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The Year in Review*

Published online by Cambridge University Press:  17 February 2009

Avril McDonald
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Extract

Since the breakthrough adoption in 1977 of Protocols I and II Additional to the Geneva Conventions of 1949, the major issue and biggest challenge facing international humanitarian law (IHL) has been its implementation. The two Additional Protocols addressed many, though not all, of the lacunae left in IHL after the adoption of the Geneva Conventions in 1949. As one commentator has noted: ‘There is, however, aparticularly acute contrast between humanitarian law's highly developed rules, many of which enjoy nearly universal acceptance, and the repeated violations of those rules in conflicts around the world.’

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 113 - 160
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. The 20th anniversary of the adoption of the Additional Protocols of 1977 was marked by the International Review of the Red Cross with a special issue, in which several veterans of the 1974–1977 Diplomatic Conference gave their views on the Protocols, 20 years on. See IRRC No. 320, (September-October 1997).

2. See Berman, Paul, ‘The ICRC's Advisory Service on International Humanitarian Law: the challenge of national implementation’, IRRC No. 312, (05–06 1996) p. 338CrossRefGoogle Scholar; see also Roberts, Adam, ‘The Law of War: Problems in Implementation in Contemporary Conflicts’, in Law in Humanitarian Crises: How can international humanitarian law be made effective in armed conflicts? Vol. 1 (European Commission Brussels 1995) p. 13Google Scholar; see also Dutli infra at p. 245.

3. A/CONF.183.9. 17 July 1998. Available online at http://www.un.org/icc. The Statute was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, following an unrecorded vote requested by the USA. The results of the vote were 120 states in favour, 7 against and 21 abstentions. Following its adoption, 10 states immediately signed the Statute and 127 delegations signed the Final Act. The Statute is reprinted in 37 ILM 999 (1998).

4. . With the first proposal to establish an international criminal court apparently made by Gustave Moynier in Geneva in 1872. See Hall, Christopher Keith, ‘The first proposal for a permanent international criminal court’, IRRC No. 322 (03 1998) p. 57CrossRefGoogle Scholar. The Statute is the fruit of almost four years of negotiations by the Preparatory Committee at UN Headquarters in New York, and five weeks of intense debate at the Rome Treaty Conference, held from 15 June to 17 July 1998; 156 States and over 100 NGOs participated in the Conference.

5. Under Art 126 of the ICC Statute, the Statute will enter into force 60 days after the 60th instrument of ratification has been deposited with the Secretary-General of the United Nations.

6. The USA voted against the ICC Statute and has indicated that it will actively lobby against the court.

7. Statement by the United Nations Secretary-General Kofi Annan at the ceremony held at the Campidoglio celebrating the adoption of the Statute of the International Criminal Court, 18 July 1998. Available online at http://www.un.org/icc/speeches/718sg.htm.

8. Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96–4-T, 2 September 1998.

9. Prosecutor v. Jean Kambanda. Sentencing Judgement, Case No. ICTR-97–23-S, 4 September 1998; Prosecutor v. Jean-Paul Akayesu, Sentencing Judgement, Case No. ICTR-96–4-T, 2 October 1998.

10. ‘It is the first time since 1868 that a weapon has been prohibited before it has been used on the battlefield. It has also stigmatized deliberate blinding.’ Doswald-Beck, Louise, ‘New Protocol on Blinding Laser Weapons,’ IRRC No. 312 (05–06 1996) p. 272 at p. 296CrossRefGoogle Scholar. See also ‘The Vienna Review Conference: success on blinding laser weapons but deadlock on landmines’, IRRC No. 309, p. 672Google Scholar.

11. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (hereinafter, Chemical Weapons Convention), opened for signature in Paris on 13 January 1993. Entered into force on 29 April 1997. UN Doc. CD/CW/WP.400/Rev.

12. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (hereinafter, Landmines Convention), 18 September 1997, Oslo, Norway. Reprinted at p. 539 of this volume.

13. Arts. 1(1) of, respectively, the Chemical Weapons Convention and the Landmines Convention.

14. These principles are directly alluded to in the Preamble of the Landmines Convention. For a discussion of methods of warfare that cause unnecessary suffering, see Clarke, Roger S., ‘Methods of Warfare that Cause Unnecessary Suffering or Are Inherently Indiscriminate: A Memorial Tribute to Howard Berman’, 28 California Western International Law Journal (1998) p. 379Google Scholar.

15. The Review Conference was requested by France, pursuant to Art. 8(3)(a) of the CCW Convention. See Louise Doswald-Beck, supra n. 10 at p. 227, fn. 28.

16. This review, exceptionally, takes note of developments of the past few years; future reviews will cover a single year only.

17. Geneva Conventions (Amendment) Act, 1995 [amending Geneva Conventions Act of 1957 to enable effect to be given to the Additional Protocols of 1977], Chapter 27, 19 July 1995.

18. United States War Crimes Act of 1996 (Public Law 104–192, 110 Stat. 2104, 18 U.S.C. 2401/35 ILM, p. 1540). Reprinted at p. 643 of this volume. See Carnahan at p. 518; Dutli at p. 258.

19. Expanded War Crimes Act of 1997. Section 583 of Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998 (Public Law: 105–118 (11/26/97) (H.R.2159)). Reprinted at p. 643 of this volume. For commentary, see Carnahan in Correspondents' Reports at p. 519 of this volume.

20. France signed Protocol II in 1984. See Correspondents' Reports at p. 443.

21. Information about various recent implementation measures within states is provided in National Implementation of International Humanitarian Law, Advisory Service on International Humanitarian Law, Annual Report 1996, ICRC, 1997, and in Correspondents' Reports at p. 393 et seq.

22. Advisory Service Annual Report, ibid., at p. 11. See Dutli infra at pp. 252–253.

23. see ‘Follow-Up to the International Conference for the Protection of War Victims, IRRC, No. 304 (01–02 1995), pp. 4–38Google Scholar.

24. Preamble, Declaration of Minimum Humanitarian Standards, 2nd, rev. edn., (Institute for Human Rights, Åbo Akademi University, Turku/Åbo 1996) p. 7Google Scholar.

25. Ibid. See also Vinuesa at pp. 90–92 of this volume.

26. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards, Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21, E/CN.4/1998/87, 5 January 1998. This follows an earlier report submitted by the SG on this subject, see UN Doc. E/CN.4/1996/80.

27. See supra n. 24 at pp. 4–6.

28. Supra n. 26 at para. 2.

29. The views and information received from states and United Nations bodies in response to the SG's report of 1998 are contained in E/CN.4/1998/87/Add.l, 12 January 1998.

30. Supra n. 26 at para. 41.

31. Ibid., at para. 8.

32. According to the SG, ‘in 1996 there were 19 situations of internal violence in which at least 1,000 people were killed (…) and which, cumulatively (…) had led to between 6.5 and 8.4 million deaths. If one includes situations of internal violence which, in 1996 had de-escalated or ended, another 2 million deaths could be added. In addition, in 1996 there were approximately 40 other internal situations causing between 100 and 1,000 deaths (…) which cumulatively have also led to thousands of deaths.’ Ibid., at para. 18.

33. Ibid., at para. 13.

34. Abi-Saab, Rosemary, ‘Human Rights and Humanitarian Law in Internal Conflicts’, in Warner, Daniel, ed., Human Rights and Humanitarian Law: The Quest for Universality (Martinus Nijhoff, The Hague 1997) at p. 199Google Scholar.

35. Recommendation II of the Group proposed that, ‘the ICRC be invited to prepare, with the assistance of experts on IHL representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of IHL, applicable in international and non-international armed conflicts and to circulate the report to States and competent international bodies.’

36. In ‘Study on customary rules of international humanitarian law, Plan of action’. Copy on file with the author.

37. Cairns, E., Conflict and Emergencies 1998 (Oxfam, London 1998)Google Scholar; see also Cairns, E., A Safer Future: Reducing the Human Cost of War (Oxfam, London 1998)Google Scholar.

38. ‘The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa’, Secretary-General's Report to the United Nations Security Council, 16 April 1998, part I, Introduction. Available online at http://www.un.org/ecosocdev/geninfo/afrec/sgreport/report.htm.

39. SIPRI Yearbook 1998: Armaments, Disarmament and International Security, (Oxford University Press, Oxford 1998)Google Scholar.

40. SIPRI Yearbook 1997: Armaments, Disarmament and International Security, (Oxford University Press, Oxford 1997)Google Scholar.

41. This was affirmed by the establishment of the ICTR and by the jurisprudence of both ad hoc Tribunals. See Cissé infra at p. 167; Rowe at pp. 222–225.

42. In the Appeals Decision in Tadić, while the majority found that grave breaches are only applicable during international armed conflicts (at paras. 81–83), it noted that this area of the law

43. Loi du 16 juin 1993 relative à la repression des infractions graves aux Conventions inter-nationales de Genève du 12 aoflt 1949 et aûx Protocols I et II du 8 juin 1977, additionnels a ces Convention. Published in Moniteur beige, 5 août 1993. This law and other legislation recognising individual criminal responsibility for violations of IHL committed in internal armed conflicts is analysed by Graditzlcy, Thomas in ‘Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflicts’, IRRC No. 322 (03 1998) p. 29CrossRefGoogle Scholar.

44. CÓdigo Penal, Law 10/1995, 23 November 1995. Title XXIV, Crimes Against the International Community, Chapter III, Crimes against Protected People and Property in the Event of Armed Conflict, Article 608. Title XXIV is in the Documentation section at p. 633. For commentary, see Antonio Pigrau i Solé in Correspondents’ Reports at p. 502.

45. Submission by the Government of the United States of America concerning Certain Arguments made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. Dusan Tadić (Case No. IT-94-I-T), 17 July 1995, pp. 35–36.

46. Supra n. 19.

47. Supra n. 18.

48. The Director of Public Prosecutions v. T. Sentence passed by the Eastern High Court (3rd Division) on 22 November 1994 (unpublished). English translation on file with the YIHL.

49. Speech by Olara A. Otunnu, Special Representative of the Secretary-General of the United Nations for Children in Armed Conflict, in Child Soldiers, proceedings of the Conference on Child Soldiers, The Hague, 20 November 1997, published by Watoto wa Amani, January 1998, p. 7 at p. 8.

50. Supra n. 38 at para. 49.

51. See Preliminary Report of the Special Rapporteur on the situation of systematic rape, sexual slavery and slavery-like practices during periods of armed conflict, Ms. Linda Chavez, UN Doc. E/CN.4/Sub.2/1996/26, 16 July 1996. By a letter dated 13 May 1997, the Special Rapporteur informed the High Commissioner for Human Rights that she was not in a position to submit her final report, resigned as Special Rapporteur and requested that another member of the Sub-Commission continue the study. UN Doc. E/CN.4/Sub.2/1997/12, 17 June 1997.

52. Ibid., at para. 14.

53. Ibid., at para. 25.

54. Ibid., at para. 86.

55. UN Doc.E/CN.4/Sub.2/1998/13.

56. Ibid., at para. 8.

57. Ibid., at para. 24.

58. Ibid., at para. 25.

59. Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission resolution 1997/44. UN Doc. E/CN.4/1998/54, 26 January 1998, Part I. See also the Report of the Special Rapporteur on violence against women, its causes and consequences, on the mission to Rwanda on the issues of violence against women in situations of armed conflict. UN Doc. E/CN.4/1998/54/Add. 1.

60. Ibid., at paras. 9 and 10.

61. Ibid., at para. 11. The ICTR became the first international criminal tribunal eveT to charge a women with sex crimes when it charged Pauline Nyiramasuhuko, Rwanda's former Minister of Family Welfare and the Advancement of Women with crimes against humanity and violations of common Article 3 and Protocol II in respect of sex crimes. Nyiramasuhuko's son, Arsène Shalom Ntahobali, is also charged with sex crimes.

62. In Arts. 5(g) and 3(g) respectively. Rape was, however, previously enumerated as a crime against humanity in Article II of Control Council Law No. 10 although it was not prosecuted in any of the 12 subsequent trials.

63. For example, by the ICTY in the indictment Gagović and Others (“Foča”), Case No. IT-96–23–1, 26 June 1996 and by the ICTR in the case of The Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96–4-T.

64. For example, in the Čelebiä Indictment, Delić is charged with two grave breaches (torture) arising out of an act of rape. Both counts 18 and 21 use the word rape. Case No. IT-96–21-I. In the indictment Gagović and Others (“Foča”), rape and other forms of sexual assault are charged, inter alia, as the grave breaches of torture and wilfully causing great suffering. Ibid.

65. Case No. IT-95–17.

66. Kunarać is charged in the Gagović indictment, supra n. 63.

67. Supra n. 8. Only those parts of the Akayesu judgement specifically pertaining to women are considered here; other aspects of the judgement are considered in Section 6.1.2 below, dealing with the ICTR generally.

68. Ibid., at para. 596.

69. Ibid., at para. 597 and at para. 688.

70. Ibid., at para. 596.

71. Ibid., at para. 598.

72. Ibid., at para. 688.

73. ‘Those who work together’. The Interahamwe was a militia active in the genocide in Rwanda.

74. Supra n. 8 at para. 688.

75. Ibid., at para. 731.

76. Ibid., at para. 731.

77. Ibid., at para. 507.

78. Ibid., at para. 508.

79. Ibid., at para. 509.

80. Ibid., at para. 507.

81. Supra n. 49. See also the Promotion and Protection of the Rights of Children, Impact of armed conflict on children, Report of the Expert of the Secretary-General, Ms. Graca Machel, submitted pursuant to General Assembly resolution 48/157, A/51/306, 26 August 1996, at para. 2. Available online at gopher://gopher.un.org:70/00/ga/docs/51/plenary/A51-306.EN.

82. For a report on the abduction of children to serve in a rebel army see The Scars of Death: Children Abducted by the Lord's Resistance Army in Uganda, Human Rights Watch/Africa, (09 1997)Google Scholar.

83. For example, children have been recruited in Algeria, Angola, Burundi, Djibouti, Liberia, Rwanda, Sierra Leone, South Africa, Sudan and Uganda. Report of Conference on Child Soldiers, supra n. 49 at pp. 26–37.

84. Human Rights Watch, Stop the Use of Child Soldiers! Campaign Page http://hrw.org/. See also the report of the Committee on the Rights of the Child, UN Doc. E/CN.4/1997/96, para. 45.

85. Machel report, supra n. 81 at para. 49. See also Brett, Rachel and McCallin, Margaret, Children: The invisible soldiers, Rädda Barnen (Swedish Save the Children) (Stockholm 1996)Google Scholar.

86. See Jeannet, Stéphane and Mermet, Joël, ‘The Involvement of Children in Armed Conflict’, IRRC, No. 322 (03 1998) p. 105 at 106CrossRefGoogle Scholar.

87. ‘Optional Protocol to the Convention on the Rights of the Child concerning involvement of children in armed conflict, Position of the International Committee of the Red Cross,’ Geneva 27 10 1997, IRRC No. 322 (03 1998) p. 107 at pp. 114–117Google Scholar.

88. In 1992, the Committee on the Rights of the Child recommended that an Optional Protocol to the Convention on the Rights of the Child be adopted which would raise the minimum age of recruitment and participation in hostilities from 15 (Art. 38 of the CRC) to 18, and also that a study on the impact of armed conflict on children be undertaken. This became the Machel report.

89. In fact, the Draft Optional Protocol itself contains the possibility of a limit of 17 years for direct participation in hostilities and a limit of either 16 or 17 for recruiting children into the aimed forces. See Arts. 1 and 2 of the Draft Optional Protocol to the CRC, reprinted in proceedings of the Conference on Child Soldiers (Watoto wa Amani, The Hague 20 November 1997), Annex 2. However, most campaigners prefer 18 as the legal minimum age for both recruitment and participation, either direct or indirect, in hostilities.

90. Roth, Kenneth, ‘New Minefields for NGOs: After a big win, global citizen power gears up for the next fight’, The Nation (13 04 1998)Google Scholar.

91. Art. 8(2)(b)(xxvi) proscribes as a war crime when committed in an international armed conflict, ‘Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate in hostilities.’ Art. 8(2)(e)(vii) prohibits when committed during an internal armed conflict ‘within the established framework of international law’, ‘Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.’

92. For an analysis of Protocol IV to the CCW Convention concerning Blinding Laser Weapons, see Zöcker at p. 333 of this volume.

93. This is recognised in the USA Department of Defence's policy statement on Blinding Lasers, which states that ‘accidental or incidental eye injuries may occur on the battlefield as a result of the use of lasers not specifically designed to cause permanent blindness’. DOD Policy Statement on Blinding Lasers, 17 January 1997, reprinted at p. 595 of this volume.

94. ‘Austria strongly argued in favour of this proposal, pointing out the particular danger of a slate parry to the Protocol transferring the weapon to a non-party State which might well then use it’ Doswald-Beck, supra n. 10 at p. 289.

95. Doswald-Beck, ibid., p. 292.

96. Doswald-Beck, ibid., p. 292.

97. Louise Doswald-Beck argues that ‘according to a normal interpretation of Article 3 the phrase “including laser systems used against optical equipment” could not be used to legitimize the deliberate blinding of persons using binoculars or other direct optics’. Supra n. 10 at p. 294.

98. Source: ICRC IHL Treaty database: http://www.icrc.org.

99. Peter Herby, , ‘Third Session of the Review Conference of States Parties to the 1980 United Nations Convention on Certain Conventional Weapons,’ Geneva, 22 April–3 May 1 996, IRRC No. 312, (05–06 1996) p. 361CrossRefGoogle Scholar.

100. Art. 1(2) states that the Protocol shall apply to situations covered by common Art 3.

101. Herby, supra n. 99 at p. 363.

102. Herby, ibid., at p. 364.

103. Herby, ibid., at p. 366.

104. Source: ICRC HL Treaty database: http://www.icrc.org.

105. In December 1996, 157 states supported a UN General Assembly resolution calling for the urgent negotiation of a legally binding ban on anti-personnel landmines.

106. For a discussion of the Ottawa Process and the Landmines Treaty, see Goose at p. 269.

107. Legality of the Use of Nuclear Weapons. International Court of Justice, Advisory Opinion of 8 July 1996 in response to resolution 49/75K adopted by the General Assembly on 15 December 1994; Legality of the Use of Nuclear Weapons. Advisory Opinion of 8 July 1996 in response to resolution WHA46.40 adopted by the World Health Assembly on 14 May 1993.

108. See Condorelli, Luigi, ‘Nuclear weapons: a weighty matter for the International Court of Justice, JURA NON NOVIT CURIA?’ IRRC No. 316 (01–02 1997) p. 9 at 11CrossRefGoogle Scholar. This is recognised by Judge Guillaume in his Separate Opinion in which he chastises the Court for failing to say explicitly what it meant implicitly. The IRRC devotes almost all of issue 316 to the Nuclear Weapons Advisory Opinions, with an introduction by Judge Geza Herczegh.

109. Advisory Opinion, para. 2E, clause 2.

110. Supra n. 108, at p. 10. Condorelli goes on to state: ‘the mere fact that, for whatever reason, the Court did not decide that nuclear weapons are always forbidden implies that those who held them to be illegal have been totally defeated. They did not get what they wanted, that is, a ruling by the Court that the nuclear powers are not in any circumstances entitled to use the weapon they possess. And vice-versa: the very fact that the Court did not rule that the threat or use of nuclear weapons is prohibited in all circumstances means that those who hold it to be legal — mainly the nuclear powers — in effect triumphed. Their dearest wish (that their policy of nuclear deterrence should not be labelled hie et nunc illegal) was granted to the full.’ At p. 12.

111. The 65th state, Hungary, deposited its notice of ratification on 31 October 1996. See Herby, Peter, ‘Chemical Weapons Convention enters into force’, IRRC No. 317 (03–04 1997) p. 208Google Scholar.

112. Current figures on ratifications can be obtained at http://www.opcw.nl.

113. Source: ibid.

114. Herby, loc. cit. n. 111. For a discussion of the long-standing taboo against the use of chemical weapons, see Price, Richard M., The Chemical Weapons Taboo (Cornell University Press, 1997)Google Scholar.

115. The International Review of the Red Cross marked this anniversary with a special issue on the subject of the Convention. See IRRC No. 318 (May-June 1997).

116. Human Rights Watch World Report 1998. p. 368. See also Weston, Michael, ‘Giving Teeth to the Biological Weapons Convention’, 45 NATO Review (1997) p. 33Google Scholar.

117. The review process is considered by Hladik at p. 313 of this volume.

118. See Report by the Director-General on the Results of the Meeting of Governmental Experts on the Revision of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, Vienna, 11–13 May 1998, UNESCO, 155th session, 155EX/51, Paris, 17 August 1998.

119. Ibid., Annex p. 3.

120. As Ěrdemović confessed, under Rule 62(iv) there could be no trial and his case proceeded directly to sentencing.

121. Prosecutor v. Dražen Erdemović, Judgement of the Appeals Chamber, 7 October 1997, Case No. IT-96-22-A at para. 8.

122. The Appeals Judgement is analysed by Rowe at p. 210 of this volume.

123. Prosecutor v. Duško Tadić, Opinion and Judgment, Case No. IT-94-1-T, 7 May 1997.

124. Prosecutor v. Duško Tadić, Sentencing Judgement, Case No. IT-94–1 -T, 14 July 1997.

125. The Judgement in this case was expected on 16 November 1998.

126. ICTY CC/PIO/332-E, The Hague, 14 July 1998.

127. An inquiry into the death of Mr. Dokmanović, led by Judge Almiro Rodrigues, found no negligent behaviour on the part of detention unit staff. Judge Rodriguez has set up a working group which will study the issue of suicides in prison and review the preventative measures applied in various detention systems. See http://www.un.org/icty/bulletin21-e/dokman.htm.

128. An investigation into the circumstances of Dr. Kovacević's death was undertaken by the Tribunal and a report was prepared by Judge Almiro Rodriques and published on 27 August 1998. It cleared the ICTY and the persons involved, including the duty doctor, of any negligence. Available online at http://www.un.org/icty/pressreal/inquiry/htm.

129. Case No. IT-95-10-PT. On 29 Oct 1998, Jelisić pleaded quilty to 31 out of 33 counts with which he is charged in a second amended indictment. See ICTY press release JL/PIU/357-E.

130. Case No. IT-95–14/2-PT.

131. Milan Simić, Case No. IT-95-9-PT.

132. Indictments were withdrawn against four accused: Marinko Katava (named in the indictment, Kupreskić & others); Pero Skopljak (Kordić & others); Ivan Santić (Kordić & others) and Stipo Alilović (Kupresić & others). In the case of the first three, the Prosecutor stated that ‘there is insufficient basis to justify proceeding to trial against [them] and in the interests of justice the indictment should now be withdrawn.’ In the case of the fourth, Alilović, ‘[t]he Prosecutor has received confirmation that the accused is dead. He died on 25 October 1995 in Amsterdam.’ See ICTY Press Release CC/PIO/278-E, 19 December 1997. Alilović was indicted on 10 November 1995. The figure of 19 public indictments does not include Erdemović — whose case has now concluded - Dokmanović, Kovacević, Djukić or Miljković (the latter four died and although their indictments have not yet officially been withdrawn, they are not included in the list of public indictments).

133. The Rule 61 hearings were held in the cases of Dragan Nikolć, Milan Martić, Vukovar Hospital (Mile Mrksić, Miroslav Radić and Veselin Šljivancanin), Ivica Rajić, and Radovan Karadžić and Ratko Mladić (jointly accused).

134. UN SC Resolution 1166 (1998), 13 May 1998.

135. See ICTY Press Release CC/PIO/333-E, 16 July 1998.

136. See ICTY Press Release CC/PIO/301-E, 10 March 1998 in which the Prosecutor asserted the Tribunal's jurisdiction over the violence in Kosovo.

137. Supra n. 42.

138. Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, 29 October 1997.

139. Supra n. 121.

140. Supra n. 123.

141. See inter alia Aldrich, George H., ‘Jurisdiction of the International Tribunal for the Former Yugoslavia’, 90 AJIL (1996) p. 64CrossRefGoogle Scholar; Watson, Geoffrey R., ‘The Humanitarian Law of the Yugoslav War Crimes Tribunal: jurisdiction in Prosecutor v. Iodić’, 36 Virginia JIL (1996) p. 687Google Scholar.

142. On Erdemović, see Rowe supra at p. 210 and on the Subpoena Decision see Malanczuk at p. 229 of this volume.

143. The decision is currently under appeal by both the Prosecutor and the Defence. The YIHL will offer an in-depth analysis of the case once the Appeals decision has been rendered.

144. ICJ Rep. 1986.

145. Supra n. 123 at para. 605.

146. Ibid., at para. 606.

147. At para. 3 of her Dissenting Opinion.

148. At para. 4 of her Dissenting Opinion.

149. Meron, T., ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout’, 92 AJIL (1998) p. 236CrossRefGoogle Scholar.

150. Ibid., at p. 237. See also Vinuesa at p. 106.

151. Supra n. 123 at para. 652.

152. Ibid., at para. 653.

153. Ibid., at para. 654.

154. Ibid., at p. 643.

155. Ibid., at p. 638.

156. The Prosecutor v. Mile Msksić, Miroslav Radić and Veselin Šljivančanin, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95-13-R61. The hearing was held on 20, 26, 27 and 28 March 1996 and the Decision was rendered on 3 April 1996. See Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence.

157. Supra n. 123 at para. 649.

158. For a more detailed consideration of the work of the ICTR, and its relationship with the judicial processes in Rwanda, see Cissé at p. 161 of this volume.

159. On 5 August 1998, a US District Court Judge ordered the surrender to the ICTR of Elizaphan Ntakirutimana. For background to this case, see Paust at p. 205 of this volume.

160. See UN Doc. S/RES/1165 (1998), 30 April 1998.

161. Supra n. 8. at para. 495. In the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide {Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, para. 31, the ICJ stated that the duty incumbent on states to prevent and punish genocide does not depend on the nature of the conflict and is the same whether the conflict is international or internal.

162. Ibid., at para. 497.

163. Ibid., at para. 502.

164. Ibid., at para. 504.

165. Ibid., at para. 505.

166. Ibid., at para. 506.

167. Ibid., at paras. 521 and 522.

168. Ibid., at para. 523.

169. Ibid., at paras. 540 and 541.

170. Ibid., at para. 640.

171. ICTR/INFO-9–2–144, Arusha 7 October 1998.

172. Supra n. 9 at para. 61.

173. ArL5(l)(a)-(d).

174. During the discussions in the Committee of the Whole on the Bureau Discussion Paper (A/CONF.183/C.1/L.53,6 July 1998) on 8 July 1998.

175. In the ICTY's and ICTR's Arts. 4 and 2 respectively.

176. The chapeau of Art. 3 of the ICTR Statute (crimes against humanity) states that they are the following crimes, ‘when committed as part of a widespread or systematic attack against any civilian population, on national, ethnic, racial or religious grounds’.

177. Art. 5 (Crimes against humanity) of the ICTY Statute provides that they are the following crimes, ‘when committed in armed conflict, whether international or internal in character, and directed against the civilian population’.

178. Supra n. 42 at para. 78. Later in the same Decision, the Trial Chamber states that ‘customary international law may not require a connection between crimes against humanity and any conflict at al’. At para. 141.

179. Ibid., at para. 141.

180. The Chamber noted that: ‘Although according to the terms of Article 5 of the Statute of this Tribunal, the combatants in the traditional sense of the term cannot be victims of a crime against humanity, this does not apply to individuals who, at one particular point in time, carried out acts of resistance.’ It added that this conclusion was supported by the Commission of Experts established pursuant to Security Council Resolution 780 and with certain case law, particularly the Barbie case. Supra n. 156 at para. 29.

181. In ‘Canadian Compromise Proposal Seriously Criticized,’ In On the Record, p. 1Google Scholar, published in Terra Viva during the Rome Conference, Rome, No. 15, 3 July 1998.

182. ‘Crimes against Humanity Compromise,’ In On the Record, p. 1Google Scholar, published in Terra Viva during the Rome Conference, Rome, No. 22,14 July 1998.

183. Tadić Opinion and Judgment, supra n. 123 at para. 626.

184. (a) Murder; (b) Extermination; (c) Enslavement; and (f) Torture.

185. (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other groups that are universally recognized as impermissible undeT international law in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to physical or to mental or physical health. [Provisions in roman type are new; provisions in italics correspond with Articles 5 and 3 of the Statutes of the ICTY and ICTR.]

186. Art. 7(2)(d) — (i) respectively.

187. See Daily Summary of the ICC Conference, 8 July 1998. http://www.un.org/icc/pressrel.

188. ‘Establishment of a Permanent International Criminal Court,’ in IRRC No. 322 (03 1998) p. 23Google Scholar.

189. Art. 8(2)(b)(xxii) prohibits, ‘Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Art. 8, Para. 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.

190. Although they have been prosecuted as war crimes when committed in either international or internal armed conflicts before the ICTY.

191. See infra, Section 8.2; see also Greenwood at p. 3 of this volume.

192. During the Committee of the Whole meeting on the Bureau Discussion Paper, 8 July 1998.

193. Art. 8(2)(e)(iii).

194. In Art. 8(2)(b)(xvii)-(xx).

195. Under Art. 15.

196. Under Art. 12.

197. During the meeting of the Committee of the Whole of 9 July 1998.

198. Under Art. 15(1), further to Art. 13(c).

199. Art. 13(b). During the ICC Conference debates, some states expressed the wish that the SC should also be able to refer situations under Chapter VI, while some suggested that the SC should only be able to refer matters related to the crime of aggression. Some states were in favour of other bodies, including the UN Commission on Human Rights and the ICRC, being able to refer situations to the Court.

200. Art. 14.

201. Art. 16.

202. Art. 1 states that the court ‘shall be complementary to national criminal jurisdictions’.

203. This can be seen in the Preamble of the Statute, which states, inter alia, ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by talcing measures at the national level and by enhancing international cooperation’, and ‘Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.

204. Art. 17(l)(a).

205. Art. 17(l)(b).

206. Under Arts. 17(l)(c) and 20 (ne bis in idem).

207. Art. 20(3)(b).

208. Art. 17(l)(i).

209. Rule 106ICTY Rules of Procedure and Evidence.

210. Art. 75(1) ICC Statute.

211. Ibid., Art. 75(2).

212. Ibid., Art. 75(3).

213. Provision for whose establishment is made in Art. 43(6).

214. Such as under Art. 68 (Protection of the victims and witnesses and their participation in the proceedings).

215. Judgement of the Corte Militaredi Appello of 7 March 1998, published 15 April 1998.

216. Sentence of 2 April 1998. Cour d'Assises de la Gironede, sitting at Bordeaux.

217. Information about trials in specific countries is available in Correspondents’ Reports.

218. Decision of the Argentine Supreme Court on Priebke, Erich's extradition request. Case 16.063/94, 2 November 1995. Published as Priebke Erich's Extradicción. Fallos de la Corte Supreme de Justicia. Tomo 318/3, pp. 2149–2228. For commentary on this case, see Consigli at p. 341 of this volume.

219. Decision of the Federal Judge on the extradition request of Croatia in respect of Dinko Sakić. See Correspondents’ Reports at p. 404

220. See Marchisio at p. 344 of this volume.

221. In re G. First Division Military Tribunal, Lausanne. Hearings held from 14 to 18 April 1997. Decision, 18 April 1997. See La Rosa and Henchoz at p. 513 of Correspondents’ Report.

222. See Fischer at p. 380 of this volume.

223. Munyeshyaka. Cour de Cassation, crim., 6 January 1998. Reprinted at p. 598.

224. Javor e.a. Cour de Cassation, crim. 26 Mars 1996.

225. Alkotmánybiróság 36/1996 (IX.4.) AB határozata (Magyar Közlöny: 1996/75 pp. 4673–4675). Decision n°36/1996 (IX.4) AB of the Constitutional Court (Official Journal:1996/75 pp. 4673–4675). For commentary see Kovács in Correspondents’ Reports at p. 451.

226. From a letter dated 15/4/98 to the author from Aleš Rojs, attorney at law, in the law firm of Odvetniška Pisarna of Ljubljana, which is representing the ‘Stolen Children’. In the files of the author.

227. Judgement of Constitutional Court of 18 May 1995. Sentencia No. C-225, Revisión constitóucional del ‘Protocolo adicional a los conflictos armados sin carácter intemacional (Protocolo II). Unpublished. For commentary on this case see Kalshoven at p. 262 of this volume.

228. Judgement of Constitutional Court of 29 October 1992. Sentencia No. C-574/92, Revisiódn oficiosa del Protocolo Adicional a los Convenios de Ginebra del 12 de agosto de 1949, relativo a la proteccidn de las victimas de los conflictos armados intemacionales (Protocol I).

229. Which are set out in the Geneva Conventions Act (First Protocol) Order 1998, 1998 Statutory Instruments No. 1754. Reprinted at p. 640 of this volume.

230. See also Written Answers, 28 January 1998, Hansard, p. 270.

231. Details about these laws can be found in the section Correspondents' Reports. For comment on the Zimbabwean law, see Dutli at pp. 254–257 of this volume.

232. Law concerning the imprescriptibility of war crimes and crimes against humanity, adopted 1 November 1995, promulgated 23 November 1995. Published in the Boletín Oficial de la República Argentina, 29 November 1995.

233. For an analysis for implementing legislation to cooperate with the ICTY, see Josipovic at p. 35 of this volume.

234. See Correspondents' Reports at p. 445 and p. 535 of the Documents section.

235. S/PRST/1998/25,24 August 1998.

236. S/RES/1076 (1996).

237. S/RES/1097 (1997).

238. S/RES/1072 (1996), 30 August 1996.

239. Doc. A/49/742 of 2 December 1994. Adopted by the GA on 9 December 1994.

240. Source: ICRC IHL Treaty Database.

241. See Greenwood at p. 3 of this volume; Shraga, Daphna, ‘The United Nations as an Actor Bound by International Humanitarian Law’, 5 International Peacekeeping (1998) p. 64CrossRefGoogle Scholar; and Benvenuti, Paolo, ‘The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping’, in Law in Humanitarian Crises, supra n. 2 at p. 83Google Scholar.

242. See, for example, the Simpson study discussed infra at p. 365 et seq.

243. Including, Zaak, DeMarchal, Military Court of Belgium, 4 07 1996Google Scholar. For commentary see Cogen in: Correspondents' Reports at p. 413 of this volume.

244. Canada, Belgium and Italy have all issued reports further to national enquiries, and France is currently undertaking an enquiry into the role of its peacekeepers in Rwanda. For details, see under the respective countries in the section Correspondents' Reports.

245. See Judgement of the Belgian Military Court regarding violations of IHL committed in Somalia and Rwanda, Nr. 54 A.R. 1997, 20 November 1997. For commentary, see Cogen in Correspondents’ Reports at p. 415; see also R. v. Brocklebank, Court Martial Appeal Court of Canada, 2 April 1996, Case File No. CMAC-383. Published in 106 Canadian Criminal Cases (rd) at p. 234. For commentary see Boustany at p. 371.

246. Greenwood discusses the draft directives at p. 29 of this volume.