The Plea of Alibi in International Criminal Law as Viewed Through the Prism of the Common Law

The plea of alibi has acquired a prominent place in the short history of modern international criminal law, just as it does in common law criminal trials. At the ICTR, for instance, it is pleaded in virtually every case. It is expected that alibi will continue to vex the processes of international criminal courts and tribunals, especially given the exclusive focus of international criminal law on individual criminal responsibility, much of which has to do with the presence of accused persons at scenes of planning, conspiracy, instigation, aiding and abetting and execution of crimes. The plea of alibi in international criminal law is still a concept under construction. Jurisprudence is rife with uncertain propositions, tentative analyses and incomplete ideas. In the circumstances, there is a need to pay close attention to this area of the law. A constant review is required, with the aim of improving the law of alibi for its future application in international criminal proceedings. An attempt at such a review is made in the present article. The author reviews, among other things, the meaning of the term ??alibi??; whether it is a ??defence??; the feature of notice of alibi; burdens of proof in alibi cases, the prosecutorial duty to disprove the alibi, the need for clarity in the application of the principle of prosecutorial duty to disprove the alibi, and whether there should be a prosecutorial duty to investigate the alibi when timely notice is given; as well as alibi and the right to silence. The author approaches the discussions from the perspective of the common law, primarily due to the prominence of the plea of alibi in common law criminal trials in contrast to inquisitorial criminal trials.     

Another look at the intent element for the war crime of terrorism

The modern basis of the war crime of terrorism may be found in the terms of article 51(2) of Additional Protocol I (1977) to the Geneva Conventions of 1949, replicated in article 13(2) of Additional Protocol II. The provision forbids attacks carried out for the ‘primary purpose of spreading terror’ among a civilian population. In view of this provision, the judges of the International Criminal Tribunal for the former Yugoslavia have pronounced terrorism to be a crime of ‘specific intent’. In an extension of this reasoning, a Trial Chamber of the Special Court for Sierra Leone has recently held that the crimes of enslavement and militarization of children do not qualify as terrorism, because they were not found to have been committed for the ‘primary purpose of spreading terror’. The aim of this paper is to examine the correctness and limits of the proposition that terrorism is a crime of specific intent. In the context of that inquiry, the Rome Statute is examined for what it is able to contribute to the discussion.     

Genocide, Justice and the Forensic Sensibilities of the International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is a privateorganization formed, in 1865, under the laws of Switzerland,with the aim of making wars more humane. In order to achievethis aim, the ICRC dedicated itself to the mission of givingsuccour to the victims of war, and of initiating the adoptionof humanitarian rules of conduct of armed conflicts. In theensuing years, the international community endorsed the workof the ICRC and recognized its roles accordingly. In the meantime,there was no international criminal justice system in placeto punish those who violated the international law of war. Morethan a century and a quarter after the birth of the ICRC, theUnited Nations initiated the creation of an international criminaljustice system, with the establishment of the InternationalCriminal Tribunals for the former Yugoslavia and for Rwanda,under the powers of the Security Council to maintain internationalpeace and security. The objective was to end impunity for thosewho would violate international law by committing genocide,crimes against humanity and war crimes. In a quite notable development,the ICRC registered in absolute terms its position to the effectthat neither it nor those who worked under its auspices maybe subjected to testimony before these International Tribunals.The bases offered for this assertion of absolute testimonialimmunity are the practical requirements of the work of the ICRC,as well as customary international law which is said to haverecognized such a rule. This paper disputes the ICRC's assertionof absolute testimonial immunity as correctly founded in lawor principle, although recognizing that the important work ofthe ICRC does fairly warrant a judicial reluctance to summonICRC into the witness box. Nevertheless, such reluctance mustbe invoked on a case-by-case basis, and is not a matter of substantiverule of law.