Statute
3) Shall be held responsible for doing the following:
a. Commits a crime whether alone or along with someone regardless of whether
such other person commits a crime. Joint Criminal Enterprise was the brain
child of ICTY which was included here.
b. Orders, solicits or induces the commission of a crime which in fact occurs or is
attempted. Established through conduct. Complicity shall be charged. But why
is it included in ICR?
c. For facilitating the crime, aids, abets or otherwise assists in its commission or
attempted commission, including providing means for commission.
d. In any other way contributes to the commission or attempted commission
towards achieving a common purpose. Commission is intentional and either:
i. Furthering the criminal activity or criminal purpose
ii. Knowledge of the intention of the group to commit the crime
4) D
5) D
6) D
Structure of a crime includes:
1) Mental element
2) Material element
1) Mental element- Article 30 of the Statute. Material elements should be committed

with intent and knowledge. (Unless otherwise provided)
Mental elements include:
a. Intention- want to bring about a certain consequence
b. Knowledge- act will most likely result in consequences
c. Recklessness- doing an act irrespective of knowing the risk
d. Negligence- not abiding by duty of care
Why does Para 1 of Article 30 say intention and knowledge and not just intention
because it covers knowledge anyway? You can have knowledge and have no
intention. In that case, knowledge won’t be punished. However, in the statute both
has to be proved anyway. Should knowledge and intention be taken disjunctively
or conjunctively? It was decided that it will be taken conjunctively.
Dolus specialis- Special intention
Dolus eventualis- General intent
The reason was that both civil law and common law systems with different
languages are party to the Statute. To prevent this situation and to include both
knowledge and intent, and to ensure there is no misconception as to which state of
mind is being criminalized, both were mentioned. Just intention would have made
it too narrow a crime. Knowledge accounts for recklessness and other associated
crimes.
For the first time in the history of international criminal law, and unlike the Nuremberg, Tokyo,
Yugoslavia and Rwandan documents, Article 30 of the ICC Statute has provided for a general
definition of the mental element triggering the criminal responsibility of Individuals for core
international crimes. There has been a lot of debate due to a lack of shared grammar among
languages. In other legal systems, the term dolus specialis refers to a specific intent which may
be translated to intention as per Indian Criminal Law and dolus eventualis means when the
perpetrator foresees the possibility of their act causing death and persists regardless of
consequences. In common law systems and as per the Indian Criminal Justice system, dolus
eventualis can range from negligence to knowledge. The choice of the term intent and
knowledge is rather unfortunate and the statute attempts an overlap between common law and
civil law understanding of these terms.
Article 30, para 2 marks a shift from “offence analysis” to “element analysis”. The elements of
the crime are analysed with respect to the material elements of conduct and consequence
separately.
Article 25-Individual Criminal Responsibility
Article 28- Command Responsibility: Para 1- Liability of Military leaders. Para 2- Liability
of (Other) Civilian Leaders; which is slightly diminished in comparison to military leaders.
This is because they have more knowledge and the fact that you should have known what those
under you will do is what increases the liability. “…should have known…” owing to the
circumstances also affects the liability.
Prosecutor v. Thomas Lubanga Dyilo
Name of the country Zaire was changed to Congo in 1997. There were multiple factors which
already made Congo a fairly conflict-ridden state. In the Ituri region, there was an ethnic spat
between Hemas and Lendus. This can also be attributed to the fact that this region was rich in
gold and diamond. They had also aided the conflicts at Rwanda.
The Belgians favoured the Hemas and this led to divide and rule and severe ethnic conflict.
Thomas Lubanga started the UPC (a registered political party) and wanted to bring the country
back together. He wanted to remove the ethnic conflicts. UPC was being supported by Uganda
and other neighbouring countries. He wanted to further cut costs so he started enlisting to
conscripting children into the war. This was a war crime as per IHL whether the recruitment
was by consent or not. Initially, only boys were taken in the first place. However, because the
boys were unclean, the girls were also taken in for cooking, cleaning and sexual slavery.
The core legal questions considered by the ICC Trial Chamber are as follows:
• First considering that the distinction between conscription and enlistment is whether
the act was committed with compulsion, can a child consent to enlistment.
The willingness of a child does not matter. It is a war crime the moment a child joins
the army. Child as per Rome Statute is any person below the age of 15.
• Is there a distinction between “active participation” in hostilities as an element of the
offence of using child soldiers and “direct participation” in hostilities under IHL?
In the GC, the term “Direct Hostilities” is use, as opposed to Rome Statue that uses the
term “Active Participation” in Article 8, para 2, sub-paragraph b, part xxvi. This was
the main importance of the case because it distinguished between direct and active
hostilities. The word “direct hostilities” has a smaller ambit and is more direct. Active
is broader. It means to have in any way participated, that is, not just picking up weapons,
it just means in any way whether ancillary or direct, eased the war. This can also be
understood by seeing whether the child has in any way put themselves in a situation of
harm it can be considered as having participated in active hostilities.
• Does sexual violence against children fall within the scope of active participation?
This was not answered clearly.
The pre-trial chamber noted the difference between “Principal Liability”, “Accessorial
Liability” and “Superior Responsibility”. It stressed that if it were to find sufficient
evidence to establish substantial grounds to believe that Mr. Lubanga was criminally
responsible as “co-perpetrator”, the issue of whether it could consider other forms of
liability would become moot.
The chamber analysed co-perpetration as the sum of coordinated individual
contributions of a plurality of persons, resulting in the realisation of all the objective
elements of a crime and any person making a contribution can be held vicariously
responsible for the contribution of all others and as a result, can be considered as a
principal to the whole. (Parallel can be drawn to the postmaster case)
Mr. Lubanga said that he asked the children for age and that he did not use them in
direct war. Further he said it wasn’t sexual slavery because he married the girls to the
boys because they were young and he had to boost their morale.
Three ways to establish Individual Criminal Responsibility:

a) Objective Approach- adheres to the actual physical participation in a crime.
b) Subjective Approach- refers to the state of mind in which the contribution was
made.
c) Control over the crime Approach- The ICC adheres to this third filter which is the
control over the crime approach. Based on this approach, a further distinction
between direct perpetration, indirect perpetration and co-perpetration can be made.
Thomas Lubanga was charged with being a co-perpetrator. Co perpetration requires that all co-
perpetrators be mutually aware of and mutually accept the likelihood that implementing the
common plan would result in the realisation of the objective elements of the crime.
The Court initially held that Thomas Lubanga should have known. However, he was also a co-
perpetrator. The Court had to harmonize this. The Court held that the very fact that you are
aware of the policies of the organization, therefore, by virtue of awareness and position, the
court held him liable as c0-perpetrator and for Individual Criminal Responsibility.
Even though the standard of ‘should have known’ could not be applied to Lubanga, he had
control over the policies of his organization. During the relevant time-frame between
September 2002 and the end of 2003, (relevant time is because of ICC temporal jurisdiction
though the war started in the early 1990’s)
At the relevant time frame, he was, at the very least, aware that in the ordinary course of events,
the implementation of the common plan would involve illegal acts or results. The Chamber set
forth the elements of co-perpetration based on joint control of the crime. The Chamber noted
that the concept is rooted in the principle of the division of essential tasks for the purpose of
committing the crime between two or more persons acting in a concerted manner. Thus,
although none of the participants individually have over-all control over the offence, as they
all depend on one another for its commission, they all share control because each of them could
frustrate the commission of the crime by not carrying out his/her task.
The Appeals Chamber at ICTY established the concept of Joint Criminal Enterprise (JCE).
This is not mentioned specifically in the ICTY Statute. The ICTY Appeals Chamber laid down
the concepts and elements of JCE. Broadly the requirements of JCE are:
• Plurality of persons
• Common design or plan
• Acting in furtherance of the same.
In both domestic and international criminal law, a distinction is drawn between general joint
perpetration and joint perpetration and joint perpetration that involves a common design. The
difference between the two is that where a common purpose has been established and roles
have been allocated therein, each member of the common purpose is equally liable regardless
of the nature and gravity of his/her participation and role. On the contrary, in case of a joint
perpetration without a common purpose or plan, the liability of each perpetrator is determined
in accordance with the crime committed. The ICTY statute does not explicitly establish liability
involving common purpose perpetration whereas Article 25 para 3 sub paras (a) and (d) of the
Rome Statute jointly establish common purpose perpetration.
There are 3 types of JCE: (As per the opinion of the judges)
• Basic
• Systemic (Concentration Camp at JCE, who is responsible how much in a concentration
camp or are all individuals equally liable? Not systematic, it is systemic. It is also the
most superior.)
• Extended
Notes for Article 25 in “ICL by Susan Nash and Illias Bantekas”
Prosecutor v. Delalic
Common Purpose and Common Design can be used interchangeably. Merely having common
purpose does not mean you also have common intention. It can be due to coercion.
The Appeals Chamber in the Tadic Case distinguished between 3 categories of JCE.
The first and more general consists of cases where a group of persons possess a shared intent
to commit a crime and a common design is accordingly formulated. Participants in the common
design will inevitably assume differing roles and levels of responsibility and depending on the
magnitude of the eventual crime some participants will contribute to its planning and
intermediate stages while others will play a significant role in its execution. JCE liability arises
even for those that do not directly contribute to the execution of the crime as long as they are
found to enjoy a significant contribution in the perpetration of the common design.
(Willingness in design determines the applicability of JCE) A significant JCE liability concerns
the construction of an appropriate mens rea for those participants who did not take part on the
execution of the crime. The Tadic Appeals Chamber was of the view that the participant must
have willingly contributed to at least one element of the common design ands intend the result
of the ultimate crime (s) undertaken by the co-perpetrators.
Systemic includes higher level of officials in JCE. For instance, Milosovic wanted the non-
Serbs dead. He created a system of fear. This is not enough to prove that he is solely
responsible. Several persons such as Tadic, they assisted him to achieve his goals of removing
non-Serbs even without him giving orders. They added to the fear. They took the cause further.
Even allowing another person to suffer when you have power to check the behaviour is also
Systemic JCE. This applies even to the case of Akayesu who did not cause any harm physically,
but he looked the other way when he could have prevented atrocities. The system wide leaders
at Rwanda decided to come together for Hutu domination and created a system of fear. This is
systemic JCE.
The second category if JCE is more specific, derived by the Tadic Appeals judgment from
concentration camp JCE liability cases. After further refinement, this category is now known
as systemic JCE covering all cases relating to an organized system with a common criminal
purpose perpetrated against the detainees. These consist of a common design in which multiple
persons participate in a system of ill-treatment of detainees in camps. The participants enjoy
positions of authority in the camp and have either established or are aware of the system and
contribute to its furtherance in whatever capacity each is called upon. The participants must be
aware of the common purpose and they must intend to contribute. Thus, the tasks undertaken
within such a system of ill-treatment will vary significantly. The participants must be aware
of the system and intend to contribute to it.
If a detention camp guard sees people being brought in and taken out as dead bodies, he or she
understands that what is happening within the camps is an arbitrary abuse of powers. Such
person has knowledge, and although there is no active participation, there is omission which
qualifies to be participation. Does this imply that this is a case of Systemic JCE? How do you
differentiate? Here, these guards are not in a position of authority, either civilian or military.
This authority need not be de jure but merely de facto. If the person is aware and intends to
contribute, they will be held responsible for JCE. However, if one is a guard, they will be held
responsible for aiding and abetting because the guard lacks influence and authority.
The Appeals Chamber in another judgment held that the holding of an executive, administrative
or protective role in a camp constitutes general participation in the crimes committed therein.
An intent to further the efforts of the JCE so as to rise to the level of co-perpetration may also
be inferred from knowledge of the crimes being perpetrated in the camp and continued
participation which enables the camps functioning.
In the Kvocka case, if a person knowingly commits a crime, the question as to the fact as to
whether the person is a co-perpetrator or not was answered. The Appeals Chamber made a
distinction. Kvocka was in charge of the same Omarsk camps that Tadic controlled. He had
directly involved in the killing of 2 persons but he was still held responsible for systemic JCE.
This was because he was a high-ranking guard. He could have halted the torture of multitudes
of people, but his omission made him liable for JCE.
Kvocka was a prison guard of a high-ranking position and had authority over other guards. He
personally was involved in the murder of 2 detainees. The Trial Chamber concluded that
Kvocka had no Superior Responsibility as participation could not be established.
Para 182 of the Judgment: The Appeals Chamber wishes to point out that although commonly
referred to as the category known as concentration camps, the second category of JCE known
as systemic JCE covers all cases relating to an organized system with a common criminal
purpose perpetrated against the detainees. This concept of criminal responsibility has been
shaped by the case law derived from concentration camp cases from the second world war.
This principle can be juxtaposed with Yugoslavian detention camps. Defining factor in
systemic JCE is authority and high degree of control. Effective control principle is made
applicable.
The third category of JCE is called Extended JCE. Over here the main question is whether a
person should be held responsible for the unexpected consequences of their orders. The first
two categories of JCE covers Intent and Knowledge. Recklessness is dealt with by the third
JCE and Negligence is a whole other charge in itself and not JCE. The third category of JCE is
based on reasonable foreseeability of consequences. The knowledge of possibility of something
happening will automatically impose liability under third category JCE.
The third category of JCE refers to common plans or designs in which the actions of one or
more participants exceeds the aim of the original design and as such the excessive action no
longer coincides with the intention of all the participants. The Appeals Chamber in the Tadic
case opined that liability will arise if the risk of death (Risk of excessive harm other than
intended consequence) was a predictable consequence.
The mens rea requirement is of dolus eventualis. However, another problem arose. The ICTY
Appeals Chamber stated that Extended Liability is best suited to cases of genocide. The
requirement under the various other conventions is special intent. This was not satisfied, so
how is it suited for Extended JCE? Should it not be dolus specialis?
The ICTY Appeals Chamber pronounced that the third category of JCE and genocide are
compatible. This gives rise to the question that for a crime which requires dolus specialis how
can a standard of dolus eventualis be made applicable to it? The Appeals Chamber further went
on to harmonize this conflict- “ What is required is the state of mind in which a person, although
they did not intend to bring about a certain result, they were aware that the actions of the group
were most likely to lead to that result but nevertheless, willingly took that risk.
Prosecutor v. Brdjanin
Judgment came out in 2004, where he the court stated that he was to be detained for 32 years.
Here the question of extended JCE came up.
Brdjanin held a position of authority. There was hyper-inflation, loss of jobs and general social,
cultural and economic problems. Three main political parties started after the death of Josef
Tito. He held fairly high municipal and republic positions and belonged to one of the majority
parties. The party he belonged to came up with a plan called “Strategic Plan”. He did not
instruct as to what to do, but he openly spoke against mixed marriages, he was a pro-Serb
fanatic, denied employment to Serbians and came up in general with propaganda and strategic
plans. He created a climate where commission of a crime against non-Serbs was excusable and
allowed. Mass rapes, killings and tortures happened. The question before the Trial Chamber
was whether or not he was responsible for 3rd category of JCE. The second question was
whether he was responsible as a superior. Apart from these modes of liability, he was to be
tried for several other charges as well.
Firstly, for extended JCE a common design had to be established between Brdjanin and the
actual perpetrators who in this case happened to be police, etc. Simply by saying that he was
against non0-Serbs and the mere espousal of strategic plan does not establish a common design
between him and the perpetrators. He was not held liable. Further, he never gave directions, he
only gave the strategic plan and never induced anyone, so can he be held as a superior? They
finally found that the mode of operation for him was aiding and abetting and not JCE or
Superior Responsibility.
In order to hold the accused responsible under the institute of JCE, the prosecution needs to
establish a common plan amounting to or involving an agreement between the accused and the
physical perpetrators of the crimes in question to commit a crime envisaged in the statute. The
physical perpetrators in this case are members of the police, army, and para-military
organizations. The Trial Chamber concluded that mere espousal or encouragement of the
Strategic Plan and the fact of it being actually carried out by the physical perpetrators is not
evidence enough for an arrangement of a common plan between the accused and the
perpetrators.
The Trial Chamber also concluded that he had active knowledge that the Strategic Plan was
being effectively carried out in order to achieve political and numerical majority. In spite of
that, he was not held responsible for JCE.
Article 25(3)(b)- Orders, solicits or induces for either commission or attempt. Why does this
exist if Article 28 exists? Why the superfluous usage of the word? Article 25 refers to
commission. Article 28 refers to omission. This is the difference. Induce is generally used in
context with political leaders and not military leaders. Why is ordering in the same breadth as
incite and solicit? Ordering is a concrete superior-subordinate relationship, whereas solicit and
induce is for a more elusive coercive relationship.
An order is a command for action or omission that is issued by a superior to a subordinate

irrespective of whether the context of the relationship is military or civilian. The addressee
should perceive the order as a binding command. The actus reus of ordering consists of the
transmission of an unlawful command to one or more subordinates. The general mens rea
standard for ordering requires knowledge of the orders illegal character coupled with direct
intent to fulfil its content. Where the order was not known to the issuers to be unlawful, or
where it was not manifestly unlawful, that person then, will not be liable for the harm caused
by the order. This would therefore, exclude negligence which may be defines as lacking
awareness as to an unlawful risk or a criminal consequence.
Soliciting means inter-alia (among other things) to command, encourage, request or incite
another person to engage in a specific conduct to commit it while to induce means to influence
another person to commit a crime. Inducing is an umbrella term which covers soliciting.
Neither soliciting nor inducement requires a superior-subordinate relationship. Clubbing
“orders” with “solicits” and “induces” poses the risk of diluting orders to a level of complicity
rather than perpetration. However, the term “orders” in Article 25 clearly indicates to an actual
commission whereas Article 28 criminalizes command responsibility on the basis of an
omission.
Should a person also be held liable for the unintended consequence of their orders?
A person as a superior for ordering or instigating killing shows intended consequences in ethnic
cleansing. However, other atrocities such as rape that is often committed during the execution
of this order would be an unintended consequence.
The third category encompasses recklessness. There must be a foreseeability that there is a fair
level of risk of ancillary atrocities attached to an order. The interpretation of the order can be
affected by matters of context. When none of these things are paid heed to, recklessness will
begin to apply and liability will fall within the ambit of Extended JCE. Simple negligence or a
complete lack of knowledge will not fall within extended JCE. There must be a reasonable
chain of causation that could have been reasonably foreseen to take place due to the context of
the order given, and based on who the order is given to.
The mens rea required here is of dolus eventualis.
Prosecutor v. Brdjanin
Defendant occupied important municipal and republic positions (gaining from economic
turmoil and hyper-inflation, loss of jobs, shutdown of educational institutions). The party he
was part of was for the break-up of Yugoslavia and they came up with a “Strategic Plan”. He
laid down the plan “this is how we should capture land” and so on. He also openly spoke against
Serbian-mixed marriages. He wanted to protect Serbians. Work was difficult to find for others
during that time. Military groups had started committing atrocities around this time. He had
created an air of condonation around activities like that.
Trial court said that for extended JCE, a common design between him and the physical
perpetrators has to be established. Simply by saying that he was against non-serbians, simply
by coming up with a plan does not make him, mere espousal of a strategic plan does not show
proof of the common design and hence he cannot be found guilty under the extended JCE.
He just said that this is the plan, and this is the manner in which a Serbian majority can be
achieved through a plan. This cannot be considered an order given as a superior and hence he
cannot be thus held liable either.
In terms of aiding and abetting as a mode of participation, this would apply

He was arrested in 1999 for 32 years.
He knew that there were atrocities, he denied them jobs and he condemned mixed marriages.
Apart from saying these, he was aware of the atrocities that were taking place as a result and
still was not held under JCE and this fact was not further addressed in the appeals chamber
either, considering the fact that he had been given a sentence of 32 years already for aiding and
abetting. Despite the knowledge he had of the atrocities and the potential control he had over
the situation considering his reputable and high-ranking positions. Hence, he should be held
under JCE.
In Article 25, Ordering is in reference to a concrete superior-inferior relationship. “Inducing”

is in reference influence exercised to persons in positions of power. This can be exercised by
political leaders as well. 25 relates to an explicit commission, while 28 relates to omission.
The third category of JCE refers to common plans or designs in which the actions of one or
more participants exceed the aim of the original design and as such the excessive action no
longer coincides with the intention of the participants. The appeals chamber in the Tadic case
opined that liability will arise if the risk of death was a predictable consequence.
The ICTY appeals chamber pronounced that the third category of the JCE and genocide are
compatible. This gives rise to the question that for a crime which a requires dolus specialis,
how can a standard of dolus eventualis be made applicable to it. Appeals chamber further went
on to say to harmonize this conflict
“what is required is the state of mind in which a person, although they did not intend to
bring about a certain result, they were aware that the actions of the group were most likely to
lead to that result but nevertheless, willingly took that risk.
In order to hold the accused responsible under the institute of JCE, the prosecution needs to
establish a common plan amounting to or involving in agreement between the accused and the
physical perpetrators of the crimes in question to commit a crime envisaged in the statute. The
physical perpetrators in this case are the members of the police, army, and paramilitary
organizations. The trial chamber concluded that mere espousal and the act of it actually being
carried out by physical perpetrators is not evidence enough for an arrangement of a common
plan between the accused and the physical perpetrators.
An order is an action of commission or omission that is issued by a superior to a subordinate
irrespective of whether the context of the relationship is military or civilian. The addressee
should perceive the order as a binding command. The actus reus of ordering consists of the
transmission of an unlawful command to one or more subordinates. The general mens rea
standard requires knowledge of the order’s illegal character, coupled with direct intent to fulfill
its content. Where the order was not known to the issuer to be unlawful or where it was not
manifestly unlawful, that person then will not be liable for the harm caused. This would,
therefore, exclude negligence, which may be defined as lacking awareness as to an unlawful
risk or a criminal consequence.
Soliciting means, inter alia, to command, encourage, or insight another person to engage in a
specific conduct to commit it while to induce means to influence another person to commit a
crime. Inducing is an umbrella term which covers soliciting. Neither soliciting nor inducement
requires a superior-subordinate relationship. Clubbing “order” with “solicits” and “induces”
poses the risk of diluting “orders” to a level of complicity rather than perpetration. However,
the term “orders” in Article 25 clearly indicates to an actual commission whereas article 28
criminalizes command responsible on the basis of an omission.
USA v. Wilhelm Von Leeb (High Command Case)
This is the Last of the 12 subsequent cases under Control council law no. 10 in 1948. Charges
were filed against 14, but only 13 defendants stood trial as one committed suicide prior. They
were all fairly well-ranking officials but were not considered high enough to be tried at
Nuremberg. They were charged with different counts under all three violations stipulated. The
court had concluded that they were too low in the hierarchy in order to be able to come up with
a blueprint to execute in order to wage war against another state and hence the crime against
peace charges were dropped. In terms of crimes against humanity, the question of superior
responsibility arose with respect of moderately high-ranking officers was addressed wherein
orders received from a superior are then transmitted to the inferior. The court held that having
knowledge of the wrongful nature of the superior order and yet further ordering subordinates
to act upon that superior order and hence would be held liable under crimes against humanity.
Such acts are found to come within the ambit of Article 25(3)(b).
In the Von Leeb case, the court tried to establish whether or not the actions of the subordinate
could be considered as ‘ordering’ to be tried. The court concluded that even as a subordinate,
if you know the order to be illegal and if the order is then passed around, then even the
subordinate can be held as liable as the person issuing that order then. Where superiors are
aware of the illegality of the order or are reckless (that is, they are conscious as to the taking
of an unjustifiable risk) as to its consequences and nonetheless transmitted through the chain
of command, they are just as liable as the person who initially issued the order.
Prosecutor v. Blaskic
Defendant was carrying out a superior order, ran risk of commission of atrocities. However,
simply recklessness is not enough for an intermediate superior. Knowledge that illegal acts will
be committed as a result of this order must also be present. Responsibility on par with a superior
cannot be established without establishing this knowledge.
The methodology applied by the Blaskic appeals chamber in order to determine the mens rea
required to determine the liability for carrying out an illegal superior order was to examine
recklessness in common law and dolus eventualis in civil law. The appeals chamber reduced
their sentence to nine years.
Standards of Responsibility
Yamashita Standards
Tomoyuki Yamashita was Commanding General of the 14th Army group of the Japanese
Imperial Army. He was the military Governor of Philippines from 1944-1945. His army was
responsible for the Bataan death march and other such atrocities. He was accused of being the
Head and directing the atrocities. His defence was that he was stationed at China and was
running multiple plans. His order was merely to be was stationed and control the Philippines
and not to commit atrocities. Here the Tokyo Trial Chamber merely held that he should have
known that the troops are fully capable of committing atrocities. Being a military commander,
one should expect this. He was held responsible. However, this was problematic for ICTY.
They stated that if you have the means to know you must know, otherwise it is not just o be
punished for the excesses of your troops.
The Prosecution in the Yamashita case said that he must have known of the atrocities
committed by his troops against the civilian population of the Philippines. If he did not know
of his troop’s actions, that leads to the conclusion that he made efforts to not know what was
happening.
The standard was very suspect and the ICTY criticized this standard of “must have known”.
Prosecutor v. Halilovic (2005 Trial Chamber, 2007 Appeals Chamber)
Halilovic was at the level of a military commander. He hired the 13 th and 14th troops of the
Serbian Army who were infamous for their atrocious behaviour. He specifically commanded
them to go and ensure that the Bosnian Croats leave the village. The troops destroyed the
Croatian Bosnian village.
The ICTY Trial Chamber said that simply because one is commanding a troop you are not
expected to know everything your troops are capable of because then all Commanders will
always be held responsible.
The excesses of the perpetrator cannot always be attributed to the instigator. This is key as the
instigators scope of intent limits his responsibility and is important in cases where a principle
may commit further crimes than he or she was instigated to do. This standard also similarly
applies to a Superior-Subordinate relationship where a Superior can only be made responsible
for the actions of the subordinate if the Superior had knowledge or intent with respect to the
acts committed.
The Trial Chamber said that since the prosecution could not establish effective control at the
time of commission of the crimes, Halilovic was acquitted of them crimes. Appeals Chamber
agreed and he was acquitted.
Celebici Case
Celebici was a camp. Four people, namely, Zejmil Delalic, Zdravko Mucic, Hazim Delic
And Esad Landzo were accused of committing atrocities at the camp. This was the first case
dealing with Command Responsibility and Rape as torture. The crimes in question had
happened in 1992. The accused persons were responsible for the prisons. The Court held that
both de jure and de fact control matter. De jure is not as important as de facto for establishing
command. But even simple encouragement is sufficient. Delallic was acquitted since they
could not establish Command Control over the prison guards. He was too far removed.
However, he could have been punished as per the Yamashita Standard. Mucic was charged
with dereliction of duties. He did not provide sleeping coaches and did nothing to stop the
bullying either. There were no supplies or been drinking water. He was charged with a lot of
issues and was held guilty. He was charged for omission and not commission. The punishment
was not a product of individual malice but the frailty of the human being. Even when the
witnesses were called on scene. The witness will not know.
If the perpetrator has de jure or at least de facto control, then they will be considered
responsible. The perpetrator may also not be commanding them but mere encouragement or
influencing a person to commit atrocities will also incur responsibility.
D1 was completely acquitted as he was not in the know-how and believed to not be responsible
as he was too far removed from the atrocities committed (if the Yamashita standard had been
used here, D1 would also have been convicted).
D2 was charged because of dereliction of duty- no sleeping facilities provided, no potable water
provided and no protection of the prisoners. He was held guilty for the same. The term given
to him was only 7 years. The trial chamber His omission wasn’t because of individual malice,
rather a product of human frailty and this was used as a mitigating factor. Additionally, no
witnesses took his name during the trial and this was also a factor that was considered. This is
problematic and goes against the very basis of command responsibility as the farther away
from the crime an individual is, there is a good chance the more responsible they may be.
However, in the aforementioned case it can be argued that he had always been a frail man and
this distance from the atrocities may be owing to this fact.
D3 had effectively caused continuous harm through rape to two women and would occasionally
at random electrocute people. Even though he didn’t have the command that would normally
be required for article 28, he was given 20 years as he was able to insight influence in favor of
the atrocities and bolstered the confidence of the other guards, emboldening them to either look
away from the violence of participate in them themselves.
D4 was 18-20 years old. As a child of 15, he had seen his family being persecuted by other
minorities (murder, rape, torture). He joined the Serbian forces with this hatred in his heart and
committed multiple atrocities in this hatred and the testosterone fuelled spitting contest he was
influenced by. He defended himself by stating he was following superior orders, the courts held
that there will be no such mitigation in this regard due to the fact that he had committed
atrocities that per se were malicious and atrocious and had to have been above and beyond
what had been ordered of him. He was given consideration for his age, however, and was held
separately responsible with a prison term of 15 years. The Celebici case here only made
reference to the Rome Statute and didn’t refer to it as the ICC statute was not binding on
Yugoslavia. D4 was well aware of what he was doing, the illegality of his act was known and
he was well in control of his action. Hence, the defense of diminished mental capacity was
dismissed by the appeals chamber.
Prosecution in the Yamashita case held that he must have known of the atrocities committed
by his troops against the civilian population of the Philippines. If he didn’t know of his troops
actions, which leads to the conclusion that he made efforts to not know what had been
happening.
Prosecutor v. Halilovic
The excesses of the perpetrator cannot always be attributed to the instigator. This is key as the
instigator’s scope of intent limits his responsibility and is important in cases where a principle
may commit further crimes than he/she was instigated to do. This standard similarly applies to
a superior-subordinate relationship where a superior can only be made responsible for the
actions of the subordinate if the superior had knowledge or intent with respect to the acts
committed.
GENERAL DEFENCES (ARTICLES 31-33)
Should they be included? Because if yes, then it’ll become too narrow and if not, the powers
given to the judge’s powers as wide as that of the ICTY judges, allowing them to interpret it
and expand jurisdiction as per the judges’ jurisdiction. Since this was meant to be a permanent
body, specific general defences had to be laid down so as to not allow such a wide set of powers.
Another question was whether or not these justifications would be Excuses or justifications.
The mitigating circumstances’ assessment was in the judge’s discretion. Reduction of

sentences and punishment based on mitigating circumstances are also seen. Any defense which
may be applicable from domestic laws depending on the facts and circumstances of the case.
The only other use of insanity as a defense was in the case of Rudolf Hess (close associate of
Hitler who followed him fervently and almost religiously). He contended that he was not
capable of thinking for himself, with no knowledge of the consequences of his actions. Apart
from the trial, even the interview of Hess showed him to be an incredibly insecure human being
who saw Hitler as a father figure who gave him approval he never got from his own. This
defense was dismissed and he had been convicted of his crimes.
In terms of intoxication, there are two main forms: voluntary and involuntary intoxication.
Voluntary intoxication is only a partial defense given the fact that the defendant made the
choice to impair themselves. Here, in the IPC, there needs to be a proof of lack of motive and
a presumption of knowledge replaces it. The defendant should be able to ascertain the action
being committed and its consequence.
1. Intoxication
Yamamoto Chusaburo Case
After the 2nd World War, after Japan had already surrendered, a thief attempted to steal grain
from a Japanese army go down. The defendant, who was a guard to this go-down, was heavily
intoxicated (voluntarily). He killed this thief, calling him an enemy. This was tried as a war
crime stating that Japan was continuing to take part in hostilities even after surrender and hence
was committing a war crime.
The ICTY appeals chamber in the Celebici case opined that the defense must demonstrate that
they were unable to control their action at the time of the illegal act. In regards to Esad Landzo
(D4 in the Celebici case), a distinction was made by the appeals chamber between insanity and
diminished mental capacity. Insanity would lead to a complete acquittal as it means the
destruction of the defendant’s capacity. Diminished mental capacity is only an impairment of
the defendant’s capacity which would only be a mitigating circumstance.
Raised a plea as to whether intoxication can be a General defense. Having no control of

faculties is a defense? Became a reason for debate at the Rome Conference.
The conference had doubts regarding the acceptance of voluntary intoxication as a ground for
excluding criminal responsibility. They concluded that this shall not apply in case of Genocide
or Crimes Against Humanity but might apply to isolated cases of War Crimes. So, as per the
Rome Statute, in case of voluntary intoxication, the defense is excluded if the accused knew or
disregarded the risk that he or she was likely to commit a crime under influence.
Should Children who are intoxicated involuntarily be allowed the Defense?

2. Self-Defence
Article 31 (1) (c)- Self-Defense as a justification: Acts reasonably to defend oneself, any
other person, protection of property or for any other purpose to accomplish military
objective.
Self-Defense does not address the self-defence by States but the application of self-defence by
individual persons. Private defence requires use of proportionate force. However, the number
of does not matter, what matters is the proportion of force used.
A British Military Court in 1947, opined in one of the cases that the law permits a man to save
his own life by dispatching that of another but it must be in the last resort. He is expected to
retreat to the uttermost before turning and killing his assailant and of course such considerations
as the nature of the weapon in the hands of the accused, the question whether the assailant had
any weapon and so forth have to be considered. In other words, the questions to be asked are:
1) Was it the last resort?

2) Have the persons retreated to the uttermost before ending the life of another being?
The ICTY Trial Chamber laid down 3 categories of requirements in the plea of Self-Defence:
1) The person must have acted reasonably

2) It should have been in response to imminent and lawful use of force
3) It must be proportionate to the degree of danger.
Article 31 (1) (c) recognizes Self-Defense for a person who acts reasonably to defend the
property that is essential for accomplishing a military mission. Even though the Defendant
would have to respect legal methods of combat, such a position includes the idea that the ends
justify the means for military objectives.
Military Necessity- if the action, though illegal, can be justified, then it acts as a defense. Only
for war crimes can Self-Defense can be used as a justification. The only justification being
Military Necessity. However, Self-Defense should be proportional whereas there is no essential
of proportionality in Military Necessity.
However, to protect a few buildings, causing excessive harm to a human being seems counter-
intuitive.
There is no international consensus concerning invocation of Self-Defense for the protection

of property. The Rome Statute recognizes the invocation only in cases of War Crimes.
At a point when a country braches your territorial sovereignty, you are automatically allowed
to invoke the provision of Self-Defense. Further, it is impossible to justify acts such as genocide
on the basis of Self-Defense. Therefore, the only circumstance you can use Self-Defense is for
property.
Prosecutor v. Dorio Kordic and Mario Cerkez
The Croats were in command of a unit of the Croatian Army and they attacked Muslims in
Ahmici and Lasva Valley, etc. situated around central Bosnia. The Croatian forces purged the
Muslims. When they were taken to court, they took up the defense of Self-Defense. They said
that Muslims acted discriminately against them for ages, so they were acting in defense.
However, the aggressive attack to kill each and every member of the community, is more of an
act of reprisal and less of an act of Self-Defense. Court held that they were acting in rage and
anger.
The Appeals Chamber reduced sentence of Mario from 15 years to 6 years based on mental
element. Dario served 25 years.
The only acquittal for Self-Defense was in the case of the Trial of Erich Weiss and Weilhelm
Mundo 1947. A person parachuted into German territory. These two police officers tried to
communicate with the Englishman. The other persons convinced the German Officers that the
American was hostile. The American tried to signal that he came in distress but the officers
immediately shot him dead. This incident occurred in the midst of the Second World War.
Here, Self-Defense was taken as a valid defense. However, this is an exception because the
fallen soldier was not there to fight. He came in distress and sought quarter. He ideally should
have been captured as a Prisoner of War. But the trigger of the police when the American tried
to pull out something from his pocket is justified in the case in consideration. It is similar to
the application of Self-Defense in Domestic law.
There are not many cases of successive self-defense cases. This defense can be only invoked
for the protection of property which is essential for life or for the accomplishment of a military
mission. However, it is quite difficult to imagine what kind of property might justify the
perpetration of a war crime in a proportionate way. Even though such a defense is only
available in cases of War Crimes, War Crimes involve acts such as torture, using poisoned
weapons or attacking or bombarding towns, villages and so on and so forth.
3. Defence of Duress and Necessity:
Article 31(1)(d) of the Rome Statute provides for defence of Duress. Necessity can be read into
this by virtue of the words “beyond control”.
If one did not intend to cause a greater harm but caused a greater harm anyway, is that
Necessity? For instance, in order to protect your town, you launch missiles into the
neighbouring town. This leads to harm of their civilians also. Is it necessity? The situation was
beyond your control because you only tried to protect your civilians. It qualifies for the defence
even for Crimes Against Humanity. Lower threshold is intention to cause harm. Higher
threshold is actually having caused Greater Harm. Necessity will qualify as a defence for
Collateral Damage. [R v. Dudley] [Charles Taylor Case]
Duress is when another person has forced the situation upon you, you are qualified to take up
the defence and plead for a lesser sentence.
Krupps Trial of 1948
Krupps Industries consisting of the 12 Defendants [8 were on the Board of Directors and other
4 were of high enough rank to be indicted ] were charged with Crimes Against Peace for
planning, preparation, participating in waging wars of aggression, and War crimes and Crimes
Against Humanity through plunder and spoilage of public and private property, murder,
extermination, deportation, enslavement, torture.
They did not actively engage in any acts against the Allies. They were charged because of Slave
Labour of the Jews. They did the Supervisory and Administrative Work and were engaged only
in direction. The Military Court held that the participation of the 12 Defendants, Germany
could better participate, therefore, they will also be charged. Their defence was duress. They
said that the Government had threatened with dire consequences for not meeting production
requirements and quotas. Therefore, under duress, we had to authorize our persons to commit
the atrocities. We then shipped it to the Government. We did not even make profit. We did not
even profit.
Court held that this is not duress. Here duress would have maximally been shutting down the
Company. Since there was private gain, defence of duress not applicable.
The court held 11 of the 12 Defendants guilty. Their defence of Necessity and Duress did not
hold well as the evil that was sought to be prevented was not greater than the evil that was
committed. Further, the evil that was sought to be prevented was not irreparable or severe.
Prosecutor v. Endemoric 1997
The Trial Court punished Endemoric for 10 years. He was part of the Bosnian army. He was
not very high ranking but was asked to kill persons. One day he was instructed to come to a
designated spot. There, busloads of people who were Muslims were brought. The persons were
to be killed by the officials who were directed to come to the designated spot. The Muslims
were made to face away from the firing squad to make sure the death lacked honour. All these
persons were to be killed. Endemoric refused to kill the civilians. Endemoric said that he was
threatened with the consequence of death if he refused to do it. He said that he did not just for
himself but for his family. He said that he lost count after killing 80 people. There was duress
and superior order and the fear of losing my family or something bad happening to them.
The court did not accept his plea of duress. In order to protect his family, he killed innocent
civilians. The fact that the position was taken up voluntarily has a contributing factor.
Therefore, it is not duress.
4.Mistake of fact and Mistake of law
Article 32 of the Rome Statute.
Mistake of fact- is a defence
Mistake of law- Generally not a defence. But is a defence if it qualifies under Article 33 of the
Rome Statute and if the subjective and objective requirements are satisfied can the defence be
applied. The law here is the order by a superior that has to be understood in the same way both
subjectively and objectively.
At the time of drafting Article 32, 2 options were initially inserted whereby delegates were
divided over whether mistake of law or fact should be a ground for excluding liability. Some
delegations were of the view that Mistake of Fact as a defence was not necessary because it
would be covered by Article 25 as not punishable due to lack of mens rea. However, a mistake
of law was not accepted as a ground for excluding criminal responsibility. Article 32 para 2
makes the necessary connection between Mistake of Law and Superior Orders. Where a
subordinate receives an unlawful order, which is not manifestly unlawful and which he or she
is under obligation to obey the subordinate will be exculpated where he or she believed the
order to lie within the confines of legitimacy.
For instance, if a combatant takes down a vehicle which has a “+”, which generally is treated
as neutral because of the symbol of ICRC, under what circumstances can the combatant claim
defence? If the combatant does not know that the symbol is that of a neutral then it is a Mistake
of Law and is not a defence. In the second circumstance, if the person does not know it is an
ICRC vehicle because of low visibility, it is a Mistake of Fact and can be qualified as a defence.
William Calley v. Callaway (1975)
The USA district court in Georgia tried the case. This person had participated in the Vietnam
War and was due to retire. During the Vietnam War, there was a rift between the initially Anti-
Communist convert Communist Vietnamese and the Capitalist Americans. There were
terrifying accounts of what happened. The guerrillas were difficult to find and so entire villages
were razed to the ground to ensure high morale of the Americans and on the basis of suspicion.
The Mylain incident is an example of the same. The American had rounded up persons he
allegedly believed to be guerrillas on the basis of their mongoloid appearances. He then claimed
mistake of fact. The court however held that this was not the case. The American had previously
made a declaration stating that he knew they were civilians but because of their appearance and
presence of a sickle in their household, he claimed they were enemies of America and therefore,
decided to kill them. The mistake of fact would be if he did not know whether they were
civilians or combatants. Here the mistake was that of law because he believed that civilians
with opposing views to that of America are also enemies and did not deserve to live. The fact
of civilian status was not in question. They were clearly enemies of America to him. Therefore,
clearly a Mistake of Law.
To the extent that the state of mind reflects a mistake of fact, the governing principle is that the
mistaken belief must be of such nature that the conduct would have been lawful had the facts
actually been as they were believed to be in order for this defence to be exculpatory.
Florence Hartmann Case (2009)
She was not a combatant or civilian or perpetrator. She was the employee of ICTY. She had
access to facts and evidences of what happened in the ICTY. She therefore, decided to publish
a book about the same.
She was writing a book and published it after her work in the ICTY, and it contained transcripts
of cases, things said at the chamber and evidentiary documents. She was charged for this for
contempt of court as she utilized these sensitive documents. She stated that she was mistaken
that it have been spoken or produced in court and it is now in the public domain and hence
ideally she should be able to publish it.
The court stated that her mistake of Law defense is not applicable because as an employee of
the ICTY, she could not have published documents and evidence that she has access to by
virtue of this fact. Hence, she was held liable for contempt of court.
5. Superior Orders
Article 33 of the Rome Statute. Merely an extension of mistake of law in a sense.
During the Nuremberg trials, the defence of superior orders could only be taken if no alternate
moral choice could have been made. ICTY and ICTR didn’t allow this defence.
There are two main defences for superior order:
1. Absolute: No defence is provided and absolute liability is incurred. Eg. Genocide,

Crimes against Humanity.
2. Conditional: When there are exceptional circumstances Eg. Crimes of Aggression,

War Crimes.
There are three stipulated requirements that are prescribed in Article 33 to be able to avail the
defence of superior orders.
When an individual commits a crime against humanity or genocide with no reason to believe
that the victims are civilians or of a particular race or ethnic group, then even though the effect
of the act itself may have been a crime against humanity or genocide, the inferior officer will
not be considered to have committed it.
Article 33 attempts to resolve the problem that arises when a soldier, bound by law to obey the
orders of their superiors is ordered to commit an act that would amount to an international
crime. In the usual course of action, obedience to superior orders cannot be invoked as a
defence unless the three requirements prescribed in sub-paras (a), (b) and (c) are cumulatively
met. However, this defence doesn’t apply to genocide and crimes against humanity.
Article 33 departs from the Nuremberg model where subordinates were always responsible for
crimes committed while following orders. Article 33 of the ICC Statutes represents a
compromise between two opposing approaches where the conditional liability approach is
adopted for war crimes and crimes of aggression and the absolute liability approach for
genocide and crimes against humanity.
Dover Castle Case
British and German naval forces were at sea, and hospital ships on Britain’s side (protected
building) were also present. Lt. Cpt. Karl Neumann of Germany Torpedoed the Dover Castle
Hospital ships. All 841 persons on board were saved. At trial, Karl Neumann stated that he was
working on superior order and while he was aware that it was a hospital ship, they had evidence
that hospital ships were being abused to transport military officials to sensitive areas.
Additionally, after all the people were moved into lifeboats from the ship, Neumann did not
attack them as he could see that they were nurses, doctors and patients only. Based on his
defence and this evidence, he was provided the defence of superior orders.
Even though no evidence of ammunition of combatant groups being present over Dover Castle
was found, the German government was convinced that the ships were being used for wrongful
purposes and they had the right to restrict their movements. It was proved in court that was a
legitimate reprisal.
The court stated that a subordinate obeying an order is liable to punishment if it was known to
them that the order of the superior involved the infringement of military or civil law. If the
subordinate had known that the order had been made blatantly against the law, then there is no
grant of immunity. The conditional liability approach asserts that the plea of a superior order
is a complete defence. A soldier can be held responsible only if the order is universally known
to everybody including the accused to be, without any doubt, against the law.
Llandovery Castle Case
The Llandovery Castle Hospital ship had been torpedoed by the German Navy. The German
Naval Officers interrogated the survivors on the lifeboats and despite concluding that they were
merely patients, doctors and nurses (protected persons), they sunk the lifeboats as well. At trial,
they used the exact same defence used in the Dover Castle Case.
Even though they were obeying orders, their action was not sufficient to relieve the accused of
their responsibility. It was perfectly clear to the accused that their act was against the law. They
received 4 years of imprisonment.
Absolute Liability Approach to the Defence of Superior Orders
The question of moral choice has not been taken up after Nuremberg. Absolute Liability
Approach to the Defence of Superior Orders was introduced in the London Agreement. The
prevailing view at the time was that the crimes prosecuted were too grave to relieve the accused
from the liability using the plea of Superior Orders. As per the court at Nuremberg:
“…that a soldier was ordered to kill or torture in violation of International Law of

War has never been a defence. The true test which is found in varying degrees in the
criminal law of most countries is not the existence of the order but whether a ‘moral
choice’ was in fact possible.”
During the earlier Mexican and Napoleonic War, where the defence was taken, the Judges
have always reiterated on the fact that the soldiers cannot take a defence for the breach of
a known law of the land.
Article 33 para 1 deals with the conditional approach and para 2, the absolute approach.
The first para requires proof and satisfaction of certain prerequisites. Para 2 cannot be used
as a defence for Genocide or Crimes Against Humanity. There are generally no defences
allowed. Defences are only allowed for war crimes and crimes of aggression, which are
covered in para 1 as well.
Article 33(1)(a) states that there has to be a legal obligation as per the domestic law. It can’t
be a mere instigation by a person. The breach of legal obligation must have repercussions.
The condition that the accused was under a legal obligation to obey orders relates to
whether there was an obligation under domestic law within which the superior and
subordinate acted. The orders must have existed at the time when the crime was committed.
In case a subordinate has erroneously obeyed a projected Superior, what is the liability? In
this situation, the defence of mistake of factor law will be applied. If a subordinate
erroneously believes someone to be their superior, then defence under Article 33 will not
be applicable. In such cases, the accused may claim a defence under Article 32.
Article 33(1)(b) states that the accused person has no knowledge of illegality of the order.
If the order was not seemingly illegal as per the accused, then it is a defence. As per Article
33(1)(c) if an order is not manifestly illegal then it can be used as a defence. Article 33(1)(b)
is the Subjective element. As per interpretation, it should not be illegal. This has a low
threshold. To check this, Article 33(1)(c) contains the objective element. The order should
not be manifestly unlawful. Why is it that it is “not manifestly unlawful” and not
“manifestly lawful”? The objective element, although regulates subjectivity, still has a low
threshold. Presumption of manifestly unlawful is how the court proceeds with the case in
order to make up for the low threshold. Burden of proof is now on the accused person.
Article 33(1)(b) lays down the subjective condition for claiming the defence of Superior
Orders. This provision creates a low threshold for the Defendant and in cases of doubt, the
subordinate has to be treated as if they had known the unlawfulness of the order. Article
33(1)(c) is the objective element to the claim of Superior Orders as a defence. It is
negatively worded to indicate that the court moves forth on the presumption that the order
in question is in fact manifestly unlawful and the Defendant has to prove otherwise in order
to be able to claim the defence of Superior Orders.
Article 33 para 2 projects the ‘Absolute Liability Approach’, whereby Genocide and
Crimes Against Humanity cases cannot raise a defence of Superior Orders.
INTERNATIONAL CRIMES
Article 5 of the Rome Statute lays down the subject matter jurisdiction of the Court which are
Genocide, Crimes Against Humanity, War Crimes and Crimes of Aggression.
Earlier para 2 of Article 5 stated that when Crime of Aggression is defined adequately and in
accordance with Article 121, then the Court will have jurisdiction.
Since genocide was already part of Crimes Against Humanity, why was genocide required to
be a special and separate crime?
Crimes Against Humanity have the following elements: attack on civilians, there must be
knowledge and the attack should be systematic.
Genocide has the following elements: against certain civilians, intentional attacks.
Then what is the relevance of having separate clauses for Genocide? Raphael Lemkin coined
the term Genocide. However, it became officially only by virtue of the Genocide Convention
in 1948. The requirement at the time of Nuremberg and Tokyo, to prosecute for Crimes Against
Humanity, there should be an Armed Conflict. However, genocide has no nexus with Armed
Conflict which is why it had to be accounted for separately. However, this distinction does not
make any sense in the present. Now, the ICC can prosecute for Crimes Against Humanity even
without an Armed Conflict.
1) Genocide [Article 6]
Genocide means to destroy not kill. So, you did not have to necessarily cause death.
What are the ways of destruction? There are 3 kinds of genocide:
• Physical
• Biological (sterilization, rape, misplacing children, preventing propagation)
• Cultural- the drafting committee was unable to see eye-to-eye. Anything could
be considered cultural Genocide because of the wide ambit and scope. E.g.:
Placing aborigines with Caucasian parents. Imposition of language in India.
This wide scope made it problematic. This will make every country in the world
responsible for cultural genocide.
The drafters of the Genocide Convention wanted to separate Genocide from Crimes
Against Humanity because, as per the Nuremberg and Tokyo Charters, a Crime Against
Humanity, necessarily could be committed only during conflict. The ICTY and
subsequently the Rome Statute eroded the nexus of Conflicts and Crimes Against
Humanity. Thus, currently, the distinction between Crimes Against Humanity and
Genocide is less significant. Article 6 of ICC which is directly lifted from Article 2 of the
Genocide Convention of 1948, is criticised on the grounds that it is too restrictive and thus,
difficult to apply to many cases of mass killing and atrocities.
Why the criticism of restriction? No scope for cultural genocide. The definition is
exhaustive and could not be interpreted widely. This is the implication of the word “means”
in the definition. The elements are: specific intent, victims should be groups formed on the
basis of nationality, ethnicity, race or religion and through certain modes only. Only a
combination of the three can be used. Another issue is that groups on the basis of politics,
sexual orientation, etc were not considered. Of the 3 generations of Human Rights (Civil
and Political Rights, Cultural, Economic Rights and finally the Collective Rights) the
Collective Rights were not considered. The drafters were specific about non-interpretation
of the word. However, the Akayesu case went on and expanded it.
Article 6 states that Genocide is any act committed with INTENT to destroy IN WHOLE
or IN PART...What does IN PART mean? Does inefficient killing by missing out certain
persons of a community refer to the IN-PART part? Does killing even 1 person amongst 5
crore persons of a community amount to Genocide? The interpretation ideally leads to the
killing of even one person of a community should be considered Genocide. Should there
be a numerical cap? Or are all acts considered Genocide merely based on Genocide? Even
killing one person qualifies because of the use of the phrase IN-PART. There can be no
quantitative threshold. The gravity will be decided on a case to case basis.
The words IN-WHOLE or IN-PART indicate a quantitative dimension. The Drafters of the
Genocide Convention intended for the quantity contemplated to be significant. The
prevailing view is that where only part of the group is destroyed, it must be a substantial
part. This has led to confusion because the general opinion of States is that there cannot be
a numerical threshold of real victims. The proof of Genocidal intent however, makes the
number of victims significant. Further, such destruction is only to be directed towards one
of the 4 groups mentioned in the definition of Genocide. This enumeration has been
criticised because of its limited scope. At the time of drafting of the Genocide Convention,
there was a suggestion to include social and political groups in the definition as well, but
this was rejected because these groups are unstable. Furthermore, this was the time of Cold
War due to which this might have been rejected. The drafters wanted the groups to be
stable. Another problem with the definition of Genocide is that it is very difficult to define
ethnic and national groups in Human Rights Law.
Why use the word “as such” in the definition? Perhaps the drafters wanted us to look at
motive as well as intention. However, the use of this word is still unclear.
Prosecutor v. Krstic 2001 Trial Chamber
He was a member of the Bosnian Srebrenica Army. The area declared safe by the United
Nations; it was one of the most conflict-ridden areas. The Croats, Muslims and the Serbians
resided in this area. Once Srebrenica fell, a particular faction of the Serbian Army called
Drina Corps committed atrocities. The Commander was Krstic. The Bosnian Muslims were
evacuated from Srebrenica and taken away to other Muslim dominated areas. While they
were being transferred, men and women were separated and none of the men were seen
again. The ages of these men were in the range where they could be part of a military force
in the year 1985. Even 10-year old boys were taken away. Approximately 7000 men were
taken away. Mass graves were found later on and it is believed that these are the bodies of
the men who were separated. The witnesses confirmed the same. Nearly 3 generations of
men were wiped out completely. The 4th Generation was psychologically unbalanced
because of these atrocities. There was a question which arose: Is this Genocide? Krstic
stated that he wasn’t even a proper Commander. The Court established that he was the
Commander, Ratko Mladic was second in Command and another person who assisted,
followed up and completed the whole process in 10 days between 10th to 19th of July. The
Muslims were to be transferred and they should be curbed from rebelling. Not just Muslim
Community but Muslim Men from Bosnia were killed. Does this amount to Genocide
because women, old persons and children were not attacked? Since the attack was based
on gender and this was not covered, additionally no other Muslims like women, old persons
and children were killed. Is it still Genocide? Do you look into motive or intention?
Immediate intent was only Article 6(a) which was killing members of a group calculated
to bring about destruction. Although a through e happened, only a was accounted for. The
judgment of the Trial Chamber came out in 2001. For the first time, the Trial Chamber in
ICTY to convict someone for Genocide. Krstic was punished with 46 years of
imprisonment.
Krstic was additionally charged with commission of Crimes Against Humanity including
Enslavement, Deportation, Forcible Transfer.
2) Crimes Against Humanity [Article 7]
Traditionally CAH can happen only if there is an Armed Conflict taking place. To move
away from this requirement of AC, a specialised form of CAH was created, i.e., Genocide.
This did not require nexus with AC. Instead, why did they not remove the nexus between
AC and atrocities in CAH itself? Perhaps this is because the Allies will be responsible for
far too many counts of CAH.
In Turkey, the Armenians were attacked and this was the first time, in 1915, that the term
CAH was used. Further, as per Treaty of Versailles, the political climate was such that no
punishment could be given to Kaiser Wilhelm II. Till the Nuremberg Trials, no punishment
was given for CAH. Further, it was compulsory that CAH needs to have a nexus with AC.
Otherwise it is not a prosecutable Offence as per International Law. It will not be treated
as an International Crime. The opinion slowly progressed towards the removal of the nexus.
However, in the ICTY it was reversed and the nexus was brought back. This was removed
once again in the ICTR in 1994. In 1995, during the Tadic judgment, the nexus with CAH
was brought back but only with respect to Yugoslavia so that the territorial jurisdiction can
be established. This nexus was termed obsolescent.
The use of the word “State or Organizational Policy” in Article 7 para 2 (a) caused anew
debate. Will Mafias and Terrorist Organizations be punished because they function based
on “Organizational Policy”? Will Monsanto be considered OP because this is directed
towards affecting Humanity by killing, torturing or extermination? Sheriff M. Bassiouni
clearly stated that the OP is State Policy only. Non-State Actors will not be considered.
However, what about Rebel Groups and Militia then?
During the Nuremberg Trials, CAH necessarily required a nexus with AC. Dissatisfaction
with such a limitation emerged within weeks of the Nuremberg Judgment. This nexus
continues to haunt the international prosecution of Human Rights atrocities many of which
are actually committed during peace time. Over the years since 1945, several variants of
the definition of CAH eliminated the nexus with AC. This prompted many to suggest that
from the stand-point of Customary Law, the definition had evolved to cover atrocities
committed in Peace Time. But the Security Council itself muddied the waters in 1993 when
it established the ICTY. Article 5 of the ICTY established the nexus of CAH and Armed
Conflict. A year later however, the Security Council did not insist upon the nexus when it
established the ICTR. In 1995, the Appeals Chamber of ICTY described this nexus as
“obsolescent” in the Tadic Judgment and said that there is no logical or legal basis for this
requirement and it has been abandoned in subsequent State Practice with respect to CAH.
Since then, the Appeals Chamber has described this nexus as purely jurisdictional. Article
7 of the Rome Statute codifies this evolution of the definition of CAH. However, it is not
entirely inconceivable that this nexus is still necessary.
Even during the drafting, a lot of Arab States stated that there should be a nexus with AC
otherwise, every other State will be responsible. They refused to assign it till there was a
nexus. It appears as though there is no nexus, but if an objection is raised, there is no
customary law to determine whether there is a nexus or a lack thereof between CAH and
AC. The wordings of Article 7 per se implies that it has no direct nexus.
Article 7, para 3 states that the use of the word gender is used only in context of male and
female and nothing else “in the context of society”. This implies that a sexual minority
cannot make a claim.
[Corresponding crimes in Article 7 missing]

The difference between crimes against humanity and genocide is that crimes against
humanity are generally seen to have a nexus with armed conflict. The reason for this is
because the allied forces would have been responsible for a variety of atrocities they had
committed against multiple people in multiple countries through colonialism if this nexus
had not been specified. Genocide.
‘Crimes against Humanity’ as a term was derived in 1915, when the Ottoman empire
attacked Armenia. However, there were no punishments for the same considering the fact
that an international body did not exist and the world view was generally against the
creation of courts after a crime has been committed in order to prosecute the same. In the
absence of armed conflict, crimes against humanity cannot be prosecuted as an international
crime. Soon after the Nuremberg judgment, the argument regarding the creation of Crimes
against humanity and the coining of term genocide also (re)emerged. They agreed that there
must be no nexus between armed conflict and the crime of genocide. However, this nexus
was included in the ICTY but was argued to be for jurisdictional purposes, but this nexus
was excluded in the ICTR in 1994. It was stated that the nexus between armed conflict and
crimes against humanity was becoming obsolescent.
CAH can be committed by a private entity or sovereign. This brought in the question of
whether mafia murders would now be considered to be crimes against humanity and also
questions the use of the term “organizational policy” and what that term may be inclusive
of. Organizational policy for the purposes of the crimes against humanity was cleared up
to exclusively imply state policy by Cherif Bassiouni.
“The question arose as to whether a group such as Al Qaeda that pose a threat to more
than one country and in the opinion of the author, this doesn’t fall under CAH or any crimes
notwithstanding the dangers they pose. The words organizational policy doesn’t refer to
the policy of an organization but that of a state.”
This poses a vacuum in the law wherein it reduces if not removes the liability experienced
by rebel groups and other non-state actors such as rebel groups and gangs.
The way the traditional definition of War crimes is phrased is that civilian population is
harmed IN THE OCCUPIED TERRITORIES. However, there was no provision for
holding governments accountable for turning on its own people, as seen in Nazi Germany.
If a state harms civilian persons or property in the territory that has been occupied, it will
be considered to be a War Crime. When the government begins to attack its own civilian
populations, it will be referred to as a Crime Against Humanity.
This doesn’t mean that all actions of a state in occupied territory will be considered to be
armed conflict. A nexus with armed conflict is necessarily placed here with the intention to
avoid accountability by the European colonizers in their Asian and African colonies.
The terms “widespread” and “systematic” to describe the attacks that constitute a crime
against humanity broaden the scope of the definition, in that it has been established that
while the crime has to be committed in a widespread manner or systematic manner, and
need not be both. However, 2(a) stipulates the need for multiple commissions of acts,
implying it to be necessarily widespread to at least a certain degree. It describes the need
for this act to be in pursuance of a policy created by a government provides immediately
During the Nuremberg trials, Crimes against humanity necessarily required a nexus with
armed conflict. Dissatisfaction with such a limitation emerged within weeks of the
Nuremberg judgment. This nexus continues to haunt the international prosecution of human
rights atrocities, many of which are actually committed during peace time. Over the years,
since 1945, several variants of the definition of crimes against humanity eliminated the
nexus with armed conflict. This prompted many to suggest that from the standpoint of
customary law, the definition had evolved to cover atrocities committed in peace time.
But, the Security Council itself muddied the water in 1993 when it established the ICTY.
Article 5 established the nexus of CAH and armed conflict. A year later, the Security
Council didn’t insist on the nexus when it established the ICTR. In 1995, the appeals
chamber of the ICTY described the nexus as obsolescent in the Tadic judgment and said
that there is no logical or legal basis for this requirement and it has been abandoned in
subsequent state practice with respect to crimes against humanity. Since then, the appeals
chamber has described this nexus as purely jurisdictional. Article 7 of the Rome Statute
codifies the evolution of this definition of crimes against humanity. However, it is not
entirely inconceivable that this nexus is still necessary.
Article 7(3) of the ICC Statute:
A.7(2) (a-i) [1(b), 1(c), 1(d), 1(f), 1(g), 1(h), 1(j), 1(i)]
The opening line of Article 7 was a subject of controversy at the Rome Conference. Article
7 requires for the acts to be committed as part of a widespread or systematic attack. Some
of the earlier proposals had required that the attack be widespread and systematic. The push
to present these two conditions as alternatives was supported by the first major judgment
of the ICTY in the Tadic case. But the apparent broadening of the threshold may be a
deception because article 7(2)(a) defines “attack” to have the elements of multiple
commission of acts in pursuance of a state or organizational policy. The requirement of
the attack as a part of state or national policy appears to reinstate the requirement of the
systematic aspect of the attack. The attack need not be a military attack as per crimes against
humanity.
Prosecutor v. Kunarac, Vukovic and Kovac
The case is called Rape Camp Case. CAH and breach of Laws of War. They committed
rapes, gang-rapes, abetment and aid of rape and enslavement. Kunarac and Kovac were
punished with 28 years of imprisonment and Vukovic for 12 years. Kovac outraged
personal dignity and so, had a stringent punishment as compared to his colleague Vukovic.
Kunarac raped 3 victims, aided and abetted gang rape of 4 victims by his soldiers and along
with 2 others raped and threatened to kill another woman who was a witness along with her
son. He enslaved 2 women, deprived them of personal autonomy and raped them for
months.
Kovac enslaved 2 victims for 4 months and was involved in several gang rapes. He stripped
some victims and made them dance for him, thus, outraging their modesty.
Vokovic raped a girl who was 15. But because it was systemic and widespread, but became
a crime against humanity. Case was tried in 2001 and was confirmed by the Appeals
Chamber in 2002.
Rape in the statute is gender neutral because a lot of men were raped as well. Rape has been
codified in Art.7(1) g. Men did not come forth and report the cases because of societal
pressure and the assumption that men rape and do not get raped. The stigma with men who
have been raped is way higher due to which they do not report. They are protectors and
could not be harmed was the assumption. Women left men who were sexually abused. Rape
in international law is gender neutral.
The problematic term was “forced pregnancy” in the Art. Then what about women who
become pregnant in a marriage during sex without consent? Do we provide them with
abortions? What about extremely catholic countries then?
The term forced pregnancy was very problematic at the time of drafting Art.7 because some
States believed that it might be construed as creating an obligation upon States to provide
women who had been forcibly impregnated with access to abortion. Thus, the definition of
forced pregnancy in Art.7 was made such that it would not affect abortion laws of States.
The term “other inhuman acts” was also subject to scrutiny. This term in Art.7(1)k appears
to be too general. The fear was that it would violate the rule of specificity of criminal law.
The justification provided was that this is only a residuary clause and will cover only those
acts that are serious violations of International Human Rights Law.
Will the punishment of acts like punishment for homosexuality in a domestic law, that is
part of policy, a systematic attack against a particular target group? Other examples include
Triple Talaq, no permission for Indian Men to adopt girls, etc.
These lacuna in the definitions is what brings into conflict the nexus with Armed Conflict.
CAH does not usually need Armed Conflicts but in these cases as mentioned above, the
nexus is imperative.
Radovan Karadzic
He was the president of the Republica Sprska. He had created an environment of hatred
against Bosnian Muslims in Srebrenica. Under him, Ratko Mladic and Radislav Krstik
“free” the area of its populations. Mladic hired buses and boarders were made to eat salt
and then were starved and dehydrated. In the heated buses for hours, prisoners began to
resort to drinking their own urine in order to stay alive. After reaching the camp, the
prisoners began to die of the ensuing infections.
Since these attacks were widespread and systematic, both Mladic and Krstik were convicted
for crimes against humanity and Karadzic was as well in order to hold him accountable for
his contribution of creating the aforementioned environment of hate.
“Once Karadzic came to power, he directed the army to create an unbearable situation of
total insecurity with no hope of further survival of life for the inhabitants of Srebrenica.”
CASE LAWS MISSING

3) War Crimes [Article 8]
This is lengthy because it codifies as many customs of war as possible. The problem with
this provision is that there are too many lacunae unlike the intention of the drafters which
was to make this exhaustive and comprehensive. The missing of even one form of violence
does not qualify as a war crime.
The provision on war crimes is the lengthiest provision of the Rome Statute and the oldest
of 4 crimes. Each of the sub-provisions are punished as domestic offences under most
criminal law systems. Art.8 consists of 4 categories of War Crimes, 2 addressing
International Armed Conflict and 2 addressing Non-International Armed Conflict. The task
is left to the judges to interpret whether the situation is IAC or NIAC.
A handful of German soldiers were tried for War Crimes under domestic law in the Leipzig
Trials as provided for in the Treaty of Versailles. War Crimes were subsequently codified
in the Nuremberg Charter and 4 years later, in the “Grave Breaches” provision of the 4 th
Geneva Convention of 1949. Neither of these definitions sufficiently covered the extent of
the entire range of serious violations of “Laws of War”. Until the mid-90s, there was a
considerable confusion over the scope of War Crimes. At the time of the adoption of the
ICTY Statute, it was made clear that the Statute would confine itself to crimes generally
recognized by Customary International Law.
In its first major judgment, the ICTY Appeals Chamber stunned International Lawyers by
recognizing the commission of a War Crime during an Internal Armed Conflict. This along
with the ICTR Statute made way for War Crimes to be recognized even at the time for Non-
International Armed Conflict.
No threshold or mens rea requirement for war crimes unlike CAH or Genocide. The only
requirement is a basic nexus with armed conflict and basic knowledge. The threshold is
very low. Since there is no threshold, the drafters tried to make this provision as exhaustive
as possible. Simply killing someone is not liability for punishment, meeting of threshold is
important. But in case of War Crime, this act of killing is sufficient to constitute a war
crime as long as nexus with armed Conflict can be established. Accidental killing is not
War Crime. Incidental is.
Prosecutor v. Jelisic [TC-1999, AC-2001]
He was charged with Genocide, CAH and WC. H e would torture detainees in camps.
Prosecutor stated that his intent was to destroy part of the group and he has therefore
committed Genocide. When the witnesses and guards were questioned a s to who he is, no
one could identify him. He would just walk in to the camos and hurt them and go away. He
was a narcissist and megalomaniac. He used to call himself the Hitler of Yugoslavia and
stated that he alone could bring about destruction of this group. He was not even part of the
Serbian Army. The question was whether there could be a “lone, genocidal, maniac”. The
court said that his intent cannot be linked with that of the state, but since there is a nexus
between his actions and the conflict, this constitutes a war crime. He did not go around
killing before the conflict. He was an opportunist and this establishes a nexus.
He was punished for war crimes and few counts of CAH. This case establishes the lack of
threshold or low threshold of War Crimes. The word “in particular” in Art.8 establishes a
no threshold-threshold.
In customary law, a major distinction between war crimes and other categories, i.e., CAH
and Genocide, is that, the latter two have jurisdictional thresholds while the former does
not. CAH requires to be wide-spread or systematic and genocide requires a specific intent.
War Crimes on the other hand can in principle cover even isolated acts committed by
individual soldiers acting without direction or guidance from higher up. Art.8 begins with
what has been called a “non-threshold threshold”. The Court has jurisdiction over war
crimes in particular…The language brings War Crimes closer to the definition of CAH.
The Rome Conference, found middle ground with the words “in particular”, thereby,
compromising between those favouring a rigid threshold and those opposed to any such
limitation on jurisdiction.
The Elements of Crimes clarifies that while the prosecutor must establish the threshold
elements of War Crimes, He/she need not prove that the perpetrator had knowledge of
whether or not there was an armed conflict or whether it was international or non-
international. The only requirement is the awareness of the factual circumstances and the
fact that the action (the war crime in question) took place in the context of and was
associated with the armed conflict.
Prosecutor v. Ahmad Al Faqi AlMahadi 2016
The incident took place at Mali. There was clash between northern and southern part. The
population was mixed composed of French, Muslims and nomadic tribes (Tuaregs). These
people fought against Gadhafi and after his fall, it became a civil war sort of situation,
especially Timbuktu. AlMahdi was a citizen and resident of Mali. He converted to a Tuareg.
He was an educated person. Tuareg was founded and supported by the North-African wing
of Al-Qaeda. The two extremist Islamist groups were MUJWA and Ansar Dine. They
started very strictly imposing Sharia in the occupied parts of Northern Mali. This person
destroyed 9 Mausoleums and 1 Mosque. The reason for destruction was that it was not in
accordance with Sharia and the Fatwa that the tomb can’t be 10 centimetres or “ek chibr”
higher. Mosques were considered an impious was of worship. Smoking was banned, music
was banned and head-scarves were imposed. He was charged with War Crimes. But why
not genocide when he was making life inhumane? Because there was no intent to destroy.
He was sentenced to 9 years on account of War Crimes. He was asked to pay compensation
to victims. But he said he was indigent.
Art. 8(2)(a)- Grave breaches of Geneva Convention
States by themselves have to regulate punishments for War Crimes. Victims of Grave
Breaches are protected persons. They are “hors de combat” and persons in occupation by
occupying powers. These persons can not be killed but “hors de combat” may be killed.
Only protected persons have rights not nationals.
Art. 8(2)(a)(i) is wilful killing. It brings out element of mens rea. Like in IPC the word
“voluntary” is used, here “wilful” is used.
Art. 8(2)(a)(iv) uses the word “wantonly”. This means that the attack is done recklessly.
But does this mean that if it is not reckless is it not a crime? Any other destruction cannot
be accounted for? This was the problem.
Art 8(2)(b)(xxi)-(xxvi) was the first-time sexual offences were considered as War Crimes.
Age of majority was altered from 15 to 18 unlike in the GC.
Why were nuclear weapons not used in the provision? Why were “uncivilised” means of
warfare used and not newer tech and weapons? It was not mentioned because majority of
the drafters had nuclear weapons and biological weapons that they were willing to use. This
was done so that most states sign the treaty.
• Art 8(2)(b)(xvii)- Poisoned weapons

• Art 8(2)(b)(xviii)- Poisoned gases
• Art 8(2)(b)(xix)- Bullets that expand or flatten, pierced with incisions
• Art 8(2)(b)(xx)- Superfluous injury causing weapons
Prosecutor v. Jean Bemba Gombo [TC-2016, AC-2019]
JBG is the leader of Movement for Liberation of Congo [MLC]. Right next to Congo, in
its north-west is a country called Central African Republic. In 2002, at CAR, a coup was
being attempted by Former Chief of Army Staff of CAR, Francois Bozize. The President
asked JBG for assistance. Gongo went with the rebel force to help the President. The rebels
committed a lot of atrocities, mainly, murder, rape and pillage. This coup was successful
and the Chief of Army Staff took over as the Dictator of CAR. At the TC he was held
responsible for 2 counts of CAH (murder, rape) and 3 crimes of War Crimes (murder, rape
and pillaging). Wilfully killing persons clearly came under war crimes. The CAH was
proved because this was systemic and a widespread attack. He was not actually present at
the scene of crime when these atrocities were happening. On account of Superior
Responsibility, the was held responsible. This went up in appeal in the ICTY. He appealed
saying, he was not in the country and therefore was remotely exercising hid powers. He
was later acquitted of all charges because the AC said that the TC aired in their chamber of
knowing what Superior Responsibility is.
4) Crimes of Aggression [Article 8 bis]
As per Article 5(2) of the Rome Statute, the definition of crimes of aggression was to be
decided with a consensus from all state parties. In 2010, the 16th ASP in the Kampala
Conference, a definition for crimes of aggression was drafted. The definition was meant to
become operative at 30 ratifications.
There was a major split identified wherein the question of whom this definition would apply
to. Would it apply to all those who have ratified the Rome Statute or to only those who
have ratified the definition itself?
2017 December, few amendments were made and 30 ratifications were reached and they
made the provision applicable to only those who had ratified it.
A non-state party cannot come under the jurisdiction of the ICC. However, they can be
brought under the purview of the Statute through a referral by the Security Council.
As per the resolution adopted in 2017, Article 8bis was to enter into force from 17th July
2018. In the case of proprio motu investigations (when the OTP takes up investigation on
their own), the ICC will not have jurisdiction over the member states or their nationals who
have not ratified the Kampala amendment (Article 8bis). However, the UN SC referrals
create no jurisdictional limitations upon ICC.
Essentials for Crimes of Aggression:
1. As per the definition of crimes of aggression, only states come under the purview and
not non-state organizations or institutions.
2. The perpetrator must be a political or military leader
3. The perpetrator must be involved in planning, preparation, initiation, or execution of

such state act of aggression.
4. The aforementioned act must amount to and be a manifest violation of the UN Charter.
In Tokyo, 23 people were held for Crimes Against Peace, but in Nuremberg only one such
conviction took place- that of Rudolf Hess. He was considered to be the third in command,
under only Herman Goering and Adolf Hitler. He had taken up the defense of mental
incapacity wherein Hess professed that he was merely acting in order to gain paternal
approval from Adolf Hitler. The Court rejected this defense stating that he had taken up the
orders knowingly and considering his incredibly high position in the political scenario and
the influence he holds here, he was indeed liable for crimes of aggression.
WORKING OF THE ICC
Jurisdiction
• Article 5- Subject matter

• Article 26- Personal
• Article 12- Territorial
• Article 11- Temporal
Methods to Invoke Jurisdiction
1. State may make a referral
2. The Security council may make a referral or invoke jurisdiction
3. Proprio motu
Organs of the ICC
1. The presidency
a. Represents the ICC externally.
b. It organizes the judicial chambers.
c. Except for the office of the Prosecutor, it is responsible for the overall administration
of the court.
d. The presidency maintains relations with states and other bodies. It assigns cases to
chambers.
It assigns 1 president and two vice presidents and are voted in by absolute majority for a
period of three years.
2. The chambers
a. Consist of 18 judges.
b. The pre-trial chamber confirms charges and the trial chamber decides the guilt of the
accused.
3. The Office of the Prosecutor (OTP)
a. Receives referrals, examines and investigates them and conducts prosecutions before
the court.
b. It conducts preliminary analysis of the referrals to see if they meet the jurisdictional
criteria.
c. It conducts investigations.
d. If the investigation yields enough evidence, it applies to the pre-trial chamber, which
will then issue a summons or a warrant to the accused.
e. The OTP then produces the accused before the pre-trial chamber, who will determine
whether or not to confirm the charges.
After the charges are confirmed, the OTP conducts the entirety of the prosecution at trial.
4. The Registry
a. is headed by a registrar, who is the principle administrative officer and oversees all the
other offices.
b. The registry assists external defense and victim counsel
c. organizes victim and witness protection programs
d. facilitates victim participations, and reparations.
e. It provides judicial and administrative support to all organs of the court. It also conducts
outreach programs to affected communities. It administrates and coordinates further the
detention of all those detained under the ICC’s authority.
5. Assembly of state parties
a. is the legislative body for the ICC.
b. It prepares budgets for the ICC.
c. It elects judges and prosecutors and maintains a Trust Fund for victims. Two mandates
of trust fund:
i. Rehabilitation
ii. Implementation of reparation awards by the ICC against accused
Trust fund for victims is a means of reparations looked to by the ICC as an attempt to
enhance victimology.
Working Procedure
1. OTP makes preliminary analysis of the situations. This analysis has four phases:
a. Initial
b. Jurisdictional
c. Admissibility
d. Interest of justice assessment.
Once these four criteria are satisfied, the prosecutor may move to a formal investigation.
2. Once the preliminary exam is converted to a formal investigation, it becomes a

Situation. The OTP can then start collecting evidence.
3. Before the trial starts, the prosecutor must disclose the evidence to the defense.
4. Once evidence establishes reasonable grounds to believe a person is responsible (for

crimes), the prosecutor may request the pre-trial chamber to issue a summons or warrant.
Summonses are sent to somebody that the court believes will appear before the court while
a warrant is sent to those people who are considered flight risks.
5. [Confirmation of Charges] After appearance, the pre-trial chamber holds a hearing

within a reasonable amount of time to confirm or dismiss the charges presented by the
prosecutor.
6. [Trial and Appeal] The OTP has to prove the guilt beyond a reasonable doubt. The
defense presents the evidence, witnesses testify, cross exam and re-exam take place.
The appeals chamber can review the judgment for error of law, procedures and/or fact.
Only a prosecutor can appeal a sentence, not the victims unless the case is that of a
reparations order.
7. [Sentencing and Reparations] If convicted, the trial chamber will determine the
appropriate sentence by considering a range of factors with respect to the gravity of crimes,
the accused’s age etc
Sierra Leone Special Court
The revolutionary united front was attempting to overthrow the President Momoh through
coup. The RUF wanted the place to be ruled strictly by certain commandments. They took
this too far and began to participate actively or directly to take part in armed conflict. The
children were given drugs in order to indoctrinate them. Girls were abducted to cook, clean
and essentially as sex slaves. This was done in order to maintain morale of their soldiers
and tend to their needs.
The RUF was funded heavily by the Liberian president at the time called Charles Taylor.
He sent in the RUF to facilitate the mining of the conflict diamonds that was much a topic
of much unrest in Sierra Leone. This went on for 1991-2000. At this time, the ICC did not
have temporal jurisdiction and all the unrest that took place ended by the time temporal
jurisdiction of the Rome Statue had been invoked.
Charles Taylor fled to Nigeria and gave him asylum. The USA placed heavy pressure on
the Nigerian president to hand him over. He finally stated that he would only agree if the
current sitting president of Liberia stated so. The current sitting president was more focused
on rebuilding Liberia and wasn’t interested in the international conflict that was developing.
However, pressure by the USA caused him to relent and this led to the Nigerian president
allowing the captors to use their own resources within Nigeria to capture Taylor, with the
president further stating that no Nigerian resources will be used to facilitate the process.
Charles Taylor was eventually captured.
The SCSL was supposed to be open only for three years, but it didn’t close the courts till
2013. It prosecuted Crimes against Humanity, CA3 and other serious violations of IHL.
ICTY and ICTR have precedentiary values in case the appeals judges faced problems and
if there was a problem interpreting Sierra Leoneian legislation, then SL Supreme Court’s
decision would prevail.
The exception to the Sierra Leone Special Court’s jurisdiction was with respect to any
transgressions committed by peacekeepers and related personnel present in the country by
virtue of agreements with the UN or Sierra Leone. Such persons will be within the primary
jurisdiction of the sending state.
The chambers of the court consisted of two trial chambers and one appeals chamber. The
other organs were the OTP and Registry. There were 3 judges in each trial chamber, two
of which were appointed by the UN Secretary General and one by Sierra Leone.
The SCSL was responsible for securing the first conviction ever for attacks against UN
peacekeepers. It interpreted forced marriages as a crime against humanity. Further, the
court prosecuted and convicted for employing children in combat as child soldiers. It gave
a wide interpretation to the term “active participation” in hostilities, an evidently broader
term than “direct participation”.
This was a type of Hybrid Court that was made with an agreement between the UN and the
Sierra Leone state.
Special Court for Sierra Leone
Colonial conflict because of drawing of the maps. Divide and rule policy employed by the
Imperialists. The Revolutionary United Front (RUF) wanted to overthrow the Government
under the Presidency of Momoh. The RUF wanted s regime based on the Ten
Commandments. They wanted to live by rules. In doing so that they started recruiting child
soldiers to actively or directly participate in the attacks. Children were drugged. [Active v.
Direct].
RUF was funded by the Liberian President, Charles Taylor. This was to facilitate the
mining of diamonds. This conflict happened between 1991 and 2001. The Rome Statute
existed but the temporal jurisdiction made it inapplicable. Therefore, a referral was made
to the UN and a Special Court was set up. However, by then Charles Taylor had fled to
Nigeria and the Nigerian President had given him asylum. There was immense pressure
from USA to give Charles to wither the UN or Liberia. Nigerian President wanted a
declaration from the Liberian President to give out public statement saying return the
Charles Taylor. The President of Liberia was pressurized into asking for the same and the
Nigerian President told Liberia to come and pick him up by themselves.
The SCSL was then established in Free Town. It was supposed to work only for 3 years but
it ran from 2002 to 2013. The mandate was to try for crimes against humanity, CA 3 of GC
(Non International Armed Conflict) and other serious violations of IHL. The exception to
the SLSC jurisdiction was wrt any transgressions committed by peacekeepers and related
personnel present in the country by virtue of agreements with the UN or Sierra Leone. Such
persons will be within the primary jurisdiction of the Sending State.
The law applicable was mostly the domestic laws of Sierra Leone and the interpretation
was made through SC judgments of SL. If it is a question of International law, then ICTY
and ICTR judgments will act as precedents. The Chambers of the Court consisted of 2 Trial
and 1 Appeals Chamber. The other Organs were the Office of the Prosecutor and the
Registry. There were 3 judges I each Trial Chamber. 2 of them were appointed by the UN
Secretary General and 1 by Sierra Leone. The special court was responsible for securing
the first ever conviction for attacks against UN Peacekeepers. It interpreted forced
marriages as a CAH. Further, the Court prosecuted and convicted for employing children
in combat as child soldiers. It gave a wide interpretation to the term “Active Participation”
in hostilities which is a broader term than “Direct Participation”
This was a hybrid court was made as a result of the agreement between the UN and the
Country.
Lockerbie Trial
On 22nd Dec 1988, a PanAm flight 103 from London that was meant to New York. About
39 minutes into the flight, the plane exploded above Scotland. 259 people died in the plane
and the debris that had fallen into Lockerbie killed people here as well. The blast was
caused by remote-controlled bombs that were placed in PanAm. Two Libyan nationals Al
Magrahi and Fhimah were the main suspects in the case, but at the time of that revelation,
the two suspects had run away back to Libya.
Libya, Due to multiple sanctions and UN SC regulations was facing backlash for harboring
the two suspects and were being pressured to hand them over to either US or Scotland, both
of whom wanted to be able to prosecute him. Libya stated that as per the international
obligations that they possess, they are indeed prosecuting the two suspects. However, the
sanctions and international pressure from the US and the international community as a
whole led to a compromise.
A hybrid court was formed in The Netherlands and Libya stated they would only hand over
the two suspects if they were prosecuted under Scottish Law owing to stricter laws of
evidence and procedure (For example, in Scottish law, not only do you need evidence, you
need to corroborate that evidence as well as opposed to in the US where there is no such
requirement for evidence presentation). They were only able to prosecute Magrahi and
Fhimah was sent back to Libya as the charges against him were dismissed.
PAN AM Flight from London to Ney York, within the first 45 minutes, the plane exploded
above the town of Lockerbie. The bombs in the luggage was the result of the explosion.
Everyone on the flight died and the debris killed 11 people from the town as well.
USA and Scotland had territorial jurisdiction. However, it was found out that the luggages
were to go to Frankfurt. There were 2 accused, Al. Magrahi and Fhimah. They were Libyan
nationals. They were not on the plane during the explosions and they fled back to Libya
after putting the bag in. UK and USA wanted to persecute. They decided to pressurize
Libya. Finally after multiple sanctions were imposed on Libya by US, the men were finally
released. Libya claimed they prosecuted these men and lived up to their international
obligation as per principle of aut dedare aut judicare. However, USA insisted on
prosecution. Finally, as per SC resolution, a hybrid court was created in Netherlands. Libya
said that they will release the persons to Netherlands if the rules of Scotland are applicable.
This was because Scottish laws of evidence are stricter.
The tribunal found Al Magrahi guilt; the other person was released.
CRIMES OF AGGRESSION (CoA)
As per Article 5 of the Rome Statute, para 2, earlier provided for the provision for a possible
definition for CoA. Finally in 2010, the 16th Assembly of State Party Meetings took up the
definition in the conference at Kampala, Uganda. The clause (Art. 8 bis) added was that it
will come into effect only when it has a minimum of 30 ratifications. Will this apply only
to those who ratify the clause or all members who signed the Rome Statute? In 2017
December, there were plenty of deliberations. Definition was altered and 30 ratifications
were reached. By a resolution, it was enforceable only to the States that ratified it. The
resolution was adopted on 15th December, 2017 and it was agreed that Article 8 bis was to
enter into force from 17th July, 2018. In case of proprio motu (suo motu investigation taken
up by ICC) investigations, the ICC will not have jurisdiction over the Member States or
their Nationals who have not ratified the Kampala Amendment. However, the UNSC
Referrals (under Chapter VII) create no jurisdictional limitations upon ICC.
Essentials for CoA:
1) As per the definition of CoA, only States come under the purview and not Non-State
Actors, Organizations or Institutions.
2) The perpetrator must be a political or military leader.
3) The perpetrator must be involved in planning, preparation, initiation, or execution of

such State Act of Aggression.
4) This Act must amount to an Act of Aggression and be a manifest violation of the UN
Charter. (i.e., respecting sovereignty of other countries.
Rudolf Hess case
In Tokyo, 21 persons were tried and convicted, in Nuremberg only 1 person, Rudolf Hess
was held accountable. This was because Adolf died and Herman Goering was not in the
picture in the hierarchy. So, only the third in command was held responsible. The defense
of mental incapacity was rejected. Therefore, he was held responsible.
NOTES FOR THIS NEEDS TO BE GIVEN.
IRAQUI, COMBODIAN OR ANY OTHER HYBRID COURT HAS TO BE LEARNT

ADDITIONALLY.
ENDSEM PORTIONS
1. Evolution
i. Treaty of Versailles
ii. Tokyo
iii. Nuremberg
iv. Evolution of Individual Criminal Responsibility
v. Nuremberg Principles
vi. How ICR translates in the Rome Statute
vii. Adolf Eichmann case
2. ICTY and ICTR
i. Tadic Judgment
ii. All the cases, in enough detail for 6-10 marks
iii. Joint Criminal Enterprise
iv. Akayesu Judgment
3. International Criminal Court
1. Basic Elements
2. Mens Rea
3. Threshold
4. Application based questions
5. Individual Criminal Responsibility
6. Command Responsibility
7. Defenses
8. Article 30
9. Working and Procedures
10. Organs
i. Functions of OTP
ii. Pre-trial Chamber
iii. Trial and appeals chamber
11. Articles related to early release, review, pardon, reparations,
types of punishments
12. The actual ICC prisons
13. Criticism of ICC
14. Challenges faced by the ICC
4. Special Courts
a. Sierra Leone
b. Lockebie
c. Any one more (keep 3 ready)
GO THROUGH PREVOUS YEARS QUESTION PAPERS: Prepare structures.

Underline.
IMPORTANT TOPICS:
1) Evolution of ICL.
Treaty of Versailles
Tokyo
Nuremberg
Idea and Evolution of Individual Criminal Responsibility.
Nuremberg Principles
Individual Criminal responsibility in the Rome Statute
Adolf Eichmann case
2) ICTY
Tadic case + other cases. (6/10 marker)
Joint Criminal Enterprise
3) ICTR
Akayesu Judgment
Media Trial Case
4) International Crimes
Basic elements of the Crimes which includes mens rea and actus reus and the threshold
Application based and 10 markers
5) Rome Statute
Art. 25 and 28 for Individual Criminal and Command Responsibility
Defences
Art 30
6) Special Courts
Sierra Leone
Lockerbie
And one other
7) Working Procedure and Organs of the ICC
Functions of Office of the Prosecutor
The pre-trial Chamber
Trial and Appeals Chamber
Articles related to early release, review, pardon, reparations, types of punishments,
prisons
Criticism of the ICC
Challenges faced by the ICC

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Portions

Unit 1: Modern History of International Criminal Law

o International Military Tribunal

Unit 3: Individual Criminal Responsibility

Unit 5: Crimes under the International Criminal Court Statute:

o Domestic Criminal Law gave rise to Individual Criminal Responsibility

The evolution or genesis of ICL

Jus ad bellum- Right to wage war

Although early Christian Theology manifested an extreme Pacifism that

The murder of Archduke Franz Ferdinand of Austria-Hungary by Gavrilo Princip of Serbia

Principles of Extradition: Double Criminality and Speciality

The Nuremberg Legacy by Cherif Bassiouni

1) Major war criminals Trial where 24 persons were tried.

UK wanted summary trials; USA wanted to prosecute.

Article 6 of the IMT Charter:

o For the punishment of European Axis Countries

Article 7 of the IMT Charter:

No protection accorded to Heads of State or Government if one is found in violation of the

Article 8 of the IMT Charter:

1. Principle of Legality was questioned for International Military Tribunal and

5. The accused were chosen arbitrarily

Tobar Doctrine, Wilson Policy, Stimson Doctrine]

[It was established consequent to a military order by Douglas MacArthur, Supreme

Of the 28, 2 died of natural causes,

5 different opinions came out at the judgment.

Chapter 1 – Preliminary questions of law]

• Article 2-Breaches of Geneva Conventions

• Chapter VII, Art 52 of the UN Charter gave a collective Right of Self-Defence

FACTS OF THE TADIC CASE

The examples under Article 3 include:

o Use of poisonous weapons to cause unnecessary suffering.

History of the formation of ICTR

CRIMES UNDER ICTR

Is persecution of sexual minorities genocide?

Article 3- Crimes Against Humanity

Article 4- Breach of Common Article 3 of the Geneva Conventions

Criticism of ICTR by the Rwandan Government

Prosecutor v. John Paul Akayesu

Media Trial Case

JUDGMENT- They appealed under 5 grounds:

Jurisdiction of the ICTR

Subject Matter Jurisdiction (Article 4)

Personal Jurisdiction (Article 5)

Territorial Jurisdiction (Article 7)

• Presidency- Overlooks the administration of the court. This body is elected

Core Legal Texts

There are 7 core legal texts:

In addition to jurisdiction, it also addresses issues such as admissibility and Applicable

Principles of Criminal Jurisdiction:

Individual Criminal Responsibility

Structure of a crime includes:

1) Mental element- Article 30 of the Statute. Material elements should be committed

Dolus specialis- Special intention

Dolus eventualis- General intent

Article 25-Individual Criminal Responsibility

Prosecutor v. Thomas Lubanga Dyilo

Three ways to establish Individual Criminal Responsibility:

Notes for Article 25 in “ICL by Susan Nash and Illias Bantekas”

An order is a command for action or omission that is issued by a superior to a subordinate