Law of War Workshop Deskbook - Higgins Counterterrorism ...

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. Criminal vs. military tribunalsc. Created by UNSC resolutiond. Stricter due process provisionse. Prosecute all parties to the conflictf. Parties to conflict can not sit in judgmentg. Authorized to demand cooperation of all UN Member states, not justparties to treaty (Dayton Accord)h. Provides for protection of witnesses and victimsi. Provides for an appellate chamber (five judges)2. International Criminal Tribunal for the Former Yugoslaviaa. Created to assist in restoring peace and stability in the region through theadministration of justice.b. Pursuant to UNSC Res. 827, “The Statute,” the Tribunal has the authorityto prosecute persons for serious violations of international humanitarianlaw committed in the former Yugoslavia since 1991, including gravebreaches of the 1949 Geneva Conventions, violations of the laws orcustoms of war, genocide, and crimes against humanity. The statute alsoestablishes individual command responsibility under a theory of superioror command responsibility.c. Eleven judges were elected by the UN General Assembly from a list ofnominees submitted by the UNSC on September 15, 1993. Prosecutorappointed on August 15, 1994, by the UNSC. Judges are from countriesother than those involved in conflict. Sit for four-year terms. First termsexpired Nov. 1997. There are currently 14 judges, 15 authorized, and 729staff members on the court.d. Sits in The Hague, Netherlands in a modern insurance building nowrented by the UN. Modern bright facility. Totally computerized, library,law clerks, and staff. The ICTY’s budget has grown from $276,000 in1993 to $95,942,600. GAO has indicated the court needs more money.Report to the Chairman, Committee on Foreign Relations, GAO, WarCrimes Tribunal’s Workload Exceeds Capacity, B-27946 (June 2, 1998).Chapter 8War Crimes and Command Responsibility188
e. Since its inception, 94 individuals have been publicly indicted in 67public indictments. Eighteen have had charges dropped against them,seven indictees have died, and one has been acquitted. Thirty-nineaccuseds are currently in some form of proceeding before the court.Twelve accuseds are at the appeal stage, six are in on-going trials, sixteenare at the pre-trial stage, and two have begun to serve their sentences. Ofthose in custody, 19 have been captured by international forces, 12voluntarily surrendered, and nine were arrested by national police.f. Summary of Trials:(1) Drazen Erdemovic, 29 November 1996, pleaded guilty to a crimeagainst humanity and was sentenced to 10 years. The AppellateChamber found that his plea was not informed and remitted his case tothe Trial Chamber. He subsequently reentered a plea on 5 March 1998to war crimes and was sentenced to 5 years. He is currently servicinghis sentence in Norway.(2) Dusko Tadic, 7 May 1997, was found guilty of 11 counts of violationsof the laws or customs of war and crimes against humanity, andsentenced to 20 years. Both the Defense and Prosecution appealed.On July 15, 1999, the Appellate Chamber reversed the TrialChamber’s assertion that the conflict was not international in natureand found Tadic guilty of grave breaches of the Geneva Conventionsas well. Tadic was ultimately sentenced to 20 years.(3) Goran Jelsic, pleaded guilty to31 counts of crimes against humanityand violations of the laws or customs of war. He was found not guiltyof the crime of genocide. On December 20, 1999, he was sentenced to40 years in prison. He is now awaiting appeal.(4) Zdravko Mucic, (co-defendant in the Celebici village case) 16November 1998, found guilty on 13 counts of grave breaches of theGeneva Conventions and violations of the laws or customs of war, andwas sentenced to 7 years. Both the prosecution and defense haveappealed.(5) Hazim Delic, (co-defendant in the Celebici village case) 16 November1998, found guilty of 13 counts of grave breaches of the GenevaConventions and violations of the laws or customs of war, and was189Chapter 8War Crimes and Command Responsibility
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INTERNATIONAL AND OPERATIONAL LAW D
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HRAnnex to Hague Convention No. IV
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2. War versus Armed Conflict. Histo
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1. Jus ad Bellum: Legitimate War. L
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c. The intention must be the advanc
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. EXAMPLE: National leaders began t
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1. Early Charter Period. Immediatel
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CHAPTER 2THE UNITED NATIONS AND LEG
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C. Secretariat.collective security
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c. Note that the prohibition refers
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(ii)(iii)Blockade;Land, sea or air
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c. “Inherent right” of self def
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1. History, background and purpose.
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CHAPTER 3LEGAL FRAMEWORK OF THE LAW
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(1) GW: Wounded and Sick in the Fie
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1. Common Article 2 -- Internationa
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. Providing for the interjection of
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B. Protecting Power. This refers to
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APPENDIX ACONFLICT SPECTRUMInternal
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(as defined in subsection 3.2., bel
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5.5.2. Ensure that programs are imp
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eport, established in Joint Pub 1-0
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APPENDIX CIMPLEMENTATION OF THE DOD
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(c) The Director for Operations (J-
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1. Conducting appropriate prelimina
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CHAPTER 4THE 1949 GENEVA CONVENTION
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B. Civilians.1. Not expressly cover
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. The second prohibition was design
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Conqueror did not assist the shipwr
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H. Voluntary Participation of Local
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1,000 PWs. Those not required will
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(1) In Afghanistan, the Soviets eng
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. Exception - “in case of urgent
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(2) Medical aircraft (and vehicles)
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1. Red Cross. The distinctive emble
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CHAPTER 5PRISONERS OF WAR AND DETAI
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of attrition and EPW exchanges did
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K. 1977 Additional Protocols to the
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matter where they were located, bec
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and to be commanded by a person res
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(2) The standard of proof is “pre
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. Implied - type of mission.c. Inhe
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actions were perpetrated by the ene
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D. Transfer of POWs (Art. 46 - 48,
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H. Escape.(1) Military Commissions.
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a. CW2 Hall incident 91(1) Probable
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2. But can be punitive by analogy u
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1 See WILLIAM FLORY, PRISONERS OF W
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25 See BARRY E. CARTER AND PHILLIP
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to the rear. EPWs can be on the mov
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63 See Ministry of Defence, United
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78 See Art. 40 & 51, GCC for an ana
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97 See Scott R. Morris, America’s
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R 27-13APPENDIXUNITED STATES CENTRA
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R 27-13c. The GPW provides that any
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R 27-13g. The servicing judge advoc
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R 27-13particular where such person
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R 27-13APPENDIX CTRIBUNAL PROCEDURE
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R 27-13d. Voting. The decisions of
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R 27-13APPENDIX DREPORT OF TRIBUNAL
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R 27-13APPENDIX EFORM OF OATH FOR A
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R 27-13(That you have committed a b
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CHAPTER 6PROTECTION OF CIVILIANS DU
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targeting method) benefit from rest
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c. The result: Protocol I. The prim
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actual harm to the personnel and eq
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principle common to all four Geneva
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. In addition to providing for the
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(1) Attacks not directed as a speci
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Page 149 and 150: 2. SPECIFIC PROTECTIONS - LOCATION
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Page 155 and 156: territory the civilian loses his st
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Page 159 and 160: 5. The U.S. specifically objects to
Page 161 and 162: Army Pamphlet 27-161-2, 12 (1962) [
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Page 165 and 166: . Geneva Convention Definition. (GP
Page 167 and 168: on a hostile mission. Parachutists,
Page 169 and 170: natural environment against long-te
Page 171 and 172: (2) Enemy has duty to indicate pres
Page 173 and 174: 2. Weapons may be illegal:a. Per se
Page 175 and 176: 2. Booby Traps. Definition: A devic
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Page 179 and 180: (1) Article I. Parties agree to nev
Page 181 and 182: (2) The Senate’s resolution of ad
Page 183 and 184: 2. Land Warfare. Creation of fictit
Page 185 and 186: 2. Feigning and Misuse. Distinguish
Page 187 and 188: proceeded to capture French Peaceke
Page 189 and 190: A. PrinciplesB. TargetsC. WeaponsD.
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Page 193 and 194: in many codes of chivalry, rape was
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Page 201 and 202: consents. This dual system of conse
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Page 211 and 212: D. Army Policy. “The commander is
Page 213 and 214: A. International v. Domestic Crimes
Page 215 and 216: C. The Choice of Forum(c) Violation
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Page 219 and 220: inevitable. No Court will punish a
Page 221 and 222: j. International Criminal Court. Th
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Page 225 and 226: 6. Using authority derived from sta
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Page 229 and 230: conflict, but place soldiers in sit
Page 231 and 232: (3) This situation results in a vac
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Page 241 and 242: (1) Attempt to identify those count
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collection, burial, and accountabil
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2. Detainment is Typically Authoriz
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(6) Categorization and Segregation.
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L. Detainees retain all the civil r
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occupied territory. Accordingly, if
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APPENDIX CCPL AND DISPLACED PERSONS
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. Application conditioned upon posi
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safety of the requester against imm
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CHAPTER 10LAW OF WAR: METHODS OF IN
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E. Reducing The Credibility Gap. Th
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Thereafter, judge advocates should
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where soldiers are walked through t
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B. Be Enthusiastic - Be an Obvious
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. Violations of the Law of War Freq
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3. “If we are on a sensitive miss
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periodic review and evaluation, par
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action) designed to discourage this
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eviewing ROE, to ensure that miscon
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from a Dum Dum would be the same or
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APPENDIX BEXTRACT FROM AR 3504-41,
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