Prosecuting International Crimes in Africa - PULP - University of ...

More documents

Recommendations

Info

114 Chapter 4 and Additional Protocol II, both of which apply to internal armed conflicts. Given its pari materia nature with article 3 of the Geneva Conventions and Additional Protocol II, the Chamber concluded that article 3 of the Statute of the SCSL applies to internal armed conflicts. 101 Article 3 common to the Geneva Conventions and Additional Protocol II forms part of customary international law applicable to both international and non-international armed conflicts. 102 The Chamber held that all parties to the armed conflict - whether state or non-state actors – are bound by international humanitarian law. 103 Regardless of the unanimity of international law theorists and lawyers on the duty of insurgents to observe the provisions of article 3 common to the Geneva Conventions, ‘there is now no doubt that this article is binding on states and insurgents alike and that insurgents are subject to international law’. 104 Hence, even armed groups have to respect international humanitarian law. Taken in this way, all parties to the armed conflict in Sierra Leone were bound to respect international humanitarian law. 2.7 Criminal responsibility for international crimes The SCSL issued decisions that contribute to the principle of criminal responsibility. Three types of criminal responsibility for international crimes are examined here: individual criminal responsibility, superior responsibility and command responsibility. 2.7.1 Individual criminal responsibility The Appeals Chamber provided a test to determine whether a violation of international humanitarian law is subject to criminal responsibility. With regards to individual criminal responsibility, the Chamber set specific requirements for a crime to attract individual criminal responsibility under article 6(1) of the Statute of the SCSL. The following are the requirements: ‘the violation must constitute an infringement of a rule of international humanitarian law’; ‘the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met’; ‘the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim […]’ and; ‘the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person 101 Prosecutor v Fofana para 20. 102 Prosecutor v Fofana paras 21-27; see also paras 18-20. 103 Prosecutor v Norman Decision on preliminary motion based on lack of jurisdiction (child recruitment) 31 May 2004 paras 22-23. 104 Prosecutor v Kallon and Kamara para 45.
Prosecution and punishment of international crimes by the Special Court for Sierra Leone 115 breaching the rule’. 105 From this, a violation of a fundamental rule of international law attracts individual criminal responsibility. Taylor was charged with crimes against humanity and war crimes under individual criminal responsibility. 106 Article 6(1) of the Statute of the SCSL sets parameters of personal responsibility for crimes. 107 The SCSL held that article 6(1) does not limit criminal responsibility ‘to only those persons who plan, instigate, order, physically commit a crime or otherwise, aid and abet in its planning, preparation or execution’. It ‘extends beyond that to prohibit the commission of offences through a joint criminal enterprise, in pursuit of the common plan to commit crimes punishable under the Statute.’ 108 This introduces a new development on joint criminal enterprise 109 in international criminal law. 2.7.2 Joint criminal enterprise Joint criminal enterprise is a form of criminal responsibility which is sometimes referred to as ‘common plan’, ‘common purpose’, or ‘common plan liability’. 110 It is a theory of criminal responsibility which requires the prosecutor to prove several elements. 111 Basically, under joint criminal enterprise the prosecutor must prove that ‘a group of people had a common plan, design, or purpose to commit a certain crime’, the accused ‘participated in some fashion’ in the joint common plan to commit a crime and, that the accused ‘intended the object of the common plan’. 112 105 Prosecutor v Norman para 26, but see paras 27-51 (the SCSL referred to ICTY in Prosecutor v Tadic Case IT-94-1-A, Judgment of the Appeals Chamber, Jurisdiction, 15 July 1999 para 94). 106 Prosecutor v Taylor Case summary accompanying the amended indictment paras 1-6, 22, 31-34 and 59. 107 Prosecutor v Kondewa Decision and order on defence preliminary motion for defects in the form of the indictment, 27 November 2003 para 9; Prosecutor v Sesay (Case SCSL- 2003-05-PT); Brima (Case SCSL-2003-07-PT), Gbao (Case SCSL-2003-09-PT), Kamara (Case SCSL-2003-10-PT), Kanu (Case SCSL-2003-13-PT), Decision and order on prosecution motions for joinder, 27 January 2004 paras 22-24; Prosecutor v Norman (Case SCSL-2003-08-PT), Fofana (Case SCSL-2003-11-PT), Kondewa (Case SCSL-2003- 12-PT) Decision and order on prosecution motions for joinder 27 January 2004 para 11. 108 Prosecutor v Norman, Fofana and Kondewa para 130. 109 On joint criminal enterprise, see Bhoke (n 6 above) 179-180; AM Danner ‘Joint criminal enterprise and contemporary international law’ (2004) 98 American Society of International Law Proceedings 186; N Piacente ‘Importance of the joint criminal enterprise doctrine for the ICTY prosecutorial policy’ (2004) 2 Journal of International Criminal Justice 446; AM Danner and JS Martinez ‘Guilty associations: Joint criminal enterprise, command responsibility, and the development of international criminal law’ (2005) 93 California Law Review 75-169. 110 The ICTY first used these terms in Prosecutor v Tadic (Case IT-94-1-A) Judgment 15 July 1999 paras 175, 177, 186, 193, 196, 219-222, 224 and 227. 111 Prosecutor v Fofana and Kondewa paras 206-219 (indicating three categories of joint criminal enterprise). 112 Danner (n 109 above) 187.
Page 1 and 2:
Prosecuting International Crimes in
Page 3 and 4:
1 2 TABLE OF CONTENTS FOREWORD ix C
Page 5 and 6:
6 7 8 6 Relevance of the jurisprude
Page 7 and 8:
12 13 14 4 Conclusion 246 PART IV:
Page 9 and 10:
FOREWORD I write this foreword with
Page 11 and 12:
CONTRIBUTORS Benson Olugbuo is a So
Page 13 and 14:
1 INTRODUCTION Chacha Murungu* & Ja
Page 15 and 16:
Introduction 3 The commission of in
Page 17 and 18:
Introduction 5 Apart from internati
Page 19 and 20:
Introduction 7 resort. The conclusi
Page 21:
PART I: GENERAL ISSUES IN THE PROSE
Page 24 and 25:
12 Chapter 1 oblige states to prose
Page 26 and 27:
14 Chapter 1 3 The obligation to pr
Page 28 and 29:
16 Chapter 1 perpetrators of these
Page 30 and 31:
18 Chapter 1 namely, national, ethn
Page 32 and 33:
20 Chapter 1 the International Crim
Page 34 and 35:
22 Chapter 1 amnesties for serious
Page 36 and 37:
24 Chapter 1 payment of compensatio
Page 38 and 39:
26 Chapter 1 punish international c
Page 40 and 41:
28 Chapter 1 notorious violations o
Page 42 and 43:
30 Chapter 1 in the case of the cou
Page 45 and 46:
CHAPTER 2 1 Introduction IMMUNITY O
Page 47 and 48:
Immunity of state officials and pro
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73:
PART II: INTERNATIONAL COURTS AND P
Page 76 and 77: 64 Chapter 3 evidentiary areas of i
Page 78 and 79: 66 Chapter 3 pioneering effort in a
Page 80 and 81: 68 Chapter 3 particular group, the
Page 82 and 83: 70 Chapter 3 Indisputably, the abse
Page 84 and 85: 72 Chapter 3 The Akayesu judgment,
Page 86 and 87: 74 Chapter 3 particularly in light
Page 88 and 89: 76 Chapter 3 for the destruction of
Page 90 and 91: 78 Chapter 3 being of persons, in p
Page 92 and 93: 80 Chapter 3 conflict - the ‘war
Page 94 and 95: 82 Chapter 3 Chamber had itself fou
Page 96 and 97: 84 Chapter 3 found in the first pla
Page 98 and 99: 86 Chapter 3 of the Statute than
Page 100 and 101: 88 Chapter 3 The majority’s appro
Page 102 and 103: 90 Chapter 3 duties as a superior e
Page 104 and 105: 92 Chapter 3 present at the trial,
Page 106 and 107: 94 Chapter 3 international crimes.
Page 108 and 109: 96 Chapter 3 advanced nor argued an
Page 110 and 111: 98 Chapter 4 Unlike the Internation
Page 112 and 113: 100 Chapter 4 years imprisonment wh
Page 114 and 115: 102 Chapter 4 The Prosecutor’s de
Page 116 and 117: 104 Chapter 4 2.3 SCSL and the Trut
Page 118 and 119: 106 Chapter 4 who bear the greatest
Page 120 and 121: 108 Chapter 4 responsibility for in
Page 122 and 123: 110 Chapter 4 population’. 76 The
Page 124 and 125: 112 Chapter 4 2.5.1 Acts of terrori
Page 128 and 129: 116 Chapter 4 Essentially, there mu
Page 130 and 131: 118 Chapter 4 conscription of child
Page 132 and 133: 120 Chapter 5 The United Nations Se
Page 134 and 135: 122 Chapter 5 There are two main th
Page 136 and 137: 124 Chapter 5 goal of rehabilitatio
Page 138 and 139: 126 Chapter 5 that punitur quia pec
Page 140 and 141: 128 Chapter 5 circumstances of the
Page 142 and 143: 130 Chapter 5 retribution, deterren
Page 144 and 145: 132 Chapter 5 Another argument in t
Page 146 and 147: 134 Chapter 5 children. 111 Those o
Page 148 and 149: 136 Chapter 5 assessed’. 119 In m
Page 150 and 151: 138 Chapter 5 that there were no mi
Page 152 and 153: 140 Chapter 5 Santigie Borbor Kanu
Page 154 and 155: 142 Chapter 5 Chamber found no reas
Page 156 and 157: 144 Chapter 5 has adopted a tone th
Page 158 and 159: 146 Chapter 6 However, with the adv
Page 160 and 161: 148 Chapter 6 2. 1 Africa-ICC relat
Page 162 and 163: 150 Chapter 6 national elections, c
Page 164 and 165: 152 Chapter 6 resolution may be ill
Page 166 and 167: 154 Chapter 6 He has added that his
Page 168 and 169: 156 Chapter 6 out of a desire to av
Page 170 and 171: 158 Chapter 6 (b) US legislation to
Page 172 and 173: 160 Chapter 6 encourage countries o
Page 175 and 176: CHAPTER 7 1 Introduction THE TRIAL
Page 177 and 178:
The trial of Mengistu and other Der
Page 179 and 180:
Page 181 and 182:
Page 183 and 184:
Page 185 and 186:
Page 187 and 188:
Page 189 and 190:
Page 191 and 192:
Page 193 and 194:
Page 195 and 196:
Page 197 and 198:
CHAPTER 8 1 Introduction THE TRIAL
Page 199 and 200:
The trial of Hissène Habré in Sen
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
CHAPTER 9 1 Introduction PROSECUTIN
Page 211 and 212:
2 Genesis of the conflict Prosecuti
Page 213 and 214:
Prosecuting international crimes by
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
Page 227 and 228:
Page 229 and 230:
Page 231 and 232:
Page 233 and 234:
CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236:
Genocide as prosecuted by the ICTR
Page 237 and 238:
Page 239 and 240:
Page 241 and 242:
Page 243:
8 Reparations Genocide as prosecute
Page 246 and 247:
234 Chapter 11 losses in excess of
Page 248 and 249:
236 Chapter 11 piracy’. 14 In add
Page 250 and 251:
238 Chapter 11 aircraft in accordan
Page 252 and 253:
240 Chapter 11 and it is easy to av
Page 254 and 255:
242 Chapter 11 phone. They took ove
Page 256 and 257:
244 Chapter 11 3.3 Capacity problem
Page 258 and 259:
246 Chapter 11 support us. They did
Page 261 and 262:
CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264:
Positive complementarity and the fi
Page 265 and 266:
Page 267 and 268:
Page 269 and 270:
Page 271 and 272:
Page 273 and 274:
Page 275 and 276:
Page 277 and 278:
Page 279 and 280:
Page 281 and 282:
Page 283 and 284:
Page 285 and 286:
Page 287:
Page 290 and 291:
278 Chapter 13 international crimin
Page 292 and 293:
280 Chapter 13 Africa’s involveme
Page 294 and 295:
282 Chapter 13 countries has tended
Page 296 and 297:
284 Chapter 13 passed domesticating
Page 298 and 299:
286 Chapter 13 crimes within their
Page 300 and 301:
288 Chapter 13 offences. Procedural
Page 302 and 303:
290 Chapter 13 Constitution, 62 thi
Page 304 and 305:
292 Chapter 13 4.1.3 The law regula
Page 306 and 307:
294 Chapter 13 either reciprocal or
Page 308 and 309:
296 Chapter 13 committed to fightin
Page 310 and 311:
298 Chapter 13 The procedure for th
Page 312 and 313:
300 Chapter 13 trial. While the Rom
Page 314 and 315:
302 Chapter 13 Having draft legisla
Page 317 and 318:
CHAPTER 14 Lee 1 Introduction IMPLE
Page 319 and 320:
Implementation of the Rome Statute
Page 321 and 322:
Page 323 and 324:
Page 325 and 326:
Page 327 and 328:
Page 329 and 330:
Page 331 and 332:
Page 333 and 334:
Page 335 and 336:
Page 337 and 338:
Page 339 and 340:
Page 341 and 342:
Page 343 and 344:
Books SELECTED BIBLIOGRAPHY Allen,
Page 345 and 346:
Selected bibliography 333 Neier A (
Page 347 and 348:
Selected bibliography 335 Chitiyo,
Page 349 and 350:
Selected bibliography 337 Jalloh, C
Page 351 and 352:
Selected bibliography 339 Roht-Arri
Page 353 and 354:
Selected bibliography 341 Report on
Page 355 and 356:
Table of cases 343 Right of Passage
Page 357 and 358:
Table of cases 345 Prosecutor v Vas
Page 359 and 360:
Table of cases 347 Muhimana v Prose
Page 361 and 362:
Table of cases 349 Prosecutor v Rut
Page 363 and 364:
Table of cases 351 and the Governme
Page 365 and 366:
Table of cases 353 Prosecutor v Ses
Page 367 and 368:
Table of cases 355 GAOR, 45th Sess.
Page 369:
Table of cases 357 R v Bow Street M
Page 372 and 373:
360 Subject index Domestication ...
Page 374:
362 Subject index S Selective justi
show all

Prosecuting International Crimes in Africa - PULP - University of ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?