Recent Legal Developments

• Author: Donald H. Wallace
• Published date: 01 December 2007
• Date: 01 December 2007
• DOI: http://doi.org/10.1177/1057567707310897
• Subject Matter: Articles

372

Recent Legal Developments

Redress of Human Rights Abuses in

International Justice Forums for 2006

This review summarizes the jurisprudence for the calendar year 2006 of international

supervisory bodies and tribunals that are contributing to the development of interna-

tional legal norms for the accountability of human rights violations involving criminal justice

issues. The relevant jurisprudence for international criminal law is summarized for the two

ad hoc international criminal tribunals: the International Criminal Tribunal for Rwanda

(ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Also the

legal developments from two major sources of legal norms for international human rights are

summarized here for the UN Human Rights Committee and for the European Court of Human

Rights.1

International Criminal Tribunals

This section briefly describes the judgments of the ICTR and the ICTY. This is followed

with an outline of the substantive legal issues derived from these cases and a discussion of

future developments.

Descriptions of Judgments of the ICTR and ICTY

Decisions selected for review from the ICTR include five judgments of the Trial

Chambers and one judgment from the Appeals Chamber for 2006. Decisions selected for

review from the ICTY include four judgments of the Trial Chambers and four judgments

from the Appeals Chamber for 2006.

1. ICTR Trial Chambers

In the Rwamakuba judgment (ICTR-98–44C) the Trial Chambers acquitted the former

minister of primary and secondary education in the 1994 Interim Government on all counts:

genocide, complicity in genocide, crime against humanity (extermination), and crimes against

humanity (murder). In addition to significant credibility and reliability issues with the prose-

cution witnesses, the defense witnesses, including Tutsis survivors, testified that the

Rwamakuba was not present at the time and location of the massacres that took place in

Gikomero commune and at Butare University Hospital in April 1994. Similarly the defendant

was acquitted on all counts in Mpambara (ICTR-01–65) (coperpetrating, ordering, instigat-

ing, and aiding and abetting genocide and crimes against humanity [extermination]).

Mpambara was the mayor of Rukara at the time of the 1994 genocide and arrested in a

Tanzanian refugee camp with another former Rwandan mayor. See also Gacumbitsi (infra).

The Trial Chamber unanimously found Muvunyi (ICTR-2000–55A) guilty of genocide,

of direct and public incitement to commit genocide, and of crimes against humanity (other

inhuman acts). Muvunyi was found not guilty of crimes against humanity (rape) and had

International Criminal

Justice Review

Volume 17 Number 4

December 2007 372-405

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Wallace / Editorial 373

the charge of complicity in genocide dismissed. The chamber sentenced Muvunyi to 25

years imprisonment.

Serugendo (ICTR-2005–84-I) pled guilty to two counts—count 1: direct and public incitement

to commit genocide, and count 2: crime against humanity (persecution). Mitigation was

warranted in view of his guilty plea with publicly expressed remorse and his substantial coop-

eration with the prosecution. Furthermore, the chamber found Serugendo’s ill health, and

consequently reduced life expectancy and quality of life, to be a significant factor in mitigation

and sentenced him to a single sentence of 6 years imprisonment.

The Trial Chamber II accepted the guilty plea of Bisengimana (ICTR-00–60) and found him

guilty of having aided and abetted the commission of murder and crime against humanity

(extermination). On examination of the sentencing practice of the ICTR and the ICTY, the

chamber indicated that principal perpetrators convicted of crimes against humanity such as

murder and extermination have received sentences ranging from 10 years to life imprison-

ment. A sentence for murder as a crime against humanity was not entered, considering that

the guilty plea may contribute to the process of national reconciliation in Rwanda.

However,for the conviction of extermination as a crime against humanity Bisengimana was

sentenced to 15 years imprisonment.

2. ICTR Appeal Chamber

In 2004, the ICTR Trial Chamber had found Gacumbitsi guilty of genocide and the

crimes of humanity of extermination and rape due to his role in carrying out in April 1994

a campaign against the Tutsi population in Rusumo commune. In 2006 the Appeals

Chamber (ICTR-2001–64) dismissed all of Gacumbitsi’s grounds of appeal but granted the

prosecutor’s appeal regarding its finding Gacumbitsi guilty of aiding and abetting the murder

(as a crime against humanity). The Appeals Chamber quashed the Trial Chamber’s 30-year

sentence and imposed a life sentence.

3. ICTY Trial Chambers

The Trial Chamber sentenced former Bosnian Croat military commander Rajic´ (IT-95–12)

to 12 years in prison for crimes committed during an attack by Bosnian Croat forces on the

predominantly Muslim village of Stupni Do in central Bosnia. Rajic´ plead guilty to 4 of the 10

charges in the amended indictment: willful killing, inhumane treatment, extensive destruction

and appropriation of property not justified by military necessity and carried out unlawfully

and wantonly. All the charges constitute grave breaches of the Geneva Conventions under

the ICTY Statute.

Oric´ (IT-03–68), a former senior commander of Bosnian Muslim forces in and around

Srebrenica, was convicted for failing to take steps as a superior to prevent the murder and

cruel treatment of Serb detainees in the former UN “safe area” and was sentenced to 2 years

imprisonment. In addition, the defendant was acquitted of some of the charges for failure

to discharge the duty as a superior to take necessary and reasonable measures.

The Trial Chamber sentenced Krajišnik (IT-00–39 &40) to 27 years imprisonment. The

defendant was a Bosnian-Serb leader found to have a crucial role in a joint criminal enter-

prise intended to reduce the numbers of Bosnian Muslims and Bosnian Croats and con-

victed of crimes against humanity of persecutions, murder, extermination, deportation, and

forced transfer. However, he was acquitted of genocide, complicity in genocide, and one

count of murder as a violation of the laws or customs of war.

374 International Criminal Justice Review

The Trial Chamber convicted two Muslim military leaders, Hadzˇihasanovic´ and Kubura

(IT-01–47), of the former Army of Bosnia-Herzegovina for war crimes in violation of the

ICTY Statute, though acquitted on a number of charges. This was the first judgment to deal

with the presence of foreign Muslim or Mujahedin combatants in central Bosnia and

Herzegovina. The Trial Chamber found that Hadzihasanovic exercised effective control

over a detachment of Mujahedin forces who severely beat and psychologically abused

Croatian and Serbian civilians. Kolundzija was sentenced to 3 years and Kubura to 2½

years imprisonment.

4. ICTY Appeals Chamber

In 2003 the Trial Chamber convicted Stakic (IT-97–24), the former president of the

Prijedor Municipal Assembly, for crimes committed there in 1992. In 2006 the Appeals

Chamber affirmed the acquittal on charges of genocide and complicity in genocide,

affirmed convictions for multiple counts of crimes against humanity and war crimes, and

reversed acquittals for deportation and forced transfer as crimes against humanity. The

Appeals Chamber reassessed the sentence and reduced it from life to 40 years in jail.

The Appeals Chamber quashed a sentence of 20 years for Galic (IT-98–29), a commander

of the Bosnian Serb Army’s Sarajevo-Romanija Corps and imposed a life sentence. The

court delivered the maximum penalty for the first time for his role in a campaign of attacks

upon Sarajevo civilians (Rushing, Frautschi, Gher, Heindel, & Edman, 2007). The chamber

upheld the convictions for crimes against humanity and war crimes charges.

The Appeals Chamber affirmed the sentences for the former commander of a Bosnian

Croat army unit, Nalelitic, and his subcommander Martinovic (IT-98–34). Nalelitic had

been found guilty on eight counts of crimes against humanity and war crimes, and

Martinovic had been found guilty on nine counts of crimes against humanity. The sentences

of 20 and 18 years, respectively, imprisonment were affirmed.

The sentence against Nikolic´ (IT-02–60/1), a Bosnian Serb army officer convicted of

crimes committed in Srebrenica in 1995, was reduced from 27 to 20 years. The defendant

had pleaded guilty to persecuting Bosnian Muslim civilians in Srebrenica in 1995, being

involved in coordinating the Bosnian Serb army operation that killed more than 7,000

Bosnian Muslim males.

Substantive Legal Issues of Judgments of the ICTR and ICTY

Among the legal issues discussed in the judgments of the ICTR and ICTY include develop-

ments in the applications of international crimes and concepts of the scope of criminal liability.

1. Elements of Crimes

a. Grave Breaches of the Geneva Conventions and Violations of Laws of War

i.International Nature of Armed Conflict: In Naletilic and Martinovic (IT-98–34-

A) the Appeals Chamber ruled that the accused must be aware of the existence and inter-

national character of an armed conflict. This complies with the principle that individual

guilt requires that an accused can only be convicted for a crime if his mens rea makes up

the actus reus of the crime.

ii.Terrorizing and Attacks on a Civilian Population: The crime of spreading terror

among the civilian population is a crime punishable under Article 3 of the statute