论卢旺达国际刑事法庭对国际刑法发展的贡献

卢旺达国际刑事法庭在1994年的建立和12年的审判实践经验为国际刑事法的发展作出了一定贡献.主要表现在:卢旺达国际刑事法庭是历史上首次建立专门审理非国际性武装冲突的国际刑事法庭;丰富了国际人道主义法的内容;扩大了对在非国际性武装冲突中犯罪的管辖权,进一步积累了国际刑事法院的审判经验,对国际刑法中的三大罪行的界定作出了新的阐释;推动了非洲国际法学的发展并在一定程度上促进了常设性国际刑事法院的建立.     

The ICTR Ten Years On: Back to the Nuremberg Paradigm?

Since his appointment in 2003, the Prosecutor of the InternationalCriminal Tribunal for Rwanda (ICTR) remains silent on the issueof prosecuting officials of the victorious Rwandan PatrioticFront (RPF). There is certainly no lack of credible reportsabout massive violations of human rights and international humanitarianlaw by the RPF both in Rwanda and in neighbouring countries,in 1994 and thereafter. The Prosecutor and the UN Security Council,despite lip service to the contrary, seem less than eager toconfront the government in Kigali. It is therefore to be fearedthat prosecutorial practice at the ICTR will follow the Nurembergparadigm. This one-sided policy may, however, have far-reachingconsequences.     

Gender Crimes Jurisprudence in the ICTR: Positive Developments

Considering the magnitude of rape and other sexual crimes perpetratedduring the Rwandan genocide, gender crimes prosecutions at theInternational Criminal Tribunal for Rwanda (ICTR) have beeninadequate so far. Nonetheless, the ICTR case law must be commendedfor the impulse given, with and after Akayesu, to the criminalizationand punishment of gender-related violence. This paper pointsto the achievements of the ICTR case law in this respect.     

Main Achievements of the ICTR

Since trials began in 1997, the International Criminal Tribunalfor Rwanda (ICTR) has conducted cases involving 50 accused,involving a prime minister and several ministers, prefects,bourgmestres and other leaders, who would otherwise not havebeen brought to justice. Judgments have been rendered in respectof 25 accused, with three acquittals. During the first mandate(1995–1999), the Tribunal delivered ground-breaking judgmentsconcerning genocide, such as Akayesu and Kambanda. In the secondmandate (1999–2003), the judicial output doubled and includedthe Media judgment. Halfway into the third mandate (2003–2007),trials involving 25 accused are ongoing. The ICTR is an efficientjudicial institution which has conducted fair trials, createdimportant jurisprudence, and made a significant contributionto the development of international criminal justice.     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

论卢旺达国际刑事法庭的管辖权

卢旺达国际刑事法庭的管辖权包括五类:其属地管辖权涵盖卢旺达及其邻国;其属人管辖权限于自然人;其属事管辖权包含种族灭绝罪、反人道罪和战争罪;其属时管辖权仅限于1994年度发生的犯罪,遭到卢旺达政府的批评;其并行管辖权和优先管辖权则与前南斯拉夫国际刑事法庭规定的同名管辖权有着质的区别。     

The Crime of Genocide in the ICTR Jurisprudence

The jurisprudence of the International Criminal Tribunal forRwanda (ICTR) has properly focused on the special intent (dolusspecialis) to destroy a group as the distinguishing characteristicof genocide and differentiated it from result-oriented crimes.Although the ICTR has crowned genocide as ‘the crime ofcrimes’, it has simultaneously dethroned it by holdingthat it attracts the same sentence as other humanitarian lawviolations. Nonetheless, ICTR jurisprudence attaches considerableimportance to characterizing the destruction of the Tutsi asgenocide as distinct from crimes against humanity. Because theTutsi cannot be readily distinguished as one of the protectedgroups under the Genocide Convention, Trial Chambers have goneto great lengths to characterize them as an ‘ethnic’group in order to justify the label of genocide.     

Finding a Proper Role for Command Responsibility

This article examines the role that command responsibility currentlyplays in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) and the International CriminalTribunal for Rwanda (ICTR). The ad hoc tribunals rely in principleon a broad concept of command responsibility – which canbe applied to all superiors, including political and civilianones. However, in practice, accused persons have only rarelybeen successfully charged under this form of liability. Indeed,recent case law has gradually adopted a rigorous approach withrespect to the legal requirements of command responsibility.This has made it more difficult to establish criminal liabilityof superiors who have not directly participated in the commissionof international offences. The ad hoc tribunals have expressedan explicit preference for forms of ‘direct’ liabilitywhere the accused can be convicted both under ‘direct’and command responsibility. While the ICTY and ICTR have progressivelyinterpreted other international legal concepts to deal effectivelywith collective crimes committed by leaders of organized groups,they seem to have confined command responsibility to internationalcrimes perpetrated in typical military-like contexts.     

Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia

This article develops a conflict approach for studying the field of international criminal law. Focusing on the International Criminal Tribunal for the Former Yugoslavia, we draw on Burawoy's (2003 ) elaboration of reflexive ethnography to determine how external political changes affect the work of an international legal institution. We explore how political frameworks of legal liberalism, ad hoc legalism, and legal exceptionalism result in internal office, organizational, and normative changes within this Tribunal, thereby linking national political transformations with the construction of the global. Drawing on rolling field interviews and a two-wave panel survey, we conclude that the claims to universals that underwrite transnational legal fields cannot be understood solely through an analysis of external political forces, but must be combined with attention to how these are refracted through internal organizational change within international institutions.     

前南国际刑事法庭刑事程序中的普通法和大陆法传统：油能溶于水吗

在前南刑事法庭刑事程序中,国际刑事案件的独特性使得越来越多的大陆法系传统因素开始注入普通法诉讼模式。两大法系之间的传统差异已经渐渐走向融合。这些不同的制度应灵活而和谐地相处,共同解决国际犯罪审判所特有的问题。     

Constructing Achievement in the International Criminal Tribunal for the Former Yugoslavia (ICTY): A Corpus-Based Critical Discourse Analysis

The International Criminal Tribunal for Yugoslavia (ICTY) was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably linguistics. This represents a significant research gap, as the Tribunal’s public discourse (notably its case law and Annual Reports) can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY.     

The ICTR and the Protection of Witnesses

The protection of witnesses occupies a prominent place in 10years of practice of the International Criminal Tribunal forRwanda (ICTR). This paper sketches certain elements of the ICTRlaw on this matter. Among other things, it demonstrates thatthis law is flexible and has resulted in the provision of protectivemeasures as a matter of routine, without much regard for theprinciples of public trial. It is furthermore critical as tothe practical effect of protective measures, arguing that enforcementmechanisms in the form of contempt procedures are highly unattractive,and the continuing expansion of protective measures is undesirablefrom the perspective of the rights of the accused. A final pointof criticism addressed in this paper concerns the apparent lackof interest of the ICTR in the protection of a particular categoryof witnesses, namely witnesses detained in Rwanda.     

The Darfur Report and Genocidal Intent

The author argues that the Commission of Inquiry on Darfur,in excluding any genocidal intent in the Government authoritiesof the Sudan, while leaving open the possibility for individualstate officials or members of militias to entertain such intent,did not duly take into account the various views on genocidalintent put forward in legal literature. In the author's opinion,genocide — typically, that is, for all practical purposes— requires a collective activity of a group, state orentity — activity in which individual perpetrators participate.As for the genocidal intent of individual perpetrators —in this typical scenario, according to the author — oneshould distinguish between (i) the view, upheld by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) and the InternationalCriminal Tribunal for Rwanda (ICTR), as well as the Commissionof Inquiry, that such intent is the aim physically to destroya protected group, and (ii) the more correct view that suchintent consists of the individual's (a) knowledge of a genocidalcampaign and (b) at least dolus eventualis as regards the atleast partial destruction of a protected group. This legal constructionof genocidal intent does not, however, lead to conclusions substantiallydifferent from those reached by the Commission of Inquiry withregard to the mental attitude of the Sudanese Government andmilitias: as they did not act pursuant to a collective goalto destroy a protected group, no genocidal intent could materialize.However, contrary to the Commission's conclusions, it followsfrom this proposition that no genocidal intent could be foundeither if, in some instances, single individuals were held tohave acted with the desire to see the protected group destroyed.For, in this event, the two requirements for individual genocidalintent would be lacking, namely knowledge of a genocidal campaign(on the premise that no such campaign was carried out), anda fortiori dolus eventualis.     

The International Crimes Tribunal in Bangladesh and International Law

The International Crimes Tribunal in Bangladesh was re-established in 2010 in order to hold the perpetrators of the 1971 War accountable for international crimes; namely, war crimes, crimes against humanity and genocide. The Trial has already begum to operate and has been dealing with various challenges. The basis of the trial proceedings is the International Crimes (Tribunal) Act 1973. The Parliament of Bangladesh enacted the Act in accordance with international law shortly after the War. This paper assesses the key legal issues that arise from the context of the 1973 Act, and will provide a reflection on trial proceedings in light of international law. It concludes that any initiatives to address the impunity of perpetrators and offer redress to the victims of gross human rights violations should be applauded, while any trial proceedings that do not follow appropriate standards for a fair trial and offer the right of due process should be deprecated.     

Expert witness in international war crimes tribunals

Abstract

The author has served as an expert witness in eight different cases tried before war crimes tribunals, involving twelve accused. Only three of the twelve accused were convicted. Seven were acquitted and two cases are still pending. The general defense strategy in such cases is to admit the crimes, but to challenge the involvement or responsibility of the accused. Identity then becomes the main issue to be proven by the prosecution. From the verdicts it appears that problems of identification were a major reason for acquittal. A closer look at the cases demonstrates that these problems were entirely due to an astounding naivety of the various prosecutors with respect to identification issues. The identification procedures used by the investigators were violating even the basic principles developed in many years of research in the area of psychology and law. This is even more shocking when it is realized how important these trials are, not only for the accused, but also for the witnesses, the victims, their relatives, their communities, and for international justice.

Since 1987 I have been asked eight times to testify in war crimes trials. The venues were, in chronological order:

• The Special Court in Jerusalem for the trial of suspects accused of crimes in the Second World War – the case against John Demjanjuk.

• The Special Dutch Court for the trial of suspects accused of crimes against humanity in the Second World War – the case against Marinus De Rijke.

• The International Criminal Tribunal for the former Yugoslavia (ICTY); five cases: against Du?ko Tadi? (IT-94-1), Vlatko Kupreskic (IT-95-16), Fatmir Limaj et al. (IT-03-66-T), Ramush Haradinaj et al. (IT-04-84), and Ljubisa Beara (IT-05-88-T).

• The International Criminal Tribunal for Rwanda (ICTR) – the case against Jérôme–Clement Bicamumpaka (ICTR 99-5-T).

In this paper I will describe some of my experiences, and try to formulate some lessons that I have learned.     

Criminology and victimology of rape in context with war-like conflicts using the example of the former Yugoslavia and Rwanda

The topic of this article is sexual violence in context with war-like conflicts in the former Yugoslavia and Rwanda. The fundamental categories of sexual violence in war-like conflicts are described. The authors discuss the types of sexual violence as defined in the report of the UN Commission of Experts on the war-like conflicts in the former Yugoslavia. Four criminal trials were evaluated: three held before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague/Netherlands and one before the International Criminal Tribunal for Rwanda (ICTR) in Arusha/Tansania. The defendants were found guilty of torture, crime against humanity and genocide. Potential procedures with respect to similar crimes in current or prospective conflicts are discussed. An alternative may be the assignment of medical personnel (for example of the German Federal Armed Forces). Finally, the post-war cooperation between the Institute of Legal Medicine at the University Medical Centre of Hamburg-Eppendorf as well as the medical and government institutions in Rwanda is presented, which has been going on since 2005.     

The ICTR Contribution to National Reconciliation

Over a decade after the establishment of the International CriminalTribunal for Rwanda (ICTR), an assessment of its achievementswith regard to its role in fostering reconciliation among Rwandansmust be undertaken. The ICTR's activities have provided a settingfor witnesses and victims of the genocide to testify beforejudicial authorities. However, persisting obstacles involvingthe nature of the conflict and ongoing instability in the countryhave hindered progress in efforts at national reconciliation,and addressing the issue of compensation for victims remainsinadequate. The ICTR continues to play a crucial role in sheddinglight on the atrocities and endeavouring to raise awarenessfor victims’ issues at the international level.     

论国际投资仲裁中贿赂行为的证明标准

对于贿赂行为的证明标准,国际投资仲裁庭的倾向是从回避到明确借鉴传统商事仲裁中的＂更高证明标准＂。然而,国际投资仲裁与国际商事仲裁存在较大的区别。支持国际商事仲裁庭采用＂更高证明标准＂的传统理由及潜在动机在国际投资仲裁中并不存在。因此,在国际投资仲裁中采用＂更高证明标准＂的法律依据不足。建议中国在BIT中将贿赂作为不可仲裁的投资争端事项之一加以规定,或者明确规定应采纳的证明标准。如中国作为被申请方参加国际投资仲裁程序,应该主动与仲裁庭讨论关于贿赂的证明标准问题,以争取有利条件。     

东京审判与南京大屠杀

Nanjing massacre is undoubtedly an outstanding event that indicates the savage acts of the Japanese soldiers during World War II, and its cruelty shocked the whole world. But up to now, there are still some people in Japan denying this period of history. The Trial by the International Military Tribunal for the Far East (“Tokyo International Tribunal”) puts the monstrous crimes committed by the Japanese militarists in record, nails their violence in Nanjing to the history’s pillar of shame for ever, and declares publicly to the later generations that such violence shall never be forgot. Zhu Wenqi, professor of international law, works at Law School of China Renmin University (since 2002 till now). He got Ph.D in University of Paris II and finished his post-doctor research programs in Europe and USA, and started to work in the China Foreign Ministry as Diplomat and also Legal Advisor (1988). And then, he worked in the International Criminal Tribunal for the Former Yugoslavia as legal assistant of the judges, Legal Advisor and Appeals Counsel of the Officer of the Prosecutor of the Tribunal (1994–2002).     

Prosecuting Violence, Performing Sovereignty: The Trial of Dusko Tadic

This article is a critical reading of the contemporary international legal regulation of warfare and an analysis of war crimes trials as ``sovereignty-producing practices'. Whereas proponents of international law optimistically presume that the advent of war crimes tribunals signifies a humanitarian-inspired erosion of sovereignty in the international system, this article shows that legislating violence in war exemplifies an international commitment to structures which normalize war and violence while individualizing, dehistoricizing and depoliticizing criminal acts. This analysis focuses on the first trial of the International Criminal Tribunal for the Former Yugoslavia which convicted Dusko Tadic of war crimes and crimes against humanity.