International law, Sixth edition
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International Law MALCOLM N. SHAW
International crimes
A brief survey of some of the main features of international crimes for which individual criminal responsibility now exists will follow, noting that issues concerning the jurisdiction of purely domestic courts for those international crimes that have been incorporated into domestic legislation are covered in chapter 12, while state responsibility for such offences is covered in chapter 14. Genocide 182 Article 4 of the Statute of the ICTY, by way of example, provides that: 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group and that the following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) com- plicity in genocide. 183 181 The War Crimes Chamber’s first trial, the Ovcara case, began on 9 March 2004. As of 2006, three trials had been completed and three others were ongoing: see Unfinished Business – Serbia’s War Crimes Chamber, Human Rights Watch, 2007, pp. 1 ff. See also M. Ellis, ‘Coming to Terms with its Past: Serbia’s New Court for the Prosecution of War Crimes’, 22 Berkeley Journal of International Law, 2004, p. 165. The ICTY has referred some cases to this Chamber: see e.g. Vladimir Kovaˇceviˇc, ICTY Referral Bench, 2006. 182 See e.g. Cryer et al., Introduction to International Criminal Law, chapter 10; Werle, Prin- ciples of International Criminal Law, part 3; and Cassese, International Criminal Law, chapter 6. This section should also be read with the relevant section in chapter 6 above: see p. 282. 183 See also article IV of the Genocide Convention, 1948, article 2 of the Statute of the ICTR and article 6 of the Statute of the ICC. i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y 431 Genocide has been regarded as an international crime since the Second World War and the Genocide Convention, 1948 was a critical step in that process. The crime of genocide has also been included in the operative provisions of the statutes of most of the courts and tribunals discussed in the previous section. Case-law before the two international criminal tribunals (ICTY and ICTR) has, however, helped clarify many of the rele- vant principles. For example, perhaps the distinctive feature of the crime is the importance of establishing the specific intent to destroy the group in question in whole or in part, for genocide is more than the act of killing. This was emphasised by the ICTY in the Jelisi´c case, which noted that ‘it is in fact the mens rea [i.e. the intention as distinct from the actual act] which gives genocide its speciality and distinguishes it from an ordinary crime and other crimes against international humanitarian law’. 184 This was reaffirmed by the ICTR in the Akayesu case, 185 which defined the spe- cific intent necessary as ‘the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged’. The Trial Chamber underlined the difficulties in establishing the critical intent requirement and held that recourse may be had in the absence of confessions to inferences from facts. 186 In the Ruggiu case, the ICTR held that a person who incites others to commit genocide must himself have a specific intent to commit genocide. 187 However, in the Jelisi´c case, the ICTY pointed to the difficulty in practice of proving the genocidal intention of an individual if the crimes committed were not widespread or backed up by an organisation or a system. 188 This may be distinguished from the Ruggiu case, where a systematic scheme to destroy the Tutsis was not in doubt. The element of intention was further discussed by the ICTY in the Krsti´c case, where it was noted that the intent to eradicate a group within a limited geographical area, such as a region of a country or even a municipality, could be characterised as genocide, 189 while ‘the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it’. The part of the group sought to be destroyed had to constitute a distinct element. 190 In the decision of the Appeal Chamber in this case, it was emphasised that it was well established that 184 IT-95-10, para. 66. 185 ICTR-96-4-T, 1998, para. 498. 186 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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