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.     

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.     

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.     

The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC

The conflict in the former Yugoslavia set a precedent in modernhistory for having a multinational military force being empoweredand directed to execute arrest warrants issued by an internationalcriminal tribunal. On legal grounds, the International CriminalTribunal for the former Yugoslavia (ICTY) attained this resultby relying on the broad wording of its governing Statute coupledwith the ICTY's own rule-making powers. In contrast, the draftersof the International Criminal Court (ICC) Statute elaboratedon the nature of the cooperation from international forces insignificantly more details but at the same time opted for reducingthe ICC's powers vis-à-vis these forces. Therefore, theICC Statute now runs contrary to the ICTY's case law recognizinga judicial power to order an international force to executean ICTY arrest warrant. This deferential stance towards collectiveenterprises of states not only infringes upon the States Parties’general obligation to cooperate with the ICC, but, in the end,weakens the ICC's ability to enforce international criminaljustice.     

War Crimes Prosecution in Bosnia and Herzegovina (1992-2002): An Analysis through the Jurisprudence of the Human Rights Chamber

The authors examine the efforts to bring persons suspected ofwar crimes committed during the 1992–1995 war in Bosniaand Herzegovina (BiH) to justice before the national judiciary.The analysis is based on the case law of the Human Rights Chamberfor BiH, which from 1996–2003 was the highest court competentto adjudicate violations of human rights in post-war BiH. TheChamber heard complaints linked to war-time atrocities fromtwo main perspectives: (i) that of persons put on trial forwar crimes and (ii) the perspective of the relatives of war-crimesvictims complaining about the failure to investigate and prosecute.The Chamber cases establish that (a) the few prosecutions whichtook place were nearly exclusively directed against suspectsbelonging to the war-time adversary, (b) the authorities failedto comply with the Rules of the Road (a procedure put in placeto enable the International Criminal Tribunal for the formerYugoslavia (ICTY) to supervise Bosnian war-crimes prosecutions)and (c) suspects were often severely ill-treated to extort confessionsand denied a fair trial. The rule, however, was the lack ofany investigatory or prosecutorial action, with the exceptionof the so-called ‘ethnically mixed’ Cantons of theFederation of BiH, where proceedings were sometimes initiatedbut failed to yield an appreciable outcome. The authors discussthree reasons for the poor record: (i) ethnic bias among theauthorities, (ii) disempowerment and passivity of the victimsand (iii) failure to enact legislation that would give effectto and clarify the BiH side of the obligation to exercise jurisdictionconcurrently with the ICTY. They finally set forth some suggestionson lessons to be learned for future attempts to bring justiceto a war-torn society by the concurrent exercise of criminaljurisdiction by an international court and the judiciary ofthe country in transition.     

Thermal Imaging as a Lie Detection Tool at Airports

We tested the accuracy of thermal imaging as a lie detection tool in airport screening. Fifty-one passengers in an international airport departure hall told the truth or lied about their forthcoming trip in an interview. Their skin temperature was recorded via a thermal imaging camera. Liars’ skin temperature rose significantly during the interview, whereas truth tellers’ skin temperature remained constant. On the basis of these different patterns, 64% of truth tellers and 69% of liars were classified correctly. The interviewers made veracity judgements independently from the thermal recordings. The interviewers outperformed the thermal recordings and classified 72% of truth tellers and 77% of liars correctly. Accuracy rates based on the combination of thermal imaging scores and interviewers’ judgements were the same as accuracy rates based on interviewers’ judgements alone. Implications of the findings for the suitability of thermal imaging as a lie detection tool in airports are discussed.     

The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice

Liberal legalism noncontroversially advocates procedural fairness and due process in institutions such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). The visible conflicts come with the ebb and flow of international jurisdictional claims, suspicions of racial/ethnic and cultural biases in deliberations and decisions, prioritization of purposes in sentencing decisions, and the intrusion of institutional and international political debates into the liberal legal agenda. These conflicts threaten to create a legitimacy deficit in diffuse support for the ICTY. We examine these conflicts within the context of two surveys about the ICTY conducted in Sarajevo in 2000 and 2003. The results indicate that the citizens of Sarajevo increasingly believe that the ICTY is politically influenced by internationally appointed judges, peaking with the sentencing of Stanislav Galic for the siege of Sarajevo. This conflict focuses on issues of substantive rather than procedural justice and is increasingly articulated as a rejection of international political intervention that subverts the need for a local sense of justice. This may be a sequence of political conflict and disillusionment that is as inevitable as it is unavoidable.     

The Requirement of an 'Express Agreement' for Joint Criminal Enterprise Liability: A Critique of Brdanin

The mode of liability known as joint criminal enterprise (JCE)has emerged in the case law of the International Criminal Tribunalfor the former Yugoslavia (ICTY) as a means of assigning criminalliability to individuals for activities carried out by a collective.As a result, the doctrine must be carefully defined so as notto allow it to extend a defendant's liability beyond the appropriatelimits of individual criminal responsibility. In this regard,a recent ICTY Trial Chamber decision in Branin held that, wherea defendant is not alleged to have participated in the physicalperpetration of the crimes charged but to have contributed insome other way to the commission of the crimes by a group, theprosecution must demonstrate that the defendant entered intoan express agreement with the physical perpetrators to committhe crimes charged. The author argues that this ‘expressagreement requirement’ is both conceptually unsound andpractically unhelpful. Conceptually, it would be inconsistentwith core principles of JCE liability to require an expressagreement between a defendant and the physical perpetratorsof crimes, at least in circumstances in which it is allegedthat there existed a structure of two or more overlapping JCEs.Moreover, because this structure allows the accused and thephysical perpetrators to be operating in two separate JCEs,they need not even share a common criminal purpose. On a practicallevel, arguably in a ‘system-criminality’ contextsuch as the one that developed in the former Yugoslavia duringthe time period in question, the organizers of criminal activityare unlikely to enter into express criminal agreements withthose who physically carry out crimes, because existing organizedhierarchies provide much more efficient mechanisms by whichleaders are able to ensure the realization of their criminalplans.     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

The Mass Media, Crime and Terrorism

The mass media play a large role in the public perception andacceptance of criminal behaviour by the United States of America.Public acceptance of illegal actions by the US government inthe Iraq War, as well as steps taken to combat terrorism, havebeen influenced by entertainment media content and media logicabout crime and fear. The focus of the article is on the culturaland mass communication contexts that have promoted fear of crimeon the one hand, while also justifying illegal state actionsto combat crime — and now terrorism — on the other.Propaganda and news management (e.g. the military-media complexand the failure of journalism) contribute to a discourse offear and symbolic negation of the ‘other’ —as criminal or terrorist — and, in the process, valorizecriminal conduct as necessary and heroic.     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

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.     

Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting Principles in the Context of Transition

The consequences of restricting or not restricting the rightto freedom of assembly are potentially magnified in transitionalsocieties. Yet determining whether such consequences are indeed‘harmful’, and whether their cost should be bornedespite the harms caused, requires the elaboration of criteriawhich define what are valid and relevant harms. While a humanrights framework can perform this task, open-textured rightsstandards prescribe neither the threshold of legal interventionnor the goals of transition. By extension, the rule of law—underpinnedby this rights discourse—is silent about whether liberalor communitarian ideals should inform the reconstruction ofpublic space in conflicted or nascent democracies. Illustratedby analysis of legal interventions in parade disputes in NorthernIreland, this article argues that the rule of law is necessarilyorientated by ethical consensus about its scope. Furthermore,this consensus operates as a restraint upon the degree of normativediscontinuity permitted during transitional compromises. Thearticle frames the ethical options in terms of three liberty-limitingprinciples—the argument from democracy, the argument fortoleration, and the argument for recognition. Each suggestsdifferent parameters for the transitional project and for therole of law within it.     

Article 75 of the Rome Statute: Reparations and Their Implementation in the Dutch Legal System

Netherlands International Law Review - Unlike the ICTY and ICTR Statutes, the Rome Statute of the ICC provides in Article 75 for various forms of court-ordered reparations for the victims of...     

Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice(ICJ or the Court) in clarifying underlying methods and guidelinesof its approach to fact-finding and evidence, it can be doubtedwhether the judgment delivered in the Bosnia and Herzegovinav. Serbia case genuinely marked a decisive step towards a moretransparent and reliable methodology for evidentiary matters.Behind the formula of ‘fully conclusive evidence’,when dealing with Articles II and III of the Genocide Conventionthe Court adopted for all practical purposes a typical criminallaw ‘beyond any reasonable doubt’ standard of proof.By this choice the Court upheld in substance the argument putforward by Serbia that even if the questions of state responsibilityfor acts of genocide are not excluded by the scope of the Convention,they must nevertheless be judged by the same parameters of individualcriminal responsibility. In reaching its conclusions the Courtrelied heavily on the jurisprudence of the ICTY, both as regardsthe ascertainment of facts and their legal qualification. Itremains to be seen whether in future cases the Court will beable to adopt a similar criminal court posture, and whetherit will be similarly prepared to rely on the findings of otherinternational tribunals such as the International Criminal Court,which is not established by the Security Council.     

Regulating for Fair Dealing in Work Contracts: A New South Wales Approach

From 1959 till 2006, all workers in New South Wales had recourseto review of contracts ‘and arrangements’ underwhich work is performed on the grounds of ‘unfairness’.This jurisdiction—initially instigated to capture schemesand subterfuges by which employers escaped industrial awardsby contracting out to dependent contractors—has been expandedover the years to allow review of all sorts of arrangementsunder which work is performed. This article will review thatjurisdiction to demonstrate the potential of statutory unfaircontracts review to meet some of the challenges that changesin labour market structures have presented for the protectiveagenda of labour law.     

Interim Legality: A Mistaken Assumption?--An Analysis of Depleted Uranium Munitions under Contemporary International Humanitarian Law

Depleted Uranium (DU) munitions are the latest, and perhapsmost effective, in a long line of armour-piercing projectilesused by military powers the world over. DU is a very dense material,allowing it to pack a lot of kinetic energy into its "punch",which makes it remarkably good at puncturing (enemy) armour.However, DU is also radioactive waste. Although DU does notactually employ radiation for its primary purpose—andhas negligible radioactive output compared to the more (in)famous fissile uranium isotopes—it has been alleged, withsome scientific support, that this radiation plays an insidioussecondary role, causing superfluous injury and unnecessary sufferingamong combatants; while also indiscriminately "attacking" (i.e.seriously adversely affecting) local civilians living in ornear combat zones. The purpose of the present paper is to analyse these allegationsand to consider their effects—whether true, false, orinconclusive—within the framework of contemporary internationallaw. To this end, the allegations of proponents will be summarisedand the supporting and negating scientific data considered.Then the current rules of international humanitarian law (IHL)will be examined and applied within a systemic context intendedto highlight the implicit assumptions and theoretical misunderstandingswhich generally plague their application. The scientific data pertaining to DU illustrates the complexityof the instant problem, and perhaps more importantly, helpsto demonstrate the degree to which even a superficially obviousclaim—i.e. dumping radioactive material is bad—canin fact form the basis of protracted, and ultimately inconclusiveargument, especially if the contentions of each side shouldprove in some way incommensurate. This is a problem which can be exaggerated in internationallaw by the absence of a court of compulsory jurisdiction, andfurther exacerbated in IHL by the use of relatively imprecisevariables to construct the matrices within which decisions areto be made. These problems, however, also serve, positively,to emphasise the importance of understanding the legal realityof the interim period before definitive conclusions to suchdisputes are constructed or discovered. Elucidation of the legalregime in force in this interim period thus forms an importantfocus of the present inquiry.     

Optimal Discretion in the Application of Rules

Discretion is examined as a feature of the design of rule-guidedsystems. That is, given that rules have to be administered bysome group of persons, called adjudicators, and given that theirgoals may be different from society's (or a relevant organization's),when is it socially desirable to allocate discretionary authorityto the adjudicators and, if so, to what extent? The answer reflectsa tradeoff between the informational advantage of discretion—thatadjudicators can act on information not included in rules—andthe disadvantage of discretion—that decisions may deviatefrom the desirable because adjudicators' objectives are differentfrom society's. The control of discretion through limitationof its scope, through decision-based payments to adjudicators,and through the appeals process, is also considered.     

Editors' Note

Welcome to the inaugural issue of Capital Markets Law Journal. Why another journal? The increasing rate of change in the internationalcapital markets—in products, in practice and in regulation—hashighlighted the fact that there is no proper mechanism to informthose interested in such markets of new developments. We verymuch hope that Capital Markets Law